Understanding Ethical and Legal Responsibilities PDF

# Chapter 7: Understanding Legal and Ethical Issues ## Law and Ethics - Law and Ethics - Ethical Decision Making - Autonomy - Beneficence and Nonmaleficence - Distributive Justice - The Legal System - Sources of Law - Types of Law - Liability - Legal Issues in Nursing - Nursing L...

# Chapter 7: Understanding Legal and Ethical Issues ## Law and Ethics - Law and Ethics - Ethical Decision Making - Autonomy - Beneficence and Nonmaleficence - Distributive Justice - The Legal System - Sources of Law - Types of Law - Liability - Legal Issues in Nursing - Nursing Licensure - Patient Care Rights - Management Issues - Employment Issues ## Learning Outcomes After completing this chapter, you will be able to: 1. Differentiate between law and ethics. 2. Analyze the ethical principles of autonomy, beneficence, nonmaleficence, and distributive justice. 3. Examine the sources of law, types of law, and liability in the legal system. 4. Explore legal issues in nursing involving licensure, patient care, management, and employment matters. ## Key Terms | Term | Definition | |------------------------------|-----------------------------------------------------------------------------------------------------------------------------| | Administrative Law | Law made by administrative agencies that are authorized to enact rules and regulations that carry out specific intentions of the statute.| | Advance Directive | A document that allows a competent patient to make choices prior to the need for medical treatment. | | Allocation | The decision society makes regarding how many of its resources will be devoted to a particular effort. | | Autonomy | The right of individuals to take action for themselves; it includes respect for individuals and the right of individuals to make decisions for and about themselves. | | Beneficence | The duty to help others by doing what is best for them. | | Common Law | Judge-made law that establishes a custom or tradition by which other similar cases are judged. | | Confidentiality | The right to privacy of records. | | Corporate Liability | The organization is responsible for maintaining an environment conducive to quality healthcare for its consumers. | | Distributive Justice | Giving a person that which he or she deserves; implies that benefits and burdens ought to be distributed equally and fairly. | | Durable Power of Attorney | A legal document that permits a competent adult to appoint a surrogate or proxy to make decisions in the event that the individual becomes unable to do so. | | Ethics | A science that deals with principles of right and wrong, good and bad, and governs our relationship with others. | | Informed Consent | Three basic requirements: capacity, voluntariness, and information. | | Intentional Torts | The intent to harm is present. Assault (including sexual assault), battery, false imprisonment, etc. | | Invasion of Privacy | The violation of a person’s right to be left alone without being subjected to unwarranted or uninvited publicity. | | Job Reassignment | The process of pulling nurses from one area of the hospital to another. | | Laws | Rules of conduct, established and enforced by authority, that prohibit extremes in behavior so that one can live without fear for oneself or one’s property. | | Licensure | A credential provided for by state statutes that authorizes qualified individuals to perform designated skills and services. | | Living Will | A document that allows the competent adult to indicate what healthcare the person does or does not want in the event of terminal illness. | | Malpractice | Professional negligence. | | Negligence | Failure of an individual to perform an act (omission) or to perform an act (commission) that a reasonable, prudent person would or would not perform. | | Nonmaleficence | To “do no harm.” | | Nurse Practice Acts | Statutes that authorize qualified individuals to perform designated skills and services in nursing. | | Personal Liability | Nurses are responsible and accountable for their own actions or inactions. | | Private Law | Concerns contracts, torts, and property. | | Public Law | Involves constitutional law, administrative law, and criminal law. | | Rationing | Decisions regarding who gets a service or supply and who does not based on considerations of the availability of that service or supply. | | Respondeat Superior | “Let the master speak.” Allows the courts to hold the employer responsible for the actions of the employee when the employee is performing services for the organization. | | Statutory Law | Law that is declared, commanded, or prohibited, typically enacted by the legislative branch of government. | | Tort Law | Unintentional and intentional. Negligence and malpractice fall under the category of unintentional torts. | | Vicarious Liability | The negligent act of a subordinate is presumed to occur because of the supervisor’s negligence. | ## Introduction The complexities of today's healthcare system present many ethical and legal issues for nurses. Advanced technology, patient autonomy and privacy, and end-of-life decisions are just a few of the factors posing ethical dilemmas. As the role of the professional nurse expands to include increased expertise, specialization, autonomy, and accountability, so does the number of legal issues involving nurses. Legal protections for patients as well as