Oct 15 Legal Issues in Nursing: Accountability, Privacy, and Confidentiality

Canadian Legal system

Federal - Across Canada

Provincial/Territorial - specific provs

Common Law

Set of rules based on precedent (Based on past rulings)

Statute Law

Created by either provincial or federal

Overrides common/civil law

Examples: Provincial SK (Registered Nurses Act; Health Information Protection Act (HIPA))

Federal: Criminal Code of Canada, Controlled Drugs and Substances Act, and Food and Drugs Act

Nursing Holds Legal Responsibilities

Safe competent care includes legal bounderies

Legal responsibilities to protect patient rights and self from liability

Public service = societal expectations

Fiduciary relationship: nurse provides service in which patient trusts a nurse’s specialized knowledge and integrity

Self-regulated Profession

Code of Ethics for Nurses

Standards of Care

Legal Guidelines for nursing practice

Expectations to provide knowledgeable, safe, competent care

Multiple sources: RN professional ACTS; Case law; regulations; practice standards; Code of Ethics; policies and procedures in institutions

Torts

A civil wrong committed by one person against another such as to cause damage or injury

Intentional or non-intentional

A duty correspond to an obligation by the professional

Intentional Torts 1

A willful act that violates a person’s rights

Assault: physical or verbal

No contact necessary

threatening to follow through with something a patient has not consented to - ASSAULT

Battery: intentional physical contact without consent

Indirect or direct

Contact may cause injury OR be offensive to one’s dignity

Offense to Dignity: providing measures (even life saving) that are against a patients wishes (with prior knowledge)

Intentional Torts 2

Invasion of privacy, the unwanted intrusion into private affairs

Unauthorized release of confidential information

Limitations to confidentiality when duty to report: suspected child abuse; intention to harm others/self; subpoena; gunshot/stabbing

False imprisonment: loss of individual liberty and basic rights

Protects liberty and human rights

Use of restraints (physical restraint including confining to a room, chemical restraint)

Unintentional Torts

Nursing Negligence

Failure to use the degree of skill or learning ordinarily used under the same of similar circumstances by a nurse

Most common type of lawsuit faced by nurses

Intent does not matter. Concerned with recklessness, carelessness, inattention

Common Negligent Acts

Medication Errors

IV therapy errors

burns

falls

failure to use aseptic technique

Errors in equipment counts

Failure to give an adequate report

Failure to monitor a patient’s condition adequately

Failure to notify a surgeon or physician of a patient’s condition

Failure to properly delegate or supervise

Four Elements on Negligence

Duty of Care - The nurse owed the patient an expected level of care

Breach of standard of care - The nurse did not carry out this level of care

Foreseeable harm was caused by breach - The patient was injured

Damages - The nurse failure to provide level of care which caused the injury

Preventing Negligent Acts

Follow standards of care, policy and procedures

Provide competent care

Continuing education

Insist an adequate orientation

Adequate staffing: address with management/union if not

Development of therapeutic relationships improve safety

Document assessment, interventions and evaluations

Documentation

Chart - permanent record that could be consulted by a court of law

Documentation should be careful, complete and thorough

If it isn’t charted - it wasn’t done

Nursing Defense - careful charting can indicate care met standards OR that nurse was negligent

Poor charting reflects the nurse TImely; Reflective; Honest

Criminal Liability

Criminal Law involves society as a collective and a breach in rules that threaten peace, stability, order and well-being of all its citizens

Federal Criminal Code of Canada

In some situations there may be a criminal charge and a civil suit for damages

Vicarious Liability

Applies where law holds employer legally responsible for acts of its employees that occur within the SCOPE and COURSE of their employment

Nurses protect themselves by:

Liability insurance

Notify employer if sued

Cooperate

CNPS

Consent

Patient must have legal and mental capacity to make a treatment decision

Consent must be given voluntarily and without coercion

Patient must understand risks and benefits of procedure or treatment, risk of not undergoing procedure or treatment, and any available alternatives to the procedure or treatment

Value 7 Preserving Privacy and Confidentiality

 7.2 Nurses uphold right to privacy and confidentiality of info that is shared and documented

 

 7.3 Nurses uphold self-determination rights of people before disclosing their confidential information

Privacy and Professional Obligation

when how and to what extent the indivbidual will release personal information about themselves

Nurses have ethical and legal obligation to protect privacy of patients’ personal info

Ethical obligation

Code of Ethics for RNs

Legal Obligations

Legislation, case law, professional codes of ethics and standards, and institutional policies

Privacy Risk Areas

Collection

Access

Disclosure

Consent

If a nurse breaches a patient’s privacy rights, the nurse may face a number of legal consequences. The nurse may be disciplined by her employer, investigated by the Privacy Commissioner or Ombudsman, disciplined by her professional nursing licensing body, or be named as a defendant in a civil lawsuit.

Freedom of information and Protection of Privacy (FOIP)

Rules for how government entities collect, use and disclose personal information

Health Information Protection Act (HIPA)

Any trustee (ex: doctor, hospital, clinic, dentist, nurse, health authority) of health information must protect a person’s health information

Patients have the right to access their health information

Confidentiality of health information

•Maintaining confidentiality is an aspect of privacy

•Confidentiality is the obligation for certain persons (e.g. regulated health professionals) not to disclose another person’s information to third parties unless there is a reasonable lawful reason to do so

•There are legal, professional, and ethical obligations that oblige healthcare professionals to maintain patient confidentiality

•In order for a patient to be cared for properly, the patient’s healthcare team members must be able to share patient information with each other. 

