Chapter 3; Ethical and Legal Issues
Ethics; systematic approaches to distinguishing right from wrong
Bioethics; ethics applied medicine, nursing, and allied health
Morals; fundamental standards of right and wrong that are learned and internalized
Moral behavior; action that results from critical thinking about how individuals should treat one another
reflects the way a person interprets basic respect for others
Values; personal beliefs and ideals about what is important and desirable
Values clarification; process of self-exploration through which individuals rank and identify their personal values
increases awareness about why an individual behaves a certain way
Rights; expectations to which an individual is entitled either by established law, policies, or ethical principles
rights are absolute when there are no restrictions on the individual’s entitlement
legal right; a right that society has agreed upon and finalized into law
Theoretical perspectives
Utilitarianism; actions are right to the degree that they tend to produce happiness and wrong if they produce the reverse of happiness
prioritizes outcome
end result should produce the most happiness/good for the most people
Kantianism; actions are right if they have right principle or motivation, regardless of outcome
actions are bound by a sense of duty
decisions are made out of respect for moral law
Divine Command Ethics; decisions are focused on whats commanded by God
Christian ethics; ethical decisions are based on the way of life of the teachings of Jesus Christ
Judaism; ten commandments are considered divine commands
Islam; moral principles and virtues as illustrated in Islamic religious text
Natural Law Theory; based on the writings of St. Thomas Aquinas
decisions about right v.s. wrong are self evident and determined by human nature
as rational human beings, one inherently knows the difference between good and evil
this knowledge is believed to be given to man from God
Ethical Egoism; what is right and wrong depends on what is best for the individual that is making the decision
actions are determined by what is to one’s own advantage
consequence for others is not taken into consideration
Ethical Dilemmas; situation that requires an individual to make a decision b/w two equally balanced alternatives
arise when there is no clear reason to choose one decision over another
refusal to make a decision can also be a decision
Ethical Principles; fundamental guidelines that influence decision making
Autonomy
arises from the Kantian pov where individuals are independent moral agents
presumes that individuals are always capable of making independently choices for themselves
not always the case, esp in healthcare situations where patients can become incapable of making decisions for themselves
Beneficence; one’s duty to benefit or promote the good of others
healthcare workers that act in their patient’s interest are beneficent
advocacy; acting in another’s behalf
being a supporter or defender
the act of doing good
Nonmaleficence; do no intentional or unintentional harm to patients
some believe this to be more important than beneficence
Justice/distributive justice; right of all individuals to be treated equally and fairly
retribution/restorative justice; refers to the rules for responding when expectations for fairness are violated
social justice; assumes rules for distribution and retribution should be fair and individuals should play be the rules
Veracity; duty to be truthful
do not mislead or intentionally deceive pts
Model for Making Ethical Decisions
Assessment
Problem identification
Planning
explore benefits and consequences of all alternatives
consider principles of ethical theories
select an alternative
Implementation
Evaluation
Ethical & Legal Issues in Psychiatric Mental Health Nursing
The right to treatment
legally, a psych pt cannot be hospitalized and denied appropriate treatment
pts have a right to
high-quality care while hospitalized
clean and safe environment
involvement in care
privacy protected
assistance when leaving the hospital
assistance with billing claims
Right to refuse treatment (and medication)
exception when the treatment requires immediate intervention to prevent death or serious harm to the patient or another person or to prevent deterioration of the pts clinical state
specific legal criteria must be met for involuntary hospitalization
in emergency cases, sedatives can be administered to pts without consent in order to protect the pt or others
however laws can vary from state to state
requirements for a medication to be forced
pt exhibits behavior dangerous to self or others
medication ordered by the hcp must have reasonable chance of helping the client
pt who has refused must be judged incompetent to evaluate the benefits of the treatment being given
involuntary medication shown to help pts w. schizophrenia and bipolar disorders
some states have laws that allow a court mandate outpatient treatment for indivi
duals with mental illness that have a history of violence behavior
this can include taking medications
The right to the least restrictive treatment alternative
pts that can be treated outpatient should not have to be hospitalized
pts should not be sedates, restrained, or secluded unless absolutely necessary
Pt self determination act
right to appropriate treatment and related services in a setting and under conditions that are most supportive of a pt’s personal liability and that restrict such liberty only as necessary that maintains applicable requirements of law and judicial orders
right to individualized, written or service plan
right to ongoing participation in the planning of one’s mental health treatment, as they are capable
right to be provided information, in terms and language, appropriate to a person’s understanding
right to not receive treatment in the absence of informed, voluntary, and written consent unless an emergency or permitted by law
right to not participate in experimentation in the absence of informed, voluntary, written consent
right to freedom from seclusion or restraint unless absolutely necessary
right to a humane treatment environment that affords reasonable protection from harm and appropriate privacy in regards to personal needs
right to access ones mental health care records
right to converse with others privately, access to telephone and mail, and to see visitors during regularly scheduled hours
right to be informed promptly and in writing of these rights upon admission
right to assert grievances when rights are infringed upon
right to exercise rights w.o reprisal
right of referral to other providers upon discharge
Legal Considerations
Patient Self- Determination Act; healthcare providers have to provide clear written information for every pt regarding their legal rights to make healthcare decisions, including accepting or refusing treatment
Nurse practice acts; define the legal parameters of professional and practical nursing in every state