employees and management liability present additional challenges in healthcare. ## Law and Ethics Laws are rules of conduct, established and enforced by authority, that prohibit extremes in behavior so that one can live without fear for oneself or one's property. Ethics is a science that deals with principles of right and wrong, good and bad; it governs our relationship with others. Ethics are based on personal beliefs and values that guide decision making. Although the definitions of law and ethics may seem clear, there is a fine line between them, and the two may overlap in some healthcare encounters. In some cases, the overlap may be congruent; in others, it may be conflictual. For example, what is ethical may not be legal, and what is legal may not be ethical. Making this distinction between ethics and law is important because the outcomes are very different: When you violate legal principles, you may be held liable for your actions; when you violate ethical principles, you may suffer emotionally due to the results of your actions. The Code of Ethics of the American Nurses Association (2015), found in Box 7-1, makes explicit the profession's values and standards of conduct. Originally adopted in 1950, this document is revised periodically to reflect changes in the profession and in society. It serves to inform the nurse and the public of the profession's expectations in ethical matters. It also provides a decision-making framework for solving ethical problems. Although the code of ethics is not legally enforceable, violation of these standards often is a violation of laws that have been enacted to ensure protection of the public. For example, breaching a patient's confidentiality also violates the law. ## Ethical Decision Making Several key principles play a role in solving ethical dilemmas. The principles most directly related to nursing are the principles of autonomy, beneficence, nonmaleficence, and distributive justice. ### Autonomy Autonomy is the right of individuals to take action for themselves. It includes respect for individuals and the right of individuals to make decisions for and about themselves, even if those decisions are not congruent with others' goals. To respect autonomy is to respect others. It requires recognizing the uniqueness of others and listening to and understanding another person in a way that allows you to put yourself in that other person's position. Respecting a terminally ill patient's decision to discontinue treatment is an example. People engaged in autonomous and self-determining actions must have the capability of self-governance, operate from a stable and internalized set of principles, and view themselves as capable of implementing autonomous decisions. Inherent in this principle is the understanding that a person acts with intention, with knowledge, and without external control or influence. Like most rights, autonomy is not an absolute right. ### Beneficence and Nonmaleficence Beneficence is the duty to help others by doing what is best for them. This belief also implies the principle of nonmaleficence, or to "do no harm." One has the duty not only to do good but also not to inflict harm or to risk harm to others. A beneficent nurse acts with empathy for the patient without resentment or malice. A nurse who acts in bad faith or out of ill will or who makes false accusations concerning a patient or employee violates the principle of beneficence. In many instances, the demands of beneficence and the functions required in a healthcare setting come into conflict. Sometimes, for example, treatment decisions are viewed as harmful from the patient's perspective. When an individual does not desire what others determine to be in that person's best interest-such as when a patient refuses treatment-the principles of beneficence and autonomy conflict. Generally speaking, in conflict situations involving patient care decisions, the principle of autonomy overrides the principle of beneficence. ### Distributive Justice Distributive justice is giving a person that which he or she deserves. It implies that benefits and burdens ought to be distributed equally and fairly, regardless of race, gender (including gender orientation and gender identity), religion, or socioeconomic status so that no one person bears a disproportionate share of benefits or burdens. As healthcare technology advances and healthcare costs continue to climb, nurses may find themselves entrenched in conflicts between cost containment and the equal distribution of finite healthcare resources regardless of the patient's ability to pay. **Allocation (macroallocation)** and **rationing (microallocation)** of scarce resources continue to be concerns in healthcare today. **Allocation** is the decision society makes regarding how many of its resources will be devoted to a particular effort-for example, organ transplants. **Rationing** is a decision regarding who gets the service or supply and who does not again using the example of organ transplants. Allocation and rationing decisions require that some societal values take precedence over some individual values. For example, decisions about recipients for heart transplants require consideration of the availability of hearts, the likelihood of the patient to survive, and the patient's age. The societal goal is to implant hearts in people most likely to survive and thrive in the future. ## The