Nursing Ethics and Jurisprudence Lecture Notes PDF

SECOND LECTURE NOTE ON NURSING ETHICS AND JURISPRUDENCE: **Study Session 7. The legal roles of the nurse** **Introduction** The nurse as an individual is under the law and has the right to be protected by the law. However we mentioned in an earlier discussion that every right has a responsibility...

SECOND LECTURE NOTE ON NURSING ETHICS AND JURISPRUDENCE: **Study Session 7. The legal roles of the nurse** **Introduction** The nurse as an individual is under the law and has the right to be protected by the law. However we mentioned in an earlier discussion that every right has a responsibility. The nurse therefore also has a responsibility under the law. Her responsibility will depend on the role he/she is playing at the time and basically the nurse has three legal roles: as a citizen, as employee or contractor for service and as a provider of services. This study session examines these legal roles of nurses and their associated rights and responsibilities. **Learning Outcomes for Study Session 7** When you have studied this session, you should be able to: 7.1 explain the rights and responsibilities of the nurse as a citizen and explain the rights and responsibilities of the nurse as an employee or contractor for services 7.2 discuss the rights and responsibilities of the nurse as a provider of service 7.3 discuss Nurses' legal role in selected facets of nursing practice 7.4 explain the legal responsibilities of students. **7.1 The Rights and Responsibilities of the Nurse in the Role of a Citizen and** **Employee or Contractor for Service** 7.1.1 The Rights and Responsibilities of the Nurse in the Role of a Citizen The rights and responsibilities of the nurse in the role of citizen are the same as those of any individual under the legal system. The universal declaration of human rights by the United Nations general assembly in 1948 proclaimed that all people have the rights to freedom of opinion and expression. Nurses as individuals share in these common rights. They share with other citizens' welfare right, the right to property ownership and other rights applicable to individuals within the society in which they reside. The nurses have rights to respect of their own rights and responsibilities. Nurses, therefore have rights to appeal to conscience, to refuse to act in such a way that impinges upon the freedom of belief and expression. This may include such issues as conscientious objection to abortion and artificial contraception. As citizens they has the responsibilities to protect the client's right to good health and therefore should make conscious efforts to protect clients from harm and ensure consideration for their personal property rights, right to privacy, confidentiality and other rights. **7.1.2 The Rights and Responsibilities of the Nurse in the Role of Employee or Contractor for Service** The employer of the nurse may be a client in the case of independent nurse practitioner, a physician, hospital or health care agency. Depending on the one that applies, the nurse may have obligations to the employer, clients and other health care personnel. A nurse who is employed by an agency works as a representative of the agency, and the nurse's contract with clients is an implied one. However, a nurse who is employed directly by a client e.g. a private nurse, may have a written contract with that client in which the nurse agrees to provide professional services for a certain fee. The nurse has to fulfill the obligations of such contracted service or must have legitimate reasons for failing to do so, e.g. illness or death. Personal inconveniences and personal problems such as going to bed late the pervious night or breakdown of your car are not legitimate reasons for failing to fulfill a contract. Contractual relationships vary among practice settings. An independent nurse practitioner is a contractor for service whose contractual relationship with the client is an independent one. The nurse employed by a hospital functions within an employer- employee relationship in which the nurse represents and acts for the hospital and therefore must function within the policies of the employing agency. This type of legal relationship creates the ancient legal doctrine known as respondeat superior (let the master answer). In other words, the master (employer) assumes responsibility for the servant (employee) and can also be held responsible for malpractice by the employee. By virtue of the employee role, therefore, your conduct as a nurse in the hospital is the hospital's responsibility. This doctrine does not imply that you cannot be held liable as an individual nor does it imply that the doctrine will prevail if your actions are extra ordinarily inappropriate, that is beyond those expected or foreseen by the employer. For example, if you slap a client on the face, the employer could disclaim responsibility because this behaviour is beyond the bounds of expected behaviour. **Criminal acts, such as assisting with criminal abortions or taking drugs from a patient's supply for personal use, would also be considered extraordinary inappropriate behaviour.** Again you can be held liable for failure to act when you are expected to act. For example, if you see another nurse hitting a patient and you fail to do something to protect the patient, you will be seen as being negligent. In your role as an employee or contractor for service, you have **obligations to the employer, the client and other personnel**. The nursing care you provide must be within the limitations and terms specified in your contract. You have an obligation to contract only for those responsibilities that you are competent to discharge. You are expected to respect the rights and responsibilities of other health care participants. For example, although you have a responsibility to explain nursing activities to a client, you do not have the right to comment on medical practice in a way that disturbs the client or denounces or runs down the physician. In return for your services, you have a right to adequate working conditions such as safe environment, adequate equipment and facilities, adequate compensation for services rendered, and to a reasonable and prudent conduct by other health caregivers. When any of these rights is infringed upon, you have the right to pursue it through legally approved means such as collective bargaining or instituting a legal action against the employer. Collective bargaining is the formalized decision making process between representatives of management and that of labour to negotiate wages and conditions of employment, including work hours, working environment and fringe benefits of employment. Through a written agreement, both employer and employee legally commit themselves to observe the terms and conditions of employment. When collective bargaining breaks down because an agreement cannot be reached, the employees usually call for a strike. A strike is an organized work stoppage by a group of employees to express a grievance, enforce a demand for changes in conditions of employment, or solve a dispute with management. Because nursing practice is a service to people, often, ill people, strike presents a moral dilemma to many nurses. Actions taken by nurses can affect the safety of people. In some places strikes by nurses and other health professionals are prohibited, instead they mandate arbitration which is an agreement negotiated by a designated and impartial person. Collective bargaining is more than the negotiation of salary terms and hours of work. It is a continuous process in which day-to-day work problems and relationships can be handled in an orderly and democratic manner. **7.2 The Rights and Responsibilities of the Nurse in the Role of Service** In your role as a provider of service, your responsibilities are: \- to provide safe and competent care so that your client does not come to any form of harm including physical, psychological, or mental, \- to inform clients of the alternatives and outcomes of nursing care, \- to provide adequate supervision and evaluation of subordinates for whom you are responsible. This implies that you have an obligation to practice and direct the practice of others under your supervision so that harm or injury to the client is prevented and standards of care are maintained. Even when you carry out treatment orders by the physician, the responsibility for the nursing activities that you carry out is yours. When you are asked to carry out an activity that you believe will be injurious to the client, your responsibility is to refuse to carry out the order and report this to your supervisor. **The standard of care by which you act or fail to act is legally defined by the Nurse Practice Act** and by the rule of reasonable and prudent action, that is what a reasonable and prudent professional with similar preparation and experience would do in similar circumstance. It is important that you are aware that it is implicit in your role as provider of service are the several legal concepts such as standard of care, contractual obligation, and liability. Liability is the quality or state of being legally responsible to account for one's obligations and action and make financial restitution for wrongful acts. You must therefore be very careful to carry out your responsibilities as expected so as to avoid or prevent any form of liability. To accomplish your responsibilities, you have the right to reasonable and prudent conduct from the clients, colleagues and subordinates. For example, clients should provide accurate information as required. You also have a right to adequate and qualified assistance as desired. The legal rules of the nurse and their associated rights and responsibilities are summarized below in table 1 +-----------------------+-----------------------+-----------------------+ | **ROLE** | **RESPONSIBILITIES** | **RIGHTS** | +=======================+=======================+=======================+ | Provider of Service | · To provide safe and | \* Right to adequate | | | competent care | working condition | | Employee or | commensurate with the | e.g. safe equipment | | | nurse's preparation, | and facilities. | | contractor of | experiences | | | | | \* Right to | | service | and circumstance. | reasonable and | | | | prudent conduct from | | Citizen | · To inform clients | clients e.g. | | | of the consequences | provision of accurate | | | of various | | | | alternatives and | information as | | | outcomes of | required. | | | | | | | care. | \* Right to | | | | compensation for | | |.To provide adequate | | | | | services rendered | | | Supervision and | | | | evaluation of others | \* Right to | | | for whom the nurse is | reasonable and | | | responsible. | prudent conduct by | | | | other health care | | | · To remain competent | providers. | | | | | | | · To fulfill the | \* Right to respect | | | obligations of | by others of the | | | | nurse's own rights | | | contracted service | and | | | with the employer | | | | | Responsibilities. | | | · To respect the | | | | employer | \* Right to physical | | | | safety | | | · To respect the | | | | rights and | | | | | | | | responsibilities of | | | | other health | | | | | | | | care providers | | | | | | | | · To protect the | | | | rights of the | | | | recipients of care | | +-----------------------+-----------------------+-----------------------+ Table 1: Legal Roles, Right and Responsibilities Source: Kozier, B; Erb, G; Berman, A. J and Burke, K; (2000) **7.3 Nurses legal Role in Selected Facets of Nursing Practice** **1. Privileged Communication** Privileged communication is information given to a professional person who is forbidden by law from disclosing the information without the consent of the person who provided it. Liability can result if you breach confidentiality by passing on confidential client information to others. There is however a delicate balance between the need of a number of people to contribute to the diagnosis and treatment of a client and the client's right to