Legal and Ethical Aspects of Nursing PDF

c hap t e r 3 Legal and Ethical Aspects of Nursing http://evolve.elsevier.com/Williams/fundamental Objectives Upon completing this chapter, you should be able to do the following: Theory 1. Explain the legal requirements for the practice of nursing and how they relate to a student nurse. 2. Iden...

c hap t e r 3 Legal and Ethical Aspects of Nursing http://evolve.elsevier.com/Williams/fundamental Objectives Upon completing this chapter, you should be able to do the following: Theory 1. Explain the legal requirements for the practice of nursing and how they relate to a student nurse. 2. Identify the consequences of violating the nurse practice act. 3. Examine the issue of professional accountability, professional discipline, and continuing education for licensed nurses. 4. Compare and contrast the terms negligence and malpractice. 5. Discuss what you can do to protect yourself from lawsuits or the damages of lawsuits. 6. Differentiate a code of ethics from laws or regulations governing nursing, and compare the similarities of the codes of ethics from the NFLPN, NAPNES, and ANA. 7. Describe the NAPNES standards of practice. Clinical Practice 1. Relect on how laws relating to discrimination, workplace safety, child abuse, and sexual harassment affect your nursing practice. 2. Discuss the National Patient Safety Goals and identify where these can be found. 3. Interpret rights that a patient has in a hospital, nursing home, community setting, or psychiatric facility. 4. Describe four elements of informed consent. 5. Explain advance directives and the advantage of having them written out. 6. Consider the relationship between the HIPAA and use of social media. Key Terms accountability (ă-kŏwn-tă-BĬ-lĭ-tē, p. 33) advance directive (p. 39) assault (ă-SĂLT, p. 40) assignment (p. 33) battery (p. 40) competent (p. 38) confidential (cŏn-fĭ-DĔN-shŭl, p. 36) consent (p. 38) defamation (dĕ-fă-MĀ-shŭn, p. 40) delegation (p. 33) discrimination (p. 34) do-not-resuscitate (DNR) orders (rē-SŬ-sĭ-tāt, p. 39) ethical codes, ethical principles, and ethics committee (p. 31) ethics (p. 43) euthanasia (yū-thă-NĀ-zhē-ă, p. 45) false imprisonment (p. 41) health care agent (p. 39) incident report (p. 43) invasion of privacy (p. 40) laws (p. 31) liability (lī-ă-BĬL-ĭ-tē, p. 39) libel (LĪ-bŭl, p. 40) living will (p. 39) 30 malpractice (măl-PRĂK-tĭs, p. 39) negligence (p. 39) nondisclosure agreement (p. 41) nurse licensure compacts (p. 32) nurse practice act (p. 32) Occupational Safety and Health (OSH) Act (ŏ-kū-PĀ-shŭnŭl, p. 33) Occupational Safety and Health Administration (OSHA) (p. 33) patient advocate (ĂD-vō-kăt, p. 39) privilege (PRĬ-vĭ-lĕj, p. 31) protective devices (p. 41) prudent (p. 39) Quality and Safety Education for Nurses (QSEN) project (p. 35) reciprocity (rĕ-cĭ-PRŎ-cĭ-tē, p. 32) release (p. 39) sentinel event (p. 35) sexual harassment (hă-RĂS-mĭnt, p. 34) slander (p. 40) standards of care (p. 33) statutes (p. 32) tort (p. 32) whistle-blowing (p. 45) Legal and Ethical Aspects of Nursing CHAPTER 3 Concepts Covered in This Chapter • • • • • Communication Ethics Health care law Professionalism Quality An understanding of legal and ethical codes is essential for nurses to practice safely and to protect the rights of patients and co-workers. Nurses work in situations that give them privilege (permission to do what is usually not permitted in other circumstances) in respect to a patient’s body and emotions. Laws deine the boundaries of that privilege and make clear the nurse’s rights and responsibilities. Ethical codes (actions and beliefs approved of by a particular group of people) are different from laws; they are important because not all situations are covered by a law, and there may not be one right action. In these situations, ethical principles (rules of right and wrong from an ethical point of view) are applied, often by an ethics committee (a committee formed to consider ethical problems). Box 3.1 31 SOURCE OF LAW Laws are rules of conduct that are established by our government (Box 3.1 lists specialized vocabulary). In the United States, law comes from three sources: the Constitution and Bill of Rights, laws made by elected oficials, and regulations made by agencies created by elected oficials. Constitutional laws, both federal and state, provide for basic rights and create the legislative bodies (senate and assembly) that write laws governing our lives. Judicial law results when a law or court decision is challenged in the courts and the judge afirms or reverses the decision. This is called “establishing a precedent” because in the future other judges will base their decisions on the preceding, or earlier, decision. Our federal Supreme Court is the highest court to which an appeal of a court decision can be brought. One wellknown health care issue that has been ruled on by the Supreme Court was Roe v. Wade (1972), which established a woman’s right to obtain an elective abortion. More recently, state courts are hearing cases challenging laws that deal with abortion, euthanasia, and assisted suicide. Legal Terms and Definitions Advance directive: Written statement expressing the patient’s wishes regarding future consent for or refusal of treatment if the patient is incapable of participating in decision making. Appeal: Challenge to a court decision; a higher court will judge whether the original decision is afirmed or reversed. Civil rights, civil law: Personal or individual conditions (e.g., life, liberty, and privacy) guaranteed by the Constitution, the Bill of Rights, and federal or regulatory law. Competent: Mentally and emotionally able to understand and act (make choices); able to appreciate consequences of actions. Controlled substance: Speciic drugs with a potential for abuse, such as narcotics, tranquilizers, stimulants, and sedatives. Laws regulate how these are prescribed, dispensed, and stored. Crime: Violation of public law. Damages: The monetary award to an injured plaintiff when the defendant is found responsible for the injury. Defendant: Person accused of violation of public law (crime) or civil law (tort). Emancipated minor: Person under 18 years of age who is legally considered an adult, usually because of marriage, parenthood, or enlistment in the armed services. Felony: A serious crime that may result in a prison term of more than 1 year. Health care agent: Person designated by the patient to make health care decisions when the patient is incapacitated (not able to make those decisions). Usually part of an advance directive. Liability: Responsibility to pay or compensate for a loss or injury resulting from one’s negligence. Litigation: Lawsuit; legal process to prove the facts of a dispute. Malpractice: When a professional causes harm by failing to meet the standard of care; failure to do what a reasonable and prudent person in a similar situation would do. Malpractice insurance: Policy that protects a nurse from the expense of defending herself from lawsuit; will pay the amount awarded up to policy limits if a nurse is found guilty of malpractice. Medical power of attorney: Legal assignment of the ability to make health care decisions for another person; similar to a health care agent. Misdemeanor: Less serious crime than felony; may result in ines, imprisonment of 1 year or less, or both. Negligence: Departure from the standard of care, which, under similar circumstances, would have ordinarily been exercised by a similarly trained and experienced professional. Plaintiff: Person who believes he or she has been injured by the actions of another and seeks to prove it in a court of law. Power of attorney: Legal action to allow a person to conduct business matters for another. Precedent: A judicial decision that is used as a guide in interpreting the law and deciding cases afterward. Privileged relationship: One that requires conidentiality; trust that information gained in the relationship will not be made public. Statute: Legal term for a law. Tort: Violation of a civil law; a wrong against an individual. 