Ethics and Legalities in Nursing

https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Vicki Thornley, MSN, RN, CNE and Alicia Anger MSN,RN N-401 Fall 2010

Objectives
Definitions as applied to ethical decisions nurses make during care of clients ANA Code of ethics Advance Directives - MPA Ethical dilemma steps

Foundation
Ethics philosophical ideals of right and wrong behavior. Ethics is not religion or law Nurses have a duty to practice ethically and morally Tells us how human beings should behave, not necessarily what they do. Not a religion, not law, but both of these can be the basis of ethical decisions that you make. The word duty is a legal term

Ethical Issues
Moral uncertainty/conflict
When the nurse is unsure which moral principle to apply, or even what the problem is. Common with new nurses, theyre not sure what they are supposed to be doing

Moral distress
When the individual knows the right thing to do but organizational constraints keep them from doing it

Moral outrage
An individual witnesses an immoral act by another but feels powerless to stop it

Moral/ethical dilemma
Occurs when two or more clear principles apply but they support inconsistent courses of action

Self-awareness
Not an ethical issue, but is absolutely vital in ethical decision making

Ethical Frameworks
Utilitarian most good, least harm
Most common approach, First do no harm is related to this. Attempts to produce the greatest good with the least harm.

Rights based best protects the rights and respects the moral rights of those affected
Begins with idea of human dignity and freedom of choice. The pt has the right to make the decision.

Duty based- duty to do or to refrain from doing something

Decisions are made because there is duty!

Common good best for community/society

Decisions should be made on what is good for the community as a whole, not necessarily for the individual. Where many of our nations laws are base

Virtue actions consistent with certain ideal virtues

Decisions should be directed at maintaining virtues (honesty, courage, compassion, etc.). A person using this approach may ask themselves, If I carry out these actions, what kind of person will I be?

Principles Ethical Reasoning

Autonomy Beneficence Nonmaleficence Confidentiality Double Effect Fidelity Justice Paternalism Respect for Persons Sanctity of Life Veracity

Autonomy
Definition: autos = self, nomos = rule
Individual rights Privacy Freedom of choice Pt has the right to make decisions for themselves. May see this come up with consent for treatment issues, informed consent. Pt has right to know procedure, complications, other options, that they can opt to not have the procedure/treatment. Framework is rights based

Beneficence & Nonmaleficence

Duty to do good
goodness, kindness, charity

Includes nonmaleficence Centerpiece for caring

Duty: NOT TO CAUSE harm Duty: PREVENT harm Duty: REMOVE harm More binding than beneficence
Because youre going beyond just trying to do good to that pt, youre trying to prevent harm

Confidentiality
Keep privileged information private Exceptions
Protecting one persons privacy harms another or threatens social good (direct threat to another person) Drug abuse in employees, elder and child abuse

HIPAA

Double Effect
Some actions can be morally justified even though consequences may be a mixture of good and evil Must meet 4 criteria:
The action itself is morally good or neutral The agent intends the good effect and not the evil (the evil may be foreseen but not intended) The good is not achieved by the evil There is no favorable balance of good over evil

Fidelity
Duty to be faithful to ones commitments
includes implicit and explicit promises Make a promise, follow thru

Implicit those promises that are implied, not verbally communicated

Like when pt comes into the hospital, they expect to be cared for

Explicit those that we verbally communicate

Like if you tell them youll be back with pain meds, youd better come back

Justice
Seeks fairness Distributive Justice More specifically, Concepts distributive Equally disbursed justice refers to according to distribution of Need benefits and Effort burdens Societal contribution Merit Legal entitlement

Paternalism
When one individual assumes the right to make decisions for another Limits freedom of choice Think about parents making decisions for children Ex. Withholding pertinent information from a pt. Like elderly dx with terminal cancer, and family asks to not tell them that its terminal so they will still be motivated to fight

Respect for Persons

Closely tied to autonomy Promotes ability of individuals to make autonomous choices and should be treated accordingly Autonomy is preserved thru advanced directives.

