Ethical and Legal Issues (Part 2)

Emergency Medical Treatment and Labor Act

The Emergency Medical Treatment and Labor Act (EMTALA) was enacted to direct emergency medical personnel to provide equal care to clients entering the emergency department (ED), regardless of their insurance or financial status. Therefore, an ED cannot turn away clients for reasons such as being under- or uninsured, or their inability to pay for care.

The act further outlines three major provisions that must be in place.

  • All clients must have a medical screening evaluation (MSE).

  • If the client is, in fact, experiencing an emergency, the hospital must stabilize the client. If the hospital cannot provide the specific level of care (treatment and management) of the emergency condition, they must transfer the stabilized client to a facility that can.

  • In the event the client cannot be stabilized in said ED, a physician or another qualified medical professional must verify and sign off transfer, clearly indicating that the benefits of transfer outweigh the risks of transferring an unstable client.

Health Insurance Portability and Accountability Act of 1996

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that protects an individual’s identifying private information and personal health information. The law has a privacy rule that speaks to this protection of health information for nurses and other health care workers. Only the client and those health care workers involved in the care of the client have access to their information. Even other health care workers cannot access the client’s information unless they are directly caring for the client. All private health information is protected in all formats, including electronic access. This access to information also applies to discussing information about the client with anyone not directly involved in their care, whether in person on the unit or in a public or private space, on the phone by talking or texting, or via email communications.

Tort Law

A tort is an act or omission that causes legally cognizable harm to persons or property. Tort law, in turn, is the body of rules concerned with remedying harms caused by a person’s wrongful or injurious actions​​​​​​​. Torts exist to protect the public, to determine liability, and to settle claims for illness or damages. Tort law serves at least three purposes. First, it facilitates compensation for injuries resulting from wrongful conduct. Second, it can deter persons from acting in ways that may produce harm. Third, it can provide a way of punishing people who wrongfully injure others.

tort

Tort law encompasses unintentional and intentional torts. An unintentional tort is when the nurse does not intend to cause harm, but harm occurs as a result of situations such as malpractice and negligence. Malpractice is where the nurse fails to meet the standards of care, while negligence occurs when the nurse is found to have breached their duty of care, resulting in client injury or suffering.

Malpractice insurance is designed to protect nurses from financial burdens, licensing restrictions, and loss of work. Nurses can help protect themselves from civil and criminal action by taking these steps.

  • Research insurance coverage for malpractice and consider purchasing a separate policy.

  • Diligently follow the rules, guidelines, policies, and procedures for the facility and state in which they work.

  • Review the protection coverage of their employer.

  • Be knowledgeable about the Nurse Practice Act of the state in which they are employed

  • Put the client first in their practice.

By following these guiding principles of nursing and being proactive with protecting their license, nurses can confidently care for clients and be proud of the work that they do.

Examples of an intentional tort include invasion of privacy, defamation, and assault and battery. Assault occurs when a client is made to feel fearful of harm or offensive contact, such as being threatened with restraints. Battery is an act that results in harm or injury to a client, such as illegally restraining a client, touching the client inappropriately, or operating on the wrong body part. This is most often treated as a criminal offense.

Informed Consent

In health care, informed consent is permission to provide care given by the client after relevant information is provided. Consent must be given by a client or a legal representative voluntarily, without coercion by others.  Informed consent is the process in which a health care provider educates a patient about the risks, benefits, and alternatives of a given procedure or intervention. The patient must be competent to make a voluntary decision about whether to undergo the procedure or intervention. Informed consent is both an ethical and legal obligation. The roles of nurses in the process are strongly influenced by relationships between patients, their families, and healthcare professionals. Nurses, who have intense interactions with patients, family members, and doctors, can ensure that patients’ rights to making informed decisions is respected. The provider who is performing the procedure or treatment is legally responsible for obtaining informed consent and must provide the client with the following information prior to asking a client to give informed consent and sign the consent form:

informed consent

  • The proposed treatment or procedure

  • Who will perform the treatment or procedure

  • The purpose of the proposed treatment or procedure

  • The expected outcomes of the proposed treatment or procedure

  • The benefits of the proposed treatment or procedure

  • The possible risks associated with the proposed treatment or procedure

  • The alternatives to the particular treatment or procedure

  • The benefits and risks associated with alternatives to the proposed treatment or procedure

  • The client’s right to refuse a proposed treatment or procedure

Minor Consent

Title X, which provides free or low-cost sexual and reproductive health care to adolescents and adults.

Title X encourages family involvement in health care decisions by minors but also respects the autonomy of minors by not requiring the consent of a guardian before family planning services are provided.

However, it's important to note that Title X applies only to health care settings receiving Title X federal grants; therefore, minors must follow the varying state law that applies to a minors consent.

For instance, in one state, minors may consent to reproductive health services without parental involvement, while in another state, parental consent is required for all health care services for minors under the age of 18.