confidentiality. In most situations, necessary discussion about a client's medical condition is considered appropriate, but unnecessary discussion and gossips are considered a breach of confidentiality. Necessary discussion should involve only those engaged in the client's care. **2. Informed Consent** Informed consent is an agreement by a client to accept a course of treatment or a procedure after complete information including the benefits, risks and other facts relating to it. Obtaining informed consent for medical procedures is a legal responsibility of the doctor and your responsibility as a nurse is to witness the giving of the informed consent, which involves: \- Witnessing the exchange between the client and the physician \- Establishing that the client really did understand the medical procedure to be carried on him/her \- Witness the client's signature. Obtaining informed consent for nursing procedure however is the responsibility of the nurse. You should therefore provide the necessary information and ensure that the client understands before giving his consent. **3. Record Keeping** All records of client care are legal documents and can be produced in court as evidence. It is important therefore that you keep accurate and complete record of nursing care you provided to the clients. Insufficient or inaccurate assessment and documentation can hinder proper diagnosis and treatment and may cause the client some injury and expose you to liability. **4. Controlled Substances** Controlled substances such as Indian hemp, cannabis, cocaine and heroin are not used in the day to- day performance of nursing duties, but there are others such as narcotic, depressants, stimulants and hallucinogens which nurses handle in practice. You must administer these according to the guidelines of the controlled drugs act; misuse or abuse of controlled drugs leads to criminal penalties. **5. Incident Report** Incident report is an agency's record of an accident or incident that occurred in the agency, for example, when an in-patient falls from the bed. The purpose of this report is to make available to the agency all the facts about an incident to contribute to statistical data about accident or incident so that necessary steps can be taken to prevent future occurrence of the accident or incident. Information included in an accident report includes: \- Identity of Client by name, hospital number. \- Date, time and place of incidence. \- Description of the facts of the incidence and not your opinion about it. \- Identity of all the witnesses to the incidence. \- Documentation of any equipment by type and number, and any medication by name and number. \- Circumstances surrounding the incident. **6. Wills** A will is a declaration by a person about how his/her property is to be disposed off after death. In order for will to be valid, the following conditions must be met. \- The person making the will must be of sound mind, that is, able to understand and retain mentally, the general nature and extent of the person's property, the relationship of the beneficiaries and of relatives to whom none of the estate will be left, and the disposition being made of the property. \- The person must not be unduly influenced by anyone else. Clients in developing countries, such as Nigeria, do not often request to make their will and require nurses to be witnesses. However, such a request cannot be seen as impossibility. If such a situation arises, it is important that you find out the institution's policy with regard to preparation and witnessing of such will. Even where an agency permits nurses to witness wills, you have a right to refuse to act in that capacity if in your opinion, undue influence has been brought on the client. **7. Abortions:** Abortion is termination of pregnancy before the foetus reaches the stage of viability. In many countries in African, abortion is still illegal. However, abortion is permissible for a registered medical doctor when conducted for medical indications. Any attempt to procure abortion in Nigeria is a crime unless it is performed to save the woman's life. In Europe and America, abortion is legally permissible on request by a pregnant woman within the early stage of pregnancy. This may present a legal or an ethical conflict to some nurses. However, many statutes also include conscience clauses upheld by the Supreme Court in the U.S.A, designed to protect nurses and hospitals that refuse to participate in abortion. **8. Living will and Euthanasia**: Living will is a signed request to be allowed to die when life can only be supported mechanically or by heroic measures. In Nigeria, we are familiar with verbal living will of clients. Significant others have stated their loved one's request, to allow them die peacefully at home, or for the dead body to be treated in a particular way. The purpose often is to avoid being dehumanized in the hospital or to save cost for the loved one. Although it is unwritten and not legally binding, many times, the relations feel morally obliged to honor such wills. The use of mechanical or heroic measures to support life does not apply in these cases because it is non -- existent in Nigeria. If you find yourself in a place where living will statutes exist, you should be familiar with the relevant policy and procedures and the immunity granted to those who grant living wills request. **9. Death and related issues**: Legal issues surrounding death that are of importance to the nurse include death certificate, labeling of the corpse, autopsy, organ donation and inquest. The attending physician usually issues death certificate but it is the nurses who keep custody of the pro-forma and give them to the doctor on request. You should be conversant with your employing agency's policy on who keeps the certificate after completion and the process of collecting them so that you can inform and guide the deceased's next of kin appropriately. You also have the duty to handle the deceased with dignity and label the corpse appropriately before they are sent to the mortuary so as to avoid misplaced identity especially at the accident and emergency units. Autopsy or postmortem examination is performed in cases stipulated in law such as when death is sudden or a suspected murder. It is the responsibility of the physician to order and obtain consent for the autopsy. **An inquest is a legal inquiry** into the cause of death which is required in some deaths suspected to be murder cases. The inquest is conducted under the jurisdiction of a coroner or appointed medical examiner. Your institutional policy will dictate to you your role in such situations. It is important that you know that potential evidence in criminal cases such as bullets, specimens etc. need to be obtained in a proper manner and protected from potential alteration or loss, so that important evidence is not excluded at trial. **The law in some developed countries, such as UK, USA and Canada allows persons 18 years or above and of a sound mind to make a gift of all or part of their body at death to treat other people** or teach students or for research. The person is usually compelled to sign a will or form in the presence of two witnesses. The person, who offers to make such a donation, should inform his /her relatives so that they know what to do when it is time for the organ (s) to be collected. You may be requested to serve as a witness for person who offers to donate organs. **7.4 Legal Responsibilities of Students** Students of nursing programmes and other clinical science programmes are usually posted to areas of clinical experience to practice, using real life persons, what they have been taught. The law does not define the permissible limits of a student nurse's function. While in training, students are not registered or licensed professionals, and if they perform any function legally reserved for licensed professional, for example giving injection, then the student is legally expected to perform at the same standard of skill and competence as a professional. The student is responsible for her action and liable for acts of negligence committed during the course of her clinical experiences. In legal suits and claims of damages arising from negligent acts by nursing students, the student, traditionally, are regarded as employees of the hospital or health care institutions where they are receiving the clinical experience. Hence the hospital is liable under the **"doctrine of respondent superior."** The professional nurse who assigned the duty to the student will be joined in the suit for negligence of duty, while the student might be co-joined for accepting to perform the activity. In areas where students are not employees of the hospital, but of another institution, such as college or university and only using the hospital on contract to gain clinical experience, both hospital and educational institution might be held liable. To avoid litigation, students on clinical experience should: \- Be assigned activities within their capabilities and given reasonable guidance and supervision by a registered / licensed professional nurse. The professional may be the clinical staff or instructor of the student. \- Remember to ask for help or supervision in any situation they feel inadequately prepared to act \- Comply with the policies of the agency in which they are gaining clinical experience as regard standards of care, methods of recording and reporting of observation and care. \- Comply with the policies and stipulation of responsibilities provided by the training school. SUMMARY In this study session, you have learnt that: 1\. You have, basically, three legal roles which include; as a citizen, as employee or contractor for service and as a provider of services 2\. Your responsibilities will depend on the roles you are playing at the time 3\. Your right and responsibilities in the role of a citizen are the same as those of any individual under the legal system 4\. As an employee or contractor for service, you must fulfill obligation for the contracted service or must have legitimate reasons for failing to fulfill the obligations 5\. In your role as provider of service you have an obligation to practice and direct the practice of others under your supervision so that standards of care are maintained and the client is protected from injury. 6\. There are legal implications attached to the following: privileged communication, informed consent, record keeping, controlled substance, incident report, wills, abortions, living wills, death and related issues. 7\. Students are legally expected to perform at the same standard of skill and competence as a professional, if they perform any function legally reserved for licensed professionals. **STUDY SESSION 8. OBTAINING INFORMED CONSENT** **INTRODUCTION** In the past, nurses and doctors told the client what care he was going to receive and the client agreed to it. Recently there has been a shift in the balance of power between the caregiver and the care receiver. Clients are seeking more self-determination and control over their bodies when ill. Current policy documents emphasize the importance of including clients in planning their care thus obtaining informed consent is a fundamental part of the care giving process. This study session will examine the concept of consent, the responsibilities of the nurse in obtaining consent, stages in obtaining informed consent, problems that may be encountered in obtaining consent and how the problems can be effectively dealt with. **Learning Outcomes for Study Session 8** When you have studied this session, you should be able to: 8.1 explain the concept of consent. 