32 UNIT I Introduction to Nursing and the Health Care System Administrative law comes from agencies created by the legislature. In health care, agencies such as the Department of Health and Human Services or the Ofice of Professional Licensing oversee nursing and the other health care professions. An individual state board of nursing is also an example of an agency that enforces administrative law. These agencies write regulations or rules that control the profession and its practice. Administrative law governs schools of nursing; licensure; hospitals, nursing homes, and home health agencies; and health care insurance such as Medicare, Medicaid, or private insurance company policies. CIVIL AND CRIMINAL LAW Statutes (laws) may be either civil or criminal. Civil law deals with potential wrongdoing of a person against another person. Civil law guarantees individual rights, and a tort is a violation of civil law. You may be guilty of a tort if you harm a patient, for example, by administering the wrong dose of medication. A lawsuit may result, and, if the defendant is found guilty, a monetary award may be given to the plaintiff. Criminal law deals with potential wrongdoing of a person against society. A crime is a wrong against society, and imprisonment and/or ines may result if one is convicted of a crime. Criminal action charges in nursing could result if a nurse were involved in drug diversion, patient abuse, intentional death, or mercy killing. Serious crimes are called felonies and are punished with prison terms of a year of more, or even the death penalty; less serious crimes are misdemeanors and may result in prison terms of less than a year, monetary ines, or both. LAWS RELATED TO NURSING PRACTICE AND LICENSURE NURSE PRACTICE ACT State licensure is required to practice nursing in the United States, and each state writes its own laws and regulations regarding licensure, in what is called a nurse practice act. These laws deine the scope of nursing practice and provide for the regulation of the profession by a state board of nursing. It is important to know the nurse practice act of the state in which you work because these can differ from state to state. SCOPE OF PRACTICE The scope of practice includes the deinition of nursing for the registered nurse (RN) and the licensed practical or vocational nurse (LPN or LVN) and may include deinitions for advanced practice nurses such as nurse practitioners or nurse anesthetists. Nurse practice acts regulate the degree of dependence or independence of a licensed nurse working with or under other nurses, physicians, and health care providers. For example, an LPN/LVN practices under the direction of an RN, advanced practice RN, physician assistant, physician, dentist, or podiatrist. Nurses must follow the lawful order of a physician (or other health care providers, as stipulated by the state’s nurse practice act) unless it is harmful to the patient, and must have an order to perform certain functions, such as administering prescription drugs or placing a patient in a protective device. It is important to maintain competence in your area of employment so that you can determine whether an order may be harmful to a patient. LICENSURE Eligibility for licensure is determined by each state’s board of nursing, usually involving completion of an approved educational program. The National Council of State Boards of Nursing, which develops the National Council Licensure Examination (NCLEX), has a representative from each of the state boards of nursing who has input on the examination. A passing score on this test is accepted by the states for initial licensure when all other state requirements for eligibility are met. A current trend regarding licensure involves the creation of nurse licensure compacts, whereby certain participating states allow nurses to be licensed in one state and practice in any state belonging to the compact. Nurses living in a noncompact state can apply for reciprocity (recognition of one state’s nursing license by another state). Student Nurses Student nurses are held to the same standards as a licensed nurse. This means that although a student nurse may not perform a task as quickly or as smoothly as the licensed nurse would, the student is expected to perform it as effectively. In other words, she must achieve the same outcome without harm to the patient. The student is legally responsible for her own actions or inaction, and many schools require the student to carry malpractice insurance. The instructor who supervises a student is responsible for proper instruction and adequate supervision and evaluation of a student. Instructors are responsible for assigning students to patients of an appropriate level of complexity so that they do not jeopardize patient safety. A student’s responsibility is to consult with the instructor when she is unsure in a situation, or when a patient’s condition is changing rapidly. Student nurses need to know the nurse practice act and its deinition of nursing in the state where they are practicing, and they must not exceed the scope of practice. It is not legal to do something beyond the scope of nursing practice just because you were told to do so. Hospitals or health care agencies may impose limitations on student practice, but they may not add duties or responsibilities beyond the scope of practice in that state. Legal and Ethical Aspects of Nursing CHAPTER 3 QSEN Considerations: Safety Self-Awareness and Safety It is important for you as a student to have self-awareness of your knowledge and clinical abilities. If there is any doubt of your competence to perform a task or care for a particular patient, double-check with your instructor. PROFESSIONAL ACCOUNTABILITY Accountability is taking responsibility for one’s actions. Professional accountability is a nurse’s responsibility to meet the patient’s health care needs in a safe, effective, and caring way. To do so, students must prepare themselves in the classroom with theory—the textbook description of patient needs and nursing interventions— and then apply that information in the clinical setting. Accountability involves behaviors such as asking for assistance when unsure, performing nursing tasks in a safe manner, reporting and documenting assessments and interventions, and evaluating the care given and the patient’s response. Accountability also includes a commitment to continuing education to stay current and knowledgeable. Delegation Delegation is the assignment of duties to another person. Some states differentiate between delegation (only to another licensed person) and assignment, which can be done to an unlicensed person, such as a nursing assistant. An LPN may supervise nursing assistants, technicians, or other LPNs. The