Sanctity of Life
Life is the highest good All forms of life, including mere biologic existence, should take precedence over external criteria for judging quality of life If life is the highest good, is it ethical to keep a brain dead person alive?

Veracity
The obligation to tell the truth and not to lie or deceive others

Ethics and Professional Practice

ANA Code of ethics & ICN Code TX BON Rules & Regs NCSBN Professional Boundaries Informed consent Durable power of attorney for healthcare guardian Euthanasia Assisted suicide Death Disasters

American Nurses Association (ANA) Code of Ethics

Applies to all nurses in all healthcare settings Ethical principles agreed upon by members of the nursing profession Sets standards of conduct and behaviors for nurses
http://www.nursingworld.org/mainmenucategories/et hicsstandards/codeofethicsfornurses

ANA Code of Ethics Key Points

Applies in course of professional practice:
Primary commitment is to patient (individual, family or community) Demonstrates compassion and respect for all patients regardless of patient status Promotes the health and welfare of patients Accountable for individual practice. Maintains and increases own knowledge base Works to improve healthcare environment for providers and patients

ICN Code of Ethics

International Council of Nurses Code of Ethics 4 fundamental responsibilities of Nurses Promote health Prevent illness Restore health Alleviate suffering http://www.icn.ch/icncode.pdf

Nurses Rights in Ethical Situations

Nurse has the right to refuse to participate in giving care to a client if they disagree with care on ethical grounds.
Upheld by ANA Assure client is not abandoned for care The Joint Commission (TJC) requires employers to establish policies and mechanisms to address staff requests not to participate in aspects of care that conflict with cultural values or religious beliefs.

Nursing Practice Regulations

TBON Texas Board of Nursing
Regulates nursing practice in Texas Creates Rules and Regulations to administer the Nurse Practice Act (NPA) Describes rules of conduct for nurses
Rule 213.27 Good Professional Character Rule 217.11 Standards of Practice Rule 217.12 Unprofessional Conduct

http://info.sos.state.tx.us/pls/pub/readtac$ext.View TAC?tac_view=3&ti=22&pt=11

NCSBN Professional Boundaries

Concepts of Professional Boundaries Boundaries: Space between nurses power and
clients vulnerability

Crossings: Brief excursions across boundaries that

may be inadvertent, thoughtless, or even purposeful if done to meet a specific therapeutic need
https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

NCSBN Professional Boundaries

Concepts of Professional Boundaries Violations: results when there is confusion
between the needs of the nurse and those of the client.

Sexual misconduct: extreme form of violation that

is seductive, sexually demeaning, harassing or interpreted as sexual by the client.
https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Identifying Boundary Crossings

Excessive self-disclosure
When the nurse discusses personal feelings or aspects of their personal life in front of the pt

Secretive behavior
When the nurse keeps secrets with the client or when the nurse becomes guarded when someone questions their interactions

super nurse
When the nurse believes only he or she can meet the needs of the client

Selective communication
When the nurse fails to explain actions or actions of care

Identifying Boundary Crossings

Singled out client treatment/client attention to the nurse
Nurse spends inappropriate amts of time with the client, client may give gifts to the nurse

Flirtations
Never, ever, appropriate, or ok, ever, ever

You and me against the world behavior

Nurse views client in a protective manner

Failure to protect the client

Nurse doesnt recognize sexual feelings towards the client

Nurses Challenge
Be aware Be cognizant of feelings and behaviors Be observant of the behavior of other professionals Always act in the best interest of the client

https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Informed Consent
Core underlying value is patient autonomy Physician / practitioner obtains consent Nurses role: witness / monitor Emergency consent is presumed when patient unable to provide Informed consent is a process that people go thru, not just a paper. Nurses role is to make sure pt understands everything and that the person that signs is the person who needs to be signing! The nurse cant go in and explain the procedure again, if you contradict what the doc told the pt, youre in big trouble! Dont do it!

Capacity to Form Consent

Decision-making capacity (not competency) determined by:
Appreciation of right to make the choice Understanding of risks/benefits of procedure Understanding of risks/benefits of opting out of procedure Ability to communicate decision
Communication may not always be verbal, can be written or whatever Needs to have interpreter avl! Cant just use the family or whatever Use layman jargon. Normal words Dont say layman jargon.

