legal issues in nursing and health care

Legal Issues in Nursing and Health Care

Why is it important to understand the legal issues that impact nursing

practice?Nurses are constantly faced with the

challenge of making difficult decisions regarding good and evil or life and death

Nurses have a responsibility to:Understand the legal obligations when caring

for clients Understand the legal limits influencing daily

practice Protect the client’s rightsProtect themselves from liability

Types of LawStatutory Law

Created by elected legislators (Congress, state legislatures) - STATUTES

Can be either criminal or civilExample: Nurse Practice Acts (NPA), Emergency

Medical Treatment and Active Labor Act (EMTALA)Common Law

Created by judicial bodies as a result of legal casesExamples: “Informed consent,” “abortion rights,”

client’s right to refuse treatment

Standards of CareStandards of care are guidelines for nursing practice,

they delineate scope of practice, function and role of the nurse. They are defined in various ways:Nurse Practice ActsState Boards of Nursing of each stateFederal/ state laws regulating hospitals and health care

institutionsProfessional and specialty nursing organizationsFacility policies and procedures

Scope of PracticeDefined by:

Nurse Practice ActsCode of EthicsOrganization StandardsPolicy and Procedure Manuals

Federal Statutes ADA (Americans with Disabilities Act) – is to end discrimination

against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities

Emergency Medical Treatment and Active Labor Act (EMTALA) – is to prohibit refusal of care for indigent and uninsured patients seeking medical assistance in the ED

Mental Health Parity Act Patient Self Determination Act (PSDA)

Advance Directives (“living will”, “DNR”, “durable power of attorney”) Uniform Anatomical Gift Act – organ’s donation HIPAA (Health Insurance Portability and Accountability Act) –

to ensure confidentiality of the patient’s medical records Restraints

State Statutes Licensure - regulated by each state. Licensed by State Board of

Nursing (minimum education requirements, successful completion of licensure exam (NCLEX). Can be suspended or revoked)

Good Samaritan Laws (1998) - protects health professionals stopping to help in emergencies

Public Health Law - laws created to promote health and reduce health risks in communities (school immunizations, reporting communicable diseases)

Uniform Determination of Death Act (1980)- has been adapted in most states - changed standards for determining death

Physician-Assisted Suicide (1994) - Oregon passed the Oregon Death with Dignity Act - first statue that permitted physician assisted suicide

State StatutesNurse Practice Acts:

Establish education requirementsDistinguish between nursing and medical

practiceDefine the nurses scope of practiceDefine nursing practice more specifically

All nurses are responsible for knowing their Nurse Practice Act

Reporting StatutesChild Abuse Prevention and Treatment Act

and Reporting StatutesMandate reporting specific health problems

and suspected or confirmed abuseHealth professionals must report under penalty

of fine or imprisonment for failing to do so: Infant and child abuse Dependent elder abuse Specified communicable diseases

Common Law Issues in Nursing Practice

Consent A signed consent is required for all routine treatment, hazardous

procedures, some treatments, and research Abortion Issues

Includes a woman’s right to have an abortion Student Nurses

Student nurses are liable if their actions cause harm to patients (liability is usually shared)

Malpractice Insurance Professional insurance, contract w/ nurse and insurance company if

nurse is sued for professional negligence or medical malpractice Abandonment and Assignment Issues

Short staffing - Inadequate staffing/ patient ratios Floating - Assignments to a department where the nurse does not

normally work Physician’s orders - Nursing judgment when carrying out physician

orders

What is Informed Consent?In 1914, Justice Benjamin Cardozo stated, “

Every human being of adult years and sound mind has a right to determine what shell be done with his own body…” (Schloendorff v. Society of N.Y. Hospital)

More about IC:http://www.ama-assn.org/ama/pub/category/4608.html

DefinitionInformed Consent (IC) is the duty of a health

care provider to discuss the risks and benefits of a treatment or procedure with a client prior to giving care

IC must include the following:1. The nature of the procedure2. The risks and hazards of the procedure3. The alternatives to the procedure4. The benefits of the procedure

When IC is Not RequiredIn case of emergency situation (for minor or adult) A

MINOR is defined as a person who has not yet obtained the age at which she or he is considered to have the rights and responsibilities of an adult (Alabama , Nebraska and Wyoming – 19 y.o., all other states – 18 y.o.).