nurse is responsible for ensuring patient safety and observing patient rights. It is the delegating nurse’s duty to supervise and evaluate the care that a licensed or unlicensed person provides. Assignment Considerations Nurse’s Responsibilities When a licensed nurse gives an assignment to another person, the nurse is responsible for ensuring that the person has the skills and abilities to perform the assignment safely, and that an unlicensed person is not performing acts that are legally restricted to nursing. The person delegating remains ultimately responsible to ensure that the task was completed, to learn any results or outcomes from the task, and to determine if any follow-up is necessary. When duties are delegated or assigned, effective communication between all parties is essential to ensuring quality in patient care (Saccomano & Zipp, 2014). Standards of Care Legally, you are responsible for your actions under the nurse practice act and according to the standards of care approved by the profession. These standards are deined in nursing procedure books, institutional policies, procedures or protocols, and nursing journals. On a national level, standards of care have been identiied and published for clinical practice and specialty areas by professional nursing organizations. These 33 standards provide a way of judging the quality and effectiveness of patient care and in legal cases determine whether a nurse acted correctly (see Box 1.1). Standards of care are continually being revised as treatments and techniques are updated and improved with nursing research. What is the standard today may not be the standard next year; it is crucial to keep current with continuing education. PROFESSIONAL DISCIPLINE State boards of nursing are also responsible for discipline within the profession. When a licensed nurse is charged with a violation of the nurse practice act, there will be an investigation and hearing to determine whether the charges are true. The most common charges brought against nurses include substance abuse, incompetence (doing something that can or did harm a patient), and negligence. It is considered negligence not to report another professional’s misconduct. When a nurse is found guilty of professional misconduct, the penalties may result in a temporary suspension or loss of licensure. CONTINUING EDUCATION Many states have adopted laws that require evidence of continuing education after a nurse has passed the licensing examination. Once licensed, you are expected to function safely in any nursing situation. Therefore, it is necessary to continue your education about changes in health care practice, pharmacology, and technology. You may stay current by attending educational programs provided by your employer or professional organizations, reading nursing journals, taking college courses, or attending Internet webinars. LAWS AND GUIDELINES AFFECTING NURSING PRACTICE When a licensed nurse accepts employment with an agency or individual, the nurse is required to work within the laws and regulations governing nursing in that state. There are also federal laws that regulate safety and health in the workplace and forbid discrimination and sexual harassment. Although not law, the “Patient Care Partnership: Understanding Expectations, Rights, and Responsibilities” provides ethical guidelines for nursing practice (Box 3.2). OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION The Occupational Safety and Health (OSH) Act was passed in 1970 to improve the work environment in areas that affect workers’ health or safety. It includes regulations for handling infectious or toxic materials, radiation safeguards, and the use of electrical equipment. With the passage of the OSH Act, Congress created the Occupational Safety and Health Administration (OSHA), whose mission is to keep working conditions 34 Box 3.2 UNIT I Introduction to Nursing and the Health Care System Patient Care Partnership: Overview* When you need hospital care, your health care professionals at our hospital are committed to working with you and your family to meet your health care needs. Our goal is for you and your family to have the same care and attention we would want for our families and ourselves. The sections below explain some of the basics about how you can expect to be treated during your hospital stay. WHAT TO EXPECT DURING YOUR HOSPITAL STAY • High-quality hospital care • A clean and safe environment • Involvement in your care • Discussing your medical condition and information about medically appropriate treatment choices • Discussing your treatment plan • Getting information from you • Understanding your health care goals and values • Understanding who should make decisions when you cannot • Protection of your privacy • Help preparing you and your family for when you leave the hospital • Help with your bill and iling insurance claims Modified from American Hospital Association (2003). Patient Care Partnership: Understanding Expectations, rights, and responsibilities. *Available at: http://www.aha.org/advocacy-issues/communicatingpts/pt-carepartnership.shtml safe for all workers. Health care agencies, because of OSHA requirements, provide mandatory orientation and continuing education regarding a wide range of topics, from isolation procedures and blood-borne pathogen exposure, to ire or bomb threats, workplace violence and active shooter training, and lifting and evacuation procedures. Safe storage and handling of toxic chemicals and drugs are important parts of the OSH Act. Each facility is required to keep a record of hazardous substances, including bleach, disinfectants, and other chemicals. The facility must store them properly in designated areas and maintain material safety data sheets (MSDSs), which outline the hazard the substance can pose. Employees must be updated on these workplace hazards and know the location of the MSDS collection. CHILD ABUSE PREVENTION AND TREATMENT ACT The Child Abuse Prevention and Treatment Act (CAPTA) is a federal law. It was enacted in 1974 and most recently amended and reauthorized in 2010 by the CAPTA Reauthorization Act of 2010. The Reauthorization additionally contains language designed to eliminate barriers to the adoption of foster children (often the victims of child abuse) and includes the Abandoned Infants Assistant Act, which provides grants to support families and prevent abandonment of infants and children (Children’s Bureau, 2012). CAPTA deines child abuse and neglect as “Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm” (Child Welfare Information Gateway, 2015). A child is a person under the age of 18 unless state law speciies a younger age. Many children who are victims of abuse are too young to speak for themselves. CAPTA states that licensed health care personnel are required to report suspected child abuse. Each facility usually has guidelines on how to report child abuse. Reporting suspected child abuse is an emotional event for everyone involved; however, the health and safety of the child must remain the primary focus. Clinical Cues In cases of child abuse, the account of the injury or accident given by the caregiver is often inconsistent with the physical signs and symptoms. A student should bring any suspicions of child abuse to the attention of the instructor. DISCRIMINATION Discrimination is making a decision or treating people based on a class or group to which