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Journal of Nursing LawVolume 15, Number 1, 2012

ARTICLES

Medical Privacy and Antiretroviral Therapy Among HIV-Infected Female Inmates 3Donna W. Roberson, PhD, FNP-BC

Ethical and Legal Issues Associated With Bullying in the Nursing Profession 9Susan B. Matt, PhD, JD, MN, RN

Rule Bending by Nurses: Environmental and Personal Drivers 14Suzanne E. Collins, JD, MPH, PhD

Amicus Brief Supports Administration of Insulin to Students Only by Licensed Nurses 27Melanie Balestra, RN, NP, JD

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Medical Privacy and Antiretroviral Therapy Among HIV-Infected Female Inmates

Donna W. Roberson, PhD, FNP-BC

HIV infection continues to rise in prison populations with incarcerated women having higher acquisition rates than incarcerated men. HIV can be a manageable chronic disease if anti-retroviral therapy (ART) is properly managed. HIV-infected women entering the prison system should con-tinue ART to promote better health, however, the necessary lack of privacy in prison may produce a reluctance to disclose HIV status. Inmates’ rights to medical privacy while incarcerated have been controversial, but the perceived lack of medical privacy may affect ART adherence for HIV-infected female inmates. This qualitative study examined whether a lack of medical privacy while incarcerated influenced ART adherence among HIV-infected female inmates.

Keywords: female inmates; anti-retroviral therapy; adherence; medical privacy in prison

Although HIV rates have stabilized in many populations, they are increasing in women, especially women of color (Centers for Disease

Control and Prevention [CDC], 2009). African American women in the United States are 22 times more likely to be diagnosed with AIDS than White women (CDC, 2009). Alarmingly, HIV rates are also increasing in the incarcerated population, with infection rates of women exceeding those of men (Arriola, Braithwaite, & Newk-irk, 2006). Life circumstances tend to be different for incarcerated women than for incarcerated men because of their higher levels of poverty and greater exposure to violence and abuse, substance abuse, and unstable living conditions (Arriola et al., 2006). Female inmates also tend to have more complex chronic healthcare needs than incarcerated men (Binswanger et al., 2010). In addition to chronic healthcare needs, they may also need pregnancy care. Pregnant women infected with HIV require specialized treatment with antiretroviral therapy (ART) that will not harm the fetus but protect it from acquiring HIV (Arriola et al., 2006; Holstad, Dilorio, & Magowe, 2006; Lewis, 2006; Paintsil & Andi-man, 2009).

Female inmates infected with HIV often perceive different needs as compared to the needs perceived by the prison administration. In an early study, Zaitzow (1999) found that HIV-infected female inmates required counseling to cope with the double stigma of being

incarcerated and being HIV infected, but counseling and education for inmates regarding imprisonment and HIV care was lacking. Prison administration had differ-ent concerns for HIV-infected female inmates. They were concerned about testing all incoming inmates for HIV, how to house those infected with HIV, and how to pay for long-term and expensive healthcare for the HIV-infected female inmates (Zaitzow, 1999). Today, most state and federal correctional facilities offer HIV screening, prevention education, and care and play a pivotal role in the reduction of HIV transmission through these services (Beckwith et al., 2010; Youmans, Burch, Moran, Smith & Duffus, 2011).

With advances in medication therapies, HIV infec-tion has become a chronic illness, and it requires con-tinued management to reduce the risk of developing AIDS and prevent transmission to others (Rintamaki, Davis, Skripkauskas, Bennett, & Wolf, 2006; Wood et al., 2006). A 95% adherence level to ART is essential to maintain reduced or undetectable viral loads and pre-vent the formation of drug-resistant viral mutations (Lewis, Colbert, Erlen, & Meyers, 2006; Spaulding et al., 2002; Wohl et al., 2003).

Incarceration provides a unique opportunity for access to healthcare that many inmates do not have in their communities (Youmans et al., 2011). HIV screen-ing, prevention services, and care for those with HIV infection are available nationwide in most state and

federal prisons. Healthcare centers operating within correctional facilities protect health information much like the private sector; however, women entering some correctional settings have been found to be reluctant to disclose their HIV status because of fears of stigma-tization or discrimination (Derlega, Winstead, Gamble, Kelkar, & Khuanghlawn, 2010; Youmans et al., 2011). One study found that incarcerated women infected with HIV withheld their medical diagnosis, which increased their risk for adherence failure (Holstad et al., 2006).

Although visibility and open observation are nec-essary in incarceration, incarcerated persons desire privacy when managing personal healthcare needs (Derlega et al., 2010). Certainly, visits to a healthcare provider in prison are privately held and medical infor-mation held confidential. Routine care, such as medica-tion administration, may not be private. Many prisons use a medication dispensing system (a medication line or window) that can be perceived as not private by the inmate (Roberson, White, & Fogel, 2009). The impor-tance of medical privacy among incarcerated women infected with HIV has not been adequately explored. Therefore, this study examined perceptions of medical privacy among incarcerated women infected with HIV. Medical privacy was defined as protection of medical history and medications (names and purpose). The study was a secondary analysis of data collected in a larger study designed to discover how HIV-infected female inmates perceived medication therapy in prison. Factors influencing adherence were published from previous work with the same data set and led to the need to explore medical privacy issues for incarcerated women (Roberson et al., 2009).

REVIEW OF LITERATURE

Privacy is necessarily limited in prison, but lack of pri-vacy has been thought to cause a reluctance to access healthcare, creating a situation in which a woman refuses care to keep others from learning her diag-nosis (Frank, 1999; Rosen et al., 2004; Stoller, 2003; White et al., 2006; Wohl et al., 2003) Indeed, the per-ceived lack of medical privacy has been suggested as a reason for inmates not seeking HIV treatment (Derlega et al., 2010; Frank, 1999; Rosen, et al., 2004; Stoller, 2003; Wohl et al., 2003). Medical privacy, for the HIV-infected inmate, would include protecting their HIV status from being known by others (including other inmates and correctional staff) and discrete medica-tion administration (Roberson et al., 2009; Wohl et al., 2003). Historically, male and female inmates have been critical of healthcare while incarcerated and have

sought legal protection for perceived injustices in the prison healthcare system (Palmer & Palmer, 2004).

Right to Medical Care

Although prisoners are entitled to certain rights under the United States Constitution, these rights are limited in many instances (Palmer & Palmer, 2004). The Eighth Amendment to the United States Constitution provides citizens protection from cruel and unusual punishment (Palmer & Palmer, 2004). It is under the eighth amend-ment that most claims for medical care while incarcerat-ed are filed. The landmark case, Estelle v. Gamble (1976), addressed inmate rights to medical care and was the first attempt to define exactly which rights inmates hold while imprisoned. The lower federal courts have used Estelle v. Gamble (1976) to insure each prisoner has the right of basic medical care (Glaser & Greifinger, 1993).

Right to Medical Privacy

The Fourteenth Amendment to the United States Constitu-tion (2010) guarantees due process and equal treatment regardless of race, gender, or creed . Court decisions have expanded the 14th amendment to include an individual’s right to privacy. Inmates’ rights to privacy, however, are controversial and have been the subject of many lawsuits and court decisions. Inmates with HIV or AIDS have sued for medical privacy rights many times. In Hudson v. Palmer (1984), the court concluded that prisoners have no right of privacy but must be pro-tected from cruel and unusual punishment. Freedom from cruel and unusual punishment was considered to include not being teased or otherwise punished for being HIV infected. In addition, the judges ruled that prison officials could not threaten to reveal medical his-tory as a means of coercion or disclose irrelevant medi-cal history. In Anderson v. Romero (1995), Chief Judge Posner stated that although the right to medical privacy evolved from common law rather than the U.S. Consti-tution, inmates cannot be punished because of HIV sta-tus. Judge Posner remarked that some confusion was added to the legal issues when in Austin v. Pennsylvania Department of Corrections (1995), the plaintiff and defendants agreed to use universal precautions for all inmates (handling all potentially infectious material with personal protective equipment [i.e., gloves]) and agreed that the practice of disclosing HIV status as a means of protecting the health of the prison population would cease. According to Posner, the court ruling in this case merely supported the settlement rather than providing an opinion that granted the right to medical privacy (as it is sometimes applied).

In Doe v. Delie (2001), Doe believed that his medi-cal privacy rights had been violated when a nurse dis-cussed his care in a prison clinic with the examination room door open, revealing his HIV status to all in the clinic area. Judge Roth, on the U.S. Court of Appeals, Third Circuit, wrote that, under the 14th Amendment, there is a right to medical privacy but it is “subject to legitimate penological interests” (p. 311). Judge Garth, with a dissenting opinion, wrote that there is no right to medical privacy for inmates in the Constitution. Judge Roth said that there was no clear legal definition of the constitutionality of medical privacy rights for inmates. Lack of perceived medical privacy has been shown to be a barrier to adherence with ART while imprisoned (Roberson et al., 2009; Wohl et al., 2003).

METHODS

A secondary analysis using a qualitative, descriptive approach was used to insure that the women’s views were represented as accurately as possible. Two major disadvantages of secondary data analysis were not being able to clarify or explore comments the woman made and not being able to see nonverbal behaviors during the interview; however, this does not negate the importance of what is said. Having access to the original interview tapes provided opportunity to hear tone and inflection in the women’s answers, creating a sense of presence in the interviews. The researcher personally transcribed the tapes and kept notes, similar to field notes, of emphasized words, impressions, or thoughts during the woman’s response. The creation of notes during transcription is unique and valuable during qualitative secondary analysis (Szabo & Strang, 1997). The transcripts were analyzed for descriptions of

medical privacy, which is described in data collection and analysis in the following section. Secondary analy-sis has the benefits of using data already obtained from difficult to reach people, avoids placing further burden on subjects, allows research on sensitive topics, and uses data from a primary work that was not otherwise used (Heaton, 2004).

SAMPLE

The data consisted of 12 individual interviews with HIV-infected female inmates. Participants were pur-posefully selected to insure adequate representation from those living with the phenomenon being studied (Sandelowski, 2000). According to Morse (1994) and Sandelowski (1995), 12 participants are more than an appropriate sample size for descriptive qualitative inquiry, given there is sufficient data from the sample to answer the research questions as was true in this study.

All demographic information is given in Table 1 . All participants were prescribed ART either using directly observed therapy (DOT), keep own prescription (KOP), or both. DOT in this facility required the inmate to come to a central dispensing location for prescribed ART and, in most cases, stand in a medication line with other women who have a variety of medication needs. Typically, antibiotics such as those for tuberculosis therapy, ART, and medications for inmates unable to manage their own prescription administration (such as a woman with a history of stroke) were adminis-tered by DOT. KOP permitted inmates to keep their prescriptions in their dorm, locked in their locker, and required them to remember to take the prescription as prescribed.

TABLE 1. Demographics

Pseudonym Age Ethnicity Type of Administration Time on ART

Maria 22 Latina KOP 17 monthsLisa 34 African American DOT 2 monthsLaura 34 White KOP 1 monthMonique 35 African American KOP 1 yearKristie 38 White KOP 4.5 yearsCarmen 39 Latina DOT 15 yearsBarbara 39 African American KOP 2.5 yearsJackie 40 African American KOP and DOT 3 monthsDorothy 41 African American KOP and DOT 2 monthsJane 41 White DOT 2 yearsJanet 42 White KOP 5 yearsAngela 45 African American KOP 2 months

Note. ART antiretroviral therapy; KOP keep own prescription; DOT directly observed therapy.

DATA COLLECTION AND ANALYSIS

The interviews were conducted at a large state wom-en’s medium security correctional facility in the south-ern United States from December 2004 to March 2005. Interviews were held in a private room at the prison health clinic. The interviewer recorded the interviews using a microcassette tape recorder. Participants signed informed consent. All participants were informed that their information could be used without an expiration date, but their identity would be concealed. Pseud-onyms were assigned to make the interviews more personable, but any similarity to participants’ names would be coincidental. Participants were also told that their health information would be protected. Institu-tional review board (IRB) approval was granted to con-duct this secondary analysis.