It is prudent to obtain the IC from the adolescent in case if health care providers have made a reasonable attempt to contact the child parent

When IC is Not RequiredMany states allow the evaluation and

treatment of a child for suspected physical or sexual abuse without the informed consent of a parent or guardian.

Photographing and taking an X-Ray (Utah)In case of forensic examination (do not force

or restrain the child to perform genital or rectal examination)

When a minor can consent for care?Care involving pregnancy, contraception, or

treatment of STDDrug and alcohol treatmentIn some states – emancipated children can

make their health care decisions by themselves

EmancipationEmancipation is the legal recognition that the minor

lives independently and is legally responsible for his or her own support and decision making.

Can occur through an official court proceedingIn some states, a minor can automatically become

emancipated by marrying, joining the military, or becoming a parent before the age of majority

Some states do not officially recognized any form of emancipation

ConsentsA client’s signature implies that the client has been

thoroughly informed about the procedure.Consent must be witnessed appropriatelyNot considered informed if client is:

ConfusedUnconsciousMentally incompetentUnder the influence of sedatives, including preoperative

medications

Legal signatures on consentsWho can legally sign a consent:

Individuals of legal age - 18Under legal age but have a valid marriage certificateEmancipated minors (certain states)A parent or legal guardian of a minorA spouse or next of kin for an adult who is unconscious

or mentally incompetentConservatorsCourt ordered consentTelephone consentsEmergency consents

Civil Law Issues in Nursing Practice Tort - a civil wrong against an individual or property. May or

may not be on purpose . It violates another person’s right’s Intentional

assault - attempt to threaten or harm another person (Ex: force feeding)

battery - intentional physical contact with a person without consent ( Ex: touching without the other person’s permission)

invasion of privacy - right to confidentiality (Ex: release of client’s medical information)

defamation of character - ridiculing others, slander, may apply to client or a colleague (Ex: attack the reputation of a colleague)

false imprisonment - confined or held against a person’s will (Ex: preventing a person from leaving the hospital voluntarily)

Unintentional Negligence - an occasion when a person owes a duty to another

and, through failure to fulfill that duty, causes harm Malpractice - is professional negligence

For a court to recognize a claim of malpractice or negligence, four legal elements must be present

1. There must be a duty owed to the client by nurse2. The nurse must breach the duty3. The breach of duty must be the cause of the

damage4. There must be actual damage to the client

Risk ManagementA system for ensuring appropriate nursing

care and identifying hazards before harm is done to a client.Steps in risk management

Identify possible risks Analyze those risks Act to reduce the risk Evaluate the steps taken

Incident/occurrence reports

To Decrease Chance of Liability Caring, respectful attitude Follow standards of care Give competent care Communicate with other health care workers Develop a good therapeutic caring relationship (rapport) Document, document, document (accurately, completely, timely,

factually, legibly) Stay current with your knowledge of your practice Know your clients Confidentiality Informed consent Physician orders Malpractice insurance

Legal Issues and Implications for Nurses

ObjectivesDiscuss how the Professional RN can safely

practice within the NJ Statues and Board of Nursing Regulations in an unstable economy.

Review how to safely delegate to other members of the health care team.

Discuss how the Professional Nursing Organizations keep the profession of nursing safe by monitoring legislation and the regulatory process.