they belong, such as race, religion, or sex. In 1964, federal legislation made it illegal for employers to discriminate (to hire, promote, or ire employees) because of race, color, religion, sex, or national origin. The law has been amended to prohibit discrimination related to a person’s disabilities, age, pregnancy, childbirth, and related medical conditions. Discrimination laws protect people with human immunodeiciency virus (HIV) infection or acquired immunodeiciency syndrome (AIDS) and those recovering from drug or alcohol addiction. It is not legal for employers to ask questions on an employment application that would indicate race, other protected categories, or health status. Laws also require employers to make reasonable accommodations for people with a disability. SEXUAL HARASSMENT Sexual harassment is deined by the Equal Employment Opportunity Commission (EEOC) as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Sexual harassment is illegal when used as a condition of employment or promotion or when it interferes with job performance. Sexual harassment prohibition has been further applied in schools and in the clinical setting. Student nurses and their instructors need to recognize what sexual harassment is; refrain from conversation or actions that create a hostile, intimidating, or offensive atmosphere; and report actions that are sexually harassing in the classroom or clinical setting. In our society, in which sexual comments and activities are commonplace on television and in movies, we must be aware of the right time and place for sexually suggestive or explicit words or touch. It is appropriate to state, “I am offended by your language Legal and Ethical Aspects of Nursing CHAPTER 3 (or conversation or inappropriate touch).” If the sexually explicit or harassing behavior continues, report it to your supervisor. GOOD SAMARITAN LAWS Good Samaritan laws protect a health care professional from liability if she stops to provide aid in an emergency. In most states, there is no legal requirement for a nurse to help in an emergency, but if a nurse does provide care, liability is limited unless there is evidence of gross negligence or intentional misconduct. In other words, you must not exceed your level of competence nor act recklessly. The Good Samaritan laws do not apply to employed emergency response workers. PATIENT’S RIGHTS In 1972, with revision in 1992, the American Hospital Association (AHA) developed the “Patient’s Bill of Rights,” a list of rights the patient could expect and responsibilities that the hospital must uphold. In 2003 this document was revised to “The Patient Care Partnership: Understanding Expectations, Rights, and Responsibilities” (see Box 3.2). This document is available in eight languages at www.aha.org. Although this is an ethical and not a legal document, state legislators have written laws that prohibit certain actions or guarantee particular rights. Since the irst patient bill of rights, which was hospital oriented, many others have been published, particularly for residents of nursing homes and those in psychiatric units. These documents emphasize that patients continue to have rights even if they are helpless and sick. They seek to preserve the patient’s dignity, privacy, freedom of movement, and information needs. Under some legally speciied conditions, certain rights may be suspended, such as in an emergency when the patient is unconscious or unable to communicate. Other conditions include the patient who is in danger of injury and cannot protect himself from harm, or when it is necessary to protect the public from harm. However, patients with psychiatric disorders in most states cannot be held against their will for more than 3 days, unless they are a distinct danger to self or others or are gravely disabled (unable to provide for basic needs). As long as someone is deemed harmless, the current principle is to protect the individual’s right to be different, to disagree with the majority, to live one’s own life, and to seek one’s own solutions to private dificulties. NATIONAL PATIENT SAFETY GOALS The Joint Commission has developed goals to promote speciic improvements in patient safety. The goals attempt to provide evidence- and expert-based solutions to areas that have caused problems with patient safety, for example improving staff communication and preventing mistakes in surgery. The Joint Commission’s National Patient Safety Goals are updated every year 35 and are available on its website (www.jointcommission .org). All nurses should review these goals annually. A sentinel event is an unexpected patient care event that results in death or serious injury (or risk of such) to the patient. The Joint Commission tracks and reports sentinel events to improve hospital safety. One of the National Patient Safety Goals is to improve staff communication because communication is The Joint Commission’s most frequently cited cause of a sentinel event. QSEN Considerations: Safety Communication and Safety Safe and effective patient care depends on complete communication between caregivers. “Handoff” communication describes times when information is passed from one caregiver to another, such as a change-of-shift report, patient transfer to another unit or facility, or contact with the primary care provider. One form of communication, termed the SBAR method of communication, is a strategy that reduces the likelihood of critical patient details being lost. SBAR is an acronym that stands for Situation, Background, Assessment, and Recommendation. SBAR is useful when communicating with physicians because nurses and physicians are taught different ways to communicate patient information. Nurses are taught to communicate in narrative form and to include every possible detail, whereas physicians are taught to communicate using brief “bullet” points. This SBAR format encourages caregivers to communicate in a way that is concise, yet complete. The American Association of Colleges of Nursing (AACN) and the Quality and Safety Education for Nurses (QSEN) project advocate adding the letter I at the beginning of the acronym (Introduction of yourself and your patient, including your role and unit) and the letter R at the end of the acronym (for Readback, to encourage veriication) when communicating with people over the telephone or from different departments. The resulting acronym is ISBAR-R. Communication Example of ISBAR-R Communication: Handoff Report Introduction: Hello, I’m Donna, the day-shift nurse. Are you ready for the shift report on Mrs. Smith in room S21? Situation: You are communicating the 3:00 pm change-ofshift report for a 65-year-old patient who was admitted 3 days ago with pneumonia. Background: Mrs. Smith is a 65-year-old patient who was admitted 3 days ago with pneumonia and shortness of breath. She has completed 3 days of antibiotic therapy, nebulizer treatments every 4 hours, and continuous supplemental oxygen therapy. Assessment: Mrs. Smith has clear lung sounds, and her pulse oximeter reads 98% on 2L of oxygen. Vital signs: T 98.8°, P 86, R 22, and BP 128/72. She ambulated twice this shift down the length of the hall and denies shortness of breath. She has an occasional cough, productive of yellow sputum. 