Advance Directives
Include
Directive to Physician and Family or Surrogate

Medical Power of Attorney

Most common. Allows pt to document wishes for tx or withdrawal, also commonly known as Living Will Allows the pt to designate another person as their decision maker Allows competent adults to refuse life sustaining procedures when out of the hospital setting. Can include not wanting to be taken to ER, let me sit here and die Allows a court to determine incapacity and allows the pt to refuse electro convulsive therapy (ECT) and psychoactive drugs

Out of Hospital Do-Not-Resuscitate Order Declaration of Mental Health Treatment

Sometime generically called Living Will Not same as DNR (do not resuscitate)

Advanced Directives are documents that state in writing the pts wishes for healthcare interventions if they should become incapacitated.

These are written during hospitalization after the doc and the pt (or pt surrogate) decide to withdrawal life sustaining treatments.

Other Contingencies
Directives unavailable / never done
Autonomy versus best interest of clients Substituted judgment
Legal standard that presumes the surrogate is capable of making decisions for that pt

Dementia clients
Dementia diagnosis doesnt necessarily mean the pt is incapable of making their own decisions. Esp in the first few stages of dementia. Pt is very alert and very aware and very much can make that decision for themselves.

Withholding/Withdrawing Care
Can withhold inhumane treatment if it is virtually futile in extending life usually DNR Allowing to die vs making die

Euthanasia
Definition intentional termination of life (at the request of that person who wishes to die) Active vs. Passive
Generally illegal May be legal under certain circumstances Active involves purposefully causing the persons death (doc or nurse). Dr. Kevorkian. Usually involved with law problems Passive involves hastening of death by altering some form of support, taking a pt off a vent, generally accepted by medical community
Doctrine of Double Effect (the whole intent of the act, thing) Do a thing with one intent, but causes something else to happen morphine OD Procedure used in dying pts to relieve suffering. Pts who are in extreme pain may chose terminal sedation

Terminal sedation

Assisted Suicide
Patient actively seeks physician/nurse to help them commit suicide Criminal offense in all states but Oregon, Washington, and Montana Usually pt is given prescriptions in amts that are legal and the pt decides if they want to use it.

Defining Death
Uniform Determination of Death Act patient is dead if any one of the following conditions are met:
Cardiopulmonary death Neurological death
Whole brain death Flat EEG Not PVS (persistent vegetative state)

Ethical Dilemmas
the action or situation involves actual or potential harm to someone or some thing a possibility of a violation of what we generally consider right or good is this issue about more than what is legal or what is most efficient?

How to Process an Ethical Dilemma

1. 2. 3. 4. 5. Determine whether or not a dilemma exists Gather all relevant information Reflect on your values on the issues Verbalize problem Consider all possible courses of action including referral to ethics committee 6. Negotiate outcome 7. Evaluate action, not the outcome.

Conclusion
Know yourself and your values Protect your patient by intervening if you identify an ethical question Know your facility policy for access to the ethics committee Know your responsibilities with regard to informed consent Respect the patients advance directives

Excerpts: ANA Code of Ethics

The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems.

Excerpts (contd)
The nurses primary commitment is to the patient, whether an individual, family, group, or community.

The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient.

Excerpts (contd)
The nurse is responsible and accountable for individual nursing practice; and determines the appropriate delegation of tasks consistent with the nurses obligation to provide optimum patient care.

Excerpts (contd)
The nurse owes the same duties to self as to others, including the responsibility to preserve integrity and safety, to maintain competence, and to continue personal and professional growth.

Excerpts (contd)
The nurse participates in establishing, maintaining, and improving health care environments and conditions of employment conductive to the provision of quality health care and consistent with the values of the profession through individual and collective action.