The author transcribed the taped interviews and reviewed the transcripts for accuracy with the original investigator. To compensate for the disadvantage of not collecting the data, analysis of the data was conducted in a flexible, evolving manner (Heaton, 2004; Szabo & Strang, 1997). Transcribing the recording afforded the author the ability to hear emphasized words, pauses, and dramatic effects the speaker used to convey answers to the interview questions. Notations were made during the transcription of pauses, crying, or laughing. A record of thoughts and reflective consider-ations was created in a journal format, which was used to track the evolution of ideas and analysis techniques.

As data analysis progressed, it became apparent that some interpretation was required because the words “medical privacy” was not used by the women. Some questions asked in the interview elicited responses that could be logically determined to be related to medical privacy. Some questions that were particularly helpful included “Tell me about taking medications in prison,” “Do you ever have difficulties getting medications in prison,” and “Do you ever have difficulties taking medi-cations in prison.” As the transcripts were read and tapes reviewed, the choice of words and phrasing clari-fied the women’s responses. For example, comments about not wanting others to know their HIV status were coded as stigma and as an indication of the desire for privacy. One participant said she liked KOP because the other women “don’t know what all I’m taking.” Transcripts were read and reread throughout analysis.

RESULTS

Two of the 12 women specifically mentioned privacy when discussing medication administration in prison. Other women made remarks that were considered to

refer to medical privacy. Seven participants made com-ments about privacy and ART. Monique, for example, a 35-year-old African American woman who had been diagnosed with HIV since 1996, said that the privacy and independence of KOP made adherence possible for her. Several times, she said, “I’m loving giving it myself.” Monique explained that she had been in denial about her HIV status before coming to prison, but with psychiatric help, she was feeling better about herself and enjoyed being in control of her health.

Maria, a 22-year-old Latina woman who had been on ART for 17 months, liked having KOP. Maria said, “Let the ladies keep their own medications.” She said KOP allowed her to avoid the visibility of the medication line and commented, “They [other inmates] don’t know what all I’m taking.”

Dorothy, a 41-year-old African American woman, had been on ART for 2 years. While incarcerated, she used both DOT and KOP. Dorothy was the most verbal about medical privacy. She liked KOP but felt KOP pre-sented a potential for dorm mates to learn of her status if they saw her with her medications. She thought DOT probably was more private, even though other inmates made assumptions about other’s HIV status based on the number of pills they took. She said, “You know, the inmates assume HIV if you take a lot of medicines. [But] you could be a diabetic.” Dorothy was offended when nurses talked about the medications she was taking in the medication line in front of others, because it was “private” and her “business.” Dorothy also remarked that many women knew the names of ART medications and recognized that these were used for HIV.

Angela, a 45-year-old African American who had been on ART for 2 months and was using KOP, had issues with the bottles that medications were dispensed in. Her perception was that ART was the only medica-tion dispensed in white bottles. Actually, in this facil-ity, white bottles were used for all oral medications. She commented that the white bottle was a “violation of my privacy” and it “let’s everyone know I take HIV medicines.”

Janet, a 42-year-old White woman, had been on ART for 5 years and was using KOP. She felt that the lack of privacy and the openness of the dispensing window could create stress; “The nurses treat you mean. They need more compassion.” She preferred KOP because she knew she could be in control and take her medica-tions on time without others knowing.

These women wanted medications given in a man-ner that prevented others from learning their HIV sta-tus and the nature of their medications. They wanted to be treated humanely and to feel their personal

information was protected from others. Although only two women specifically used the word “privacy” spe-cifically, much that was said referred to privacy issues while incarcerated.

DISCUSSION

Women’s healthcare in the prison system may be made more difficult by prison regulations and a per-ception that there is a lack of privacy. Incarcerated women often enter the prison system with health-care needs that were not met before incarceration (Binswanger et al., 2010; Young, 2000). Barriers such as stigmatization of HIV infection remain prevalent both in and out of prison.

The majority of the women interviewed in this study expressed varying degrees of concern for loss of medi-cal privacy. Thus, lack of privacy was indeed seen as a barrier to adherence for the women whether because of labeling and stigma associated with others finding out HIV status or fear of being treated differently. As in studies of incarcerated men, the loss of privacy with DOT contributed to women’s desire to hide the need for ART. Most women preferred KOP for this reason (White et al., 2006; Wohl et al., 2003). No other studies have specifically addressed medical privacy for female inmates, but based on the comments by these women, medical privacy was clearly desired. Although there is no legal provision for medical privacy in the U.S. Constitution, nurses should advocate for prison policy changes to protect medical information for all inmates when those policies are not in place. Further, some of the measures used to protect medical information in the private sector could work in prison. For example, discrete dispensing windows, an area for private medi-cation counseling, and covered or shielded medication employed in pharmacies that could work in prisons.

CONCLUSIONS

Future research should explore the process of changing prison medication administration policy to incorporate choice in ART administration method (when medically reasonable). Steps to protect the privacy of inmates with HIV could include providing screened dispens-ing windows for all medications administered using DOT and generic labels for medication bottles used with KOP. Education of all prison staff with current knowledge about HIV transmission and treatment goals could improve interactions with HIV infected inmates and has the potential to improve adherence with ART. It would also be desirable to have registered nurses to administer medications rather than medication techni-

cians and correctional officers, although this could be challenging with the limited resources most prisons have (Binswanger et al., 2010; Spaulding et al., 2002).

LIMITATIONS

Use of a preexisting data set for the analysis creates some limitations to research findings. For example, inability to clarify an answer or see nonverbal cues restricted the information that could be gleaned from participants’ response. However, access to both tran-scripts and voice recordings permitted immersion in the data. The participants in this study were largely from ethnic minorities in the southern United States and may not represent the views of women from different cultural, ethnic, or regional backgrounds. A larger, multiregional study is needed to confirm these findings.

RECOMMENDATIONS

Correctional institutions recognize the importance of adherence to ART when persons are living with HIV. Proper medication adherence improves the health of the inmate, reduces transmission of the disease to oth-ers (both in prison and after release), and reduces the risk of the formation of dangerous drug-resistant strains of HIV. Great effort has been made to improve the healthcare of inmates in the state and federal systems. However, it will take the collective voices of healthcare professionals and correctional staff to obtain the sup-port to change prison policies regarding medical pri-vacy as it relates to medication administration.

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Binswanger, I., Merrill, J., Krueger, P., White, M., Booth, R., & Elmore, J. (2010). Gender difference in chronic medical, psychiatric, and substance-dependence disorders among jail inmates. American Journal of Public Health, 100(3), 476–482.

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Journal of Nursing Law, Volume 15, Number 1, 2012

Copyright 2012 Springer Publishing Companyhttp://dx.doi.org/10.1891/1073-7472.15.1.9

Ethical and Legal Issues Associated With Bullying in the Nursing Profession

Susan B. Matt, PhD, JD, MN, RN

With the explosion of bullying in the workplace over the last several years, and the recent increase in cases of bullying in the nursing profession, it is important to understand the ethical and legal issues associated with these behaviors. The nursing profession has enjoyed more than a decade of recognition as the most ethical profession. Indeed, the profession is guided by detailed codes of ethics that provide a foundation for the extraordinary moral character expected for nurses. Yet, despite these clear ethical expectations, there are nurses who have engaged in bullying behaviors targeting their subordinates as well as their peers. In addition to ethical codes, there are laws that are violated when individuals engage in bullying behaviors in any workplace. This article explores the ethical and legal factors associated with bullying in nursing and suggests that education about the issues should be initiated to eliminate these destructive behaviors.

Keywords: bullying; ethics; legal issues; OSHA; harassment

Bullying in the nursing profession has been increas-ingly reported over the past decade (Hutchinson, Wilkes, Jackson, & Vickers, 2010). Although bul-

lying behaviors are perpetrated by physicians, patients, and patients’ families, nurses also engage in bullying of their colleagues (Farrell, Bobrowski, & Bobrowski, 2006). This is a phenomenon that is reported around the globe including, but not limited to, Australia, Turkey, the United States, and the Philippines (Anderson, 2011; Cleary, Hunt, & Horsfall, 2010; Fujishiro, Gee & de Castro, 2011; Kolanko et al., 2006; Yildirim, Yildirim, & Timucin, 2007). The negative impact on retention in the workforce is severe, particularly in light of the ongo-ing global shortage of nurses (Jackson, Clare, & Mannix, 2002). In fact, according to some researchers, there is a direct link between aggression, acts of violence, and staff turnover and attrition (Farrell, 1999; O’Connell, Young, Brooks, Hutchings, & Lofthouse, 2000; Luparell, 2011). Considering that nurses have topped the list of the most honest and ethical professions for 11 years in a row (Jones, 2010), it is concerning that nurses would engage in behaviors that have been described as “humil-iating, intimidating, threatening or demeaning” (Cleary et al., 2010, p. 331), aimed at their own colleagues. This article looks at the legal and ethical issues associated with bullying in nursing.

WHAT IS “BULLYING”?

Bullying is known by many names; aggression, incivil-ity, mobbing, horizontal or lateral violence, and intimi-dation are some of the terms found in the literature (Anderson, 2011; Cleary, et al., 2010; Kolanko et al., 2006). Behaviors may be covert or overt, ranging from denying coworkers access to resources or refusing to respond to questions, to outright public humiliation or spreading rumors about a coworker via e-mail (Cleary et al., 2010). These behaviors within the nursing context may negatively impact patient care, whether directly or indirectly. According to Anderson (2011), bullying has been connected to “an increase in sick leave and resignations leaving a huge drain on resources,” which contributes to increased errors (p. 28). On the personal level, bullying has been responsible for severe conse-quences including “headaches, stress, irritability, anxi-ety, sleep disturbance, excessive worry, impaired social skills, depression, fatigue, loss of concentration, help-lessness, psychosomatic complaints, and post- traumatic stress disorder” (Cleary et al., 2010, p. 332; citing Lewis & Oxford, 2005 and Ramos, 2006). Any of these may result in decreased morale, increased staff turnover, and contribute to understaffing—a major problem in light of the continuing severe nursing shortage.

Although bullying has been identified as a workplace phenomenon in various professions over the years, it has been a focus in nursing during the past decade. Frequently, bullying occurs because of what is known as a “power differential” and is evident in nursing in the commonly heard phrase, “nurses eating their young” (Olender-Russo, 2009, p. 28). However, since the 1980s, contra-power harassment (harassment by those with less power against those with more power) has been recognized and researched in the context of postsecond-ary education (Lampman, Phelps, Bancroft, & Beneke, 2008). In fact, in her study of faculty in diverse edu-cational programs across the United States, Lampman (2010) found that nursing faculty reported the highest prevalence of bullying behaviors by students compared to all other majors. Thus, bullying occurs at all levels of nursing and within nursing education, perpetrated by other medical professionals, nurses, nursing educators, and nursing students (Farrell et al., 2006; Jackson et al., 2002; Lampman, 2010).

ETHICAL CONSIDERATIONS

There are several ethical principles and codes that are violated by nurses who engage in bullying behaviors. Ethical principles have concerned health care profes-sionals for decades. One well-known and respected text, Principles of Biomedical Ethics, is authored by Tom Beauchamp and James Childress (2009) who published the first edition in 1977.

General Principles of Biomedical Ethics

Classical biomedical ethics texts address the principles of respect for autonomy, nonmaleficence, beneficence, and justice—all traditionally taught to nursing students in baccalaureate educational programs. Of the four basic principles, the most relevant to bullying are non-maleficence, beneficence, and justice.

Nonmaleficence. “Above all [or first] do no harm” (Beauchamp & Childress, 2009, p. 149). The principle of nonmaleficence is generally considered a negative obli-gation, requiring one to not engage in infliction of evil or harm on another. Because bullying behaviors are engaged in with specific intent to humiliate, intimidate, threaten, or demean another, nurses who bully others violate the principle of nonmaleficence.