36 UNIT I Introduction to Nursing and the Health Care System Recommendation: Monitor pulse oximeter readings with vital signs once a shift; administer antibiotics and nebulizer treatments on time, ambulate one more time this evening; consider administering PRN (“as needed”) cough medicine at bedtime. Readback: Ask receiving nurse if there are any questions and to read back notes for clariication. BP, Blood pressure; P, pulse; PRN, as needed; R, respirations; T, temperature. Communication Example of ISBAR-R Communication: Calling the Health Care Provider Introduction: Hello, I’m Donna caring for your patient Mrs. Smith on the Medical-Surgical loor. Situation: I have results from the sputum culture and sensitivity ordered 3 days ago. Background: Mrs. Smith was admitted 3 days ago with shortness of breath and has been taking cefazolin IV. A sputum culture was obtained before antibiotic therapy was started. Assessment: The lab results from the culture and sensitivity indicate that the bacteria are resistant to cefazolin. She continues to be short of breath and has crackles in bilateral lower bases. Her temperature is 100.4 orally. Recommendation: Prescribe another antibiotic that the organism is resistant to. Readback: Readback any orders given by the health care provider. The National Patient Safety Goals and requirements apply to nearly 15,000 hospitals and health care organizations accredited by The Joint Commission. There are speciic goals for numerous types of patient care areas, such as ambulatory care, assisted living, behavioral health, home care, long-term care, hospitals (Box 3.3), and others. The QSEN project is a movement funded by the Robert Wood Johnson Foundation (RWJF) to educate future nurses in developing the knowledge, skills, and attitudes (KSA) needed to improve the quality and safety of our future health care systems (QSEN Institute, 2014). Box 3.3 2015 Hospital National Patient Safety Goals GOAL: IDENTIFY PATIENTS CORRECTLY • Use at least two ways to identify patients. • Make sure the correct patient receives the correct blood when they receive a transfusion. GOAL: IMPROVE STAFF COMMUNICATION • Get important test results to the right staff person on time. GOAL: USE MEDICINES SAFELY • Before a procedure, label medicines that are not labeled. • Take extra care with patients who take medications to thin their blood. • Record and pass along correct information about a patient’s medicines. GOAL: USE ALARMS SAFELY • Make improvements to ensure that alarms on medical equipment are heard and responded to on time. GOAL: PREVENT INFECTION • Use the hand cleaning guidelines from the Centers for Disease Control and Prevention or the World Health Organization. • Use proven guidelines to prevent infections that are dificult to treat. • Use proven guidelines to prevent infection of the blood from central lines. • Use proven guidelines to prevent infection after surgery. • Use proven guidelines to prevent infections of the urinary tract that are caused by catheters. GOAL: IDENTIFY PATIENT SAFETY RISKS • Find out which patients are most likely to try to commit suicide. GOAL: PREVENT MISTAKES IN SURGERY • Make sure that the correct surgery is done on the correct patient and at the correct place on the patient’s body. • Mark the correct place on the patient’s body where the surgery is to be done. • Pause before the surgery to make sure that a mistake is not being made. LEGAL DOCUMENTS THE MEDICAL RECORD When a person enters the health care system to visit a primary care provider, clinic, hospital, or emergency department or to receive home health care, a record is begun (or continued) that documents that person’s health status or problem and the care given. The record is a legal document that includes records of all assessments, tests, and care provided. The medical record, is confidential (kept private), meaning that only people directly associated with the care of that patient have legal access to the information in the medical record. The medical record is the property of the hospital, agency, or primary care provider—not the patient. However, the patient does have the right of access to the medical record, and the patient may authorize his caregivers to provide copies of information in the medical record to other agencies—for example, if a patient transfers from one primary care provider or health care facility to another. Health care researchers and insurance companies may also gain access to medical information with the patient’s permission. Student nurses must protect their patients’ conidentiality. Medical records may not be copied. Reports or notes on patients used for school purposes (case studies, nursing care plans, and task lists) should not identify the patient by name. Case discussion should indicate “a 67-year-old man” rather than “Mr. Joe Morales.” As a legal document, the medical record is used to determine the truth of what happened—what was Legal and Ethical Aspects of Nursing CHAPTER 3 Box 3.4 Rights Provided by the Health Insurance Portability and Accountability Act HIPAA covers six patient rights and provider responsibilities: Consent: Written consents must contain a clause that says the patient agrees to allow the provider to use and disclose his information for treatment, payment, and health care operations. A notice must be attached to the consent form. Notice: The provider’s obligations are outlined regarding the privacy of the patient’s health care information. It includes the six patient rights and the responsibilities of the provider. It details how the patient information will be protected, as well as a process for iling a complaint if the patient believes privacy rights have been violated. Access: The patient has the right to inspect and copy his medical record. Amendment: A patient has the right to amend his record for the purpose of accuracy. Accounting for disclosures: Providers are held accountable for how patients’ medical information is handled. Tracking of any disclosures of information not related to treatment, payment, or health care operations, or that were not authorized by the patient, must occur. Restriction of disclosure: The patient can request that the provider restrict the use and disclosure of his information. However, the provider does not have to grant the request. done or not done—to a patient during a period. Therefore, its contents always need to be accurate, pertinent, and timely. Changes to a patient’s medical record may suggest dishonesty. Documentation should focus on the patient and the nursing care provided in objective terms, stating only the facts. Avoid using subjective terms or conclusions. For example, rather than documenting “patient depressed,” instead document, “patient answers questions in a low tone of voice, using one word answers, and asks to be left alone.” The medical record may be introduced as evidence in a court case. Documentation guidelines are discussed in Chapter 7. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT The Health Insurance Portability and Accountability Act (HIPAA) of 1996 required the creation of regulations regarding patient privacy and electronic medical records. Failure to comply with these rules may lead to civil penalties. Intentional violation of the regulations can lead to sizable ines and jail time. Box 3.4 presents the six patient rights covered in these regulations. A considerable amount of information about patients is shared among health care professionals each day. HIPAA privacy rules took effect in 2003. These rules protect the way that patient information is conveyed and stored, and to whom information may be revealed. 