Nursing Legalities

Alicia Anger, MSN, RN N-401 Fall 2010

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Learning Outcomes
Describe sources of law that affect nursing practice Professional negligence Avoiding Malpractice claims Causes for suspension/revocation of license Legal responsibilities of Nurse Leaders

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Distinction between Law and Ethics

Concepts Source Law External Ethics Internal

Concerns
Interests Enforcements

Conduct and Actions Society

Courts, BON

Motive, attitude, culture Individual

Ethics Committee and professional organizations

What is law?
Law
Rules of conduct Authored & enforced by formal authorities

Hold people Accountable for compliance

Purpose of Nursing Law

Protect patient and nurse
Scope of practice (define it)
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Sources of Law
Constitution: establishes a basis for a governing system (highest law that gives authority to the other branches) Statutes: laws that govern Administrative agencies: given authority to create rules and regulations to enforce statutes (like texas board of nursing) Court decisions: interpret statutes and determine consequences

Types of Court Cases & Laws

Criminal law: crimes committed against an individual or society,
innocent until proven guilty beyond a reasonable doubt. Consequences range from fine to jail to death penalty

Civil law: one individual sues another for money b/c of a

perceived loss. Guilty verdict is based on the belief that the accused is more likely than not to have caused the injuries. Consequence is usually $$

Administrative law: individual is sued by a state/federal

agency responsible for enforcing statutes. Based on a clear and convincing standard.
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Professional Negligence
Negligence: the omission to do something that a reasonable and
prudent person in a reasonable situation would or would not do

Prudent:

the average judgment, foresight, intelligence and skill

expected of a person of similar training or experience

Malpractice:

failure of a person with professional training to act in a

reasonable and prudent manner

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Professional Negligence
Five components necessary for professional negligence to occur:
1. Standard of care 2. Failure to meet standard 3. Foreseeability of harm 4. Correlation b/t care and harm must be proven 5. Actual patient injury must occur
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Professional Negligence
Reducing the Risk: Know the law Document everything Refrain from negative comments Question authority Stay educated
http://www.nurseweek.com/features/00-05/malpract.html

Professional Negligence
Reducing the Risk cont.: Manage risks Dont hurry through discharge Be discreet Use restraints wisely Be kind
http://www.nurseweek.com/features/00-05/malpract.html

Liability
Liable: to be legally responsible by law Personal liability: every person is liable for his/her own conduct Joint liability: nurse, physician, and employing organization are liable Respondeat superior liability: the master is responsible for the acts of his servants

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Claims Against Nurses

Inadequate charting. Inadequate communication w/ HCP or supervisors about changes in pt condition Leaving potentially harmful items within patient

reach
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Claims Against Nurses

Unattended pt falls Inaccurate counting of operative instruments & sponges Misidentifying patients for medications, surgeries & tests

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Incident Reports
Incident reports cant be used in court, unless they (lawyers and what not) find out that it exists. They are intended for internal shit only, within the hospital, monitoring trends, prevention of future occurrences, etc. Dont put them in the chart! You can document the fall, what you did to make it better, but not that you filled out the actual incident report form. Dont tell the pt or family that youre filling one out! Youre not keeping them from any information about the incident, youre just not telling them about the form Dont document on pts chart that you filled one out! Notify nurse management teams and what not when you fill it out. Remember, there is no law about having to fill out an incident report. Its just the hospitals policy to keep tabs on all the shit that goes wrong inside its walls

Incident Reports
Unusual / unexpected incidents Do
Document incident information, treatment & follow up on chart Notify Nsg Management & Risk Management DO NOT Leave copy on chart Discuss with pt / family Document form completion in chart
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Intentional Torts
Assault & Battery
Assault is the behavior that makes a person fearful of harm Battery is an intentional physical contact with a person that causes injury

False Imprisonment
Any unlawful confinement within fixed boundaries, can be physical, emotional, or chemical

Defamation of character (slander)

Communicating to a 3rd party information that can hurt character, self esteem, blah blah blah. Being truthful reduces risks of being charged with this

Invasion of privacy
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Types of Consent
Informed consent Implied consent
Pt unable to consent Treatment is in patients best interest

Express consent
Witness pt signature Assure pt received information
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Informed Consent
Language pt understands Patient competency Requires full disclosure (procedure process,

risks and benefits)

