Nursing Practice and Legal Issues in Professional Practice

Foundations of the American Legal System

The American legal system is rooted in the U.S. Constitution, which establishes three separate but equal branches of government: the Executive branch, the Legislative branch, and the Judicial branch. Laws serve as rules of conduct authored and enforced by formal authorities to hold individuals accountable for compliance. These laws are categorized into three primary types. Common law is decisional, meaning it is derived from the rulings of judges which then become law. Statutory law is established through formal legislative processes. Administrative law involves authority delegated to government agencies.

Legal matters are further divided into civil and criminal law. Civil law recognizes and enforces the rights of individuals in disputes over legal duties or rights between individuals. Conversely, criminal law addresses public concerns regarding an individual’s unlawful behavior that poses a threat to society as a whole.

Nursing Practice Acts and State Boards of Nursing

The fundamental purpose of professional licensing is to protect the public health, safety, and welfare. The Nursing Practice Act (NPA) is the primary legal tool used to define and control nursing practice. In many states, the NPA is a statutory law that affects nursing practice within that specific state's boundaries. State Boards of Nursing serve as the regulatory bodies responsible for oversight.

The objectives of a Nursing Practice Act include defining the practice of professional nursing and describing the composition, power, and authority of the Board of Nursing. The act also defines educational program standards and sets the minimum educational qualifications and requirements for licensure. Furthermore, it determines and protects the legal titles and abbreviations that nurses are permitted to use, such as $RN$ , $LPN$ , or $LVN$ . The act also provides the legal basis for disciplinary action against licensees for specific causes.

Statutory and Executive Authority of State Boards

The legislature is responsible for establishing and amending laws regarding nursing practice, but it delegates the authority to enforce these laws to an executive agency, which is the state board of nursing. The board of nursing enforces the laws and publicizes supplementary rules and regulations that expand upon the law. Professional organizations like the American Nurses Association (ANA) and the National Council of State Boards of Nursing (NCSBN) have developed suggested language for the content of state NPAs.

The authority of state boards of nursing is limited; while they can adopt rules to clarify general provisions of the NPA, they do not have the authority to enlarge or change the law itself. Their functions are divided into three areas: Executive authority allows them to administer the NPA, Legislative authority allows them to adopt rules to implement the act, and Judicial authority allows them to deny, suspend, or revoke a license, discipline a licensee, or deny a licensure application.

Licensure Powers and Education Standards

There are two types of licensure laws. Mandatory law requires any individual practicing the profession to be licensed. Permissive law protects and limits the use of a specific title but does not prohibit individuals from practicing if they do not use the title. All states currently have mandatory licensure laws for nursing to safeguard the public, meaning only licensed nurses ( $RN$ or $LVN$ / $LPN$ ) can practice.

State boards of nursing have the authority to set and enforce minimum criteria for nursing education. Licensure applicants must graduate from a state-approved nursing education program, and all nursing schools must have state approval to operate. While state approval acts as a baseline, it is generally less stringent than national accreditation standards. However, some states are moving toward requiring national accreditation as a prerequisite for state approval. State boards also have the power to sanction nurses for dangerous professional behavior. Sanctions include probation, suspension, and revocation of the license. The most frequent reason for disciplinary action is practicing while under the influence of alcohol or drugs, often involving substances diverted from the workplace.

The NCLEX-RN and Licensure Mobility

The National Council of Licensure Examination for Registered Nurses (NCLEX-RN) is the standardized exam for licensure. It is updated regularly to test critical thinking and nursing competence across all phases of the nursing process. The exam utilizes computerized adaptive testing, with a minimum of $75$ questions and a maximum of $265$ questions. The maximum duration for the examination is $6\text{ hours}$ .

Nurses can obtain licensure in different states through a process called endorsement. This allows an $RN$ to practice in another state without retaking the licensing exam, provided they show proof of licensure in another state and pay a licensure fee. In $2000$ , the NCSBN developed the Nurse Licensure Compact (NLC), a mutual recognition model. States wishing to participate must pass legislation to enter this interstate agreement.

Nurses licensed in a compact state can practice in their home state and any other compact state without applying for endorsement. If a nurse moves their permanent residence to a new compact state, they may practice under their former state's license for up to $90\text{ days}$ . Additionally, since $2005$ , the NCSBN has administered licensure exams internationally to recruit nurses from outside the United States.

Malpractice and Professional Negligence

Malpractice occurs when a professional fails to act as a reasonably prudent professional would have acted under similar circumstances. Professional negligence can occur via commission (performing an act that should not have been done) or omission (failing to perform an act that should have been done).

The central question in malpractice is whether the prevailing standard of care was met. The nursing standard of care is defined as what a reasonably prudent nurse would have done under similar circumstances. This reflects a basic minimum level of prudent care rooted in the ethical principle of nonmaleficence, or "do no harm." The prevailing standard is determined through expert witness testimony, national standards of practice, patient records, and direct testimony from patients, nurses, and others.