8.2 outline the responsibilities of the nurse in obtaining consent 8.3 describe the process of obtaining consent 8.4 outlines the problems encountered in obtaining consent and explain how the problems of obtaining inform consent can be effectively dealt with. **8.1 Concept of Consent** The word consent, in the medico-legal context, is giving permission to a health care provider to enable the practitioner to treat or care for the client. When an individual feels she has a health problem and seeks your advice and help, it does not in any way indicate that she has implicitly consented to treatment, or that she has relinquished her rights as a person. Therefore, throughout her stay in the hospital or under your care, you should inform her of what is to happen and you must obtain her consent. **Informed consent** is an agreement by a client to accept a course of treatment or a procedure after complete information, (including the risk of the treatment and facts relating to it) has been provided by a health care provider. Usually the client signs a form provided by the agency. The form is a record of the informed consent and not the informed consent itself. That is, the consent is the permission granted while the form is the record of the permission that was granted. **Consent can be said to be expressed or implied**. **Expressed consent may be either oral or written agreement**. It can be formal or informal. Formal consent is a written consent and is usually obtained in procedures which carry with them a reasonable hazard e.g. surgery, administration of anesthesia, clinical trial etc. Informed consent includes verbal expression of consent and behavioural expressions. For example, a client who expresses the desire and accepts your offer to attend to his hygienic needs has given a verbal consent. A client who turn his back and exposes his buttocks to you on your informing him you want to give him an injection, has expressed his consent behaviorally. Implied concept exists when the individual's non-verbal behavior indicates agreement. **Example of situations in which consent is implied includes;**  ·During an emergency when the individuals cannot provide consent.  Here the emergency and the expressed desire for your assistance will make you believe that consent has been given for whatever assistance or care you render.  During surgery when additional procedures are needed that consistent with the procedure already consented to. In this situation, it will be unreasonable to conclude the surgery and wait until the client is informed of the additional procedure and obtain his consent before carrying out the procedure. It will imply subjecting the client to another surgery.  When persons continue to participate in therapy without removing previous consent. **Legally,** consent can be described as being voluntary, involuntary or implied. **Voluntary consent** is informed agreement between the client and the practitioner about the scope and course of the client's treatment. In this type of consent, the client does not feel coerced. Sometimes, fear of disapproval by a health professional can be the motivation for giving consent. Such consent is not voluntary. **Involuntary consent is consent that is obtained regardless of the client's** wishes. Here the consent is supplied by the process of law. An example of this type of consent is treatment that is ordered by a court because the client is mentally ill, under arrest or unable to consent for some other exceptions. **Implied consent** is said to exist when the client is unconscious or unable to communicate and or is suffering from a life- threatening disease or illness. **8.1.1 Exception in Obtaining Consent** Three groups of clients cannot provide consent. They include: **- Minors** --These are people who are below the age of 18years. For this group a parent or guardian must give consent before they can obtain treatment. The same is true of an adult who has the mental capacity of a child and who has an appointed guardian. However minors who are married, pregnant, parents, members of the military are in some places, often legally permitted to provide their own consent. **- Unconscious persons or persons who are injured in such a way that are unable to give consent**. In these situations, consent is usually obtained from the closest adult relation. In a life threatening emergence, if consent cannot be obtained from the client or relation, the law generally agrees that consent is implied. \- Mentally ill persons who have been judged by professionals to be incompetent. The mental health act or similar statutes generally provide definitions of mental illness and specifies the rights of the mentally ill under the law as well as the rights of the staff caring for such clients. The three major elements of informed consent are: ** The consent must be given voluntarily or freely**  The consent must be given by an individual with the capacity and competence to understand.  The client must be given enough information to be the ultimate decision-maker. **8.2 Nurses Responsibilities in Obtaining Consent** Obtaining informed consent for specific medical and surgical treatment is the responsibility of a physician. This responsibility is delegated to nurses in some agencies and no law prohibits the nurse from being part of the information -- giving process. The practice however is highly undesirable. This is so because it is not right for you to obtain consent for a procedure that you are not in control of. The person who is going to carry out the procedure and who knows what is involved in the procedure is in the position to obtain the consent as he is expected to explain to the client what is intended before asking for consent to carry it out. Since you are not the one that will perform the surgery nor are you the one to administer the anesthesia, you might not be in a good position to explain to the client what is involved and therefore should not be the one to obtain the consent. Often your responsibility is to witness the giving of the informed consent for medical procedures. This involves the following: \- Witnessing the exchange between the client and the physician. \- Establishing that the client really did understand, that is, was really informed. \- That the client freely or voluntarily gives his/her consent \- Witness the client's signature or thumb printing If you witness only the client's signature and not the exchange between the client and the physician, you should write "witnessed signature only'' on the form. If you find that the client really does not understand the physician's explanation, then the physician must be notified. Obtaining informed consent for nursing procedures is the responsibility of the nurse. This applies in particular to nurse anesthetists, nurse midwives, and nurse practitioners performing procedures in their advanced practices. However, it applies to other nurses, including you, who perform direct care such as insertion of nasogastric tubes or administration of medication. **8.3 Process of obtaining Consent to Care** Most often consent is directed mainly at specific episodes of care, for example, procedures and surgery. It is not therefore specific enough or appropriate for those receiving long-term care, for whom the issue is ongoing consent to care and treatment, not specific episode. For such clients, active participation in the planning and reviewing of their care is required to ensure ongoing consent to care. **8.3.1 Stages of ongoing Consent** The process of ongoing consent to care is examined in five stages from the perspectives of the service user. Give client Consultation Active participation Consent to Advance statement information with client of client care and/or direction from the client **Tasks in Obtaining Ongoing Consent to Care** **Stage 1:** Giving Information -- every client must have a care plan in which his or her assessed care needs and the care to be given are recorded. For mentally competent people, the first stage should be for you to inform them that they have a plan. Offer those who can read the opportunity to read the plan and for those who cannot read, explain the content of the plan. This is necessary so that they can actively participate in the review of the plan when the need arises. If they do not know about the plan, it will be difficult for them to participate actively in its review. However, access to client's health records can be refused where the access would likely cause serious harm. General Guide to the amount and type of information required for client to make informed consent The client should know the following: ·The purpose of the treatment ·The intended benefits of the treatment. ·Possible risks or negative outcomes of the treatment. ·Advantages and Disadvantages of possible alternatives to the treatment including no treatment. **Stage 2:** Consultation with the client -- Consultation with the client implies that you take into account issues such as clients' beliefs, values, preferences and perceived quality of life when making a decision on their behalf. You will have information on these only if you consult with or involve the client. If there is no evidence of consultation with the client then you are delivering care and treatment with their "compliance" rather than their expressed consent. You are therefore cautioned not to confuse compliance with consent. For consent to be valid, the client should be given adequate information and have the mental capacity to be able to understand and process the information. If the first two parts of this process, that is, information giving and involvement of the client, have not been complied with, then a valid consent cannot be given. **Stage 3:** Active Participation of the Client -- You should encourage the clients to be actively involved in planning and reviewing their care as recorded in their care plan. Active participation of the client can have potential benefits which include: ·The client's care plan is likely to be more individualized if the client had helped to compile it. ·Clients are assisted to become more independent and thus minimize hospitalization. ·The care plan is likely to be a more valid and workable tool from the client perspective and thus increase the client's co-operation with the strategies prescribed. **Stage 4:** Consent to care -- Here the client agrees to the care. For any person to be able to give a meaningful consent to his or her care, the previous three stages must be followed. Without adequate information, the ability to process the information and the opportunity to ask questions, the client cannot give a valid consent. **Stage 5:** Making an advance statement and/or directive. The logical and progressive stage after giving consent to the care that was suggested would be for the client to specify the care strategies he wants or does not want in any given situation. Clients who have made an advance statement and/or directive should be able to feel confident that their wishes will be complied with even if they are not able to give their instructions personally. This can be seen as the ultimate in client participation, empowerment and taking control. An advance statement is a statement of views or wishes to be taken into account in decision making and is not intended to be binding on the health care team. An advance directive or living will is intended to be binding on the health team. For example, an advance directive is not to institute artificial feeding for people at the end stage of dementia. Although some people might see the use of a feeding tube as just a different method of delivering food and fluids, and therefore to be maintained at all cost rather than allow the client to starve to death, others might view it as an invasive procedure or as a technological support. Some people may consider this method of feeding as too invasive, but unless an advance directive specifically refusing this technology has been made, it may be used if seen by you to be appropriate in the client's best interest. **8.4 Problems in Obtaining Consent** Sometimes you may encounter a client or members of a client's family whom for various reasons resist or oppose treatment. Such reasons may be religious, socio-cultural, economic or politically based. Examples of such problems include: · The patient who needs but refuses treatment. · The parent who refuses permission to treat a child with life threatening illness. · The mentally ill person · The intoxicated or belligerent clients ·Client who gives and then withdraws consent for treatment etc. These situations create conflicts of values, rights and responsibilities. For instance, the right to life and the duty to preserve life versus the right to die and the duty to alleviate pain and suffering. The risk of legal and ethical liability for failing to act appropriately in such cases cannot be overstated. **8.4.1 Strategies to resolve problems in obtaining consent** In order to deal effectively with the problems from the client or the family in obtaining consent, the nurse must integrate fundamental principles of behavior assessment and modification into the treatment process. The steps are as follows: \- Assess the client to identify and deal effectively with any psychosocial or physical difficulties that could be militating against obtaining consent. \- Institute every effort reasonable and lawful to convince the client to urge him to accept the required treatment. \- If a conscious and rational adult client or parent refuses to give consent, he cannot be treated without risk of civil and criminal liability. In such a situation, the refusal should be carefully documented and witnessed. An example of this is "discharge against medical advice". \- Obtain legal consultation if the client's condition is sufficiently grave. **SUMMARY** In this study session, we have learnt that: 1\. Informed consent is an agreement by a client to accept a course of treatment or a procedure after complete information has been provided by a health care provider. 