Beneficence. The principle of beneficence requires nurses to prevent and remove existing evil or harm and to promote good (Beauchamp & Childress, 2009). Slightly different from nonmaleficence, beneficence is a positive obligation requiring action on the part of

the nurse. Similar to nonmaleficence, nurses who bully others clearly violate the principle of beneficence.

Justice. The principle of justice has many facets, but the most basic description involves fair treatment of all. The best way to understand the concept is by looking at injustice: “An injustice involves a wrongful act or omission that denies people resources or protections to which they have a right” (Beauchamp & Childress, 2009, p. 241). As will be expounded on subsequently, in the United States, all workers have a right to a safe and healthy work environment; thus, bullying behaviors violate the principle of justice.

Virtues of a Moral Character

Beauchamp and Childress (2009) describe six vir-tues that contribute to a moral character for health professionals: compassion, discernment, trustworthi-ness, integrity, conscientiousness, and conscience. Particularly relevant to bullying are compassion, dis-cernment, integrity, and conscience.

Compassion. The virtue of compassion is focused on others, assuming “active regard for another’s wel-fare” and response to another’s suffering of “sympathy, tenderness, and discomfort” (Beauchamp & Childress, 2009, p. 38). Implicit in compassion are acts of benefi-cence that are aimed at relieving suffering. It is clear that nurses who engage in bullying behaviors are devoid of compassion and lack moral character.

Discernment. The virtue of discernment is described as “the ability to make fitting judgments and reach deci-sions without being unduly influenced by extraneous consideration, fears, personal attachments, and the like” (Beauchamp & Childress, 2009, p. 40). Discern-ment involves an understanding of what would be expected in a given situation in terms of human respon-siveness. In other words, discernment is concerned with knowing the “right” thing to do. Nurses engaging in bullying behaviors are clearly lacking in the virtue of discernment indicating a weakness in moral character.

Integrity. Integrity refers to the nurse’s faithfulness to moral values and commitment to standing up for what the nurse discerns as the right thing (Beauchamp & Childress, 2009, p. 42). In some ways connected to discernment, the virtue of integrity assumes that the individual is willing to fight for the right act of human responsiveness and against what he or she judges to be a wrong against another. Nurses who participate in bullying colleagues lack integrity and, again, show a weakness in moral character.

Conscience. The virtue of conscience is best described by Beauchamp and Childress (2009) as “a form of self-reflection on, and judgment about, whether one’s acts are obligatory or prohibited, right or wrong, good or bad” (p. 44). Similar to discernment and aligned with integrity, conscience is an understanding of the appropriateness of the nature of an act. Nurses who bully colleagues lack conscience and demonstrate weak moral character.

Professional Codes of Ethics

The ICN Code of Ethics for Nurses. The International Council of Nurses (ICN) published its first international code of ethics in 1953, and the most recent revision was in 2006 (ICN, 2006). The code addresses four elements: nurses and people, nurses and practice, nurses and the profession, and nurses and coworkers. Although all elements are relevant to bullying within the profes-sion, the most pertinent is the fourth element, nurses and coworkers, which states: “The nurse sustains a cooperative relationship with coworkers in nursing and other fields” and “[t]he nurse takes appropriate action to safeguard individuals, families, and communities when their health is endangered by a coworker or any other person” (ICN, 2006, p. 3). On its face, bullying behavior violates this element, because it undermines any coop-erative relationship between the parties.

The ANA Code of Ethics for Nurses. The precursor to the American Nurses Association (ANA) first discussed a code of ethics for nurses in 1896 (Fowler, 2008). A version was accepted by the ANA House of Delegates in 1950, and it has been modified at least six times since then, with the most recent publication in 2008. The first provision specifically addresses attitudes and behaviors toward all individuals, including colleagues: “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” (Fowler, 2008, p. 1). On its very face, this provision mandates that, even when faced with frustration or anger toward other healthcare professionals, nurses must respond respectfully and compassionately, always keeping in mind the humanity of all individuals.

The ANA Code of Ethics also addresses the work-place environment in provision six: “The nurse par-ticipates in establishing, maintaining, and improving healthcare environments and conditions of employ-ment conducive to the provision of quality health care and consistent with the values of the profession through

individual and collective action” (Fowler, 2008, p. 71). This provision clearly requires the nurse to participate in ensuring a workplace environment that will promote the values of the nursing profession. Engaging in bully-ing behaviors would undermine this expectation.

LEGAL CONSIDERATIONS

In addition to the ethical violations inherent in bul-lying, both perpetrators and employers who do not address the issue are subject to legal consequences. Although there are currently no laws in the United States specifically targeting workplace bullying, as of May, 2011, 16 bills addressing the issue were active in 11 states (The Healthy Workplace Campaign, 2011). Australia has already enacted legislation, Brodie’s Law, which extended Crimes Act provisions to cover serious workplace and cyber bullying. Under this legislation, “bullying that could reasonably be expected to cause physical or mental harm is now treated as stalking” (Viellaris, 2011).

Notwithstanding the lack of U.S. legislation targeting bullying, people who are targets of some behaviors that fall under the general category of bullying do have legal remedies. At the federal level, the Occupational Safety and Health Act of 1970 (OSHA) established the general duty clause, mandating employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (29 USC 654 § 5). Some states have their own state safety and health programs; thus, in Washing-ton state, the Washington Industrial Safety and Health Act (WISHA) provides that, at the very least, employ-ers have a general duty to ensure a safe and healthy workplace for their employees (RCW 49.17.060; WAC 296-800-110). According to this regulation, employers must do “everything reasonably necessary to protect the life and safety” of their employees (WAC 296-800-11010). Once there is evidence that an employer knows or should have known that a hazard exists that could cause serious harm to an employee, which may be the case when a nurse is subject to bullying behaviors, the employer is mandated to remove the hazard and provide a workplace free of the hazard (WAC 296-800-11005). Furthermore, the employer is required to “establish, supervise, and enforce rules that lead to a safe and healthy work environment that are effective in practice” (WAC 296-800-11035). Violation of these regulations may result in citations and penalties ranging from temporary closure of a business to fines of up to US$70,000 per inci-dent if an employer “willfully or repeatedly violates” the statutory requirements (RCW 49.17.180).

Not only is the employer subject to legal conse-quences, but the nurse who perpetrates the bullying may also be violating the law by engaging in harass-ment of a coworker. There may be other states with similar provisions, but one example is found in Wash-ington. In enacting a statute to address harassment, the Washington State Legislature found that

the prevention of serious, personal harassment is an important government objective. Toward that end, this chapter is aimed at making unlawful the repeated inva-sions of a person’s privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim. (RCW 9A.46.010)

According to the criminal statute, one is guilty of harass-ment if he or she knowingly threatens to engage in an act that “is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety” (RCW 9A.46.020[1][a][iv]) and “by words or conduct places the person threatened in reasonable fear that the threat will be carried out” (RCW 9A.46.020[1][b]). Harassment is a criminal violation, and a guilty party is subject to criminal penalties.

Individuals who spread rumors about a coworker might be sued on the basis of defamation. To prove defamation, which includes libel and slander, the plain-tiff need only prove that someone either said or wrote something about him or her that was heard or read by a third party (communication) and that caused injury (fault and damages) to the subject of the rumor (i.e., hurt the subject’s reputation). In addition, the rumor must be false, and the statement cannot be privileged ( FindLaw, 2011; Mark v. Seattle Times, 1981). Although abusive statements in themselves may not be action-able, abusive statements that contain falsehoods about individual workers may become actionable (Lewis & Mersol, 2002). Despite the seemingly clear elements of a defamation claim, it is difficult to succeed with such a claim because of the courts’ interpretations of the facts of the case and precedent (Lewis & Mersol, 2002). Notwithstanding the rare verdict in favor of the plain-tiff, verbal bullying may result in a defamation claim. Because slander and libel are civil wrongs against indi-viduals as opposed to criminal acts, penalties are mon-etary compensation to the victim.

RECOMMENDATIONS

In light of the aforementioned findings, it would seem imperative that nurses become educated about bully-ing and the potential ethical and legal violations that are connected to these behaviors. Hospital adminis-trators, human resource managers, and nurse manag-

ers must be educated first to ensure that they have a clear understanding of their own responsibilities with respect to a safe and healthy workplace. They must educate their staff to raise awareness of the ethical mandates that can prevent bullying behaviors and of the laws that may be violated when nurses engage in bullying behaviors. Education is the first step, but to truly change the environment for nurses, employ-ers must be willing to implement workplace rules. Furthermore, employers must refuse to tolerate bul-lying, and consequences must be part of enforcing these rules. Nurses must know that these behaviors will lead to disciplinary action, including termination. Workplace norms should never include bullying. It is possible to eliminate this embarrassment from the nursing profession.

CONCLUSION

Bullying is a serious workplace hazard that has been known to result in health consequences for nurses who are its victims. Nurses—whether managers, administra-tors, or staff nurses—who engage in bullying behaviors are in violation of general ethical principles as well as ethical codes, including the ICN and ANA codes of ethics for nurses. Depending on the specific bullying behaviors, perpetrators may also be in violation of civil or criminal laws. Furthermore, employers who are aware of bullying activities are in violation of OSHA regulations or state administered occupational safety and health laws.

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Cleary, M., Hunt, G. E., & Horsfall, J. (2010). Identifying and addressing bullying in nursing. Issues in Mental Health Nursing, 31(5), 331–335.

Farrell, G. (1999). Aggression in clinical settings: Nurses’ views—a follow-up study. Journal of Advanced Nursing, 29(3), 532–541.

Farrell, G. A., Bobrowski, C., & Bobrowski, P. (2006). Scoping workplace aggression in nursing: Findings from an Austra-lian study. Journal of Advanced Nursing, 55(6), 778–787.

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Fowler, M. D. M. (Ed). (2008). Guide to the code of ethics for nurses: Interpretation and application. Silver Spring, MD: American Nurses Association.

Fujishiro, K., Gee, G. C., & de Castro, A. B. (2011). Associa-tions of workplace aggression with work-related well-being

among nurses in the Philippines. American Journal of Public Health, 101(5), 861–867.

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Hutchinson, M., Wilkes, L., Jackson, D., & Vickers, M. H. (2010). Integrating individual, work group and organi-zational factors: Testing a multidimensional model of bullying in the nursing workplace. Journal of Nursing Management, 18(2), 173–181.

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Jackson, D., Clare, J., & Mannix, J. (2002). Who would want to be a nurse? Violence in the workplace—a factor in recruitment and retention. Journal of Nursing Management, 10(1), 13–20.

Jones, J. M. (2010). Nurses top honesty and ethics list for 11th year. Retrieved July 18, 2011, from http://www.gallup.com/ poll/145043/Nurses-Top-Honesty-Ethics-List-11-Year.aspx

Kolanko, K. M., Clark, C., Heinrich, K. T., Olive, D., Serem-bus, J. F., & Sifford, K. S. (2006). Academic dishonesty, bullying, incivility, and violence: Difficult challenges fac-ing nurse educators. Nursing Education Perspectives, 27(1), 34–43.

Lampman, C. (2010). Women faculty at risk: U.S. professors report on student incivility-bullying. Paper presented at the National Science Foundation ADVANCE Conference.

Lampman, C., Phelps, A., Bancroft, S., & Beneke, M. (2008). Contrapower harassment in academia: A survey of faculty experience with student incivility, bullying, and sexual attention. Sex Roles, 60, 331–346.

Lewis, J. B., & Mersol, G. V. (2002). Opinion and rhetorical hyperbole in workplace defamation actions: The continu-ing quest for meaningful standards. 52 DePaul L. Rev. 19. Retrieved September 19, 2011, from http://www.lexisnexis .com.offcampus.lib.washington.edu/hottopics/lnacademic/

Luparell, S. (2011). Incivility in nursing: The connection between academia and clinical settings. Critical Care Nurse, 31(2), 92–95.

