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Ethical & Legal Considerations: Comprehensive Study Notes

Ethics and Patient Advocacy

  • Ethics: Making decisions, choosing right from wrong, acting within one’s personal values; each person has their own set of ethics and morals.
  • Nurses have an ethical responsibility to be patient advocates.
    • Advocate: someone who expresses and defends another person’s cause.
    • Nurses advocate for patients on the basis of patient’s values, not the nurse’s own ethical or moral values.

Ethical Principles

  • Autonomy: Freedom or independence to make one’s own decisions.
  • Beneficence: Actions guided by compassion and kindness.
  • Veracity: Telling the truth.
  • Fidelity: Keeping promises or commitments.
  • Justice: Actions are fair and equitable.

Nursing Codes of Ethics

  • Code of ethics: General guide for a profession's membership; social contract with the public the profession serves.
  • Nightingale Pledge (1893): First code of nursing ethics used in the United States.
  • Today’s major codes of ethics for nursing:
    • International Council of Nurses (ICN) Code of Ethics.
    • American Nurses Association (ANA) Code of Ethics for Nurses.
  • Using codes of ethics in everyday practice requires:
    • Knowledge and understanding of patient’s needs and preferences.
    • Patient may be one person, a group, a community, or a population.
    • Nurse’s self-awareness.

Strategies to Enhance Ethical Decisions and Practice (2 of 3)

  • Many organizations provide guidelines for evidence-based and ethical practice, some of which can be found online.
  • Hartford Institute of Geriatric Nursing protocols address topics such as:
    • Advance directives.
    • Working with older adults with dementia.
    • Discussing sexual health with older adults.
  • American College of Obstetrics and Gynecology (ACOG) and other professional nursing/medical organizations also make many guidelines for best practice available online.

Values

  • Values are what we believe to be important, good, and meaningful; they drive our behavior.
  • Understanding personal values and those of clients provides clarification of each other’s perceptions and plays an important role in professional nursing practice’s ethical compliance.

Values (2 of 4)

  • How nurses acquire professional values:
    • Socialization into the nursing profession by faculty and other nurses.
    • Clinical and life experiences.
  • Values clarification: process of identifying, examining, and developing individual values.
  • Nurses develop insight into own values and how they influence actions.
  • Helps nurse gain ability to choose actions on the basis of deliberately adopted values.
  • Helps nurses learn to identify patients’ values and distinguish them from their own values.
  • An ongoing process, not a one-time activity.
  • Includes values clarification exercises and real-life experiences that contradict or challenge nurses’ beliefs about patient’s best interests.

Altruism

  • To do something or act for the sake of benefiting someone.

Dignity

  • Human dignity implies that everyone, regardless of race, religion, sex, gender, or other identification, has value and should be respected simply because human beings are all equal.

Integrity

  • The quality of being honest and having strong moral principles or moral uprightness.

Social Justice

  • Also called distributive justice.
  • In health care, this principle suggests that regardless of societal status, every person has the right to quality health care.

Malpractice

  • Mistakes can happen in any profession.
  • When nurses act in a manner that is not consistent with best-practice standards and harm is caused to a client, they may be charged with malpractice.

Tort Law

  • If an individual carries out an act or fails to carry out an act and that results in injury or harm to a client, a tort has been committed.
  • A tort is a civil wrong that can be categorized as either intentional or unintentional.

Unintentional Torts (1 of 4) – Negligence

  • Conduct that deviates from what a reasonable person would do in a particular circumstance.
  • "Reasonable person" standard describes an individual in society who exercises average care, skill, and judgment.
  • A negligent act occurs when an individual damages a person or property without intent to injure; may be due to carelessness.
  • In a legal action to establish negligence, the injured party must prove:
    • That the other party had a duty of reasonable care.
    • That the other party did not maintain reasonable care.
    • That failure to maintain reasonable care caused injuries to the aggrieved party.

Unintentional Torts (2 of 4) – Malpractice (professional negligence)

  • The "reasonable person" standard is different for specific professional occupations.
  • Malpractice includes acts and omissions by a professional while performing professional duties.
  • Standard is conduct of a reasonably skilled, competent, experienced person who is a qualified member of the group authorized to engage in that activity.
  • Failure to meet the standard of conduct for one’s profession may be considered professional negligence (malpractice).
  • One of the most important areas of law for nurses.
  • Any negligent act or omission, however unintentional, may jeopardize the nurse’s license; patient safety.
  • Anyone, qualified or not, who performs skills associated with a profession is held to standards of conduct of those who are qualified.
  • Nursing students are held to the same standard of conduct as licensed nurses.

Unintentional Torts (3 of 4) – Malpractice (Elements)

  • Elements of professional negligence or malpractice:
    • Duty
    • Breach of duty (by commission or omission)
    • Foreseeability
    • Causation
    • Injury or harm
  • Purpose of malpractice lawsuits: to award damages to restore the plaintiff to the original position as far as possible.
  • Damages: compensation for plaintiff’s loss or injury.
  • Punitive damages: awarded if misconduct is malicious, willful, or wanton.

Unintentional Torts (4 of 4) – Related doctrines

  • Respondeat superior: Employers may be held liable for an employee’s negligence.
  • Res ipsa loquitur: Harm that cannot be traced to a specific person or standard but does not normally occur without some type of negligence.
  • Statute of limitations: The amount of time that can pass between recognition of harm and filing a suit; varies by type of suit and state; application to minors varies; some states extend limits for certain injuries.