2\. It is your responsibility to obtain consent to perform nursing procedures, while for medical procedures, your responsibilities are to; witness the exchange between the client and the physician, establish that the client actually understood the information the physician gave and witness the clients signature. 3\. The process of ongoing consent to care is in five stages as follows; giving information, consulting with client, encouraging active participation of client, and giving consent to care and advanced statements and/or directives from the client. 4\. Problems in obtaining consent include; client refusing treatment, parents refusing permission to treat a child with life threatening illness, dealing with mentally ill or intoxicated persons and client who gives and then withdraws consent. 5\. Strategies to resolve problems encountered in obtaining consent include; assessing the psycho-social difficulties that could be militating against obtaining consent, using every reasonable and lawful effort to convince the client and obtaining legal consultation among others. **Glossary of Terms** Consent: The word consent, in the medico-legal context, is giving permission to a health care provider to enable the practitioner to treat or care for the client. **Study Session 9. The tort of negligence and malpractice** **Introduction** The law of torts is of great importance because it is designed to protect individuals and organizations, such as clients and health institutions from civil wrongs other than breach of contract. An understanding or knowledge of tortious liability is particularly important in legal nursing and to nurses because most of the cases resulting from nursing activities belong to the category of civil actions. Torts are classified into unintentional and intentional torts. This study session will examine negligence and malpractice which are examples of unintentional tort that may occur in the health care settings **Learning Outcomes for Study Session 9** When you have studied this session, you should be able to: 9.1 explain the concepts of negligence and malpractice 9.2 explain the legal doctrines related to negligence 9.3 discuss the difference in negligence action 9.4 explain the differences in negligence action. **9.1 Concept of Negligence and Malpractice** **Negligence** is a misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent practitioner or a careless or heedless conduct which falls below the standard established by law for the protection of others against unreasonable risk or harm. Technically negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. In practical terms, negligence is a complex concept of duty, breach and damage, which is suffered by the person to whom the duty is owed. Thus, tortious liability arises from a breach of this duty. **Malpractice** is that part of the law of negligence applied to professional person such as physicians, dentists and in some cases nurses. The term malpractice is legally superfluous because legal liability of health practitioners and other professionals is determined by traditional principles of negligence and the various intentional torts. In other words, there is no separate theory of malpractice liability. For the nurse's action to be considered as a malpractice the court has to accept that a nurse acted on a professional status even though the same principles of liability would be applied. Thus, you can be liable for malpractice if you injure a client while performing a procedure differently from the way other nurses would have done it. Before a case of nursing negligence or malpractice can be established, four elements must be present.  The nurse owed the client a duty of care -- This implies that you must have or should have had a relationship with the client that involves providing care. Such duty is evident when you have been assigned to care for the client.  The nurse breached that duty -- There must be a standard of care that is expected in the specific situation, which the nurse did not observe. This implies that you failed to act as a reasonable prudent nurse under the circumstance. The standard can come from documents published by the national or professional organizations like the National Association of Nigerian Nurse and Midwives (NANNM), Boards of Nursing like the Nursing and Midwifery Council of Nigeria (NMCN), Institutional policies and procedures, or Textbooks or Journals, or it may be stated by expert witnesses.  The client consequently suffered harm -- The client must have sustained injury or damage or harm. The plaintiff (client or his representative) will be asked to document the physical injury, medical costs, loss of wages "pain and suffering '' and any other damages. The nurse's negligence (act of omission or commission) was the proximate or legal cause of the plaintiff's injury. -- It must be proved that the harm occurred as a direct result of the nurse's failure to follow the standards and the nurse should have known that failure to follow the standard could result in such harm. These elements can be summarized using the equation as Duty of care + Damage = Negligence  Evidence of duty of care  Evidence of breach of the duty of care  Evidence of loss or injury to the client  Evidence that the breach of duty was the proximate cause of the loss or injury **9.1.1 Concept of "Your Neighbor"** An important aspect of the tort of negligence is the concept of "your neighbor" in law. This law requires you to take reasonable care to avoid acts or omissions, which you can reasonably foresee that is likely to injure your neighbor. Neighbor here refers to persons who will be so affected by your act that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the act or omission which you are called in question. Generally, the law holds that a person is not liable for an omission to act affirmatively when another person is in danger where there is no definite relationship between the parties, e g passers-by and victims of road traffic accident. In the same vein, though you do not have more duty than anyone else to be a "good Samaritan" to the general public, you have an obligation or duty to help take care of clients under your jurisdiction. Because of the nurse-client relationship, you may be liable for an omission to act as well as an affirmative act. Thus in legal nursing, you and the client are considered as " good neighbors " Thus special relationship between you and the client imposes a duty upon you to protect the clients that are in danger. **9.2 Basic Nursing Cares Errors that Result in Negligence** Basically nursing care involves assessment of client in order to identify their problem and needs that require nursing intervention. These are formulated into nursing diagnoses, which the nurse plans to intervene and actually intervenes. Errors in any of these activities may result in negligence. Examples of such errors include; **1. Assessment Errors** Assessment errors are errors that may occur during the process of assessing the client to identify his problems. **Such errors include:**  Gathering inappropriate and inadequate client information. If you do not gather adequate and appropriate client information, you are not likely to formulate appropriate nursing diagnoses for the client and therefore may not provide appropriate care that will alleviate the client suffering. The implication is that such delay in identifying and treating the client's problem may expose client to undue danger and this will make you liable.  Failure to recognize the significance of certain information. This will result in inappropriate actions that may affect the client adversely. **2. Planning Errors** These include failure to:  Chart each identified problem. If you do not chart information and the problems identified, the tendency is that you may forget about them and therefore may not take them into consideration in your plan of action in caring for the client  Use language in the care plan that other care givers understand. If you fail to use language that other caregivers understand, the result will be that they may not implement the care plan appropriately and this may affect the client adversely.  Ensure continuity of care by ignoring the care plan. If you ignore the care plan, it may affect the continuity of care. The implication is that the synergism that will move the client to state of good health will not be achieved.  Give discharge instructions that the client understands. If the client does not understand your instructions, it is likely he/she may not carry them out and this may interfere with his/her treatment regime and affect him adversely. **3 Intervention Errors** These include failure to:  Interprets and carry out doctor's orders  Question ambiguous or apparently erroneous doctor's order  Perform nursing tasks correctly such that the client is adversely affected. For example, incorrect calculation of rate of infusion, administration of wrong dose of drug or via a wrong route, burning of client (burns may be caused by inappropriate application of hot water bottle or solution that is too hot for application), leaving patients without instituting proper precaution like providing rails. Others include ignoring client's complaints, client fall from bed or in the toilet, incorrect identification of clients, leaving or forgetting materials or instruments inside a client's body, loss of client's property and failure to notify the nurse manager if physician is not available to attend to the client etc. You must endeavor to avoid all acts of negligence in your practice. However note that it is not all acts of negligence that is actionable. **9.3 Legal Doctrines related to negligence** Several legal doctrines are related to negligence. Some that are relevant to nursing are: \- Respondeat superior \- Res Ipsa liquitur **9.3.1 Respondeat Superior** Respondeat superior doctrine assumes that because the nurse is employed by the hospital, the master which is the employer assumes responsibility for the conduct of the nurse and can also be held responsible for malpractice by the nurse. The reason being that: \- It is the employer who is providing the service \- It is the employer who considered the employee capable of providing the services on his behalf and employed him. \- It is the employer who has the resources to pay the fine and also has the means of recovering what has been lost by paying the fine. In addition, the employer may be held liable for negligence if he fails to provide adequate human and material resources for nursing care, to