Legal System Law comes from a variety of sources. Understanding the sources of law and the various types of laws helps determine their impact on nursing practice. Nurses must understand the changing legal climate and their responsibilities as viewed by the public and the legal system. ### Sources of Law Three branches of government-legislative, judicial, and executive-contribute to the creation of law. They, in conjunction with the Constitution, form the basis of the judicial system of the United States. The Constitution is the supreme law of the land. It defines the structure, power, and limits of the government and guarantees people certain fundamental rights as individuals. Influences of the three branches of government are reflected in statutory law, common law, and administrative law. **Statutory Law** Statutory law is enacted by the legislative branch of government. This type of law is designed to declare, command, or prohibit something. Licensing laws for healthcare providers, including nurses, are examples of statutory laws that protect the public from incompetent practitioners. Other statutory laws affecting nursing practice are guardianship codes, statutes of limitation, informed consent, living will legislation, and protective and reporting laws. **Common Law** Common law is judge-made law. This type of law is derived from earlier decisions made by courts. Common law establishes a custom or tradition by which other similar cases are judged; this custom is referred to as legal precedent. Common law is not absolute. Earlier decisions can be and frequently are overruled. As time and circumstances change, court decisions become obsolete and may require a different opinion. Each state has its own body of common law related to the delivery of healthcare within that state. These laws should be reviewed by health professionals as a basis for accountability, quality, and risk management within their professional practice. Awareness of these laws assists nurses in functioning within the boundaries of their role and advocating for nursing practice when necessary. **Administrative Law** Administrative law is made by administrative agencies. According to certain statutes, administrative agencies are granted authority to enact rules and regulations that will carry out specific intentions of the statute. This allows the legislature to delegate to an administrative agency of experts in the field the authority to create rules and regulations governing a specific area of practice. For example, state boards of nursing are authorized by nurse practice acts (statutory law) to write rules and regulations governing the practice of nursing. These rules and regulations are incorporated into the nurse practice act and are as binding as the statutory law itself. Another example of administrative law is the attorney general's opinion regarding the interpretation of a law, which also is binding. ### Types of Law Law can be categorized according to specific types. The two basic types of law are **public law** and **private law (civil law)**. Public law consists of constitutional law, administrative law, and criminal law. Private law is further classified into tort law, contract law, and protecting and reporting law. All these have an impact on nursing practice, but the most common law affecting nursing practice is **tort law**. **Tort Law** Tort law is divided into two categories-unintentional and intentional. **Negligence** and **malpractice (professional negligence)** fall under the category of unintentional torts. **Negligence** is defined as the failure of an individual not to perform an act (omission) or to perform an act (commission) that a reasonable, prudent person would or would not perform in a similar set of circumstances. **Malpractice** is professional negligence. It evolves from negligence law and the premise that all individuals are responsible for the consequences of their actions or inactions. It refers to any misconduct or lack of skill in carrying out professional responsibilities. For malpractice to exist, four elements must be present: - Duty - Breach of duty - Causation - Injury If there is no preponderance of evidence that demonstrates negligence, then the malpractice claim may be dismissed. In **intentional torts**, the intent to harm is present. Assault (including sexual assault), battery, false imprisonment, invasion of privacy, inappropriate disclosure of private information, libel, slander, and defamation of character are examples of intentional torts. ## Liability To understand malpractice, one must understand the various types of liability. As individuals, nurses are responsible and accountable for their own actions or inactions. This is referred to as **personal liability**. In addition, the law ascribes negligence to certain parties who may not be negligent themselves but whose negligence is assumed because of association with the negligent person. This is called **vicarious liability**. It is based on the legal principle of **respondeat superior**, which means "let the master speak." This doctrine allows the courts to hold the employer responsible for the actions of the employee when the employee is performing services for the organization. All too frequently, nurses have a false sense of security concerning the doctrines of respondeat superior and vicarious liability. Employees sometimes believe that the organization's