37 These rules state that disclosing medical information to family members, close friends, or other individuals identiied by the patient is permitted if the patient does not object. It is important to make certain you have the patient’s consent to relay information about his health care to family members. It is also important to know and follow the hospital’s privacy policies. The HIPAA rules also give patients the right to the information in their medical records and the right to amend an erroneous record. Privacy and conidentiality of patient information have always been part of the ethical code of nurses, physicians, and health care facilities; the new rules have simply increased awareness of the need for conidentiality and imposed new guidelines. Medical records and low sheets must be secured and not left where they may be viewed by others. Public displays of patient information (e.g., on a white board in the nurse’s station or computer screen with patient data) are not acceptable. It is important to log out when leaving a computer unattended. Nurses must be careful with printouts and other patient data and shred them when the shift is over. Patients must sign a speciic release form if they want information to be sent to another agency, primary care provider, or insurance company. Legal and Ethical Considerations Social Media and HIPAA Social media use has increased greatly since the implementation of HIPAA. Health care agencies and institutions have had to become more diligent in protecting personal health information (PHI) as a result. It is imperative that no PHI be disseminated, either intentionally or unintentionally, over social media. Posting of pictures, discussions (even those that do not use patient or hospital names), and images of X-rays all violate HIPAA and place the nurse in a serious legal situation. It is generally best to separate one’s personal and professional life when dealing with social media. The National Council of State Boards of Nursing (2011) provides guidelines and suggestions for nurses in dealing with social media and nursing practice. Legal and Ethical Considerations Protecting Patient Privacy • Keep interactions with patients as private as possible. If your patient is not in a private room, lower your voice to keep others from hearing what is said. • Remember that any discussions about patients in clinical postconference are for educational purposes only and not for gossip. These discussions should never contain identifying information, and the cases should not be discussed outside the clinical conference or classroom setting. • Do not leave patient information on display. If you use a clipboard, place a cover sheet to shield patient data. • Before providing any information about your patient to anyone not directly involved in the patient’s care (such as patient’s family), check for authorization to release healthrelated information. • Never photocopy the patient’s medical record for any purpose. 38 UNIT I Introduction to Nursing and the Health Care System • Remove all identifying information from personal notes or assignments. Maintain such notes in a secure and conidential manner, even if they contain no identifying patient information. They must not be left unattended at school, at home, in your car, or on your computer. Shred or destroy all such documents once the purpose has been fulilled (e.g., once your assignment has been graded). CONSENTS AND RELEASES A consent is permission given by the patient or his legal representative. Consents and releases are legal documents that record the patient’s permission to perform a treatment or surgery or to give information to insurance companies or other health care providers (Box 3.5). Informed consent indicates the patient’s participation in the decision-making process. The person signing must have knowledge of what the consent allows and be able to make a knowledgeable decision. Informed consent for surgery or treatment must include four elements. The patient must be told, in terms he can understand, (a) the risks and beneits of the proposed treatment, (b) the possible consequences of not having the procedure done, (c) alternatives to the treatment, and (d) the name of the health care professional who will perform the procedure. Obtaining informed consent is the responsibility of the health care provider performing the procedure or treatment. The nurse’s role is witnessing of the signature, providing comfort and support to the patient, and explaining nursing care expected after the procedure. However, if the patient has questions or seems confused about the procedure or treatment, the Box 3.5 nurse, as the patient’s advocate, should not obtain the patient’s signature until the patient’s questions have been answered (Brent, 2013). It is important to determine that proper consent has been obtained, both legally and ethically. Failure to obtain a valid informed consent may lead to charges of assault and battery or invasion of privacy (explained later in this chapter). To be valid, a consent must be signed by the person or the legal agent for that person. Consents must be freely signed without threat or pressure and must be witnessed by another adult. Consent can be withdrawn at any time before the procedure or treatment is started. When a person is older than 18 years and competent, he must sign the consent for treatment. A competent person is one who is legally it (mentally and emotionally). A person is considered incompetent if he is unconscious, under the inluence of mind-altering drugs (including narcotics used as “premedication” for the procedure), or declared legally incompetent. In these situations a next of kin, appointed guardian, or one who holds a durable power of attorney (discussed later) has legal authority to give consent. Minors (younger than 18 years) may not give legal consent; their parents or guardians have this right. If a child’s parents are divorced, the custodial parent is the legal representative. Stepparents usually cannot give consent unless they have legally adopted the child. An emancipated minor, or one who has established independence by moving away from parents or through service in the armed forces, marriage, or pregnancy, is considered legally capable of signing a consent form. Types of Consents Admission agreement: Commonly obtained at the time of admission to a hospital, this form delineates the hospital’s or facility’s responsibility to the patient. The hospital agrees to provide room, meals, basic nursing care, and medical care prescribed by the primary health care provider. The patient consents to diagnostic services, such as radiographs, medication administration, and nursing treatments. The patient acknowledges responsibility to pay for the services. Consent to bill insurance companies and provide medical information about the patient to receive payment is usually part of the admission agreement. Operative consent: All surgical or invasive procedures, such as repair of a hernia or removal of the appendix, biopsies (taking a piece of tissue to examine), and many diagnostic tests that are invasive (involve an incision or cutting of the patient’s body or the introduction of an instrument into a body cavity) require an operative consent. It may be called a surgical consent or permission for surgery or anesthesia. The physician, surgeon, or