Legal Issues and Implications for NursesMembers of the Board of Nursing

Appointed by the Governor13 members= 6 RNs; 2LPNs; 1APN; 3 public

members; and 1 State Government official Marietta Cahill, CNM, MSN,RN Irma Bojazi, RN, BSN, MPA Leo-Felix Jurado PHD-c, RN, CAN, APN,C Patricia Murphy, PHD, RN, APN Saundra Austin-Benn, MSN, RN, APN, BC Joni Jones, RN, BC


Members (continued)

Constance Wilson LPN Karen Rodriquez LPN Avery Hart, MA, LCSW, PHD (Public Member) Vacant (Public Member) Vacant (Public Member) Noreen D’Angelo, MS, RN (State Member)

Executive Director George Hebert RN, MA


Mission The mission of the New Jersey State Board of

Nursing is to protect the health and safety of the public through effective public policy, competent and ethical nursing practice, and exceptional customer service. The Board accomplishes its mission in an environment characterized by openness, trust and integrity

Legal Issues and Implications for NursesVISION

Foster public protectionEliminate artificial barriers to licensure and practiceRespond to changes in the health care environment Ensure consumer protection from fraud and abuseCollaborate with all communities of interest Value innovation and embrace changePromote communication internally and externallyUtilize advanced information systems and technologyExceed customer expectationsExcel in delivering effective servicesProvide employees with the opportunity for

meaningful work in an atmosphere of shared commitment

Legal Issues and Implications for NursesBoard of Nursing Roles

Primary role is to protect the publicLicensing/Endorsements APN/RN/LPNCertification of SANE/Forensic NursesCertification HHACertification of Massage, Bodywork and

Somatic TherapyDevelopment of the Standards (Scope) of

Practice APN/RN/LPN


Roles (continued)

Development of Rules and RegulationsCriminal Background ChecksContact hour verifications for licensure

(30/renewal)Disciplinary Action

Legal Issues and Implications for NursesPath of State Legislation

DefinitionsLaw- Bill which has completed those 7 StepsStatute- Another name for lawRules and Regulations- Essentially terms are

used interchangeably. Specific to a Division/Board. They are the guidelines written to outline and/or enforce the law


Definitions (cont)Resolution-express sentiments, create and

empower temporary authorities and/or regulate internal legislative organizations

Policy-Principals that govern action toward a goal

Appropriations- the $,$$$,$$$


7 Steps from bill drafting to lawIdentify an issue or problemNurses have opportunities to have influence

along the way


Step 1 Drafting a BillLegislator sponsors a bill at the suggestion of

a constituent , interest group, public official or the Governor

Co-Sponsors- “the more the better”!Office of Legislative Services provides

research and drafting assistance


Step 2 Introduction of the BillDuring the legislative session the sponsoring

legislator gives the bill to the Secretary of the Senate or Clerk of the General Assembly

The bill is read (1st reading)The bill is printed and released to the public


Step 3 Committee Reference and ActionPresident of the Senate and/or the Speaker of

the Assembly refers the bill to a committee for review

The Committee Chair schedules the bill for a open public hearing in committee

Committee will report bill to House as is or with amendments or as a substitute bill


Step 4 Second or Third ReadingBill is reported to the floor and title is read

aloud for the second readingMay now be amended from floorPresident/Speaker schedules third reading


Step 5 House VotePasses each House when approved by a

majority of authorized members- 21 in Senate and 41 in Assembly

Final legislative approval only when passed by both Houses in identical form.


Step 6 Governor’s ActionSignConditional VetoVetoVeto line items of appropriation bills


Step 7 LawA bill becomes law upon the Governor’s

signature or after 45days if no action is takenNo action on bill passed within the last 10

days of legislative session, fails to become lawA vetoed bill may become law by a 2/3

override vote

Legal Issues and Implications for NursesBoard of Nursing Laws (Statutes)

Definitions Appointments Application fees HHA Oral Competency for HHA Background Checks for HHA Qualification/disqualifications for certifications HHA Assumption of costs for background checks HHA Conditions for issuance of biennial recertification HHA Required Language on certificate HHA Rules and Regs HHA False sworn statement fines Alternative to Discipline Program for nurses-definition Review of Program after 5 years Revision of fees construction of act Rules and Regs Alternative to discipline Secretary-treasurer and executive secretary bond accounts and

reports

Legal Issues and Implications for NursesStatutes(continued)