properly educate nurses on the use of new equipment or procedures or to orient nurses to the facility. This doctrine does not imply that the nurse cannot be held liable as an individual nor does it imply that the doctrine will prevail if the employee's actions are extraordinarily inappropriate, that is beyond those expected or foreseen by the employer. For example, if you hit a client, your employer could disclaim responsibility because your behavior is beyond the bounds of expected behavior. **9.3.2 Res Ipsa Loquitur (The Thing Speaks for Itself)** The doctrine of Res Ipsa Loquitur applies to cases in which the simple fact that someone was hurt gives rise to an inference that another person, the defendant was negligent. There are three elements of the res ipsa loquitur doctrine. They include: \- The harm must have been of the sort that does not ordinarily occur in the absence of negligence. \- The injury producing conduct must have been at some significant time within the control of the defendant charged with the negligence. That is, the circumstances of the injury must indicate that the negligent person was the named defendant. \- The injury must not have resulted from a voluntary assumption by the plaintiff of a known and appreciated risk, or from his own contributory negligence. In order to defend against a negligence suit you must prove that one or more of the required element is not met. For example, in some cases, the harm cannot be traced to a specific health care provider or standard. An additional defense is "contributory or comparative negligence" on the part of the injured client. In these situations, the client was partly responsible for his/her injury. An example of this is when a client chooses not to follow heath care advice, such as remaining in bed while recovering from a particular treatment like surgery. In such situations, the court may reduce any verdict against the nurse by an amount considered to be the plaintiffs own contribution.. **9.4 Defenses in Negligence** There are a number of defenses in cases involving the tort of negligence. These include: **- Pure Accident** -- in case of what the law calls unavoidable or pure accidents, no legal fault lies. Consequently, pure accidents, if proven in a court of law, are a complete bar to the award of damages. **- General and approved practice** -- if you are charged with negligence, you can clear yourself if you show that you acted in accord with general and approved practice in the circumstance. This means that it must be approved by those qualified to judge, and also as the last resort by the court itself with the aid of expert evidence. **- Intervening cause**- In order that a negligent actor shall be liable for another's injury, there must be a proximate or legal cause that is a connection between the negligent act and the resultant harm. If you are able to prove that your act was not the proximate cause of the plaintiff injury but other intervening factors, you may not be liable for the tort of negligence. **- Contributory negligence** -- This is probably the most common defense to a negligence action. A defendant could normally escape liability if he could show that despite his negligence, the plaintiff should not be denied judgment for the reason that he too is guilty of an act of carelessness that contributed to his injury. Thus, contributory negligence refers to failure by the plaintiff to exercise prudence for his own safety, and which failure is a contributory factor bringing about the plaintiff's harm. **- Comparative Negligence** -- the drastic and impalpable effects associated with contributory negligence, particularly in circumstances where the plaintiff is found to be slightly negligent and the defendant greatly negligent have led courts to endeavor to prorata damages based on the degree of fault. The result of this effort is the adoption of comparative negligence rules. Such that in a law suit, where both the defendant and the plaintiff are negligent, the defense of comparative negligence requires the judge to apportion damages proportionately. **- Assumption of Risk** -- The defense of the assumption of risk against negligence may be defined generally as voluntary exposure to a known risk. A plaintiff's assumption of the risk may be expressed or implied. An assumption of risk is also a complete bar to the plaintiff's recovery of claim. **- Immunity** -- this is generally conferred on the following:  National and state governments, unless abrogated by statute.  Public officials performing quasi -- judicial or discretional functions  Charitable organizations granted immunity in some states  Infants under certain conditions  Insane persons in some cases. **SUMMARY** In this study session you have learnt that:  Negligence is a failure or breach of legal duty to exercise due care when there is a foreseeable risk of harm or damage to others.  Elements of negligence include duty of care, breach of duty of care, loss or injury and the breach of duty of care was the proximate cause.  Negligence could be in form of assessment errors, planning errors and intervention errors.  Legal doctrines related to negligence that are relevant to nursing include; respondeat superior (the master assumes responsibility) and Res Ipsa Loquitur (The thing speaks of itself).  Defenses in negligence action include, pure accident, general and approved practice, intervening cause, contributory negligence, comparative negligence, assumption of risk and immunity. **Glossary of Terms** Negligence: Negligence is a misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent practitioner or a careless or heedless conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. **Session 10. Intentional Torts That Are Relevant In Nursing** **Practice:** **Introduction** In the last study session, we mentioned that an understanding or knowledge of tortious liability is particularly important in legal nursing and to nurses because most of the cases resulting from nursing activities belong to the category of civil action. We also mentioned that torts are classified into unintentional and intentional torts and in that study session, we examined unintentional torts. This study session will examine intentional torts that have relevance in nursing practice and they include; trespass to person, defamation and invasion of privacy. **Learning Outcomes for Study Session 10** When you have studied this session, you should be able to: 10.1 explain the concept of intentional tort 10.2 differentiate between intentional and unintentional torts 10.3 discuss the intentional torts that have relevance in nursing. **10.1 Concept of Intentional Tort** Intentional tort implies proceeding intentionally to act in a way, which invades the rights of another. It may result from intended act whether accomplished by enmity, antagonism, and maliciousness or no more than a good -- natured practical joke. Intentional tort can take various forms and include, trespass to the person, infliction of mental or emotional stress, defamation, invasion of privacy, and intentional harm to property. **10.2 Differences between Intentional and Unintentional Torts** \- If you do not know with substantial certainty the result of your act and injury results, then you have not committed an intentional tort, but you have been negligent. This implies that for intentional tort, the act was executed on purpose, while for unintentional tort the act was not executed on purpose. \- Harm is a required element for unintentional tort, while for intentional tort; harm need not be caused for liability to exist. \- Expert witnesses are needed in unintentional tort, while for intentional tort; no expert witness is needed as no standard is involved. **10.3 Intention Torts that have Relevance in Nursing** The intentional torts that have relevance in Nursing include trespass to person, invasion of privacy, defamation and intentional harm to property. **10.3.1 Trespass to Person** Trespass is an ancient legal concept that simply means a "wrong". Trespass to person comprises three main forms namely assault, battery and false imprisonment. **10.3.1.1 Assault** Assault, in a strictly legal sense is an overt act or attempt, offer or threat to apply force or do violence to another in such a manner as to cause him to be in apprehension of an immediate danger or bodily injury. It is an intentional tort committed without any form of physical "touching" taking place but only a threat. It must be established that the defendant who made the threat to use the force had the apparent present ability to execute his threat. **Case study 1** Example of assault could be a person who threatens someone by making a menacing gesture with a knife or a closed fist is guilty of assault. In nursing, a nurse who threatens a client with an injection because the client refused to take the medication orally would be committing assault. An essential element of assault is that the person in danger of immediate bodily harm has knowledge of the danger and is apprehensive of its imminent threat to his safety. For example if Hilary aims a loaded gun at Robin's back but is subdued by Charles before Robin becomes aware of the danger, then Hilary has not committed an assault upon Robin. In essence for an assault to occur there must be a threat and there must be apprehension. **10.3.1.2 Battery** Battery is the actual physical contact that usually, but not always, follow an assault, it is the willful touching of a person or the person's clothes or even something the person is carrying, that may or may not cause him harm. To be actionable in law the touching must be wrong in some way, for example, done without permission, is embarrassing, or causing injury. **Case study 2** In the previous example, if the nurse followed through on the threat and gave the injection without the client's consent, the nurse would be committing battery. Liability applies even though the physician ordered the medication or the activity and even if the client benefits from the nurse's action. Consent is required before procedures are performed. Battery exists when there is no consent, including when the plaintiff was not asked for consent. Unless there is implied consent, such as in life -- threatening emergencies, a procedure performed on an unconscious client without informed consent is battery. Another requirement for consent is that the client should be competent to give consent. If you are uncertain, whether a client, refusing treatment, is competent, you should consult your supervisor and the physician in order that ethical treatment that does not constitute battery can be provided. Determination of competency is not a medical decision but is one made through the court. In an action for assault and/or battery, these are two most common defense available to the defendant; consent and privilege. In law it is assumed that consent negates legal injury. In certain circumstances, a person's intentional touching of another without consent may be excused or socially justified. The most common privilege asserted is self-defense, which allows you to use reasonable force to prevent personal harm. The degree of force must not be more than is reasonably necessary in the circumstance. In other words the privilege is limited to the use of force which reasonably appears to be necessary to protect against the threatened injury. **10.3.1.3 False imprisonment** False imprisonment also some times referred to as false arrest, is the third form of trespass to person and is connected with the right to freedom of movement. The tort of false imprisonment is defined generally as intentionally causing the confinement of another without consent or legal justification. It is the deprivation of the freedom of movement of another for any period, however short, without lawful justification. False imprisonment does not require force. The fear of force to restrain or detain the individual is sufficient. False imprisonment accompanied by forceful restrain or threat of restraint is battery or assault. Although nurses may suggest under certain