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Biographical Data. Susan B. Matt, PhD, JD, MN, RN, is an assistant professor in the College of Nursing, teaching legal and ethical issues in nursing to undergraduate and graduate nursing students. Her clinical background is in neuroscience and rehabilitation nursing, and she is an attorney whose prac-tice focused on disability law prior to engaging in her teaching career. Her research is on nurses with disabilities and disability climate in hospital workplaces. She also has a strong interest in legal and ethical issues in health care. Dr. Matt is a section editor for the Journal of Nursing Law.

Correspondence regarding this article should be directed to Susan B. Matt, PhD, JD, MN, RN, Seattle University, College of Nursing, 901 12th Ave, P.O. Box 222000, Garrand 404, Seattle, WA 98122. E-mail: matts@seattleu.edu

Journal of Nursing Law, Volume 15, Number 1, 2012

Copyright 2012 Springer Publishing Companyhttp://dx.doi.org/10.1891/1073-7472.15.1.14

Rule Bending by Nurses: Environmental and Personal Drivers

Suzanne E. Collins, JD, MPH, PhD

Rule bending by nurses is described and linked to a conceptual framework composed of two theo-retical models: responsible subversion and tolerance for rule bending. An exploratory descriptive study was conducted to indirectly quantify the incidence of specific exemplars of rule bending behavior by nurses, establish reasons for rule bending, and support conclusions about rule bending based on the propositions of the theoretical models. Potential patterns of behaviors, patterns of reason-ing, and related conclusions are explored. Identification of possible environmental and personal drivers of rule bending behaviors by nurses is accomplished. An understanding of the etiology and incidence of this behavior may assist defense counsel with this particular type of practice violation. Replication studies in diverse nursing populations are recommended to advance this knowledge.

Keywords: rule bending; responsible subversion; environmental drivers; personal drivers; nursing research

True narratives from licensure defense prac-tices help provide an introductory, reality-based framework for understanding the concept of

rule bending for good purposes gone awry. The two exemplars that follow illustrate scenarios that may well be representative and common to those who practice in the licensure disciplinary defense arena.

A nurse was unable to keep a patient calm. This experienced nurse recognized that the patient was suf-fering from alcohol withdrawal and needed a higher dose of medication but was unable to convince the phy-sician. The nurse felt thwarted in attempts to care for the patient. The nurse covertly administered a higher dose of medication than was ordered. The physician found out about this and made a complaint resulting in licensure disciplinary action (Collins, 2003).

A large number of nurses in a long-term care facil-ity collusively devised a way to borrow and return controlled medications for their patients when outside pharmacy services failed to timely deliver them, a system failure work-around that continued for a long period of time. The state surveyors were not impressed by this creative but illegal solution to their drug supply problem and licensure disciplinary actions were insti-tuted against the nurses (Collins & Mikos, 2008).

The nurses in these scenarios engaged in a rea-soned, intentional rule bending behavior to solve the

immediate problems. Negative consequences to the nurses were the result. An understanding of the etiol-ogy of this behavior may assist defense counsel in their practices with this particular type of violation.

WHAT IS NURSE RULE BENDING?

Although rule bending behaviors in nursing are anec-dotally acknowledged, little published research exists. Rule bending encompasses a general societal under-standing that it is sometimes acceptable and perhaps even tacitly encouraged to bend the rules to get the job done. Galperin (2003) discusses the concept of constructive workplace deviance, which is purpose-ful employee behavior enacted for reasons thought to be innovative by the employee. This behavior vio-lates workplace organizational norms. Previous studies (Collins, 2001; Hutchinson, 1990) suggest that nurse rule benders sometimes intentionally violate nurs-ing practice standards but generally do so with good motive, such as for the benefit or good of the patient or the workflow in the particular nursing unit. Rule bend-ing occurs when there is system–nurse conflict that the nurse believes impedes the goals of nursing care. These rule bending nurses consider themselves to be caring and responsible. Rule bending requires a higher level of expertise to manage successfully and therefore, may be

more frequently practiced by experienced nurses who can evaluate the risks of such behavior, rather than by novices. Successful rule bending seems to be self-propagating, and socially, although covertly, approved as a quick fix to a persistent work goal achievement problem over which the nurse perceives that he or she has no control or ability to remedy. Nurses acknowl-edge that rule bending can lead to negative professional consequences because it generally involves violating the standards or exceeding the scope of practice to solve the problem. Unfortunately, if the rule bending behavior is rejected by others, the outcomes can be devastating for the nurse as depicted in the first intro-ductory scenario.

CONCEPTUAL FRAMEWORK FOR THE STUDY OF NURSE RULE BENDING

A conceptual framework is an essential part of the research process as it provides a theory-based struc-ture for the development of new knowledge (Burns & Grove, 2010). Rule bending has existed as a concept in nursing practice anecdotally and more subjectively for several years. It is a sensitive topic, one that is not often addressed in the “polite society” of the nursing profession’s assessment of its own social behaviors and is infrequently found in the scholarly literature.

Rule bending represents a violation, defined as delib-erate deviations from those practices (i.e., written rules, policies, instructions, or procedures) believed neces-sary to maintain safe or secure operations (Hughes & Blegen, 2008). Violations occur within a social and organizational context where behavior is governed by operating procedures, codes of practice, rules, and reg-ulations. This work system can contribute to violations by creating an environment that is ripe for violations to occur. Rule bending may also be closely associated with work-arounds. Work-arounds are defined as “ . . . work patterns an individual or a group of individuals create to accomplish a crucial work goal within a system of dysfunctional work processes that prohibit the accom-plishment of that goal or makes it difficult” (Morath & Turnbull, 2005, p. 52). That which prevents accomplish-ment of a work goal is defined as a block (Halbesleben, Wakefield, & Wakefield, 2008). The intentionality of the block has bearing on distinguishing rule bending from a work-around. Rule bending originates in the circum-vention of blocks that have been intentionally built into a health delivery system to increase patient safety. An example would be the requirement that two persons must check blood against the patient identifiers prior to administration. Rule bending would be intentionally

omitting this step to save time by securing a second signature after the fact.

The tolerance for rule bending seems closely related to the nurse’s evolving understanding of what consti-tutes real harm to a patient. Rule bending can become a socialized behavior on a unit as in the second intro-ductory scenario. Noncompliance with the rules was accepted by the nurses working in the long-term care unit, and, as time went on, the members of the unit no longer saw the action as a violation of the rules. This phenomenon is identified as the normalization of devi-ance in which individuals, teams, and organizations repeatedly drift away from what is an acceptable stan-dard of performance until the drift becomes the norm (Vaughan, 2005).

Rule bending behaviors can be traced historically through select nursing literature. As early as 1984, Benner noted that nurses learn through experience what can be safely added to or omitted from physi-cians’ orders. She noted that “ . . . nurses must use discretion . . . and are expected to assess what they should do to provide the best possible care for the patient . . . even though this may involve risks for them [the nurses]” (pp. 139–140).

Hutchinson, in her seminal 1990 qualitative study of responsible subversion, first described the behavior of rule bending among nurses. According to Hutchinson, nurses’ knowledge, experience, and ideology are nec-essary preconditions for rule bending. Nurses proceed through four stages in deciding to bend the rules: evalu-ating, predicting, subverting (rule bending), and cover-ing. This is the covert process that nurses use to achieve patient or unit workflow benefit when they feel trapped by the rules and/or lack of response from those in a position to help solve the problem. Hutchinson found that nurses perceived their values of patient advocacy conflicted with those of the system. By bending the rules, nurses were better able to obtain their goals of caring for patients. These nurses’ acts were responsibly done for good intent and therefore justifiable in these nurses’ perceptions.

Figure 1 illustrates an original model regarding the evolutionary nature of nurses’ recognition and manage-ment of error in the clinical setting (Collins, 2001, 2003). The core processes of this model are that error manage-ment expertise is acquired and evolves over time with experience. The core is orbited by four subprocesses as shown. As a part of the evolutionary aspects, it was dis-cerned that a tolerance for rule bending develops as the nurse gains more experience. In this study, it appeared that the participant nurses learned over the courses of their careers that rule bending was acceptable under

some circumstances. When the nurses first entered the workforce, they had a rather concrete understanding of error as breaking the rules. This understanding evolved to include a tolerance for rule bending as the nurse became tempered by the realities of practice. Tolerance for rule bending appears to change the way a nurse values his or her error conduct and thus may impact on disclosure. Nurses recognized that rule bending posed a serious risk of sanction; yet for the participants of this study, it occurred frequently. There were two conditions under which rule bending was acceptable: rule bending for the patient’s benefit and rule bending for workflow benefit. The potential for harm permeated tolerance for rule bending. Rule bending was unaccept-able if the rule bending raised a potential for serious harm. Rule bending, as discerned in this study, was a socialized deviant behavior that could have serious legal ramifications.

In 2008, Collins and Mikos undertook a qualita-tive descriptive study in response to the observation of recurrent patterns of nurse practice violations. An evolving taxonomy of nurse practice violators emerged. Nurse practice violators may be categorized as bad apples, impaireds, incompetents, criminals, rule benders, and good nurses having a bad day. Of significance is that rule bending, as described earlier, emerged as a distinct category of nurse practice act violation.

Scholarly support thus exists for the incidence of rule bending behaviors in nursing. Further research needs to be accomplished to more specifically identify and quantify types of behaviors, the prevalence of such behaviors, and the relationship of such behaviors to specific precipitating environmental and personal conditions (drivers). Understanding these dynamics may aid the licensure defense practitioner in client advocacy.

ORIGINAL RESEARCH: RELATIONSHIP OF NURSES’ WORKING ENVIRONMENT TO RULE BENDING BEHAVIOR

Purpose

An earlier pilot study, approved by The University of Tampa Institutional Review Board, preliminarily quantified perceptions of the occurrence of and conclu-sions about the sensitive topic of rule bending behavior among nurses. Sensitive topic research refers to scien-tific inquiry that potentially poses a substantial threat to the participant, either in terms of intrusion into a deeply personal experience or in terms of exposure of a deviance and its social control (Lee & Renzetti, 1990). Rule bending in nursing is such a personal and devi-ant experience to fall into this category. Consent was presumed from the research participant’s voluntary

Evolving nursing error expertise. Copyright 2001 by Suzanne Edgett Collins, RN, MPH, JD, PhD.

participation in the survey. The feasibility of using an anonymous internet survey was demonstrated and did identify statistically significant correlations between examples of rule bending behaviors and certain work-ing conditions. The pilot study affirmed that partici-pants were willing to return the surveys in the internet medium. Although response rate was low, it is postu-lated to be the result of the complexity of logging on to the internet survey site. In the pilot study, qualitative data about rule bending experiences were also collected to refine the survey instrument, which was conceptu-ally tied to the aforementioned framework.

The purpose of the present study was to continue to explore the incidence of select rule bending behav-iors. Further exploration of the potential relationships between working conditions and rule bending behavior occurrence and outcomes was also entertained.

Research Questions

The global research question queries whether certain environmental or personal drivers for rule bending among nurses exist and can be preliminarily quanti-fied. The specific research questions as contained in the survey are reported in the Appendix. The operational framework of the study linked the three subscales of the survey instrument to the conceptual framework of tolerance for rule bending and responsible subversion as explained earlier. The three subscales consisted of 18 examples of rule bending behavior, 14 reasons for rule bending behavior, and 11 conclusions about rule bending behavior.

Design

This was a nonexperimental exploratory study. Statis-tics consisted of cross-sectional frequencies and descrip-tive correlations.

Methods

Based on the previously described pilot study responses, the survey instrument was refined and converted into a paper-based survey. Postage paid envelopes were enclosed with the surveys to facilitate ease of return. With the approval of the University of Tampa Institutional Review Board and the Florida Nurses Association Labor and Employment Relations Commission (FNA-LERC), the revised survey was mailed to 1,702 Florida registered nurses in a variety of practice settings who were rep-resented by FNA-LERC with a letter of support by the FNA-LERC. Consent was presumed from the research participant’s voluntary participation in and return of the survey. Two hundred and thirty responses were

received, equivalent to 90% confidence and 6% margin of error. Data analysis consisted of frequencies and simple correlations within each of the three subscales.