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Medical Records
Although the patient owns the information in

the medical record, the actual record belongs to

the facility that originally made record & is storing it

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Causes of License Suspension

Professional negligence

Practicing nursing w/o a license

Obtain license by fraud Felony convictions
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Causes of License Suspension

Not reporting substandard medical or nursing care Providing patient care under the influence of drugs/alcohol Giving narcotics w/o order Falsely portraying self to public or any HCP as a nurse

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Legal Responsibilities of a Nurse Leader

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Legal Responsibilities of the Nurse Leader

Reporting dangerous understaffing
Texas passed law saying you have to have rules and policies set up and in place in case staffing issues arise

Ensuring staff credentials and qualifications Quality Control of nursing practice Equipment operation by staff Reporting substandard care Responsibility to be fair and nondiscriminatory
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Malpractice for Nurse Leader

Assignments
Pt assignments

Delegation Supervision Orientation & Education Evaluation Staffing

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The Patient Self-Determination Act

Requires health care organizations that receive
federal funding to provide education for staff and

patients on issues concerning treatment and end-of-life

issues. (They have to ask about Advanced Directives

and what not on admission and inform them about it)

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Whistleblower Act
To prevent employers from taking retaliatory action against nurses such as suspension, demotion, harassment or discharge for reporting improper patient care or business practices

Good Samaritan Act

Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that: Care is provided at the scene of emergency The care is not grossly negligent

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Health Insurance Portability and Accountability Act

Protects the privacy of health information Administrative Simplification plan
All related to electronic medical records, simplifying exchange of info and what not, by 2014 all hospitals have to have this

Privacy Rules

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Diverse Workforce
Title VII (Civil Rights Act-1964): Protects against
discrimination based on race, color, creed, national origin, religion or sex

Age Discrimination in Employment: no

discrimination over age 40

American with Disabilities Act: no

discrimination against physical or mental impairment regarding hiring
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Diverse Workforce
Equal Pay Act: no discrimination against women Occupational Safety & Health Act: safe and
healthy work environment

Family & Medical Leave Act: provides job

security for taking leave of absence

Joint Commission
Independent not for profit organization that accredits and certifies healthcare organizations Purpose: continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value
http://www.jointcommission.org/AboutUs/

Joint Commission
National Patient Safety Goals Improve accuracy of patient identification Improve the effectiveness of communication among caregivers Improve the safety of using medications Reduce the risk of healthcare associated infections
http://www.jointcommission.org/AboutUs/

Joint Commission
National Patient Safety Goals cont.:
Accurately and completely reconcile medications across the continuum of care Reduce the risk of patient harm resulting from falls Prevent healthcare associated pressure ulcers The organization identifies safety risks inherent in its patient population Universal protocol
http://www.jointcommission.org/AboutUs/

Centers for Medicare & Medicaid

The Centers for Medicare & Medicaid Services (CMS) is a branch of the U.S. Department of Health and Human Services. CMS is the federal agency that administers the Medicare program and monitors the Medicaid programs offered by each state.
http://www.cms.gov/

Centers for Medicare & Medicaid

Works closely with TJC to maintain patient safety Reimburses according to meeting standards of care Healthcare-associated infections Hospital-acquired conditions
http://www.cms.gov/

References Potter, P. A., & Perry, A.G. (2009) Fundamentals of Nursing (7th ed.). Canada: Mosby. Smeltzer, S. C., & Bare, B. G. (2008). Brunner & Suddarth's textbook of medical-surgical nursing (11th ed.). Philadelphia, PA: Lippincott Markkula Center for Applied Bioethics. http://www.scu.edu/ethics Texas Engineering Extension Service (TEEX), Center for Disease Control and Prevention (CDC), The Texas A&M University System (TAMUS), & National Emergency Response and Rescue Training Center (NERRTC). (2003). Integrated Health and Medical WMD Training Program. (Original work published 2001, Texas Engineering Extension Service (TEEX), College Station, TX. Marquis, B. & Huston,C. (2009) Leadership roles and management functions in nursing (6th ed). Philadelphia, PA: LIppincott