anesthesiologist who performs the procedure is responsible for explaining the procedure, its risks and benefits, and possible alternative options. Consent to receive blood: A consent to receive a blood transfusion would indicate that the patient was informed of the beneits and risks of transfusion, as is done for surgical or invasive procedures. Some patients hold religious beliefs that would prohibit transfusions, even in life-threatening situations. Research consent: Clinical research is carried out only with the patient’s informed consent about the possible risks, consequences, and beneits of the research. A patient always has the right to refuse to participate in a research study, and no patient may be given a research drug or treatment without his informed consent. Consent to release information: A speciic consent to release conidential patient information to other agencies or people is required before the information may be released. An exception is that information may be shared between consulting or referring physicians without a speciic consent. Other consents: Special consents are required to perform an autopsy, donate organs after death, or be photographed, and for the disposal of body parts during surgery. Legal and Ethical Aspects of Nursing CHAPTER 3 Implied consent is assumed when, during a lifethreatening emergency, consent cannot be obtained from the patient or family. Consent may be obtained by telephone if it is witnessed by two people who hear the consent of the family member. A release is a legal form used to excuse one party from liability (responsibility). A commonly used release is a leave against medical advice (AMA) (discussed later in the chapter). The term release may also refer to forms used to authorize an agency to send conidential health care information to another agency, school, or insurance company. WITNESSING WILLS OR OTHER LEGAL DOCUMENTS Occasionally, nurses may be asked to witness a will or other legal document. Although it is legal, most hospitals and health care agencies have policies against this. Wills or legal documents may be contested, and the nurse who witnessed the document can be called to court to testify regarding the patient’s health, mental condition, or relationship to visitors. To avoid this conlict, hospitals often provide business ofice personnel or a notary public to witness the signature. To witness the signing of a legal document, you need not know the content of the document. Legally, it is necessary only that the witness conirms that the signature or mark is made under no inluence (drug or otherwise) and that the person knows what he is signing. ADVANCE DIRECTIVES An advance directive, sometimes called a “living will,” is a consent that has been constructed before the need for it arises. It spells out a patient’s wishes regarding surgery and diagnostic and therapeutic treatments. Clear direction for making decisions is then present if the patient suffers an accident or illness that renders him unresponsive or incompetent. This has become important because health care technology allows the prolonging and maintaining of life with sophisticated treatments that may cause conlict among family members or between the health care professionals and the family as to how the patient would want to live (or die) in this situation. When a person puts in writing his wishes regarding life support and the use of medical technology, both the medical community and the family have clear direction. A durable power of attorney is a document that gives legal power to a health care agent (surrogate decision maker), who is a person chosen by the patient to follow the patient’s advance directives and make medical decisions on his behalf. All 50 states recognize advance directives, but each state regulates advance directives differently, and an advance directive from one state may not be recognized in another, depending on the differences in their laws. Advance directives do not expire; it is a good idea for the patient to review his advance directive periodically to be certain it still relects his wishes. 39 Historically, emergency medical technicians (EMTs) have not been able to honor advance directives. Therefore, if a patient had an advance directive limiting the types of care he wanted and a loved one called 911, the EMTs had to perform any or all procedures to stabilize the patient and bring him to the hospital. More recently, however, many states have enacted provider orders for life-sustaining treatment (POLST) laws to allow EMTs to honor do-not-resuscitate (DNR) orders and/or advance directives, provided documentation is available at the scene. Do-not-resuscitate (DNR) orders are written by a physician when the patient has indicated a desire to be allowed to die if he stops breathing or his heart stops. In this situation, no cardiac compressions or assisted breathing (cardiopulmonary resuscitation [CPR]) would be started. It is very important for nursing personnel to know who is to be resuscitated and who is NOT. Many facilities have implemented a color-coded wristband for the patient to allow quick determination of code status. A nurse who attempts to resuscitate a patient who has a physician’s DNR order would be acting without the patient’s consent and committing battery. VIOLATIONS OF LAW A nurse needs to know about a number of civil laws to practice safely and within the legal system. A nurse needs to know not only the law about her own practice but also how to act as a patient advocate, one who speaks for and protects the rights of the patient. NEGLIGENCE AND MALPRACTICE Negligence is failing to meet the standard of care; failing to do something that a reasonable and prudent (sensible and careful) person would do or doing something a reasonable and prudent person would not do. Malpractice is negligence by a professional person. The person does not act according to professional standards of care as a reasonable and prudent professional would. In nursing malpractice, a reasonable and prudent person is a similarly educated, licensed, and experienced nurse. An example of nursing malpractice would be if a nurse did not check the patient’s vital signs and condition after surgery, there was hemorrhage, and the patient went into shock and died. To prove malpractice, four elements must be present: duty, a breach of duty, causation, and injury (Box 3.6). If even one of these four elements was not present, the nurse is not guilty of malpractice. For example, if a nurse made a clinical error that did not result in harm to the patient, the event would not be considered malpractice; however, it would be a deviation from the standard of care, and as such could be grounds for discipline by the employer, the licensing board, or both. 40 Box 3.6 UNIT I Introduction to Nursing and the Health Care System Elements of Malpractice Duty: The obligation to use due care (e.g., a nurse has a duty to monitor the condition of the patient for whom she is caring). Breach of duty: Failure to use due care (e.g., a nurse fails to check the vital signs or condition of the patient after surgery or a nurse begins cardiopulmonary resuscitation on a patient who has a do-not-resuscitate order). Causation: The nurse’s action or inaction causes injury or harm to the patient. There must be a direct link between the breach of duty and the injury (e.g., the nurse’s failure to check the patient’s condition