Results

Reliabilities for the survey instrument subscales and as a whole were encouraging: examples of rule bending subscale .888, reasons for rule bending subscale .934, conclusions about rule bending subscale .846, and the survey as a whole .940. The instrument seems to be a reliable instrument in this study; further testing is war-ranted in different samples.

Sample gender demographics were female, 85.2 %; male, 8.7%; and 3 missing. Sample years of experi-ence demographics were more than 11 years, 82%; 6–10 years, 6.5%; 3–5 years, 7.4%; less than 3 years, 2.6%; and 3 missing. Practice location demographics were hospital, 62.6%; clinic, 14.8%; health department, 7.8%; corrections, 4.3%; education, 3%; long term care, 2.6%; school health, 1.3%; other .40%; and 7 missing. Gender demographics proved similar to United States nursing population demographics; the majority of the participants were hospital nurses. Years of experience demographics may reflect that rule bending requires more experience to be performed comfortably thus supporting the theoretical construct that experience is a precondition for rule bending or, alternatively, could simply reflect the general age and experience skew of the registered nurse population in the United States.

Response frequencies are presented in the charts in the following section and preliminarily document indirect, yet quantifiable support for the perceived existence of rule bending behaviors among nurses. Sta-tistically significant relationships between concepts are also presented as follows.

Examples (Table 1) of rule bending were developed from the literature, previous studies (Collins, 2001; Hutchinson, 1990), and the qualitative responses to the pilot study. Frequencies were calculated on the number of valid responses per statement (exclusion of missing data). For every example provided, rule bending behav-ior to some extent was perceived to occur by the partici-pants in this study. In many examples, the rule bending behavior constituted the majority response (sometimes, often)—visitors, medication administration times, bor-rowing of medications and supplies, initiate treatment without an order, and delay ordered treatment. Even the statements to which these respondents most often replied “never” still prompted a significant number of “sometimes” or “often” responses, such as in relation to medical records policies, administering an over-the-counter or prescription medication without an order,

TABLE 1. Examples of Rule Bending (Responses in %)

Statement No Response Never Sometimes Often

Allow visitors contrary to the facility’s policy. 8.4 15.9 47.3 28.3Allow children to visit contrary to the facility’s policy. 12.3 22.5 52.4 12.8Allow pets to visit contrary to the facility’s policy. 11.9 57.1 29.6 1.3Provide or obtain medical records or information not in accordance with facility policy.

2.2 65.8 30.7 1.3

Administer medication at a different time than ordered. 7.1 25.3 50.2 17.3Administer medication at a different rate than ordered. 9.6 54.4 32.0 3.9Administer an over the counter medication without an order.

7.2 61.3 27.0 4.5

Administer a prescription medication without an order. 4.4 80.3 14.5 .9Allow patients to take their own medications from home without an order.

12.3 48.9 36.6 2.2

Borrow a medication from one patient to use for another patient.

6.1 39.9 46.1 8.8

Borrow supplies from one patient to use for another patient.

8.4 31.7 47.1 12.8

Obtain lab tests for a patient without an order. 5.3 50.9 40.4 3.5Initiate treatment for a patient without an order. 4.5 38.4 50.4 6.7Omit treatment without an order. 8.4 44.1 43.6 4.0Delay ordered treatment for a patient. 4.9 34.1 53.5 7.5Selectively disclose or exaggerate patient information to obtain an order.

7.3 60.0 30.5 2.3

Fabricate a verbal order to obtain treatment for a patient.

5.9 79.1 13.6 1.4

Disconnect alarms contrary to facility’s policy. 5.9 68.2 22.3 3.6

obtaining lab tests without an order, selectively disclose or exaggerate information to get an order, fabrication of a verbal order, and disconnection of alarms. Although the statistics of this study do not allow generalization to the population of nurses at large, at least in this sample, rule bending behaviors were acknowledged by a sub-stantial number of participants.

Reasons (Table 2) for rule bending were developed from the conceptual framework, literature, previous studies (Collins, 2001; Hutchinson, 1990), and the qualitative responses to the pilot study. Frequencies were calculated on the number of valid responses per statement (exclusion of missing data). Reasons capture both personal and environmental conditions that may influence the incidence of rule bending behavior.

Personal drivers are reflected by time, workload, personal needs, and disagreement with the rules. The majority of the nurses in this study responded that they agreed or strongly agreed that personal drivers have a facilitating impact on rule bending behaviors with the exception of conflict between personal needs and rules, where responses were evenly categorized.

Environmental drivers are reflected by staffing, medication and supply availability, physician and ancillary staff response, conflict, and communica-tion issues. The majority of the nurses in this study responded that they agreed or strongly agreed that environmental drivers have a facilitating impact on rule bending behaviors with the exception of conflict between coworkers.

Conclusions (Table 3) about rule bending were developed from the conceptual framework, literature, previous studies (Collins, 2001; Hutchinson, 1990), and the qualitative responses to the pilot study. Conclu-sions reflect the propositions of the two models that comprise the conceptual framework of this study. The models of proposition origination are indicated by RS for responsible subversion (Hutchinson, 1990) and TRB for tolerance for rule bending (Collins, 2001). Frequen-cies were calculated on the number of valid responses per statement (exclusion of missing data). All of the propositions were supported thus lending validity to the conceptual framework as representative of the actual phenomenon.

TABLE 2. Reasons for Rule Bending (Responses in %)

StatementNo

ResponseStrongly Disagree Disagree Agree

Strongly Agree

Nurses bend the rules to ease the workload. 4.4 11.9 22.6 51.8 9.3Nurses bend the rules to save time. 4.4 10.2 14.2 59.3 11.9Nurses bend the rules when there are too few nurses for the number of patients.

5.9 7.2 10.0 55.7 21.3

Nurses bend the rules when there are insufficient supplies.

4.9 3.5 11.1 61.1 19.5

Nurses bend the rules when required medications are not available.

7.6 8.0 21.3 46.7 16.4

Nurses bend the rules when physicians are slow to respond.

7.1 7.1 22.1 47.8 15.9

Nurses bend the rules when ancillary services and staff are slow to respond.

7.6 5.3 15.6 60.4 11.1

Nurses bend the rules when there is not enough non-nursing support staff.

8.4 4.9 16.4 57.3 12.9

Nurses bend the rules when there is interpersonal conflict between coworkers.

11.7 15.7 44.8 23.8 4.0

Nurses bend the rules when communication problems exist.

8.5 8.0 27.2 47.8 8.5

Nurses bend the rules when they have no time to meet basic personal needs at work.

8.1 8.1 32.9 39.2 11.7

Nurses bend the rules when conflicts between rules and patient needs arise.

5.4 4.5 10.7 53.1 26.3

Nurses bend the rules when conflicts between rules and basic personal nurse needs arise.

8.6 8.6 38.3 35.6 9.0

Nurses bend the rules when they disagree with the rule.

7.1 6.7 29.8 46.7 9.8

TABLE 3. Conclusions About Rule Bending (Responses in %)

Model of Origin Statement

No Response

Strongly Disagree Disagree Agree

Strongly Agree

RS, TRB Rule bending is acceptable if no one is harmed.

8.6 11.8 44.1 32.7 2.7

RS, TRB Rule bending occurs but is not openly discussed.

2.8 4.1 9.6 67.9 15.6

RS Rule bending requires the nurse to evaluate the risks to the patient.

5.9 3.2 3.2 53.8 33.9

RS Rule bending requires the nurse to evaluate the risks to the nurse.

6.3 2.7 5.4 54.5 31.1

RS Rule bending requires the nurse to predict the result.

9.2 2.8 13.4 54.4 20.3

RS, TRB Rule bending can be justified. 9.5 8.1 19.8 52.7 9.9TRB Rule bending is learned in school. 4.5 29.7 56.3 7.2 2.3TRB Rule bending is learned on the job. 7.7 3.2 5.4 62.9 20.8RS, TRB Rule bending solves the immediate

problem.9.1 6.8 15.1 61.6 7.3

TRB Rule bending may result in disciplinary action.

2.2 1.3 2.7 65.5 28.3

TRB Rule bending may be considered a nursing error.

4.5 3.2 9.5 59.0 23.9

Note. RS responsible subversion; TRB tolerance for rule bending.

Significant Relationships in Rule Bending. For space considerations, only the statistically significant relation-ships are illustrated. These correlations were found to be significant at the 0.01 level. The closer the value is to 1.0, the higher the relative strength of the correlation. In addition, it must be made clear that significant patterns of relationship are limited to just that. Predictability of behaviors is not a permissible result of this study. The reader is cautioned not to infer that one example of a behavior, a reason, or a conclusion might predict other behaviors, reasons, or conclusions.

In April 2008, the Agency for Healthcare Research and Quality published Patient Safety and Quality: An Evidence-Based Handbook for Nurses that supports the creation of a safe, high-quality health care environ-ment. Evidence in this significant research links work-arounds/violations and patient outcomes to the work environment of nurses. In addition, the concept of turbulence—a loss of control because of heavy patient loads; excessive responsibility; new, difficult, or unfa-miliar work—is specifically addressed (Jennings, 2008). Turbulence results in a sense of chaos that may increase the incidence of rule bending violations. The data illustrated in the following section demonstrate emerging relationships that appear to be sensitive to the turbulent—chaotic environment that characterizes hospital nursing.

Certain examples of rule bending behavior were determined to be significantly related to other examples in this sample. Six patterns of behavior were identified in this sample and are portrayed in Table 4.

Certain reasons for rule bending behavior were determined to be significantly related to other reasons in this sample. Thirteen patterns of reasoning were identified in this sample and are portrayed in Table 5.

Personal drivers and environmental drivers are appar-ent in each pattern.

Certain conclusions about rule bending behavior were determined to be significantly related to other conclusions in this sample. Conceptual linkages are also included in the table as described in the following section. Five patterns of conclusions were identified in this sample and are portrayed in Table 6.

COMMENTARY

Nurses in this study acknowledged the potential for sanction and the potential for patient harm, yet some seemed to perceive rule bending as a covert and socially approved albeit inappropriate form of immediate prob-lem solving. Rule bending may represent an intentional violation of the nurse’s practice act or some other regu-lation or rule that would subject the nurse to sanction. The intentional violation may well be accompanied by an admission because the “good nurse” will likely want to own up to the act and make things “right” by telling his or her side of the story. Unfortunately, legal adverse incident reporting requirements may leave little room for alternative responses to rule bending situations that result in patient harm. In a perfect just culture (Marx, 2001) world, in response to rule bending behavior, reme-diation in the form of education about the boundaries of practice and education about strategies for affirmatively dealing with systems problems rather than finding ways to work around them should be considered when a benign patient outcome would allow this response.

Nurses are the health care system’s most precious and rapidly becoming scarce resource. It is estimated that demand for nurses will outstrip supply by 500,000 to 1 million beginning in the year 2010 and increasing

TABLE 4. Examples of Rule Bending: Related Patterns of Behavior

Examples of Rule Bending Related Patterns of Behavior

Visitors contrary to policy .676 Children contrary to policyAdminister med at a different time than ordered .476 Borrow supplies

.484 Borrow meds

.513 Delay ordered treatmentAdminister med at different rate than ordered .508 Admin med at different time than ordered

.462 Initiate treatment without order

.473 Omit treatment without orderBorrow supplies .599 Borrow meds

.525 Delay ordered treatmentInitiate treatment without order .479 Omit treatment without order

.456 Delay ordered treatmentOmit treatment without order .506 Delay ordered treatment

Note. Correlations significant at 0.01 level. Meds medications.