Professional Nurses Practical Nursing School of Professional Nursing Renewal of certificates of accreditation Violations of the act Repeals Short title APN Certification required APN Certification requirements Interim certification Permitted duties of APN Provision administration of certain non controlled drugs to home health

patients Standards for joint protocols applicable to ordering, prescription of

controlled dangerous substances NJ Board of Nursing additional powers and duties Adoption of Standards Review of chart records of patients treated by APNs

Legal Issues and Implications for NursesNJ Board of Nursing Regulations

Programs in Nursing Education Licensure by Examination RN/LPN (reserved) Licensure by Endorsement RN/LPN General Requirements of Licensure; License Renewal; Fee Schedule Nursing Procedures Certification of APNs Nursing Practice Forensic Nursing-SANE Reserved Reserved Reserved Nurse Anesthetists Homemaker Home Health Aides Reserved Massage, Bodywork and Somatic Therapy

Legal Issues and Implications for NursesKnow your Standards of Practice

I-The collection of data about the health status of the patient/client is systematic and continuous: the data are accessible, communicated and recorded.

II-Nursing Diagnoses are derived from the data about the health status of the patient/client.

III-The plan of nursing care includes goals derived from the nursing diagnoses

Legal Issues and Implications for NursesStandards of Practice (continued)

IV- The plan of nursing care includes assessing priorities and prescribing nursing approaches or measures to achieve the goals.

V- Nursing actions provide for the patient/client participation in health promotion, maintenance and restoration.

VI- Nursing actions assist the patient/client to maximize his health capabilities.

Legal Issues and Implications for NursesStandards of Practice (continued)

VII- The patient’s/client’s progress or lack of progress toward goal achievement is determined by the individual and the nurse.

VIII- The patient’s/client’s progress or lack of progress toward goal achievement determines the reassessment; the recording of priorities, the setting of new goals and the revision of the plan of nursing care.

Legal Issues and Implications for NursesDecision Making Model Algorithm:

Is the act consistent with your scope of practice in the New Jersey Nursing Practice Act? Do the Board's regulations address this specific act? (This may be all the information you need to make your decision. If not, continue to the next step.) Resource documents you might need include: a. Nursing Practice Act: N.J.S.A. 45:11-23, 11-23, 46: b. Delegation Rule: N.J.A.C. 13:37-6.2; c. Standards of Nursing Practice from your professional nursing organization; d. Board Licensed Practical Nursing Standards of Practice and Board Guidelines, such as the LPN Role in IV Therapy-Available upon request. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step.

Is the activity authorized by a valid order, an in accordance with established institutional/agency or provider protocols, policies and procedures? The nurse is accountable for clarifying any order or treatment regimen believed to be inaccurate or contraindicated by consulting with the licensed prescribing practitioner, and notifying the prescribing practitioner when the RN makes a decision not to administer the medicine or treatment. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step.

Is the act supported by research data from nursing literature and/or research from a health related field? Has a national nursing organization issued a position statement on this practice? If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step.

Do you possess the knowledge and clinical competence to perform safely? Documentation to validate your educational and clinical competence should be maintained for a four year period. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step.

Is the act to be performed within accepted "standards of care" which would be provided in similar circumstances by reasonable, prudent nurses with similar education and clinical skills? Nurses are accountable for knowing and conforming to their scope of practice in the Nursing Practice Act, Board regulations, and any other State and Federal laws impacting their practice. If NO, the act is NOT within your scope of practice. Performance of the act may place the patient and the nurse at risk. If YES, continue to the next step.

Are you prepared to assume accountability for the provision of safe care? If NO, the act is NOT within your scope of practice. If YES, you may perform the act based upon a valid order in accordance with the institution/agency or provider's established protocols, policies and procedures.


Scope of Practice Decision-Making Algorithm

Seven Steps

1. Is the act consistent with your scope of practice and the Rules and Regulations in the New Jersey Board of Nursing Practice Act?

YES: CONTINUE NO: STOP



2. Is the act consistent with the Board's Guidelines regarding nursing practice?




3. Is the act supported by Standards of Nursing Practice or scope of practice statements from professional nursing organizations, and research data in nursing and health related literature?