responsibility protects them from being sued as individuals, but this is not the case. Patients have the right to sue both the employee and the organization when they have suffered an injury as a result of substandard care. Also, the organization has the right to sue the employee for damages incurred as a result of the nurse's substandard care. For these reasons, it is important for nurses to carry their own personal liability insurance. Nurse managers are not responsible for the actions of others but are responsible for their own acts of delegation and supervision of others. Failure to delegate and supervise properly can result in liability for the nurse manager. This is not a result of vicarious liability but, rather, an issue of personal liability. **Corporate liability** holds that the organization is responsible for its own wrongful conduct. The healthcare organization has the responsibility to maintain an environment conducive to quality healthcare for its consumers. Corporate liability includes the following: - The duty to hire, supervise, and maintain qualified, competent, and adequate staff - The duty to provide, inspect, repair, and maintain reasonably adequate equipment - The duty to maintain safety in the physical environment. Responsibility to achieve these goals is delegated to managers even though the organization is ultimately responsible. For example, the organization has a responsibility to have a mechanism in place to report incompetent, unethical, and illegal practice. If the nurse manager is aware of such practice but does not report it, the nurse manager also is liable. Many states have statutory laws regarding mandatory reporting of legal violations. ## Legal Issues in Nursing Legal issues in nursing involve licensure, patients' rights, and management and employment matters. Each of these topics poses challenges for nurses and managers. ### Nursing Licensure Licensure is a credential provided for by state statutes that authorizes qualified individuals to perform designated skills and services. In nursing, these statutes are referred to as **nurse practice acts**. Each state establishes its own board of nursing whose members are granted the authority to set and enforce rules and regulations pertaining to the practice of nursing, including the requirements for licensure in that state. Licensure protects the use of the titles-registered nurse, practical nurse, or advanced practice nurse-and establishes standards for education, examination, and behavior to protect the health, safety, and welfare of the public. Because each state controls and maintains its own database of licensees, mobility for nurses is hampered. To practice in a state other than the one in which the nurse is already licensed, an RN must apply for a **reciprocal license** from that state. Although all RNs take the same licensure exam, not all states' policies regarding nursing practice are alike, such as requirements to complete continuing education. **Uniform Licensure Requirement** One remedy proposed by the **National Council of State Boards of Nursing (NCSBN)** is to develop uniform licensure requirements among the states that would not only facilitate nurse mobility, but also ensure public access to qualified practitioners (National Council of State Boards of Nursing, 2011). **Multistate Licensure** Another initiative by the NCSBN is **multistate licensure**. Multistate licensure is a process similar to obtaining a driver's license, allowing practice in more than one state. As of May 2015, twenty-five states have entered an interstate compact to allow multistate licensure privilege (National Council of State Boards of Nursing, 2015). The state of residence is considered the home state. All other states in the contract are remote states. The nurse is still responsible for meeting the standards set forth by the nurse practice acts in which he or she practices. Disciplinary actions may be taken by both the home and remote states. **Model Nurse Practice Act** The NCSBN also has developed a **model nursing practice act** (National Council of State Boards of Nursing, 2012). The model act defines nursing, its scope of practice, titles, advanced practice nursing standards, educational requirements, and violations and penalties. Improved uniformity among states would result if states adopt the model act. ### Patient Care Rights When individuals enter the healthcare system, they retain the basic fundamental rights ascribed to them by the Constitution and courts of law. Additional rights are designed to protect the rights of individuals at the times when they are most vulnerable. These include the right to privacy and confidentiality, the opportunity to make informed consent, the right to refuse treatment, and the right to be free from restraint. **Privacy Rights** Invasion of privacy is the violation of a person's right to be left alone without being subjected to unwarranted or uninvited publicity and to make personal choices without interference. Information disclosed by the patient is confidential and as such is available to authorized personnel only. Patients can sue for invasion of privacy when confidential information is revealed to any unauthorized person. Similarly, a patient can sue for invasion of privacy when unauthorized personnel, directly or indirectly, observe the patient without permission. Authorized personnel are those involved in