circumstances that a client remain in hospital room or bed, the client must not be detained against the client's will. The client has a right to insist on leaving even though it may be detrimental to his health. In such a case the client may leave after signing "against medical advice" (AMA) form. As with assault and battery client's competency is a factor in determining whether there is a case of false imprisonment or a situation of protecting a client from injury. It is important that you become aware of the health institution's policy regarding the application of restraint to guide you in such dilemmas. In law, to avoid liability in a case of false imprisonment, the defendant must prove that he has reasonable grounds to believe the plaintiff committed a crime or suspected that the plaintiff was about to commit an arrestable offence. Secondly he may avoid liability by proving the plaintiff consented to have his movement restricted by the defendant. **10.3.2 Invasion of Privacy** Invasion of privacy is a direct wrong of a personal nature. It injures the feelings of the person and does not take into account the effect of the revealed information on the standing of the person in the community. The right to privacy is the right of individuals to withhold themselves and their lives from public scrutiny. It can also be described as the right to be left alone. Liability can result if the nurse breaches confidentiality by passing on confidential client information to others or intrudes into the client's private domain. There should be a balance between the need of a number of people to contribute to the diagnosis and treatment of a client and client's right to confidentiality. In most situations necessary discussion about a client's medical condition is considered appropriate, but unnecessary discussions and gossips are considered a breach of confidentiality. Necessary discussion involves only those engaged in client's care. There are four types of invasion from which the client must be protected: \- Use of the client's name or likeness for profit without consent. This refers to use of identifiable photographs or names as advertising for the health care agency or provider without the client's permission. \- Unreasonable intrusion like taking photographs for any purpose without client's consent. \- Public disclosure of private facts. Private information, usually considered offensive is given to others who have no legitimate need for the information e.g. disclosing a client's HIV status to others. \- Putting a person in a false light. This type of invasion involves publishing information that is normally considered offensive and that is not true. \- The defenses available to a defendant in an action of tort for invasion of privacy is the assertion that the person whose interest is being invaded is dead and therefore the plaintiff has no cause of action. The other defenses include consent (expressed or implied) and constitutional privilege, that is the right to give publicity to public figures or publish news or matters of public interest. **10.3.3 Defamation** One of the most important rights of a person is the right to a good name or reputation. The law therefore requires all persons to refrain from attacking the reputation of others. Defamation of character is the intentional or negligent unjustified publication of a matter or statement that tends to harm a person's good name or reputation or lower him in the estimation of right thinking members of society or tend to make them hold him in contempt to ridicule or to avoid him. Nurses and other health care providers are particularly susceptible to actions of defamation or invasion of privacy because of the sensitive personal information about clients that they have to handle or come in contact with each day in the course of caring for clients. It is therefore important that you have a good understanding of the tort of defamation so that you will be properly guided in the type of records that you keep. Defamation is of two types namely, libel and slander: \- **Libel is a written** or printed statement that damages a person's reputation or good name. In other words, libel is defamation of character made in some lashing form. Libelous matter may be published in a variety of forms e.g. newspaper cartoon, pictures etc. Writing in the nurses' notes that a physician is incompetent because he did not respond immediately to a call or making a written report alleging that a colleague collects bribe from clients before rendering care are examples of libel. \- Slander is a defamatory statement made orally. It is stating unprivileged (not legally protected) or false words by which a reputation is damaged. It is in a transient form, that is, spoken word. For example a nurse telling a client that another nurse is incompetent. The defamation material must be communicated to a third party such that the person's reputation may be harmed. This implies that a comment made in private criticizing the person's competence is not defamation since a third party did not hear it. As a nurse, you have a qualified privilege to make statements that could be considered defamatory, but only as a part of nursing practice and only to a physician or another health team member caring directly for the client. **10.3.3.1 The Elements of Defamation** To hold a defendant liable in an action of defamation, the plaintiff must prove a number of points and they are as follows: \- The words must be defamatory: that is, the statement must be capable of lowering the plaintiff's reputation in the eyes of right -- thinking members of society. \- The words complained of must refer to the plaintiff. This may be easy where he is named. It may be more difficult where a person recognizes himself as the character in the statement. \- The statement must have been published. This implies that it must have been communicated to at least one person other than the plaintiff. Any defamatory statement that has been communicated to the plaintiff only e.g. in a private conversation or by personal letter, has not been published and would therefore not be actionable. \- Libel is actionable without the necessity of proving that the plaintiff had suffered any damage. On the other hand, slander is actionable only if the plaintiff has suffered some pecuniary loss (damages) as a result of the defamatory statement, or if the slander falls into one of the following four classes.  Where there has been an imputation that the plaintiff has been guilty of a criminal offence punishable by imprisonment.  Where an imputation of unchastity has been made against a girl or woman.  Where it has been alleged that the plaintiff is suffering from a contagious or infections disease e.g. HIV/AIDS, Tuberculosis etc.  Where words have been used and calculated to disparage the plaintiff in his office, business or other occupation by imputing dishonesty, incompetence, or other unfitness for the work which he is doing **10.3.3.2 Defenses in Action of Defamation** There are two major defenses available in tort they are truth and privilege. Other less special are, fair comment, unintentional defamation and consent. Truth (or Justification) is an absolute defense in a defamation action, that is, if the defendant can show that the publication, which he made, was true in substance and fact, the person claiming to have been libeled cannot recover damages. Privilege is of two types -- absolute and qualified. **Absolute privilege is** applied to: \(a) Statement made innocently or maliciously by legislators in parliament and not outside parliament. \(b) Statement made by witness in legislative and quasi legislative hearing \(c) Statements made in the course of judicial or quasi-judicial proceedings by judges, the parties, witnesses, advocates, or jurors \(d) Newspaper or broadcast reports of judicial proceedings provided they are, and appear at the time the proceedings are taking place. \(e) Legislative papers published on the authority of the house of legislature. \(f) Any statement made by a superior officer of state or department to another in exercise of their official duty e.g. an official report sent by one civil servant to another. \(g) Statements made with the consent of the defamed person \(h) Certain political broadcasts required by federal law \(i) Statements made between husband and wife, lawyer and client, priest and penitent **Qualified or conditional privilege covers statements** made by one person to another, where the person making the statement had a moral, social, or legal duty to make the statement to whom he made it provided it was done without malice. Example is a nurse giving relevant information about a client to a physician to aid him in his management of the client. The privilege may be lost if defamatory matter is published outside the interested group. **Qualified privilege** requires that the statement be made in good faith and without malice, upon reasonable grounds, and in answer to inquiry. It must be made with regard to assisting or protecting the interests of either party involved or in performing a duty to society. In other words, to claim qualified privilege, it is necessary for the person making the statement to believe at the time he made it, that the substance of what he said is true. Fair comment is another defense opens to a defendant in a case of defamation. The comment must be on matter of public interest. The requisites of fair comment are as follows: a\. The matter commented on must be of public interest b\. It must be an expression of opinion and not an assertion of fact. c\. The comment must be fair d\. The comment must not be malicious; that is, it must not have an evil motive Some relief is given to a defendant who has innocently defamed another (unintentional defamation). Such a relief may take the form of an offer, e.g. a full apology to the person whose reputation may have been injured. Such apology may also include a prompt notification of the falsity of the statement to the public to which it was made. The apology may be accompanied by a reasonable financial compensation. **10.3.4 Intentional Harm to Property** Client's property, such as jewelry, money, eyeglasses, and dentures, is a constant concern to hospital personnel. These days, agencies are taking less responsibility for client properties and are generally requesting clients to sign waiver, on admission, relieving the hospital and its employees of any responsibility for clients' properties. Situations arise, however, in which the client cannot sign a waiver and must follow prescribed policies for safeguarding the client's property. You are expected to take reasonable precautions to safeguard a client's property because you can be held liable for its loss or damage if you do not exercise reasonable care. Another tort law that has to do with harm to client property is conversion. **Conversion** is the unlawful use, appropriation or deprivation of property belonging to another. For example, it is an offence for you to remove from the ward stock materials collected for clients care and enter in the register that they have been used for the client. If such is detected, you will be held liable. **Other torts and crimes occasionally involving nurses** in their professional practice are forgery, kidnapping, rape and bribery. **Forgery** is fraudulent alteration of written documents or items such as birth certificate, cheque, death certificate or excuse duty certificates. Kidnapping is stealing and carrying off a human being, particularly a child. There had been incidents of newborn babies kidnapped from the labour room. So you have to be very careful in discharging your duties. **Rape is** an illegal sexual intercourse, while bribery is an offer of reward to cover a wrong deed **SUMMARY** In this study session, you have learnt that:  Intentional tort implies proceeding intentionally to act in a way that invades the rights of another.  