A malpractice action requires two conditions: the defendant (nurse) must have specialized knowledge and skills, and the nurse must cause the plaintiff's (patient's) injury through the practice of those skills. There are four necessary elements to prove a cause of action for negligence:

The nurse assumed the duty of care for the patient.
The nurse breached that duty by failing to meet the standard of care.
This failure was the proximate cause of the injury.
The injury is proven.

Two significant legal doctrines influence liability. The "captain of the ship" doctrine suggests the physician is ultimately in charge and financially responsible for care. However, respondeat superior (meaning "let the master answer") attributes the actions of employees to their employer.

Delegation and Responsibility

Registered Nurses (RNs) may delegate independent nursing activities and delegated medical functions to other personnel. However, State Nurse Practice Acts do not grant $LPNs$ or $LVNs$ the authority to delegate. While the delegatee is responsible for performing the task safely, the $RN$ retains accountability for the acts delegated. The $RN$ must ensure the delegatee is competent to perform the task. The $RN$ remains legally liable for delegated acts unless the delegatee is also a licensed professional whose scope of practice includes that act.

The Five Rights to Ensure Safe Delegation are:

Right task: Determining if the task is appropriate for delegation.
Right circumstances: Considering the patient's health status, setting, and available resources.
Right person: Verifying the competency of the person performing the task.
Right direction/communication: Providing clear, specific instructions including patient identity, objectives, time frames, and expected results.
Right supervision/evaluation: Providing necessary oversight and evaluating the patient and the task performance.

Informed Consent and Confidentiality

Informed consent involves three major conditions: it must be given voluntarily, by an individual with the capacity and competence to understand, and the patient must be provided with sufficient information. While nurses collaborate with primary providers, they are not responsible for explaining proposed treatments or evaluating if the physician fully detailed risks and benefits. A nurse may witness the signature, but their primary role is to ensure the elements for valid consent are present, provide feedback if the patient wants to change consent, and communicate the need for more information to the provider.

Confidentiality is both a legal and ethical concern, protecting private information gathered during care. Provision $3.1$ of the ANA Code of Ethics for Nurses ( $2015$ ) states that nurses must maintain confidentiality in the work setting and off duty in all venues, including social media. Exceptions to confidentiality include discussing care with the direct treatment team, quality assurance, mandated legal disclosures to public health authorities, information for third-party payers, or when the safety of innocent parties is at risk.

HIPAA and Social Media

The Health Insurance Portability and Accountability Act (HIPAA) requires all healthcare entities to ensure patient privacy. Under HIPAA, patients have the right to see and obtain copies of their medical records, usually within $30\text{ days}$ of a request, and can request corrections. Providers must give patients a written notice of privacy practices, which patients must sign or initial. HIPAA also restricts how long records can be retrieved, what is shared, and who can be present during sharing. Regarding social media, the NCSBN provided "A Nurse’s Guide to the Use of Social Media" in $2011$ , emphasizing that HIPAA regulations place strict limits on the content of a nurse's online comments and activities.

Assault, Battery, and Patient Rights

Assault is defined as a threat or attempt to make bodily contact with another person without consent. Battery is the actual carrying out of that assault; it is the impermissible, unprivileged touching of one person by another.

Legal issues in nursing continue to evolve with role changes, updated NPAs, and the Patient Self-Determination Act (PSDA) ( $1990$ ). The PSDA assumes individuals have the legal and moral right to informed consent based on the ethical principle of autonomy. It encourages patients to document life-prolonging treatment preferences via advanced directives. Acute and long-term care facilities must:

Provide written information to adults regarding their rights under state law.
Ensure compliance with state laws on advance directives.
Educate staff and the community on advance directives.
Document the presence of an advance directive in the medical record.

Strategies for Legal Protection

Nurses can protect themselves by practicing in safe settings characterized by strong risk management and adherence to The Joint Commission's Patient Safety Goals. Other strategies include clear communication with health professionals and families, accurate documentation, meeting the standard of care, carrying professional liability insurance, and promoting positive interpersonal relationships.

Questions & Discussion

Question 1: A female nurse has a permanent residence in a party state and wishes to relocate to another party state. What is an accurate statement regarding the nurse’s practice on the former residency license? a. She can practice after applying for licensure by endorsement. b. She can practice on her former state and her new state. c. She can practice on her former state for $120\text{ days}$ . d. She can practice only after success in a new state licensure exam.

Answer: The correct answer is A. The nurse receives a grace period of $30\text{ to }90\text{ days}$ . After this period, she must apply for a new license in the new state to renew her multistate licensure. The other options are incorrect based on established compact state protocols.