the diagnosis, treatment, and related care of the patient. Generally speaking, these are members of the healthcare team. Nurses, as well as others, may not use photos, videos, or research data without the explicit permission of the involved patient. Also, the nurse should be discreet about the release of information over the phone regarding the patient's status because it is difficult, if not impossible, to identify the caller accurately over the phone. The nurse must even obtain the patient's permission to release information to family members and close friends. Other cases regarding invasion of privacy involve the freedom to make choices without interference. Patients have the right to make informed choices, such as contraception use, abortion, and the right to refuse treatment. Furthermore, they should be assured that these decisions will be respected and upheld even if they are not the same decisions or choices the health professional might make. Nurses often serve as advocates to safeguard these rights. Difficulty arises when the nurses' personal beliefs interfere with their caregiving. Some issues that nurses raise include death with dignity versus extraordinary lifesaving measures, use of medical marijuana, and, not surprisingly, abortion of a nonviable fetus. The manager's role is to support nurses in their personal beliefs while, at the same time, ensuring that all patients receive unbiased care. The **Health Insurance Portability and Accountability Act (HIPAA)**, implemented in 2003, (U.S. Department of Health & Human Services, 2015a) requires healthcare providers, including individuals and organizations, to take far more stringent measures to ensure their patients' privacy than were required previously. Communication between providers requires a release from the patient. Offices and public places in healthcare agencies must prevent names and identifying information from being overheard or seen. Providers must be certain that mail, fax, email, texts, and voice messages are accessible only by the patient. Complying with the requirement for HIPAA involved a major overhaul of most healthcare systems, but soon protecting patients' privacy became standard nursing practice (Wielawski, 2009). **Confidentiality** Confidentiality is the right to privacy of records. Individuals have the right to believe that information disclosed to health professionals is to be used strictly for the purpose of diagnosis and treatment and will not be released to others without permission of the individual. This is considered protected information by the privilege doctrine. According to this doctrine, people who have protected relationships cannot be forced to reveal communication unless the other person in the relationship agrees to it. Confidentiality assurances were strengthened with the regulation of HIPAA. Under certain circumstances, the nurse can lawfully disclose confidential information about the patient, such as when the welfare of a person or a group is at stake or when a personal injury or workers' compensation claim is filed. **Informed Consent** Three basic requirements are necessary for informed consent: capacity, voluntariness, and information. Individual capacity to consent is determined by age and competence. Generally, one must be an adult in the technical and legal sense in order to consent to treatment. The legal age for adult status is established by state statute and varies from state to state. Based on the state statute, minors may consent to certain types of treatment, such as abortion or substance abuse treatment. Adults are considered competent when they can make choices and understand the consequences of their choices. Individuals act voluntarily when they exercise freedom of choice without force, fraud, deceit, duress, or any other form of coercion. Consent that is compelled by threat or provoked by fraud is legally considered to be no consent at all. Because patients are exceptionally vulnerable when they need medical care, they may believe, or be led to believe, that they must comply with the recommendations of healthcare professionals. Often patients believe that if they do not comply, they may get less than adequate care or no care at all. All too frequently, nurses and other health professionals take it for granted that because a patient is under their care, the patient will agree to whatever care is deemed necessary. Nurses have an obligation to create an atmosphere that avoids any indication of coercion or manipulation. To provide treatment without the patient's consent, except in an emergency situation, could result in liability for unauthorized touching or battery. The third element of informed consent is information. Information must be supplied to patients in a manner that is understandable to them. Lay terminology is preferred to professional jargon. The information must include the following: - An explanation of the treatment to be performed and the expected results - A description of the anticipated risks and discomforts - A list of potential benefits - A disclosure of possible alternatives - An offer to answer the patient's questions - A statement that the patient may withdraw his or her consent at any time The legal responsibility to provide the necessary information for informed consent rests with the individual who will perform the treatment. When a nurse asks a patient to sign a consent form, the nurse