4. Do you posses the required knowledge and have you demonstrated the clinical competency required to implement the act safely?




5. Is the act authorized by a valid order (written agreement with collaborating physician for the advanced practice nurse), and in accordance with established institutional, agency or provider protocols, policies and procedures?




6. Are you prepared to assume accountability of the act and for the outcome of the care rendered?




7. If YES to all of the above, you may perform the act based upon a valid order (written agreement with collaborating physician for advanced practice nurses), and in accordance with the institution, agency or provider's established protocols, policies and procedures.

Legal Issues and Implications for NursesReasons for Delegation

Cost SavingsTime SavingsProfessional growth of employeesProfessional growth of manager

Legal Issues and Implications for NursesBarriers to Delegation

I can do it better myselfLack of ability to directLack of confidence in staffAbsence of control that warn of impending

difficultiesAversion to taking a riskEasier to ask the “boss”Fear of criticismLack of necessary information

Legal Issues and Implications for NursesBarriers to delegation (continued)

May have more work than the employees can do

Lack of self confidencePositive incentives may be inadequate.

Legal Issues and Implications for NursesDelegatory Algorithm

Is task within a licensed nurse's scope of practice?

YES CONTINUENoDo not delegate


RN assessment of patient's nursing care needs completed?

YES CONTINUENoDo Assessment then proceed with a consideration of delegation


Can the task be performed without requiring judgment based on nursing knowledge?

YES CONTINUENo Do not delegate


Are the results of the task reasonably predictable?



Can the task be safely performed according to exact, unchanging directions?



Can the task be performed without a need for complex observations or critical decisions?



Can the task be performed without repeated nursing assessments?



Can the task be performed properly without life threatening consequences?



Is appropriate supervision available? YES CONTINUENoDo not delegate


Delegatory Algorithm

There are no specific laws or rules prohibiting the delegation?

YESTask is delegatableNoDo not delegate


What do you do when the Board of NursingCalls?Why do they investigate?When should you contact a lawyer?What is the cost?What about liability insurance?

Legal Issues and Implications for NursesPrevent actions against you

Provide compassion and kinds to patients/familyCommunicate-Communicate-CommunicateKeep nursing skills currentMaintain complete and accurate charting

without biasAttend education programsSubscribe to professional journalsExercise good judgment in patient careSeek guidance if unsureDon’t provide care out of scope of practice

Legal Issues and Implications for NursesLawsuit Survival

Review all medical recordsDress appropriatelyRespond to disposition with simple answersDon’t volunteer informationAsk for clarification if you don’t understand a questionIf you are unsure of an answer state you don’t knowHesitate before answering so you attorney has time to

objectWatch prosecuting attorney tricksBe calm, cool and collected

Legal Issues and Implications for NursesProfessional LobbyingA campaign to influence members of the

legislature to vote for the group’s special interest

Identify objectives, prioritize and devise plans and timetables

Strategize and work with other groupsBuild organized support for goal

Legal Issues and Implications for NursesGrassroots LobbyingNurses are the largest single group of

healthcare providersMembers of Congress and State Legislatures

and the general public need to hear nursing’s opinion on healthcare

Mobilize and influence national and state policy


Current Bills/LawsA2848/S1779- Upgrades penalties for assaulting a

nurseS620- “BSN in 10”A1866/S1484- Multistate LicensureA1531/S1233- Establishes RN minimums for

hospitals and other DHS facilities

16 Bills in NJ Legislature266 Bills in US Congress

Legal Issues and Implications for NursesResources

Internet BON Website NJSNA Website ANA Website NJ Legislature Website US Congressional Website “Ask Jeeves” Ask.com

NJ Register

Legal Issues and Implications for NursesYour Role in Professional Practice

Remain active by being a member of a professional organization and reading materials presented.

Be aware of Bills in the Legislature and Congress that effect the Practice of Nursing.

legal issues in nursing and health care

Documents

impact nursing practice

treatment act

disabilities act

daily practice

accountability act

dignity act

health risks

health carewhy