led to an undetected loss of blood that caused the patient’s death). Injury or damages: The actual harm or disorder that results from the negligence. Injury or damages may be physical, emotional, or inancial. Pain and suffering, loss of the ability to continue in a job, physical or emotional disability, extended hospitalization, or death would all be considered injury or damage in a negligence action. COMMON LEGAL ISSUES Nurses have access to private information and personal contact that is permitted by their professional caregiver role. With that right to information and touch come legal responsibilities to respect the patient’s privacy, to protect the patient’s safety, and to ensure the patient’s right to make decisions. When legal boundaries are violated and injury occurs, nurses may be subject to litigation (a lawsuit). Assault and Battery Assault is the threat to harm another or even to threaten to touch another without that person’s permission. The person being threatened must believe that the nurse has the ability to carry out the threat. Battery is the actual physical contact that has been refused or that is carried out against the person’s will. An example of assault would be the nurse who says, “If you don’t let me give you this injection, two other nurses will hold you down so I can give it to you.” Battery would occur when a patient is held down to receive an injection he has refused. It would also include the rough physical handling of an excited, confused, or psychotic patient in ways that would be described as angry, violent, or negligent. Adults who are alert and oriented have the right to refuse medications, baths, treatments, dressing changes, irrigations, insertion of a catheter, and diagnostic tests, as well as surgery. Even if the test or procedure is necessary for the patient’s well-being or comfort, the patient has the legal right to refuse. It is the nurse’s responsibility to explain why a particular drug or treatment is important. However, if the patient still refuses, the nurse should obtain a release from liability because the treatment is not done or the drug is not taken. Performing a procedure without the proper consent is battery (except in emergencies when the patient is unable to give consent). Life Span Considerations Older Adults Although an older adult may be forgetful and require supervision of activities of daily living, he still has rights of privacy and self-determination (the right to consent to or refuse treatments). Nurses need to document carefully any explanations given and the patient’s ability to understand the beneits, risks, and consequences of decisions. Defamation Defamation is when one person makes remarks about another person that are untrue, and the remarks damage that other person’s reputation. There are two forms of defamation: slander (oral) and libel (written). Two nurses may be overheard talking about a physician in a way that holds the physician up to ridicule or contempt. If another person decides never to use that physician because of the derogatory comments, the physician’s reputation is damaged and the nurses may be guilty of slander. An example of libel is a letter or newspaper article quotation stating that a person is incompetent or dishonest. The loss of respect for and trust of the person may result in damage to his reputation and loss of business. A person sued for slander or libel may be found innocent if the statements made were true or were said or written with no intent to harm the person, but for a justiied purpose. Invasion of Privacy Invasion of privacy occurs when there has been a violation of the conidential and privileged nature of a professional relationship. When patients entrust themselves to our care, it is with the expectation of conidentiality—that what is told to the health care professional and what is learned about the patient’s health and personal history are private information to which no one else should have access. Invasion of privacy occurs when unauthorized persons learn of the patient’s history, condition, or treatment from the professional caregiver. It might include the nurse’s giving information over the telephone to a caller who asks about the patient’s condition. It occurs when health care workers are overheard carelessly discussing their patients in the elevator or cafeteria. It occurs when a next-door neighbor asks about another neighbor who is in the hospital and the nurse tells him about the patient’s condition. It occurs when a nurse, out of curiosity, reads the medical record of a public igure who has been admitted to her unit, but to whom the nurse is not assigned or responsible. Releasing information to a newspaper, another health care agency, an insurance company, or a person without the patient’s valid consent is invasion of privacy. However, nurses are required by law in most states to report information regarding child or elder abuse, sexual abuse, or violent acts that may be crimes (e.g., stab or gunshot wounds). When such reporting is done in Legal and Ethical Aspects of Nursing CHAPTER 3 good faith, the nurse cannot be held liable for invasion of privacy. Be knowledgeable of the required reporting procedures for abuse or crime where you work. Invasion of privacy extends to leaving the curtains or door open while a treatment or procedure is being done, or to leaving patients in a position that might cause them loss of dignity or embarrassment. Exposing the patient’s body more than necessary, or leaving a confused and agitated patient in a hallway where he might behave in ways that would be embarrassing if he were in his normal state, are also examples of invasion of privacy. Interviewing a patient or family member in a room with only a curtain between the patients, or where conversation can be overheard, allows conidential information to be heard by unauthorized persons. The reasonable and prudent nurse does for the patient what the patient cannot do for himself: covers the patient’s body, protects him from public exposure, and preserves his dignity. A growing area of concern regarding privacy has to do with computerized data banks and the Internet. Many health care agencies are computerizing their records, and nurses (and other personnel) can enter and retrieve information about patients in that facility. It is important to remember that accessing information about someone who is not your patient (e.g., a celebrity or a neighbor) is an invasion of privacy, and can lead to losing your job, being named in a lawsuit by the victim, and disciplinary action on your nursing license. Audits of hospital electronic medical records can easily pinpoint what medical records are viewed by exactly which employees. QSEN Considerations: Informatics Safeguard the Electronic Medical Record Always safeguard patient privacy when entering or using data in a computer network. HIPAA, discussed earlier, sets rules governing transmission of patient data (electronic, telephone, and fax), including the requirement that the sending facility must have reasonable safeguards in place to ensure the data are sent to the intended place and are treated in a conidential manner. Some hospitals require employees and individual nursing students to sign a nondisclosure agreement (NDA), also known as a conidentiality agreement, when they are hired or begin a clinical rotation, which gives the hospital legal recourse if they can prov