Chapter 3: Legal Issues

1 COMMON LAW

1.1 M’NAGHTEN RULE People who don’t understand the nature and implications of murderous actions because of

insanity cannot be held legally accountable for murder

1.2 WYATT V. STICKNEY Confirmed a right to treatment

1.3 ROGERS V. OKIN Determined right to refuse treatment

1.4 TARASOFF V. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Ruled that mental health professionals have a duty to warn of threats of harm to others

2 CIVIL LAW

2.1 NEGLIGENCE Failure to do or not to do what a reasonably careful person would do under the circumstances Careless; departure from the standard of conduct generally imposed Four elements that must be present:

o Duty to careo Obligation of reasonable careo Breach of dutyo Injury caused by breach of duty

2.2 DUTY TO CARE A legal obligation of care, performance, or observance imposed on a person who is in a position

to safeguard the rights of others

2.3 REASONABLE CARE The degree of skill, care, and knowledge ordinarily possessed and exercised by other nurses in

the care and treatment of patients

2.4 BREACH OF DUTY Failure to conform to or the departure from a required duty of care owed to a person

2.5 PROXIMATE CAUSE Reasonable connection exists between the negligent conduct and the resulting damages Negligence must be a substantial factor causing the injury Foreseeability: the reasonable anticipation that harm or injury is likely to result from an act or

omission to act

2.6 MALPRACTICE Professional negligence Failure to take measures to prevent harm to patients or a failure to maintain the standard of

care

2.7 NURSING DELEGATION Nurse should know and follow local hospital procedures within scope and authority Ensure the UAP assigned has been fully trained and is qualified Know the limitations and responsibilities of nursing practice in the state

2.8 DUTY TO WARN OTHERS A nurse who is aware of a patient’s intention to cause harm to self or others must communicate

this information to other professionals Should be discussed with the clinical team before taking action to ensure that patient’s rights

are balanced Documentation in the patient’s record is crucial for effective communication

2.9 ASSAULT The deliberate threat coupled with the apparent ability to do physical harm to another No actual contact Verbally threatening to force the patient to take meds against the patient’s will

2.10BATTERY Intentional touching of another person Violates the physical security of another Force used in the unlawful detention of a patient

2.11FALSE IMPRISONMENT The unlawful restraint of an individual’s personal liberty Unlawful restraint or confinement Necessity: a person who is physically confined to a given area experiences a reasonable fear that

force will be sued to detain or intimidate him or her

3 COMMITMENT ISSUES

Patients must admit to themselves and others that self-management is no longer an option

3.1 VOLUNTARY PATIENTS People or therapists request admission and they sign documents for consent to treatment When they are ready to leave, they sign themselves out Grace period of 48 to 72 hours to assess patients before they leave

3.2 INVOLUNTARY PATIENTS A person who has the legal capacity to consent to treatment refuses to do so People who are considered dangerous to self or others due to a mental disorder can be

involuntarily treated State must produce clear evidence to prove a person is mentally ill and dangerous Three types:

o Emergency care: dangerous to self, to others, or gravely disabled 48 – 72 hours

o Short term observation and treatmento Long term commitment (3, 6, or 12 months)

People who need prolonged psychiatric care but refuse to seek such help voluntarily

Usually brought before a hearing officer

3.3 NURSING IMPLICATIONS Must adhere to legal time constraints Must be aware of the point at which the emergency treatment is over and prepare the patient

for discharge Patients must be released when no legal basis exists for confinement in the hospital

3.4 COMMITMENT OF INCAPACITATED PEOPLE Once judged incompetent, the person loses rights such as right to marry, vote, drive a car, and

enter into contracts Gravely disabled: the inability to provide food, clothing, and shelter to oneself because of a

mental illness Conservators and guardians: legally obligated to act in the best interest of the incapacitated

patient

4 PATIENT RIGHTS

4.1 RIGHT TO TREATMENT WITH THE LEAST RESTRICTIVE ENVIRONMENT

Least restrictive environment using the least restrictive means (without restraints, seclusion) Nurse can be held liable if the patient does not receive adequate treatment

4.2 RIGHT TO CONFIDENTIALITY OF RECORDS Patient information should be treated confidentially Voluntary and involuntary patients are granted this right

4.3 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

Gives patients more control over their medical records Right to be educated about HIPAA Right to access their own medical records Right to correct or add to their medical records Right to demand their authorization before medical records are disclosed to others To release info about patients, a consent form must be signed first Doctrine of privileged communication: a psychiatrist is not obliged to reveal the contents of

sessions with the patient

4.4 RIGHT TO FREEDOM FROM RESTRAINTS AND SECLUSION Restraint: broad term used to characterize any form of limiting a person’s movement or access

to his or her own bodyo Physical holds, bed rails, medications, or restraint devices

Seclusion: isolating a person in a room in which he is physically prevented from leaving

4.5 NURSING IMPLICATIONS Intervention are aimed at preventing a patient’s escalation in behavior and loss of control Staff members involved in decision to restrain or seclude must have special training and

demonstrate competency Alternatives must be considered first Physician’s order is required within 1 hour Least restrictive method or device possible must be chosen Document events leading to the intervention and justification Orders must have the type of restraint, rationale for use, and time limits PRN orders not permitted Used for shortest possible time Must tell the patient what behaviors are expected before release Reevaluate patients at least every 2 hours

Patients must be observed constantly during restraint and seclusion, at least every 15 minutes Patients must be debriefed after restraints Patients have right to request notification of a family member in the even that restraints or

seclusion are implemented Death of a patient while in restraints is required to be reported to the FDA, even if the restraints

did not contribute to the death

4.6 RIGHT TO GIVE OR REFUSE CONSENT TO TREATMENT Right of voluntary patients to refuse treatment Involuntary patients do not lose their right to give informed consent of psychotropic drugs After the court decides a person is not competent to understand the need for treatment,

medications can be imposed If psychiatric emergency, medications can be given without consent to prevent harm to the

patient or to others Nurses must ensure that coaxing does not escalate to the point of forcing medication on a

patient Never hid meds in food or liquid when a patient refuses

4.7 SUSPENSION OF PATIENTS’ RIGHTS Suspension of rights for the protection of patients or others For therapeutic purposes No units have unlimited telephone privileges, for example Requires the nurse to document clearly that allowing the patient to continue to exercise the

specific right might result in harm

5 PSYCHIATRIC ADVANCED DIRECTIVES

5.1 PATIENT SELF-DETERMINATION ACT Requires all health care facilities that serve Medicare and Medicaid patients to provide their

patients with written info about their right to make decision about their medical care

5.2 DURABLE POWER OF ATTORNEY Written document in which one person authorizes another person to act on the principal’s

behalf in the event the principal becomes unstable to act on his own behalf secondary to a physical or mental disability

5.3 ADVANCE DIRECTIVES FOR MENTAL HEALTH TREATMENT Use of specific meds, including dose and route Use of specific treatment options Behavior management List of the people who are to be notified and allowed to visit

Consent to contact health care providers Willingness to participate in research studies