Intentional Torts (1 of 2)

  • Actions taken by an individual with intent to perform the action; distinguished from negligence and malpractice by willful intent.
  • Assault, battery, and false imprisonment:
    • Assault: act of creating an apprehension of offensive, insulting, or physically injurious touching; includes threatening a patient who refuses to agree to a nursing action.
    • Battery: willful touching or apprehension of touching that is unwanted, embarrassing, or unwarranted; includes touching without permission, giving an injection without patient’s consent, forcing a patient to ambulate against his/her will.
    • False imprisonment: unjustified detention of a person without legal warrant; includes confining a patient to bed with intent to restrict freedom.
  • Standards of care prohibit forcing patients to participate in treatment and prohibit actions against a patient’s will.

Intentional Torts (2 of 2) – Invasion of Privacy & Related Protections

  • Invasion of privacy: individuals have right to privacy; information about patients is confidential and may not be disclosed without authorization.
  • Patient’s right to privacy extends to use of patient’s name, photographs or videographic representations, and personal belongings or space.
  • Most healthcare agencies have policies to specify to whom, under what circumstances, patient information can be released.
  • Managing patient environments and personal property:
    • Failure to follow policies could lead to a claim of invasion of privacy.
  • Nurses are bound by the Privacy Rule of HIPAA; HIPAA protections are minimum requirements; state law or professional codes may include more strict protections.

Implied and Informed Consent

  • Implied Consent: consent that is implied by actions.
  • Informed Consent: consent that is expressed in writing; requires providers to educate clients about the risks, benefits, and alternatives to procedures; must be provided for clients to make well-informed decisions about their health care.

Informed Consent (2 of 4) – Competency and Exceptions

  • Competency for consent:
    • Adults assumed to be competent if 18 years of age or older.
    • Not declared legally incompetent.
    • Not rendered temporarily incompetent.
  • Adults declared legally incompetent are provided a legal guardian.
  • A person may be rendered temporarily incompetent by medication or serious fall; may become incompetent gradually through dementia.
  • If the provider determines that the patient is not competent for purposes of informed consent:
    • Emergency doctrine may apply; someone else may need to make health care decisions on the patient’s behalf.
  • Courts presume continuing competency unless the health care facility can show the patient cannot understand the consequences of his/her actions.

Good Samaritan Laws

  • Nurses are not required by law to provide care to clients outside of work.
  • Deciding whether to act is at the nurse’s ethical discretion; however, if the nurse does decide to act, Good Samaritan Laws protect the nurse from being held responsible for harm—so long as the nurse is not acting with willful negligence and is working within licensure capacity.

Whistleblowing

  • An act when a person formally reports illegal, wrongdoing, or unethical practice.
  • Can result in punitive actions against the accused, but can also cause stress, fear of reprisal, and retaliation for the whistleblower.
  • Fear of reporting is a huge obstacle; many laws exist to protect whistleblowers.

Lifespan Considerations (1–5)

  • Infants and children:
    • Nurses are mandated reporters of observed or suspected child abuse.
    • Nurses who fail to report abuse may face civil charges.
    • Reporting laws vary by state.
    • Reports should be complete, accurate, made according to the organization’s policy.
    • Nurse should also personally report the abuse to proper authorities.
    • All pertinent information is required by law to be disclosed to the reporting agency.
    • Exception to patient confidentiality rules: nurse required to report facts or circumstances that led to belief about abuse; but does not have burden of proof.
    • Reports must be made in good faith, without malicious intent.
    • Most states allow anonymous reports but may encourage the reporter to provide identifying information.

Lifespan Considerations (2 of 5) – Adolescents (Confidentiality)

  • Nurses should be familiar with federal and state laws related to adolescent confidentiality.
  • Nurses should ensure that patients understand confidentiality will be maintained when possible but cannot be guaranteed in some circumstances.
  • If the patient is covered under a parent/guardian’s insurance, billing and benefits statements may include information about care.
  • Authorities must be contacted if:
    • The patient is in imminent danger.
    • There is evidence of abuse.
    • The patient has certain communicable diseases.
  • Use of electronic health records (EHRs): parent/guardian may be a proxy and may view adolescent’s information.
  • Some information can be customized to restrict information access.

Lifespan Considerations (3 of 5) – Adolescents (Confidential Care)

  • When providing confidential care, the nurse should encourage the patient to consider involving a parent/guardian in decision making.
  • Make clear this is a suggestion, not a requirement.

Lifespan Considerations (4 of 5) – Pregnant Women

  • Supreme Court’s 1973 Roe v. Wade ruling: states cannot outlaw abortion during the first trimester; placed restrictions on second and third trimesters.
  • State statutes related to abortion vary by state and include regulations related to gestational limits, insurance coverage for procedures, mandated counseling.
  • Some states have fetal protection laws; questions may arise about the woman’s right to refuse certain tests or treatments.
  • Nurses may face moral or ethical dilemmas; must know state laws and organization’s policies; should understand rights and conscientious objection procedures.

Lifespan Considerations (5 of 5) – Older Adults

  • In many states, nurses are mandatory reporters of elder mistreatment.
  • Medicare requires nursing facilities to monitor patients for signs of mistreatment.
  • Nurse is responsible for understanding state reporting laws and reporting observed or suspected mistreatment to appropriate authorities.
  • Failure to report may result in civil or criminal penalties.
  • End-of-life care:
    • If the patient has an advance directive, the nurse is bound to provide care in accordance with the patient’s wishes and organizational policy.
    • If no advance directive exists, patients capable of deciding may work with the nurse to determine the type of care they prefer.

Mandatory Reporting

  • Legislation mandates that certain officials have a legal duty to report information that can prevent maltreatment and provide safety to individuals.
  • Licensed nurses are mandatory reporters.