TABLE 5. Reasons for Rule Bending: Related Patterns of Reasoning

Reasons for Rule Bending Related Patterns of Reasoning

To ease workload .740 To save time.629 When there are too few nurses.476 When there is not enough non-nursing support.498 When there is no time to meet personal needs

To save time .683 When there are too few nurses.492 When there are insufficient supplies.526 When there is not enough non-nursing support.509 When there is no time to meet personal needs

When there are too few nurses .649 When there are insufficient supplies.456 When meds are not available.577 When there is not enough non-nursing support.479 When there is no time to meet personal needs

When there are insufficient supplies .589 When meds are not available.464 When MDs are slow to respond.581 When staff and services are slow.590 When there is not enough non-nursing support.534 When there is no time to meet personal needs.468 When conflicts between rules and patient needs exist

When meds are not available .665 When MDs are slow to respond.581 When staff and services are slow.580 When there is not enough non-nursing support.477 When conflicts between rules and patient needs exist

When MDs are slow to respond .596 When there is not enough non-nursing support.509 When conflicts between rules and patient needs exist

When staff and services are slow to respond

.698 When MDs are slow to respond

.662 When there is not enough non-nursing support

.492 When there is no time to meet personal needs

.526 When conflicts between rules and patient needs existWhen there is not enough non-nursing support

.482 When communication problems exist

.607 When there is no time to meet personal needs

.462 When conflicts between rules and nurse needs existWhen interpersonal conflict exist .499 When communication problems existWhen communication problems exist .452 When conflicts between rules and nurse needs exist

.564 When disagrees with the ruleWhen there is no time to meet personal needs

.498 To ease workload

.509 To save time

.607 When there is not enough non-nursing support

.518 When communication problems exist

.484 When conflicts between rules and patient needs exist

.492 When staff and services are slow

.484 When conflicts between rules and patient needs exist

.641 When conflicts between rules and nurse needs existWhen conflicts between rules and patient needs exist

.493 When conflicts between rules and nurse needs exist

.448 When disagrees with ruleWhen conflicts between rules and nurse needs exist

.505 When disagrees with rule

Note. Correlations significant at 0.01 level.

TABLE 6. Conclusions About Rule Bending: Related Patterns

Conclusions About Rule Bending Related Patterns

Requires prediction of result (RS) .658 Evaluate risks to patient (RS).670 Evaluate risks to nurse (RS)

Evaluate risks to patient (RS) .777 Evaluate risks to nurse (RS)Acceptable if no one was harmed (RS, TRB) .464 Solves immediate problem (RS, TRB)Can be justified (RS, TRB) .451 Solves immediate problem (RS, TRB)May result in disciplinary action (TRB) .612 May be considered nursing error (TRB)

Note. Correlations significant at 0.01 level. RS responsible subversion; TRB tolerance for rule bending.

through 2025 (Buerhaus, Staiger, & Auerbach, 2008). For the most part, nurses function admirably at the precarious and pressurized intersections of the health care system and the patient. However, the expectations of perfection from nurses in an imperfect system are enormous and unrealistic. Current legal and manage-ment structures may discourage desperately needed new nurses from entering into the profession. Consider-ation of the social forces that create a work environment that is ripe for or even tacitly encourages rule bending must be acknowledged and studied. Many, but certainly not all, nurse rule benders are experienced and caring but conflicted nurses who are worth saving. The bal-ance between patient protection and nursing workforce preservation is a delicate one. Attaining a reasonable harmony between liability defense, nurse sanction, and the required disclosure of information about harmful adverse events is a challenge for the future. Ideally, the nurse will seek the services of counsel before he or she has given a statement or before (as recently happened in the author’s experience) signing and faxing back a settlement agreement to a board in another state.

Analyzing instances of rule bending within this context will assist in the defense of the good nurse through mitigation. Based on the assumption that the lawyer has time to prepare and work with the nurse and the Board of Nursing, the focus can be preemptive. Establish that the nurse is a good nurse with employ-ment records, previous clean record, testimonials from past and present employers, and professional activities. Establish immediate and ongoing remediation with evi-dence of self-education of nurse about the rule bending, engagement of nurse in education of others about the rule bending, and evidence of coursework related to the associated legal issues. Obtain support from the current employer if possible, such as employer willingness to retain and retrain employee. Establish contributory work conditions (environmental drivers) and realize that the degree of harm or potential harm will matter. Consider expert testimony related to covert/implicit

socialization of nurses into this kind of problem solving behavior (personal drivers).

NEXT STEPS

In nursing science, knowing refers to the multiple ways of “perceiving and understanding the world . . . knowledge is the communication of knowing” (Chinn & Kramer, 2008, p. 2). One of the established patterns of knowing in nursing (or nursing law, for that matter) is the empiric pattern—that which examines professional practice as scientifically competent (Chinn & Kramer, 2008). The critical questions for consideration in this pattern of knowing are, “What is this and how does it work?” (Chinn & Kramer, 2008, p. 12). It is anticipated that the two conceptual models previously described and the initial descriptions of drivers of rule bending behaviors by nurses will generate critique and perhaps some controversy among the community of nurse attorneys. However, critical discourse is welcome for the advance of this science. Rule bending by nurses is an evolving theory and remains tentative and open to modification as the knowledge develops (Chinn & Kramer, 2008). Subscale relationships is an area for additional analysis of this study data. This would comprise an examination of the relationships between examples and reasons, examples and conclusions, and reasons and conclusions. With replication of the find-ings of this study, knowledge about rule bending behav-iors in nursing will mature and become the basis for the next step in scientific research: hypothesis testing and ultimately intervention development. Two replication studies have been commenced in other samples: the entirely hospital-based and the educational institution-based. Data for these studies have been collected and are in the process of being analyzed. Results are pro-jected to be available in spring 2012.

Nurse-attorneys, as dual professionals with expertise in health care provision and law, are uniquely situated to set a high standard of practice in negotiating the

sometimes uncomfortable intersections and disconnects between laws, rules, and policies governing health care provision and the realities of its actual delivery. Nurse attorney driven scientific research into these issues will help create the high-quality, evidence-based practice that should be the hallmark of the profession.

REFERENCESBenner, P. (1984). From novice to expert: Excellence and power in

clinical nursing practice. Menlo Park, CA: Addison Wesley.Buerhaus, P. I., Staiger, D., & Auerbach, D. (2008). The future

of the nursing workforce in the United States: Data, trends, implications. Sudbury, MA: Jones & Bartlett.

Burns, N., & Groves, S. K. (2010). Understanding nursing research, building an evidence based practice (5th ed.). St. Louis, MO: Elsevier Saunders.

Chinn, P. L., & Kramer, M. K. (2008). Integrated knowledge development in nursing (7th ed.). St. Louis, MO: Mosby.

Collins, S. E. (2001). Knowing nursing error: Understanding nursing error through nurses’ error experiences. (Doctoral dissertation). Available from ProQuest Dissertations and Theses database. (UMI No. 3041099).

Collins, S. E. (2003). The trouble with bending the rules. RN, 66(7), 69–72.

Collins, S. E., & Mikos, C. A. (2008). Evolving taxonomy of nurse practice act violators. Journal of Nursing Law, 12(2), 85–91.

Galperin, B. L. (2003). Can workplace deviance be construc-tive? In A. Sagie, S. Stashevsky, & M. Koslowsky (Eds.), Misbehavior and dysfunctional attitudes in organizations (pp. 154–170). New York: Palgrave Macmillan.

Halbesleben, J. R. B., Wakefield, D. S., & Wakefield, B. J. (2008). Work-arounds in health care settings: Literature review and research agenda. Health Care Management Review, 33(1), 2–12.

Hughes, R. G., & Blegen, M. (2008). Medication adminis-tration safety. In R. G. Hughes (Ed.), Patient safety and quality: An evidence-based handbook for nurses (pp. 2-397–2-414). Rockville, MD: Agency for Healthcare Research and Quality.

Hutchinson, S. A. (1990). Responsible subversion: A study of rule-bending among nurses. Scholarly Inquiry for Nursing Practice, 4(1), 3–17.

Jennings, B. M. (2008). Turbulence. In R. G. Hughes (Ed.), Patient safety and quality: An evidence-based handbook for nurses (pp. 2-193–2-202). Rockville, MD: Agency for Healthcare Research and Quality.

Lee, R. M., & Renzetti, C. M. (1990). The problems of researching sensitive topics. American Behavioral Scientist, 33, 510–528.

Marx, D. (2001). Patient safety and the “just culture”: A primer for health care executives. New York: Columbia University.

Morath, J. M., & Turnbull, J. E. (2005). To do no harm: Ensur-ing patient safety in health care organizations. San Francisco: Jossey-Bass.

Vaughan, D. (2005). The normalization of deviance: Signals of danger, situated action, and risk. In H. Montgomery, R. Lipshitz, & B. Brehmer (Eds.), How professionals make decisions (pp. 255–276). Mahwah, NJ: Lawrence Erlbaum Associates.

Acknowledgments. This research was funded by grants from the University of Tampa, Sigma Theta Tau–Delta Beta Chapter-at-large, and the Florida Nurses Association Labor and Employ-ment Relations Commission. Grateful appreciation for the data management contributions of Deborah Leyva, RN, BSN, is acknowledged.

Biographical Data. Dr. Collins is a nurse-attorney with expe-rience in the areas of medical and nursing malpractice, legal and bioethics education of allied health care practitioners, and consultation practice in licensure defense, forensic criminal defense, health law and policy, and health care risk manage-ment. Her particular areas of expertise focus on the intersec-tions of law, ethics, health policy/economics, and nursing.

Correspondence regarding this article should be directed to Suzanne E. Collins, JD, MPH, PhD, University of Tampa, Department of Nursing, 401 W. Kennedy Blvd., Box 10F, Tampa, FL 33606. E-mail: secollins@ut.edu

APPENDIX—STUDY SURVEY©

INSTRUCTIONS

This anonymous survey asks for your opinions and will take about 10 to 15 minutes to complete. The information you provide is confidential. No names of institutions should be included in any of the “other” descriptions you may provide. If a person or institution is identifiable the entire entry will be deleted and not used in the study.

Part One:

0–2 3–5 6–10 11

Gender Male Female

Hospital LTC Clinic Home Care Education Private Medical Clinic

Part Two: The following are examples of rule bending reported by nurses in a previous study. Please mark the frequency that best reflects how often you think this kind of rule bending occurs. If the example is not applicable or you would rather not answer, please mark “no response.”

Examples of Rule Bending. . .

No Response Never Sometimes Often

1. Allow visitors contrary to the facility’s policy.

2. Allow children to visit contrary to the facility’s policy.

3. Allow pets to visit contrary to the facility’s policy.

4. Provide or obtain medical records or information not in accordance with facility policy.

5. Administer medication at a different time than ordered.

6. Administer medication at a different rate than ordered.

7. Administer an over the counter medication without an order.

8. Administer a prescription medication without an order.

9. Allow patients to take their own medications from home without an order.

10. Borrow a medication from one patient to use for another patient.

11. Borrow supplies from one patient to use for another patient.

12. Obtain lab tests for a patient without an order.

13. Initiate treatment for a patient without an order.

14. Omit treatment without an order.

15. Delay ordered treatment for a patient.

16. Selectively disclose or exaggerate patient information to obtain an order.

17. Fabricate a verbal order to obtain treatment for a patient.

18. Disconnect alarms contrary to facility’s policy.

Labor Employment Relations Commission

Part Three: The following are examples of work related reasons why rule bending occurs as reported by nurses in a previous study. Please check the strength of your agreement with the following. If the example is not applicable or you would rather not answer, please mark “no response.”

Reasons Why Nurses Rule Bend. . .

No Response

Strongly Disagree Disagree Agree

Strongly Agree

1. Nurses bend the rules to ease the workload.

2. Nurses bend the rules to save time.

3. Nurses bend the rules when there are too few nurses for the number of patients.

4. Nurses bend the rules when there are insufficient supplies.

5. Nurses bend the rules when required medications are not available.

6. Nurses bend the rules when physicians are slow to respond.

7. Nurses bend the rules when ancillary services and staff are slow to respond.

8. Nurses bend the rules when there are not enough non-nursing support staff.

9. Nurses bend the rules when there is interpersonal conflict between coworkers.

10. Nurses bend the rules when communication problems exist.

11. Nurses bend the rules when they have no time to meet basic personal needs at work.

12. Nurses bend the rules when conflicts between rules and patient needs arise.

13. Nurses bend the rules when conflicts between rules and basic personal nurse needs arise.

14. Nurses bend the rules when they disagree with the rule.

Part Four:The following are conclusions about rule bending reported by nurses in a previous study. Please check the strength of your agreement with the following. If the example is not applicable or you would rather not answer, please mark “no response.”