Need-to-know-basis

 Collecting, using, and disclosing health information is done on a need-to-know basis with the highest level of anonymity possible

Breaches of confidence

 Looking at charts/accessing information for patients you are not providing direct care for

 Discussing information in a public place

 Social Media posts on patients/workplaces/colleagues

 Not de-identifying information

 Falsifying or altering documentation

 Giving health information to a family member without consent

 

 Value 7.2 Nurses uphold right to privacy and confidenatiliaty of info that is shared and documented

Consequences of improper Release

 Consequences in the case of an improper release of information: 

•A patient may sue for negligence, breach of confidentiality or privacy, or defamation. 

•A professional nursing regulator may institute disciplinary proceedings.  

•An employer may commence an investigation. 

•The provincial or territorial privacy commissioner may investigate a complaint. 

Computers and Confidentiality

 Electronic Medical Records (EMR) introduces legal concerns related to the risk of unauthorized access

­Portable devices

­Devices stolen

­Social media & privacy

­Protecting passwords

Targeted attacks on systems

Social Media

 High Standard of Confidentiality

 Professional Conduct towards patients and colleagues

 “Professional practice standards regarding confidentiality, therapeutic boundaries and professional image are engaged when nurses use social media in connection with their professional activities” (CNPS)

Social Media

 A breach of professional standards could result in professional sanctions by the regulating body

 The breach of professional standards could also result in a prosecution against the nurse for breach of privacy legislation.

If defamatory comments are made by a nurse about another person or institution on a social media site, a civil action alleging defamation could be brought against the nurse. A nurse who is found liable by the court could be required to pay damages.

Social Media Risks -

 Scope of distribution - Because information in electronic form is easily distributed, archived and downloaded, the person posting the information may have very little control over who sees it and its use.

 Permanence of information - Postings to social media sites are generally permanent records that cannot easily be deleted. Copies of deleted information may still exist on search engines or in friends’ (or others’) electronic files.

 Misapprehension of the extent of privacy controls - Although these sites have privacy controls, be aware that the default for many of them allows others to see some of the posted information.

 Pseudonyms - Posting anonymously or under a pseudonym does not protect against the possible consequences of a breach of confidentiality or defamation.

 Reputation damage - Postings may come back to haunt you on a personal or professional level.

Nurse as Advocate

•Several means by which nurses can raise concerns about various aspects of the health care system, which benefit from protection under the law

•Such examples include speaking/writing to their employer, submitting a complaint to a regulatory body, or the use of incident reports

•Professional regulatory bodies generally have the authority to determine when public communications are “contrary to the best interests of the public or nurses, or tends to harm the standing of the nursing profession

Value 3 Maintaining integrity and accountability in nursing practice

 3.1 nurses act with integrity honestly responsibility trustworthiness and accountability

 

 3.2 Nurses maintain appropriate professional boundaries and conduct themselves professionally

Canadian Patient Safety Institute

 This approach ignored the underlying contributing factors that led to the incident and thus presented a shallow analysis of the circumstances. The outcome of such an analysis may have included the creation of new policies/procedures, additional training, disciplinary action and/or an expectation of increased personal vigilance.

Breaches of Standards of Care

•Professional Discipline: in cases of alleged professional misconduct - either with a complaint being submitted to the regulator about a registrant, or with the regulator deciding to initiate an investigation into a registrant without having received a formal complaint. 

•Criminal Prosecution: a nurse may be reported to the police for suspected criminal conduct.

•Grievance: a grievance is typically defined by a violation of an employee’s rights in the context of their employment. 

•Civil Action: a disagreement where the plaintiff is seeking a finding of liability and damages (compensation) from the defendant. 

Defenses for registered nurses

1.Actions were those of REASONABLE AND PRUDENT nurse in those circumstances

2.Error in judgement

3.Actions of other defendants

4.Contributory negligence

5.Limitation periods

Nursing Students & Liability

•Working within your scope of practice

•Must not perform nursing actions unless competent  to do so

•You are liable if actions cause harm to patients.

•Liability is shared between student, instructor, hospital and university

•Must separate your nursing student role from other unregulated or regulated roles may hold (ex: EMT, LPN, care aid)

Guiding Principle 1.3

Nurses respect client’s preferences and choices through compassionate and ethical conduct

 Professional obligation to provide care compassionately and ethically

 All people to live and die with dignity, work to relieve pain and suffering

 Nurses reflect on moral values and beliefs which are in conflict with a person’s decisions (ex: MAID, abortion care, harm reduction)

 Nurses inform the employer if there is a conflict

 Nurses must ensure the best interest of the client is protected until alternative care is available.

Medical Assistance In Dying (MAID)

 Bill C-14 passed in June 2016

 Revised Legislation in March 2021

 A physician or NP can directly administer a substance that causes the death of the person who has requested it, OR prescribe to a patient a substance that they can self-administer to cause their own death (In SK – prescriber must be present)

 Must meet certain criteria for eligibility

All Requests for MAID:

•Undergo medical assessments

•Submit a signed written request for MAID

•Independent Witness

•Withdrawal of your request

•Final Consent

March 17, 2021 – Summary of changes

 The new law expanded eligibility to MAID to individuals whose death is not reasonably foreseeable and strengthened the safeguards for these applicants.

 Changes to the legislation on medical assistance in dying allow you to waive the requirement for giving final consent just before MAID is provided.

 Canadians whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, will not be eligible for MAID until March 17, 2024 ** Original date (2023) delayed in order to “allow more time for dissemination and uptake of key resources by the medical and nursing communities”