is merely attesting to the fact that there is reason to believe that the patient is informed regarding the impending treatment and is witnessing the signature. If the nurse asks the patient to sign a consent form knowing that the patient has had no prior explanation of the treatment, the consent is invalid. **Right to Refuse Treatment** Just as competent adults have the right to consent to treatment, they also have the right to refuse treatment. In addition, guardians of incompetent adults have the right to refuse treatment for them. The right of competent adults to refuse treatment is guaranteed by the Constitution and has been tested in court with several landmark cases (Cruzan v. Director, Missouri Department of Health, 1990; Quinlan v. New Jersey, 1976; Schindler v. Schiavo, 2005). Most states have adopted statutory laws to protect these rights and to protect the healthcare provider who agrees to not treat even when treatment could be considered medically indicated. The legal documents that adhere to these laws and protect individuals are referred to as advance directives, living wills, and durable powers of attorney. As a direct result of the Cruzan case, Congress enacted the **Patient Self-Determination Act** in 1990 (Koch, 1992). This federal law requires every healthcare facility that receives Medicare or Medicaid funds to provide written information to adult patients concerning their right under state law to make healthcare decisions. These decisions include the right to accept or refuse treatment and the right to formulate advance directives. An **advance directive** is a document that allows a competent patient to make choices prior to the need for medical treatment. Examples include decisions such as refusing nourishment, being placed on a ventilator, or stopping treatment. The two most common advance directives are a living will and a durable power of attorney for healthcare. With a **living will**, the competent adult signs a form indicating what healthcare the person does and does not want in the event of terminal illness. An individual may want all lifesaving measures continued no matter how dire the prognosis, or a person might want only comfort measures should the need arise. These decisions will be upheld should that adult's decision-making capacity be lost. Both Case Study 7-1 and Leading at the Bedside: Respecting Patient Directives highlight the importance for nurses to respect the patient's wishes as expressed in these legal documents. A **durable power of attorney for healthcare decisions** permits a competent adult to appoint a surrogate or proxy to make decisions in the event that the individual becomes unable to do so. The healthcare provider must follow the expressed wishes as stated in these documents. Difficulties arise when the patient is unconscious and does not have an advance directive or the directive is vague. In these cases, the health provider often relies on family members to make these decisions. In most states, however, family members do not have the legal authority to make such decisions unless they are the legally appointed guardians or parents. **Freedom From Restraint** Another potential area of liability is the use of restraints. The **Omnibus Budget Reconciliation Act (OBRA)** of 1987 provides patients the right to be free from any physical or chemical restraint imposed for the purpose of discipline or convenience and not required to treat medical symptoms. These regulations apply to nursing homes, state and federal agencies, and other healthcare organizations that receive Medicare and Medicaid funds. According to these rules, health professionals are required to assess the need for restraints and consider the use of alternative measures. When restraints are deemed necessary, a physician's order specifying duration and circumstances is required. No order for as-needed (PRN) restraints is permitted. When restraints are used, the patient must be monitored closely and reassessed periodically to evaluate the continued need for restraints. In addition to federal regulations, most states have laws governing the use of restrictive devices. Federal mandates also call for the judicious use of psychotropic drugs, which are frequently used as chemical restraints. Psychotropic drugs no longer may be used for the purpose of controlling behavior; they may be prescribed only for diagnosis-related conditions. The intention is to prevent indiscriminate use of psychotropic drugs that frequently cause patients to become sedated, agitated, or combative. ## Leading at the Bedside: Respecting Patient Directives As a nurse, you will undoubtedly encounter ethical issues as you care for patients. You may find that your personal beliefs conflict with the patient's decisions or the medical recommendations. You may even face legal issues at some point in your career. Only you can decide if your personal beliefs are such that you cannot care for the patient or that you can provide compassionate care in spite of your views. Here is an example: Your patient is terminally ill, but both he and his family want to "do everything." You believe in the patient's autonomy, but you also know that continued interventions will cause him pain, reduce his ability to interact with his family, and prolong his inevitable death. Plus, you have watched several of your own family members suffer long and painful deaths. Although you