Conclusions About Rule Bending. . .

No Response

Strongly Disagree Disagree Agree

Strongly Agree

1. Rule bending is acceptable if no one is harmed.

2. Rule bending occurs but is not openly discussed.

3. Rule bending requires the nurse to evaluate the risks to the patient.

4. Rule bending requires the nurse to evaluate the risks to the nurse.

5. Rule bending requires the nurse to predict the result.

6. Rule bending can be justified.

7. Rule bending is learned in school.

8. Rule bending is learned on the job.

9. Rule bending solves the immediate problem.

10. Rule bending may result in disciplinary action.

11. Rule bending may be considered a nursing error.

Thank you for completing this survey, your contribution to nursing research is very much appreciated.

Journal of Nursing Law, Volume 15, Number 1, 2012

Copyright 2012 Springer Publishing Companyhttp://dx.doi.org/10.1891/1073-7472.15.1.27

Amicus Brief Supports Administration of Insulin to Students Only by Licensed Nurses

Melanie Balestra, RN, NP, JD

The American Nurses Association et al. v. Jack O’Connell, Superintendent of Public Instruction, et al. was filed in 2008 to prevent unauthorized persons from giving insulin to children in the California school system. The Superior Court and Third District Court of Appeals upheld the existing statutory matrix governing the administration of medication by licensed health professionals in California schools. The appellate ruling has been appealed by the California Department of Education and the American Diabetes Association, and the California Supreme Court has agreed to review the decision. The case presents several important legal questions, as well as the manner in which to provide access to healthcare to disabled students during the regular school day in a manner that is consistent with both the federal disability law and state licensing laws, which cannot be unilaterally changed without legislation by the California Department of Education.

Keywords: disabled students; insulin; licensed healthcare professional; unlicensed assistive personnel (UAP); Nurse Practice Act

Diabetes is a chronic, lifelong illness marked by high levels of sugar in the blood, which can lead to serious health problems. Treat-

ment involves diet, exercise, and medicines to control blood sugar and prevent symptoms, as well as diabetes-related complications such as blindness, heart diseases, and kidney failure. Basic diabetes management skills include how to recognize and treat low and high blood sugar, what and when to eat, and how to take oral medication and insulin, which is injected underneath the skin often several times a day (Mayo Clinic, 2011; National Center for Biotechnology Information, 2011).

Insulin is important in that it keeps blood glucose levels on target by moving glucose from the blood into the body’s cells. For patients with type 1 diabetes, insu-lin therapy helps replace insulin no longer produced by the pancreas. Insulin therapy also is sometimes needed for type 2 diabetes and gestational diabetes when other therapies have failed to keep blood glucose levels with-in the desired range (Mayo Clinic, 2011).

Although insulin helps prevent diabetes complica-tions by keeping blood sugar within target range, care must be taken to ensure its safe and effective use. The Institute for Safe Medication Practices (ISMP) defines

insulin as a high-alert medication—a drug that bears a heightened risk of causing significant patient harm when used in error. According to the ISMP, although mistakes may or may not be more common with high-alert drugs such as insulin, the consequences of an error are clearly more devastating to patients. As a result, special safeguards are required to reduce the risk of errors (ISMP, 2008).

With that in mind, the management of diabetes in school children, including the administration of insulin, can be especially tricky; and California and many other states permit only licensed personnel to administer insulin to students. Recently, however, controversy has erupted about who should be allowed to give insulin in school. The goal of this article is to provide a brief overview of diabetes management in California schools, as well as a pending California Supreme Court case that could have far reaching implications for schools and healthcare professionals. It is important to note that this article also examines in detail an amicus brief prepared on behalf of the National Association of School Nurses (NASN) and other affiliates and nursing and professional organizations, which supports the administration of insulin to students only by licensed nurses.

DIABETES MANAGEMENT IN THE SCHOOL SETTING

Children with type 1 diabetes must replace their body’s missing insulin to survive. They require consistent care including blood sugar monitoring and insulin injections. In the school setting, the goal is to ensure that students with diabetes are medically safe and have access to all educational opportunities and activities. Students who are capable can administer their own insulin. However, for those students requiring assistance, certain profes-sionals are allowed to administer insulin injections. This includes California, where the California Department of Education (CDE) takes the position that the Business and Professions Code section 2725(b)(2) and the California Code of Regulations, Title 5, section 604 authorize the following types of persons to administer insulin in Cali-fornia’s public schools pursuant to a section 504 Plan or an individualized education program (IEP):

student’s licensed healthcare provider and parent/guardian;

the local education agency (LEA);

registered nurse or a licensed vocational nurse) who is supervised by a school physician, school nurse, or other appropriate individual;

-tional nurse from a private agency or registry or by contract with a public health nurse employed by the local county health department;

so elects, who shall be a volunteer who is not an employee of the LEA; and

appropriate training, but only in emergencies as defined by section 2727(d) of the Business and Professions Code (epidemics or public disas-ters; CDE, 2011).

The safety of the student is the primary consider-ation in the delivery of all health-related services pro-vided in the school. This applies to diabetic students who are entitled to the high level of care that California law requires them to have. This is especially true for students who cannot self-administer their insulin. (The current number of students who cannot self-administer their insulin is unknown.)

And because the Nurse Practice Act, which regulates the practice of nurses in California, does not permit insulin administration by unlicensed personnel in an

institutional setting, a debate—including litigation—has raged for more than 5 years about California school districts and their ability to provide insulin administra-tion and other services to students with diabetes-related disabilities who were legally entitled to them while at school. After several years, the case (American Nurses Association, et al. v. Jack O’Connell, Superintendent of Public Instruction, et al.) has wound its way to the steps of the California Supreme Court; and interested parties, including students with diabetes and families, schools, and healthcare professionals, are waiting for a decision that could significantly impact the safety and lives of school children with diabetes, as well as regulatory bod-ies, which oversee professions such as nursing.

NURSE PRACTICE ACT

The Nurse Practice Act was enacted by the legislature to regulate the practice of nursing and to define the parameters of nursing practice for the purpose of pro-tecting the public. The Nurse Practice Act states in the Business and Professional Code section 2725(b)(2) that the practice of nursing includes:

Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeu-tic agents, necessary to implement a treatment, disease prevention, or rehabilitative regiment ordered by and within the scope of licensure of a physician, dentist, podia-trist, or clinical psychologist, as defined by Section 1316.5 of the Health & Safety Code. (California Department of Consumer Affairs & Board of Registered Nursing, 2011)

Currently, the Nurse Practice Act does not permit insulin administration by unlicensed personnel in an institutional setting. The Nurse Practice Act can only be changed by legislation enacted by the California legislature.

AMERICAN DIABETES ASSOCIATION CLASS ACTION

With that said, however, beginning in 2000, the Ameri-can Diabetes Association (ADA) began calling for legis-lation that would permit people who are not licensed healthcare professionals to give insulin to students with diabetes. After several unsuccessful attempts at legislation, the ADA shifted gears and, in 2005, brought a class action suit against the California Superintendent of Public Instruction Jack O’Connell, the CDE, and two San Francisco Bay-area school districts. Citing financial concerns and personnel shortages, the suit alleged that the defendants were failing to ensure that diabetic students were receiving healthcare services, including insulin injections, to enable the students to receive a

free appropriate public education as guaranteed under federal law (National School Boards Association, 2010).

The class action lawsuit was settled in August 2007, with the CDE issuing a legal advisory to all California school districts stating that school districts have an obligation to provide insulin administration and related services to eligible students who need the assistance. According to the agreement, to comply with federal law, California law should be interpreted to allow a school employee who is unlicensed and who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders when school nurses or other school healthcare professionals are not available. The legal advisory effectively added an eighth category (“section 8”) to the list of individuals who may administer insulin injections in public school under California’s Code of Regulations (National School Boards Association, 2010).

AMERICAN NURSES ASSOCIATION AND CALIFORNIA AFFILIATE’S CHALLENGE

Following the agreement, the American Nurses Asso-ciation (ANA) and its California affiliate—the ANA California (ANA\C)—sued to invalidate the settlement, claiming it violated state law. Specifically, the suit claimed that section 8 was not in agreement with Cali-fornia’s Nurse Practice Act (NPA), and that it was an illegal directive because the CDE had implemented it without following the state’s Administrative Procedure Act (APA). In November 2008, Judge Lloyd Connelly of Sacramento County Superior Court issued a ruling in the case (American Nurses Association, et al. v. Jack O’Connell, State Superintendent of Public Instruction, et al.). The judge overturned the agreement, ruling that unlicensed assistive personnel (UAP) are not allowed to administer insulin to diabetic students under current law (San Francisco Chronicle, 2008).

Importantly, the court ruled that:

healthcare professionals are allowed to give medications in California;

the CDE to permit unlicensed school personnel to administer insulin; and

because it was not adopted in accordance with the APA.

APPELLATE COURT DECISION

Following the trial court decision, ADA appealed. In June 2010, the Third District Court of Appeals upheld

the trial court decision, ruling that California law allows only licensed healthcare professionals to administer medication (insulin) to diabetic students. As a result, the court concluded that section 8 of the CDE’s Legal Advisory that states unlicensed school personnel have such authority is invalid. The appellate court also rejected the CDE’s contention that section 504 and the Individuals With Disabilities Education Act preempt restrictions in the Nurse Practice Act. “California law,” the court explained, “does not frustrate or stand as an obstacle to the purposes of the federal law in assuring students with disabilities free appropriate public educa-tion because schools can comply with both the federal law and the California law” (National School Boards Association, 2010).

Despite two courts decisions in favor of the ANA, the American Diabetes Association and the California Department of Education have continued to pursue the case and filed an appeal with the California Supreme Court. In September 2010, the California Supreme Court voted unanimously to review the decision. No hearing date has been set.

PENDING CALIFORNIA SUPREME COURT DECISION AND AMICUS BRIEFS

With American Nurses Association v. O’Connell (No. S184583) pending in the California Supreme Court, briefs have been filed by numerous groups support-ing the American Nurses Association’s ongoing effort to ensure that California school children receive safe, quality healthcare. This includes NASN, which, along with the support of many of its affiliates and other nurs-ing and professional organizations, filed an amicus brief on April 28, 2011 to provide the court with a compre-hensive and balanced review of the medical literature as it pertains to the care and health of school children with diabetes and pertinent issues before the court. Numerous organizations joined NASN in the amicus brief (see Table 1).

The full amicus brief is available at www.nasn.org. In the brief, NASN and all other amici argue the following:

. The Nurse Practice Act, which regu-lates what nurses can and cannot do to protect the public, does not permit insulin administra-tion by unlicensed personnel in an institutional setting. It also points to the education nurses receive to administer medication, and that in the hospital setting, another nurse must con-firm an insulin dosage before it is given to a patient. The NPA also outlines how a nurse can be disciplined if he or she goes beyond

his or her scope of practice. School nurses risk disciplinary action and loss of license when the CDE instructs them to enable administration of insulin by nonlicensed personnel.

law. Section 504 of the Rehabilitation Act of 1973 provides for appropriate personnel to be employed by the school for any children with disabilities. The State of California statutorily identifies through the Nurse Practice Act who can perform administration of medications and injections if needed by a child with a disabling condition. Federal statute is not inconsistent with the statute as written by the state. The Cal-ifornia Department of Education cannot shirk its duty to those children by writing language contrary to the NPA to allow volunteers to give insulin, which would allow anyone to give sub-standard healthcare to the very children who need specialized care.