The differences between intentional and unintentional torts are that in intentional tort the act was executed on purpose, harm may not be present and expert witness is not needed while for unintentional tort, the act was not executed on purpose, harm must present and expert witnesses are needed.  Intentional torts relevant in nursing include; trespass to person, invasion of privacy, defamation and intentional harm to property.  Trespass to person means wrong to a person and comprises three main forms namely assault, battery and false imprisonment.  Invasion of privacy is a direct wrong of a personal nature which may involve passing on confidential client information to others or intrusion into the client's private domain  Defamation of character is the intentional or negligent unjustified publication of a matter that tends to harm a person's good name or reputation and is of two types namely, libel and slander  Intentional harm to client property can be in form of conversion, which is the unlawful use, appropriation or deprivation of property belonging to another. **Glossary of Terms** Intentional tort: implies proceeding intentionally to act in a way, which invades the rights of another. Defamation of character: is the intentional or negligent unjustified publication of a matter or statement that tends to harm a person's good name or reputation or lower him in the estimation of right thinking members of society or tend to make them hold him in contempt to ridicule or to avoid him. Trespass to person: means wrong to a person and comprises three main forms namely assault, battery and false imprisonment. Invasion of privacy: is a direct wrong of a personal nature which may involve passing on confidential client information to others or intrusion into the client's private domain **Study Session 11. Legal Protections in Nursing Practice** **Introduction** In carrying out their nursing responsibilities, nurses are faced with many situations that expose them to legal liability. It is important, therefore, that they are protected. This is achieved through enacting laws that protect nurses in emergency and by the nurses performing their jobs properly and by taking other necessary steps. This study session examines the laws that have been put in place to protect health care providers and the things that nurses can do to protect themselves from legal liability. **Learning Outcomes for Study Session 11** When you have studied this session, you should be able to: 11.1 explain the laws designed to protect health care providers 11.2 discuss actions that should be taken by the nurse to protect against liability. 11.3 care in carrying out physician order **11.1 Laws Designed to Protect Health Care Providers** Available statutes do not require citizens to render aid to people in distress. Such assistance is considered more of an ethical than a legal duty. This implies that an individual cannot be charged because he did not stop to render assistance to someone in distress. Many, who do so, do so because they see it as a moral or ethical obligation. To encourage citizens to be good Samaritans, some states have enacted legislation releasing a good Samaritan from legal liability for injuries caused under such circumstances and this is termed the good Samaritan Acts. **11.1.1 Good Samaritan Acts** These are laws designed to protect health care providers who provide assistance at the scene of an emergency against claims of malpractice unless it can be shown that there was a gross departure from the normal standard of care or willful wrong doing on their part. Gross negligence usually involves further injury or harm to the person. It is generally believed that a person who renders help in an emergency, at a level that would be provided by any reasonable prudent person under similar circumstances cannot be held liable. The same reasoning applies to nurses, who among the people are best prepared to help at the scene of an accident. If the level of care a nurse provides is of the caliber that would have been provided by any other nurse, then the nurse will not be held liable. There is however guidelines for nurses who choose to render care at emergency sites. They include: \- Limit actions to those normally considered First Aid if possible \- Do not perform actions that you do not know how to do \- Offer assistance, but do not insist \- Do not leave the scene until the injured person leaves or another qualified person takes over \- Contact necessary authority If you abide by these guidelines, it is likely that you will not do things that will bring about litigation. **11.2 Actions to be taken to Protect against Liability** There are several things that you can do to protect yourself against liability. Some of them include; providing competent nursing care, care in carrying out a physician's orders, taking professional liability insurance. **11.2.1 Providing Competent Nursing Care** Competent practice is a major legal safeguard for nurses. Nurses need to provide care that is within the legal boundaries of their practice and within the boundaries of the agency's policy and procedures. You should therefore be familiar with the various job descriptions, which may be different from agency to agency. You must ensure that your education and experience are adequate to meet the responsibilities delineated in your job description. Competency also involves care that protects clients from harm. It is important that you anticipate source of injury for the clients, educate clients about hazards, and implement measures to prevent injury. Application of the nursing process is another essential aspect of providing safe and effective client care. You must assess client's needs and implement intervention appropriately. All assessment and care must be documented accurately. You should approach every client with sincere concern and include the clients in discussions concerning their care. You should acknowledge when you do not know the answer to client's questions, tell the client you will find out the answer and ensure that you do. This way you will ensure that the client is adequately informed before he makes decisions about or give consent for his care. The following precautions are recommended to help you maintain competent practice and protect against actions that may lead to litigation. \- Function within the scope of your education, job description and areas of the Nurse Practice Act. This enables you to function within the scope of your job description and to know what is, and what is not expected. \- Follow the procedures and policies of the employing agency \- Build and maintain good rapport with clients, keeping clients informed about their diagnosis and treatment plans, giving feedback on their progress, showing concern for the outcome of their care, preventing a sense of powerlessness and a build up of hostility in the client. \- Always identify clients, particularly before initiating major interventions such as surgical or other invasive procedures or when administering medications or blood transfusion. This insures that the appropriate treatment is given to the appropriate person. \- Observe and monitor the client accurately and ensure that you communicate and record significant changes in the client's condition to the physician so that necessary treatment will be initiated to prevent further deterioration of the client's condition thus ensuring recovery. \- Promptly and accurately document all assessments, diagnosis and care given. \- Be alert when implementing nursing interventions and give each task your full attention and skill. This way you will ensure quality care. \- Perform the procedure appropriately. Negligent incidents during procedures generally relate to equipment failure, improper technique while performing procedures. \- Make sure the correct medication is given in the correct dose, by the right route at the scheduled time and to the right client. \- When delegating nursing responsibilities, make sure that the person who is delegated a task understands what to do and that the person has the required knowledge and skill. As the delegating nurse, you can be held liable for harm caused by the person to whom care was delegated. \- Protect clients from injury. Inform clients of hazards and use appropriate safety derives and measures to prevent falls, burns or other injuries. \- Report all incidents involving clients. Prompt reports enable those responsible to attend to the client's well being, analyze why the incidence occurred and to prevent recurrence. \- Always check any order that a client questions and ensure that verbal orders are accurate and documented appropriately. Question and confirm standing orders if you are inexperienced in a particular area. \- Know your own strengths and weaknesses. Ask for assistance and supervision in situations for which you feel inadequately prepared. \- Maintain your clinical competence. This implies continued studying including maintaining and updating clinical knowledge and skills through attending seminars and workshops. \- Keep accurate and complete records of nursing care provided to clients. This is important because client medical record is a legal document and can be produced in court as evidence. Failure to keep proper records can constitute negligence and can be the basic for tort liability. Insufficient or inaccurate assessment and documentation can hinder proper diagnosis and treatment and this can result in injury to the client. If an accident or an unusual incidence occurs, an incident report should be written. The information to be included in the report is:  Name of the client and hospital number  Date, time and place of the incident  Description of the facts of the incident. Avoid any conclusions or blame. Describe the incident as you saw it even if your impressions differ from those of others.  Witnesses to the incident.  Any equipment and medication by name and number  Any circumstance surrounding the incident: This helps whoever is going to use the information to have a full picture and understanding of the situation. \- Report crimes, torts and unsafe practices. You may need to report nursing colleagues or other health professionals for practices that endanger the health and safety of clients. You may feel disloyal or incur the disapproval of others for reporting, however it is important to report to prevent harm that may come to the client, other colleagues and institution or may lead to litigation. The guideline for reporting a crime, tort or unsafe practice includes: \- Write a clear description of the situation you believe you should report. \- Make sure your statements are accurate \- Make sure you are credible \- Obtain support from at least one trustworthy person before filing the report. \- Report the matter starting at the lowest level in the agency hierarchy. \- Assume responsibility for reporting the individual by being open about it. Sign your name to the letter or report. See the problem through once you have reported it. **11.3 Care in Carrying out Physician's Order** You are expected to analyze any procedures and medications ordered by the physician and seek clarification of ambiguous or seemingly erroneous orders from prescribing physician. Clarification from any other source is unacceptable and regarded as a departure from competent nursing practice. If the order is neither ambiguous nor apparently erroneous, you are responsible for carrying it out and you must carry it out as prescribed. There are however some categories of orders that you must question to protect yourself legally. \- Question any order a client questions: If a client who has been receiving an intramuscular injection tells you that the doctor changed the order from an intramuscular to an oral medication, you should recheck the order before giving the medication. \- Question any order if the client's condition changes. You are responsible for notifying the physician of any significant changes in the client's condition, whether the physician requests notification or not. For example, if a client who is receiving an intravenous infusion suddenly develops a rapid pulse, chest pain, and cough, you must notify the doctor immediately and question