think that you would make a different decision if you were the patient, you continue to care for him and his family with compassion and respect. ### Case Study 7-1 For 2 weeks Kristine, an RN on the medical surgical unit, had been caring for a young woman on her shifts. The young woman, Enid, was 36 years old and had been diagnosed with a rare neurological disease. Married with three young daughters, Enid had an extended family that visited her often in the hospital. During rounds, in which Kristine had participated, the physicians told Enid they would get her through her immediate crisis and work on getting her on some medications to help her symptoms with her newly diagnosed disease. Throughout her hospital stay, Enid learned that her disease was ultimately fatal and that in the next year or two she would likely develop complete paralysis and be unable to communicate or take care of herself, and eventually need a breathing tube and feeding tube to stay alive. Kristine had been quiet and contemplative in recent days. Then, one morning, Kristine walked in to greet Enid and share that she would be her nurse again that day. Kristine was growing very fond of Enid. Kristine was also a young woman and a mother. She had been thinking about how sad she would be if she developed the condition that Enid had. That same morning, Enid asked Kristine to sit down and talk with her. Enid shared that she had been thinking for many days about her future and the complications of her disease that would limit her length and quality of life. Enid shared that she did not want her husband caring for her or her children to grow up with a mom who was not taking care of them. Enid told Kristine that one of her worst nightmares was coming true. Kristine tried to comfort Enid. Enid told Kristine she wanted to learn about the death with dignity movement and was considering choosing when her life would end as her disease progressed. Kristine was devastated and angry. She couldn't believe Enid would want to choose to die and not be a mom to her kids. Kristine did not know what to say to Enid, so she only said that she would tell the doctor and left Enid's room. Kristine went to find her nurse manager. Kristine cried as she told her manager what Enid had said. Kristine said she did not think she could take care of Enid if she wanted Kristine to help her kill herself. Kristine's nurse manager listened thoughtfully. When Kristine was finished talking for a moment, her nurse manager helped her sort through her feelings and think about what the present scenario really presented to Kristine. Enid was not asking Kristine to help her end her life. Enid had only shared her thoughts with Kristine because she trusted her as her nurse. The manager went on to remind Kristine that in their state death with dignity was not offered, and Kristine would need to explore those options after her discharge from the hospital and decide what was right for her. Ultimately, Kristine's role remained to provide good care to Enid during her admission and help her progress to a safe discharge from the hospital. As the nurse manager talked, Kristine began to think about her conversation with Enid differently. Kristine left her manager's office feeling better. She still did not agree with Enid's thoughts but realized her role was to take care of Kristine in her current healthcare crisis and support a safe discharge when the time came so Enid could move on with her life and decide how she wanted to live. The use of restraints should be based on the principles of informed consent. If patients are unable to consent, then reliable proxy consent should be obtained with full disclosure of risks and benefits. Restraining patients without consent or sufficient justification may be interpreted as false imprisonment. In additional to legal rights, the use of restraints clearly involves ethical issues such as autonomy and beneficence. ## Management Issues Management includes delegation and supervision, staffing the area of responsibility, reassigning staff as needed, following the organization's policies and procedures, and ensuring that patient privacy is maintained. In addition, management concerns involve identifying and addressing incompetent practice, and familiarity with national records of sanctions against healthcare professionals. ### Delegation and Supervision Nursing management encompasses supervision of nursing care and the personnel who provide that care. Nurses are personally liable for the reasonable exercise of the delegation and supervision activities. They must be aware of the staff member's knowledge, skills, and competencies when delegating tasks and should supervise them appropriately. Nurses have a legal duty to ensure that staff members under their supervision are performing in a manner consistent with the accepted standard of practice. If a nurse makes an assignment to an individual who the nurse knows is not competent to perform that assignment, the nurse will be liable if the patient is injured. ### Staffing According to established standards, the organization must provide adequate staffing with qualified personnel (Joint Commission, 2015). The organization that fails to retain the level of nursing personnel required to provide safe, quality care may be held liable under the doctrines of respondeat superior and corporate liability if an injury occurs related to short staffing. Although