Lecture 5: Legal And Ethical Issues In Geriatric Nursing PDF

LEGAL ASPECTS OF GERONTOLOGICAL NURSING PREPARED BY: JOEM O. GREGORIO  LAWS GOVERNING GERONTOLOGICAL NURSING PRACTICE Public law governs relationships between private parties and the government and includes criminal law and regulation of organizations and individuals engaged in certa...

LEGAL ASPECTS OF GERONTOLOGICAL NURSING PREPARED BY: JOEM O. GREGORIO  LAWS GOVERNING GERONTOLOGICAL NURSING PRACTICE Public law governs relationships between private parties and the government and includes criminal law and regulation of organizations and individuals engaged in certain practices. The scope of nursing practice and the requirements for being licensed as a home health agency fall under the enforcement of public law. Private law governs relationships among individuals or between individuals and organizations and involves contracts and torts (i.e., wrongful acts against another party, including assault, battery, false imprisonment, and invasion of privacy).  ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES ASSAULT: A deliberate threat or attempt to harm another person that the person believes could be carried through ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES BATTERY Unconsented touching of another person in a socially impermissible manner or carrying through an assault. Even a touching act done to help a person can be interpreted as battery ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES DEFAMATION OF CHARACTER An oral or written communication to a third party that damages a person’s reputation. Libel is the written form of defamation; slander is the spoken form. With slander, actual damage must be proven, except when: Accusing someone of a crime Accusing someone of having a loathsome disease Making a statement that affects a person’s professional or business activity Calling a woman unchaste ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES Defamation does not exist if the statement is true and made in good faith to persons with a legitimate reason to receive the information. Stating on a reference that an employee was fired from your agency for physically abusing patients is not defamation if, in fact, the employee was found guilty of those charges ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES FALSE IMPRISONMENT Unlawful restraint or detention of a person. Preventing a patient from leaving a facility is an example of false imprisonment, unless it is shown that the patient has a contagious disease or could harm himself or herself or others. Actual physical restraint need not be used for false imprisonment to occur: telling a patient that he or she will be tied to the bed if he or she tries to leave can be considered false imprisonment  ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES FRAUD Willful and intentional misrepresentation that could cause harm or cause a loss to a person or property (e.g., selling a patient a ring with the claim that memory will be improved when it is worn). ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES INVASION OF PRIVACY Invading the right of an individual to personal privacy. Can include unwanted publicity, releasing a medical record to unauthorized persons, giving patient information to an improper source, or having one’s private affairs made public. (The only exceptions are reporting communicable diseases, gunshot wounds, and abuse.) Allowing a visiting student to look at a patient’s pressure ulcers without permission can be an invasion of privacy. ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES LARCENY Unlawful taking of another person’s possession (e.g., assuming that a patient will not be using his or her personally owned wheelchair anymore and giving it away to another patient without permission). ACTS THAT COULD RESULT IN LEGAL LIABILITY FOR NURSES NEGLIGENCE Omission or commission of an act that departs from acceptable and reasonable standards, which can take several forms: Malfeasance: committing an unlawful or improper act (e.g., a nurse performing a surgical procedure) Misfeasance: performing an act improperly (e.g., including the patient in a research project without obtaining consent) Nonfeasance: failure to take proper action (e.g., not notifying the physician of a serious change in the patient’s status)  Malpractice: failure to abide by the standards of one’s profession (e.g., not checking that a nasogastric tube is in the stomach before administering a tube feeding) Criminal negligence: disregard to protecting the safety of another person (e.g., allowing a confused patient, known to have a history of starting fires, to have matches in an unsupervised situation) LEGAL RISK IN GERONTOLOGIC NURSING Malpractice Nurses are expected to provide services to patients in a careful, competent manner according to a standard of care. The standard of care is considered the norm for what a reasonable individual in a similar circumstance would do. CRITERIA FOR MALPRACTICE Duty: a relationship between the nurse and the patient in which the nurse has assumed responsibility for the care of the patient Negligence: failure to conform to the standard of care (i.e., malpractice) Injury: physical or mental harm to the patient or violation of the patient’s rights resulting from the negligent act  CONFIDENTIALITY In an effort to protect the security and confidentiality of patients’ health information, the federal government developed the Health Insurance Portability and Accountability Act (HIPAA). HIPAA provides patients with access to their medical records and control over how their personal health information is used and disclosed.  