- The ADA argues that a shortage of nurses

in California is preventing schools from hiring nurses but that is not the case. In fact, accord-ing to a survey conducted by the California Institute for Nursing & Health Care, 43% of new graduates were not working as a registered nurse. The reasons given for not finding a job were either no experience (93%) or no position available (67%; California Institute for Nursing & Health Care, 2010). The study did not include experienced registered nurses who may be hav-ing problems finding jobs in California—a state with one of the highest unemployment rates in the nation.

diabetes. Section 504 and the Individuals With

Disability Education Act (IDEA) provide that all children with diabetes must receive a free and appropriate public education, including regular or special education and related aids and servic-es. It does not suggest that to meet the needs of children with diabetes, substandard care should be provided because it is less expensive. There-fore, the CDE has discriminated against chil-dren with diabetes by not providing federally mandated school nurses to administer insulin.

. The school environment is very different from the home setting and can complicate the manage-ment of diabetes in school children. Issues could include language difficulties (English as a second language); cultural differences, including diet; ethnic differences in metabolic control; and differences in the level of diabetic care support provided in schools.

-

than at home. The brief details the numerous considerations that must be taken into account before insulin is injected and points out that it does not take as much insulin to create a prob-lem or harm a child as it does with an adult.

. The brief cites defects in the ADA’s argument, includ-ing safety issues associated with unlicensed personnel administering insulin. The brief states that “Adding a potentially life-or-death respon-sibility to already overburdened school person-nel would be an especially unwise idea at the present time.” It notes how devastating budget cuts have led to employees having to do more with less. The brief also speaks to the potential for coercing nonnurses to volunteer to admin-ister these medications, as well as the potential for civil and criminal liability for those who do volunteer.

Additional amicus briefs have been filed supporting the ANA and coplaintiffs, ANA\C and the California School Nurses Organization (CSNO), in challenging the California Department of Education’s effort to change the state’s Nurse Practice Act to allow UAPs to admin-ister medication to children in school. These include briefs filed by the California Teachers Association, the American Federation of Teachers, AFL-CIO, the California School Employees Association, the United Nurses Associations of California, American Federa-tion of State, County and Municipal Employees, and the National Council of State Boards of Nursing (The American Nurse, 2011).

TABLE 1. Organizations Joining NASN in the Amicus Brief

Association of periOperative Registered NursesAmerican Occupational Therapy Association, Inc.California Association for Nurse PractitionersCalifornia Nurses AssociationCalifornia School Health Centers AssociationCalifornia Teachers AssociationCoalition of Labor Union WomenEmergency Nurses Association

National Association of State School Nurses ConsultantsNational Association of Pediatric Nurse PractitionersNational Board for Certification of School NursesSchool Social Work Association of AmericaNumerous state school nurses organizations

It also should be noted that several briefs have been filed in support of the American Diabetes Association and the California Department of Education’s position that nonmedical school personnel should be permitted to administer medications, including insulin, to chil-dren in California’s public schools. Groups filing briefs in support of the ADA include:

-my of Pediatrics—California District, American Academy of Pediatrics—Section on Endocri-nology, the American Association of Clinical Endocrinologists, the American Association of Diabetes Educators, the Endocrine Society, and the Pediatric Endocrine Society;

State Superintendent of Public Instruction;

-ican Diabetes Association, 2011)

CONCLUSION

After 5 years of litigation, this case will soon come before the California Supreme Court. The ANA, ANA\C, and CSNO, as well as many additional nursing, teach-ing, and other organizations across the country fully support students’ rights to public education, including access to healthcare during the regular school day. Students’ healthcare needs, however, must be met in a manner that is consistent with both federal dis-ability laws and state licensing laws, which cannot be unilaterally changed by the California Department of Education. The ANA has contended throughout this case that students’ rights to public education and rea-sonable accommodation must be met by the CDE, but without lowering the standard of care or violating the Nurse Practice Act.

In addition, there are serious flaws in the ADA argu-ment about using UAPs, as no formal training program has been outlined by the CDE and the ADA for school personnel who would volunteer to administer insulin. Insulin is a “high-alert medication” and can harm the patient or student if used improperly. As a result, there are safety issues associated with unlicensed personnel administering insulin.

If the California Department of Education and the American Diabetes Association decide to pursue a leg-islative change to the Nurse Practice Act that would allow UAPs to administer insulin to students in school settings, all constituencies, including the Board of

Registered Nursing, should be represented and work together on a legislative solution that focuses on the safety and lives of children with diabetes. For example, this might include creating a formal insulin administra-tion training program for UAPs.

Members of The American Association of Nurse Attorneys (TAANA) should stay abreast of this seminal case as there is a strong chance that it will proceed to the U.S. Supreme Court and that TAANA may be writing an amicus brief supporting the ANA in its fight to ensure that school children receive safe, quality healthcare. The end result will have national implications, setting federal precedent not only for regulatory bodies, which oversee professions such as nursing, but also in the fight for fair-ness and safety for school children with diabetes.

REFERENCESAmerican Diabetes Association. (2011). American Diabetes

Association applauds the U.S. Department of Justice and Medical and Disability Rights Groups for filing briefs in its case seeking to ensure access to insulin for California stu-dents with diabetes. Retrieved August 1, 2011, from http://www.marketwire.com/press-release/american-diabetes- association-applauds-us-department-justice-medical- disability-rights-1514286.htm

The American Nurse. (2011). ANA’s legal fight to protect Califor-nia practice act, schoolchildren heats up. Retrieved August 1, 2011, from http://www.theamericannurse.org/?p=1231

California Department of Consumer Affairs & Board of Regis-tered Nursing. (2011). Business and professions code. Chap-ter 6. Nursing. Article 2. Scope of regulation. Legislative intent; practice of nursing defined. Retrieved July 30, 2011, from http://www.rn.ca.gov/regulations/bpc.shtml#2725

California Department of Education. (2011). K.C. settlement agreement & legal advisory. Retrieved July 30, 2011, from http://www.cde.ca.gov/ls/he/hn/legaladvisory.asp

California Institute for Nursing & Health Care. (2010). 43% of new registered nurse grads in California are not work-ing as RNs. Retrieved May 4, 2012, from https://docs .google.com/viewer?a=v&q=cache:OrpDaHFLa3IJ: www.cinhc.org/wordpress/wp-content/uploads/2010/12/New-Grad-2010-Study-Release.pdf+43%25+of+new+ registered+nurse+grads+in+California+are+not+ working+as+RNs&hl=en&pid=bl&srcid=ADGEES gp7Xh6FX5uJ3d0HU0e-B2dk0 j8rvX6kr tKMAB3J yxxr3EjKgJ0MgYW9nGKyeGS0TZbMEbPxZ4C8Hy6hX w7nMhuQYRGtQiCBqInoKEUhZBVZWoWHjeGhf XQ48Q_RbY5qDpzNQKY&sig=AHIEtbTWDvhzejoCNUPqYtiQeW_w4yse3g

Institute for Safe Medication Practices. (2008). ISMP’s list of high-alert medications. Retrieved July 30, 2011, from http://www.ismp.org/Tools/highalertmedications.pdf

Mayo Clinic. (2011). Type I diabetes in children. Retrieved November 7, 2011, from http://www.mayoclinic.com/health/type-1-diabetes-in-children/DS00931

National Center for Biotechnology Information. (2011). Dia-betes. Retrieved July 30, 2011, from http://www.ncbi.nlm .nih.gov/pubmedhealth/PMH0002194/

National School Boards Association. (2010). NSBA legal clips. California law does not permit trained volunteer school personnel who are not licensed nurses to administer insulin injections to diabetic students. Retrieved July 31, 2011, from http://legalclips.nsba.org/?p=566

San Francisco Chronicle. (2008). Judge rejects pact on inject-ing diabetic kids. Retrieved July 31, 2011, from http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/15/BAIL144T5L.DTL

Biographical Data. Melanie Balestra, RN, NP, JD, is a partner at Cummins & White, LLP, a business and insurance law firm

based in Newport Beach, California. Her practice focuses on issues that affect healthcare providers, including nurses, nurse practitioners, physicians, physical therapists, pharmacists, and dentists. She also continues to be actively involved in her pro-fession as a pediatric nurse practitioner at the Laguna Beach Community Clinic in Laguna Beach, California.

Correspondence regarding this article should be directed to Melanie Balestra, NP, JD, Cummins & White, 2424 S.E. Bristol Street, Ste. 300, Newport Beach, CA 92660. E-mail: mbalestra@cwlawyers.com

Journal of Nursing Law, Volume 15, Number 1, 2012

Copyright 2012 Springer Publishing Companyhttp://dx.doi.org/10.1891/1073-7472.15.1.33

TAANA/AALNC JOINT POSITION STATEMENT

Criminal Prosecution of Health Care Providers for Unintentional Human Error

The American Association of Nurse Attorneys (TAANA) and the American Association of Legal Nurse Consultants (AALNC) are not for

profit membership organizations dedicated to:

legal communities;-

istered nurses practicing in the specialty areas of nurse attorneys and legal nurse consulting

and analyzed, examining contributing factors and sys-

and effects analysis required to do so cannot occur in a

approaches deter error-reporting and endanger patients

Unintentional human errors occur in clinical practice 1

majority of errors reflect system problems that need to be addressed. The fear of criminal charges undermines an organization’s attempts to create a culture of safety

prosecution of an unintentional human mistake under-mines error reporting and the creation of a culture of

from clinical practice, exacerbates the shortage of

-

2,3,4

-

-

-

POSITION STATEMENT

depends upon a systems approach to analyzing

-ers for unintentional error endangers patients,

from clinical practice, exacerbates the shortage --

able expectation of perfection in practice.

intent to cause harm.

-

licensing boards.-

error and support other organizations in similar opposition.

NOTES

our patients.”

considerable pressure from the public and the legal system

criminal prosecution sends the false message that clinical perfection is an attainable goal, and that ‘good’ health care

disciplinary action if they make a mistake, and reporting of errors decreases, making it more difficult to determine root causes. The belief that a medication error could lead to

a chilling effect on recruitment and retention of health care -

ply. . . . While there is considerable pressure from the public

make fatal errors, filing criminal charges against a health care -

errors underground.”

into errors made by health care practitioners is cause for

beneficial. Its potential impact on patient safety is enormous,

the importance of reporting and analyzing errors. Further,

professionals.”

-

considering practicing here.”5. “Organizations that continue to harbor cultures of

cultures breed fear, undermine error reporting, and do not

a tremendous chilling effect that criminal prosecutions can

We need to focus not on putting people behind bars, but

real error is blaming the people instead of the process.”

REFERENCESTo err is human: Building a safer

health system

id=9728Criminal

prosecution of human error will likely have dangerous long-term consequences

Strategies for building a hospitalwide culture of safety. Safety initiatives. Oakbrook Terrace, IL:

Front line of defense: The role of nurses in preventing sentinel events. Oakbrook Terrace, IL:

prison in a case that bodes ill for the profession. Nursing, 97

Hospital association statement regarding legal actions against nurse

SUGGESTED RESOURCES10 patient

safety tips for hospitals

ANA comments on criminal charges filed against WI RN

Nursing against the odds: How health care cost cutting, media stereotypes, and medical hubris under-mine nurses and patient care

Institute of Medicine. (2004). Keeping patients safe: Trans-forming the work environment of nurses. Washington, DC:

Institute of Medicine. (2001). Crossing the quality chasm: A new health system for the 21st century. Washington, DC:

Since when is it a crime to be human?

-nizations. (1998). Medication use: A systems approach to reducing errors

-zations. (2002). Health care at the crossroads: Strategies for addressing the evolving nursing crisis

-tions. (2003). Staffing effectiveness in hospitals. Oakbrook

-tions. (2005). Contracted staff and patient safety. Oakbrook

-Patient safety: Essentials for health care (4th

-The Just Culture

Community

Mason, D. (2007). Good nurse—bad nurse: Is it an error or a The American Journal of Nursing, 107(3), 11.

Overtime and extended work shifts. Recent findings on illnesses, injuries, and health behaviors

American Journal of Nursing, 107

Crime.10.aspx

Nursing, 28(5), 48–51.

medication error/criminal negligence case: Look beyond Hospital Pharmacy, 33

-

Wisconsin State Journal

Correspondence regarding this article should be directed

Order Onlinewww.springerpub.com