retaining appropriate nursing personnel is the responsibility of the organization, if it can be shown that the staff nurse acted unreasonably under the circumstances, the individual nurse also can be held liable for acts of omission or commission. In other words, inadequate staff is no excuse for negligent acts. If the nurse acts reasonably under the circumstances, however, the individual may not be found culpable for malpractice. In addition, if the hospital can demonstrate that it has taken appropriate actions to alleviate the staffing crisis, then it may not be held liable. Staffing an organization is not as clear-cut as it may seem. Although the organization has some guidelines to follow, such as those mandated by federal and state regulatory bodies, these guidelines are broad and require a certain amount of judgment. Adequate staffing includes not only the number of staff but also their skill level (e.g., RN, LPN, UAP), their experience, and the unit to which the will be assigned (e.g., critical care). ### Job Reassignment The hospital has a legal duty to ensure that all areas of the hospital are adequately staffed. With fluctuating patient census, this often places the hospital in a position in which reassigning nurses' duties is the only way to balance the needs of the unit and the safety of patients. **Job reassignment (floating)** is the process of pulling nurses from one area of the hospital to another. This practice is commonplace in today's healthcare organizations, but concerns are raised about it by both staff and administration. Floating nurses to unfamiliar areas, especially specialty areas, increases the chance of error and may increase nurses' anxiety, which in turn may affect job satisfaction and morale. The nurse who refuses to float may face the possibility of discharge on the grounds of insubordination, although nurses have argued that they do not have the requisite skills to care for patients in the intended unit (Guido, 2014). Nurses have a responsibility to serve in the best interest of the patient. Some solutions to the problem of reassignment are open communication regarding limitations and concerns, creative problem solving, and cross-training. ### Policies and Procedures When the nurse is responsible for performing procedures that require judgments beyond the usual scope of nursing practice, a standardized procedure, or protocol, is necessary. These procedures must be written and authorized by the organization. Routinely, the standardized protocol must specify the following: - Functions the nurse may perform under specific circumstances - Requirements that must be followed in performing the function - Education, experience, and training requisites of the nurse performing the procedures - Method for evaluating the competence of the nurse performing the practice Policies and procedures are required for all healthcare organizations. These documents serve to standardize care, set standards, and guide practices. They should be well delineated, clearly stated, and based on current and actual practice. ### Release of Information The same guiding principles regarding release of information about patients also apply to release of information about employees. Information about employees is considered confidential and must not be released outside the organization without the explicit consent of the employee, except to verify employment or to comply with a legal investigation. The Privacy Act of 1974 (1974) outlined the stringent requirements for handling personnel matters related to privacy issues. The nurse manager needs to be familiar with this law, especially as it relates to giving references and recommendations. ### Incompetent Practice The "due care" standard requires nurse managers to confront unsafe practice. It is important for the nurse manager to be familiar with both the organization's procedures for addressing safety and professional conduct and the state board of nursing guidelines. Many states have instituted mandatory reporting of unsafe practices to safeguard public health. Mandatory reporting is a complex process involving both legal and ethical parameters. The vast majority of the complaints and disciplinary actions related to mandatory reporting are for impairment or drug diversion. ### National Practitioner Date Bank The **National Practitioner Date Bank (NPDB)** serves as an information clearinghouse regarding adverse actions, such as licensure sanctions against healthcare professionals, including physicians and nurses (U.S. Department of Health and Human Services, 2015b). Federal regulations require healthcare institutions, licensing boards, professional societies, and malpractice payers to report any actions taken against professionals. ## Employment Issues Nurses who serve in management roles are also employees, so they need to be familiar with the growing body of discrimination laws for themselves as well as for those they supervise. Discrimination statutes have a profound effect on hiring, advancement, and termination practices. Matters of employee rights have been pronounced since the passage of the Civil Rights Act of 1964. Today, we continue to see increased activity related to discrimination of various kinds, and many states have enacted laws governing civil rights and discrimination. ### Civil Rights Acts **Title VII** of the 1964 **Civil Rights Act (CRA)** bars discrimination on