CONFIDENTIALITY Patients can ask their providers to change incorrect information that they have discovered in their record or to add missing information. They also can request that their health information not be shared. Congress authorized civil and criminal penalties for covered entities that misuse personal health information.  PATIENT CONSENT Patients are entitled to know the full implications of procedures and make an independent decision as to whether they choose to have them performed Consent must be obtained before performing any medical or surgical procedure; performing procedures without consent can be considered battery Usually, when patients enter a health care facility, they sign consent forms that authorize the staff to perform certain routine measures (e.g., bathing, examination, care- related treatments, and emergency interventions). These forms, however, do not qualify as carte blanche consent for all procedures.  PATIENT COMPETENCY Increasingly, particularly in long-term care facilities, nurses are caring for patients who are confused, demented, or otherwise mentally impaired Persons who are mentally incompetent are unable to give legal consent. Staff will turn to the next of kin to obtain consent for procedures; however, the appointment of a guardian to grant consent for the incompetent individual is the responsibility of the court. When the patient’s competency is questionable, staff should encourage family members to seek legal guardianship of the patient or request the assistance of the state agency on aging in petitioning the court for appointment of a guardian.  PATIENT COMPETENCY GUARDIANSHIP Guardian of property (conservatorship): this limited guardianship allows the guardian to take care of financial matters but not make decisions concerning medical treatment Guardian of person: decisions pertaining to the consent or refusal for care and treatments can be made by persons granted this type of guardianship Plenary guardianship (committeeship): all types of decisions pertaining to person and property can be made by guardians under this form.  PATIENT COMPETENCY POWER OF ATTORNEY Limited power of attorney: decisions are limited to certain matters (e.g., financial affairs) and power of attorney becomes invalid if the individual becomes incompetent. Durable power of attorney: provides a mechanism for continuing or initiating power of attorney in the event the individual becomes incompetent. STAFF SUPERVISION nurses are responsible not only for their own actions but also for the actions of the staff they are supervising. This falls under the doctrine of respondeat superior (“let the master answer”). Nurses must understand that if a patient is injured by an employee they supervise while the employee is working within the scope of the applicable job description, nurses can be liable MEDICATIONS Nurses are responsible for the safe administration of prescribed medications. Preparing, compounding, dispensing, and retailing medications fall within the practice of pharmacy, not nursing, and, when performed by nurses, can be interpreted as functioning outside their licensed scope of practice  RESTRAINTS The Omnibus Budget Reconciliation Act (OBRA) heightened awareness of the serious impact of restraints by imposing strict standards on their use in long-term care facilities. This increased concern regarding and sensitivity to the use of chemical and physical restraints has had a ripple effect on other practice settings.  RESTRAINTS Anything that physically or mentally restricts a patient’s movement (e.g., protective vests, trays on wheelchairs, safety belts, geriatric chairs, side rails, and medications) can be considered a restraint. Improperly used restraining devices can not only violate regulations concerning their use but also result in litigation for false imprisonment and negligence. TELEPHONE ORDERS Accepting telephone orders predisposes nurses to considerable risks because the order can be heard or written incorrectly or the physician can deny that the order was given. It may not be realistic or advantageous to patient care to totally eliminate telephone orders, but nurses should minimize their risks in every way possible.  