continuing the ordered rate of infusion. Or if a client who is receiving morphine for pain develops severe depressed respiration, you must withhold the medication and notify the doctor that prescribed the drug. \- Question and record verbal orders to avoid mistakes. In addition to recording the time, the date, the doctor's name, and the orders, you should document the circumstance that occasioned the call to the doctor. Be sure to read the orders back to the doctor, and document that he doctor confirmed the order as you read them back. \- Question any order that is illegible, unclear, or incomplete. This is important because misinterpretations in the name of a drug or in dose can easily occur with hand written orders and may cause some harm to the client. You are responsible for ensuring that the order is interpreted the way it was intended and that it is a safe and an appropriate order. **11.4 Professional Liability Insurance** Because of the increase in the number of lawsuits against health professionals, nurses are advised in many areas to carry their own liability insurance. Many hospitals have liability insurance that covers all employees including all nurses; however, some smaller facilities may not. Thus you should always check with your employer at the time of hiring to see what coverage the facility provides. A doctor or a hospital can be sued because of the negligent conduct of a nurse, and the nurse can also be sued and held liable for negligence or malpractice. Because hospitals have been known to countersue nurses when they have been found negligent and the hospital was required to pay, nurses are advised to provide their own insurance coverage and not rely on hospital provided insurance. In addition, nurses often provide nursing services outside of employment -- related activities such as being available for first aid at social activities or providing health screening and education at health fair. Neighbors or friends may seek advice about illnesses or treatment for themselves or family members. The nurse may be tempted to give advice. It is always advisable for the nurse to refer the friend or neighbor to the hospital. The nurse may be protected from liability under Good Samaritan Acts when nursing service is volunteered, however, if the nurse receives any compensation or if there is written or verbal agreement outlining the nurse's responsibility to the group, the nurse will need liability coverage to cover legal expenses in the event that the nurse is sued. Liability insurance coverage usually defrays all costs of retaining an attorney. The insurance also covers all costs incurred by the nurse up to the face value of the policy including a settlement made out of court. In return, the insurance company may have the right to make the decision about the claim and the settlement. Nursing faculty and nursing students are also vulnerable to law suits. In hospital-based nursing education programmes, instructors and students are often specifically covered for liability by the hospital. An instructor, however, can still be sued by a hospital in cases of negligence and malpractice. Students and lecturers of nursing employed by universities are less likely to be covered by the insurance carried by hospitals and health agencies. It is advisable for nurses in these categories to check with their institution about the insurance coverage that applies to them. In some places, hospitals do not allow nursing students to provide nursing care without liability insurance. This protects the hospital from unnecessary expenditure in the event of a lawsuit as a result of malpractice on the part of the students. **SUMMARY** In this study session, you have learnt that:  There are legal protections for the nurse and they include the good Samaritan Acts and some actions that you can take to prevent litigation.  Good Samaritan Acts are laws designed to protect health care providers who provide assistance at the scene of emergency against claim of malpractice.  Some of the things that you do to prevent litigation are; providing competent nursing care, care in carrying out physician's orders and taking professional liability insurance. **Study Session 12. Ethical Problems in Nursing** **Introduction** Nurses in carrying out their duties are confronted with ethical problems as a result of technological changes and knowledge explosion which have brought changes in health care. Such changes include, rising cost of health care, increase in awareness of the consumers of health care of their bodies and rights and new techniques in management of health conditions. All these have brought dramatic increase in the frequency and complexity of ethical and legal problems that face the nurse thus exposing her to conflicting loyalties and obligations. It is important that you become aware of this. This study session therefore will examine the sources and categories of ethical dilemma. **Learning Outcomes for Study Session 12** When you have studied this session, you should be able to: 12.1 explain the concept of "Ethical Dilemma" 12.2 outline the sources of Ethnical Dilemma 12.3 explain the categories of Ethical Dilemma. **12.1 Ethical Dilemma** An ethical dilemma is a difficult moral problem that involves two or more mutually exclusive, morally correct courses of action. Or it can be said to be a situation of conflict over philosophies, values and professional duties such that the professional is unsure of what constitutes proper conduct as no absolute right or wrong conduct exists. In an ethical dilemma, each alternative course of action can be justified by the ways in which a person views the course of action and this is based on his or her value system. Issues in health care delivery practices present different alternatives depending on whether the issue or course of action is viewed from the patient, the health care agency, the legal system or the nurse's perspective. What you must bear in mind in whatever ethical situation you find yourself is the fact that according to the nursing code of ethics, your first loyalty is to the client. However, it is not always easy to determine which action best serves the client's needs. **12.2 Sources of Ethical Problems in Nursing** Sources of ethical problems in nursing include: \- Social and technological changes \- Nurse's conflicting loyalties and obligations **12.2.1 Social and Technological Changes** Social changes such as right to healthcare, increasing cost of healthcare and conflicting institutional policies create ethical problems. Every individual is supposed to be entitled to healthcare but sometimes the cost of healthcare is beyond the reach of many. When such people present in health institutions where the policy states people must pay before they can receive treatment, the nurse is faced with the dilemma of whether to observe the code of ethics of nursing which ascribed four primary responsibilities to her one of which is to alleviate the suffering of the client, or to observe the policy which states, 'no pay no treatment". Also technology creates new issues that previously did not exist. Today, with treatment that can prolong biologic life almost indefinitely, the questions are; should nurses do what they know they can? Who should be treated? Everyone or only those who have a chance to improve or survive?" **12.2.2 Conflicting Loyalties and Obligations** Because of their unique position in the healthcare system, nurses experience conflicts among their loyalties and obligations to clients, families, physicians, employing institutions and licensing bodies. Client's needs may conflict with institutional policies, physician's preferences, interest of colleagues or co-workers, the needs of the client's family, or even the laws of the state. **Case study 1** For example, if your colleague who is on duty with you in the same ward unintentionally gives a wrong dose of a drug to your client and the client reacts to the drug, you may think that the client needs to be told the truth but this might damage the client-nurse relationship and cause harm to the client rather than the intended good. On the other hand you may feel a duty to your colleague and therefore think that the client need not know. Always remember your first loyalty is to your client. What you should do is what is best for the client at the time but the problem is the determination of what is best. Ethical problems in nursing may also arise from the interactions of the nurse. These include \- Nurse -- Client/family interaction \- Nurse -- co-worker interactions \- Nurse -- nurse interaction Other sources of ethical problems include: \- Conflicts between the nurse's personal values and professional expectations. \- Conflicts between professional duties and institutional policy \- Conflicts between professional and societal values **12.3 Categories of Ethical Problems in Nursing Practice** The categories of ethical problems will be examined based on the sources of ethical problem. a\. Nurse -- Client/family interactions -- the problems or conflicts that may arise during nurse - client interaction include: \- Parentalism -- This is a situation where you offer what you feel the client needs to survive or avoid risk but the client rejects it. For example, a Jehovah witness client with severe hemolytic anaemia refuses blood transfusion because it is against her faith. Does preventing loss of life justify violating the clients' right to autonomy and thereby make it acceptable for you to act as a parent and choose an action the client does not want? \- Deception -- A woman and her only son were involved in a road traffic accident and sustained serious injuries and were both admitted in your hospital. The son later died and the mother kept asking you about the son. If you believe the news of the son's death will be an added problem that may interfere with the woman's recovery, will that belief justify your lying to the woman that her son is alive? \- Confidentiality -- A good friend of yours who is HIV+ confides in you her HIV status but requests that you do not disclose the information for fear of losing her fiancé. Knowing the consequence of disclosure particularly to the fiancé, will you be justified to disclose the information to save the fiancé from being infected? \- Allocation of scarce nursing Resources\-- If you are alone on duty in your ward and one of your clients suddenly becomes acutely ill with severe ante partum hemorrhage; while you are attending to her, another patient begins to experience severe respiratory distress, how will you manage the situation? Which of the clients will you leave to attend to another/? \- Conflict between nurse's and client's interest -- if you have, in your ward, a patient who had been scheduled for X-ray and you have been assigned to do his dressing, you want to do the dressing before he goes for the X-ray because you want to leave work early for personal reasons, the patient opts to go for x-ray first and you leave without doing the dressing. Is your action morally justified? b\. Nurse -- Nurse Interactions -- problem that may arise during nurse- nurse interactions include: \- Nurse incompetence - If your nurse gave an injection to a child on the buttocks which resulted to injury to the Sciatic nerve and subsequent paralysis of the limb, would you notify the appropriate hospital authority or shut-up to protect your colleague? \- Claim of loyalty -- you are on duty with a student nurse and you left the student to hold brief while you went to another ward to chat with a friend there. While you were away one of the patients fell out of bed and sustained some injury. When you came back and the student narrated what happened in your absence and you request the student not to tell anybody that you were absent when the incidence occurred. Are you morally justified to demand such loyalty and subject the student to the dilemma of whether to tell or not to tell? c\. Nurse -- co-worker interaction -- The problems that may arise during nurse -- co-worker interactions include: \- Disagreements about proposed medical regi