TELEPHONE ORDERS Try to have the physician immediately fax the written order, if possible. Do not involve third parties in the order (e.g., do not have the order communicated by a secretary or other staff member for the nurse or the physician) Communicate all relevant information to the physician, such as vital signs, general status, and medications administered Do not offer diagnostic interpretations or a medical diagnosis of the patient’s problem Write down the order as it is given and immediately read it back to the physician in its entirety TELEPHONE ORDERS Place the order on the physician’s order sheet, indicating it was a telephone order, the physician who gave it, time, date, and the nurse’s signature. Obtain the physician’s signature within 24 hours TELEPHONE ORDERS Recorded telephone orders may be a helpful way for nurses to validate what they have heard, but they may not offer much protection in the event of a lawsuit unless the physician is informed that the conversation is being recorded or unless special equipment with a 15-second tone sound is used  DO NOT RESUSCITATE ORDERS The caseloads of many gerontological nurses contain a high prevalence of terminally ill patients. It may be understood by all parties involved that these patients are going to die and that resuscitation attempts would be inappropriate. Nurses must ensure that DNR (do not resuscitate) orders are legally sound, remembering several points. First, DNR orders are medical orders and must be written and signed on the physician’s order sheet to be valid. DNR placed on the care plan or a special symbol at the patient’s bedside is not legal without the medical order  ADVANCE DIRECTIVES AND ISSUES RELATED TO DEATH AND DYING Advance directives express the desires of competent adults regarding terminal care, life-sustaining measures, and other issues pertaining to their dying and death. The patient’s response must be recorded in the medical record. Nurses can aid by making physicians and other staff aware of the presence of a patient’s advance directive, informing patients of any special measures they must take to have the document accepted into the medical record, and, unless contraindicated, following the patient’s wishes. ELDER ABUSE Elder abuse can occur in patients’ homes or in health care facilities by loved ones, caregivers, or strangers Abuse can assume many forms, including inflicting pain or injury, stealing, mismanaging funds, misusing medications, causing psychological distress, withholding food or care, or confining a person. Even threatening to commit any of these acts is considered abuse  ELDER ABUSE There are several recognized types of elder abuse (National Center for Elder Abuse, 2012), which include the following: Physical abuse Emotional abuse Sexual abuse Exploitation Neglect Abandonment Signs of Abuse in Elderly Unexplained bruises Delay in seeking necessary medical care Poor hygiene and grooming Inappropriate administration of medications Urine odor, urine-stained clothing/linens Malnutrition Excoriation or abrasions of genitalia Repeated infections, injuries, or preventable Unsafe living environment complications from existing diseases Social isolation Dehydration Anxiety, suspiciousness, and depression Evasiveness in describing condition, symptoms, problems, and home life LEGAL SAFEGUARDS FOR NURSES Familiarize themselves with the laws and rules governing their specific care agency/facility, their state’s nurse practice act, and labor relations Become knowledgeable about their agency’s policies and procedures and adhere to them strictly Function within the scope of nursing practice Determine for themselves the competency of employees for whom they are responsible Check the work of employees under their supervision Obtain administrative or legal guidance when in doubt about the legal ramifications of a situation LEGAL SAFEGUARDS FOR NURSES Report and document any unusual occurrence Refuse to work under circumstances that create a risk to safe patient care Carry liability insurance PHILOSOPHIES GUIDING ETHICAL THINKING The word ethics originated in ancient Greece—ethos means those beliefs that guide life. Most current definitions of ethics revolve around the concept of accepted standards of conduct and moral judgment.  Utilitarianism. This philosophy holds that good acts are those from which the greatest number of people will benefit and gain happiness. Egoism. At the opposite pole from utilitarianism, egoism proposes that an act is morally acceptable if it is of the greatest benefit to oneself and that there is no reason to perform an act that benefits others unless one will personally benefit from it as well. Relativism. This philosophy can be referred to as situational ethics, in that right and wrong are relative to the situation.  Absolutism. Under the theory of absolutism, there are specific truths to guide actions. The truths can vary depending on a person’s beliefs ETHICAL PRINCIPLES Beneficence: to do good for patients Nonmaleficence: to prevent harm to patients Justice: to be fair, treat people equally, and give patients the service they need Fidelity and veracity: fidelity means to respect our words and duty to patients; veracity means truthfulness. Autonomy: to respect patients’ freedoms, preferences, and rights Confidentiality: to respect the privacy of patients THANK YOU FOR LISTENING