documents and legislature cover
definition of important terms and the types of nurses recognized
statement of education and other training requirements for licensure and reciprocity
broad statements that describe the scope of practice for various lvls of nursing
conditions where a nurse’s license can be suspended or revoked, and the appeal process
general authority and powers of the state board of nursing
Types of law
Statutory law; law that has been enacted by a legislative body
Common law; laws derived from decisions made in previous cases
can differ from state to state
Civil law; protects private and property rights of individuals and businesses
private individuals or groups can bring legal action to court
Tort; violation of civil law where an individual has been wronged
one part asserts wrongful conduct on the part that the other has caused harm, and therefore they are seeking compensation for the suffering
Unintentional Tort; e.g. malpractice and negligence
Intentional Tort; e.g. battery, conducting a procedure without consent
Contract; a mutual agreement has been breached due to one of the parties involved not fulfilling their obligation
Criminal law; provides protection from conduct deemed injurious to the public welfare
punishment includes fines, imprisonment, death
e.g. theft of drugs or supplied by a hospital employee and failure to renew license
Legal issues in psychiatric mental health nursing
Confidentiality and right to privacy
only the pt or individuals with access to the medical record (are involved in their care) can access medical information
HIPAA (health insurance portability and accountability act)
individuals can see their medical record, correct their medical records, and decide who sees the medical information
Privileged Communication; professional privileges under which they can refuse to reveal information about and communications with clients
e.g. nurse being called to testify in court with medical records being used as evidence
often applies to psychiatrists and attorneys; occasionally clergy, nurses, and psychologists
Exception; A duty to warn
protecting a third party
when these guidelines apply to a situation, the therapist has to notify the victim, the family of victim, and law enforcement of information
assessment of a threat of violence by a client toward another individual
identification of the intended victim
ability to intervene in a feasible, meaningful way to protect the intended victim(s)
also applies to nursing now
Exception, suspected child or elder abuse
reporting grants individuals with immunity to anyone making a good faith report
failure to report suspected abuse can lead one to face penalties
Informed consent
all individuals have the right to accept or decline treatment
forcing a pt to be administered treatment without proper consent can lead to the hcp being charged assault and battery
protects autonomy
pt’s refusal to accept treatment can be challenged when
pt is mentally incompetent to make a decision and treatment is necessary to preserve life or avoid harm
when refusing treatment endangers the life or health of another
during an emergency where the pt is in no condition to exercise judgement
when the pt is a child
in therapeutic privilege, where a hcp can withhold information from the pt if full disclosure would
hinder or complicate necessary treatment
cause severe psychological harm
be so upsetting that a rational decision by the pt would be impossible
pt can always withdraw consent after it has been given
hcp should re-educate pt about consequences of terminating treatment
treatment should be terminated if it is already started
major elements
knowledge; pt has received adequate information on which to base their info
competency; pt has unimpaired cognition therefore nothing would interfere with decision making but if there is impairments, the pt has a legal representative
free will; voluntary consent without the pressure or coercion of others
Restraints and seclusions
any manual method or medication that restrict a pts movement
verbal intervention and chemical restraints (e.g. tranquilizing medication) are used first then mechanical restraints
seclusion is also a type of restraint; pt is confined in a minimally furnished room where they cannot leave
false imprisonment; deliberate and unauthorized confinement of a competent person with the intent to prevent them from leaving the hospital
includes threats or medication that interfere with a pt’s ability to leave the facility
Hospitalization
Voluntary admissions
settings are often outpatient bc there are increasing availability and other forms of treatment
Involuntary commitment
common criteria
pt is imminently dangerous to themselves
pt is a danger to others
pt is unable to take care of basic personal needs (e.g. gravely disabled)
Emergency commitments
sought when a pt manifests behavior that is clearly and imminently dangerous to self or others
usually instigated by friends or relatives of the pt, police officers, court, or hcp
time limited
court hearing is usually within 72 hrs and this decides if the pt can be discharged or more hospitalization is needed
another hearing is often scheduled
Mentally ill person in need of treatment
longer than emergency treatments
e.g.
pt is unable to make informed decisions concerning treatment
pt is likely to cause harm to self or others
pt is unable to fulfill basic personal needs necessary for health and safety
court looks for substantial evidence of abnormal conduct
clear and convincing evidence is needed
probable cause is needed to justify need for involuntary hospitalization
Involuntary outpatient commitment (IOC)
court-ordered mechanism used to compel a pt to submit to treatment on an outpt basis
preventative approach
used mainly with pts that have mental illness(es) who are not currently dangerous to themselves or others
eligibility criteria include
pt must have mental illness
pt must be capable of surviving safely in the community with available supervision
based on the pts psychiatric history, they need treatment to prevent further disability or deterioration that would predictably result in dangerousness
pts current mental status or nature of their illness limits or negates their ability to make informed decisions to seek voluntary admission or comply w. recommended treatment
often applied to pts with severe and persistent mental illness e.g. schizophrenia
Gravely disabled client
condition in which a pt, as a result of mental illness, is in dangerous of serious harm resulting from an inability to provide for basic needs
established by showing a pts lack of ability to make use of available resources
a guardian, conservator, or committee is appointed by the court to ensure management of the pt and their estate
Nursing liability
Malpractice and negligence
negligence; failure to exercise the care toward others that a reasonable or prudent person would do in the circumstances
unintentional tort
malpractice; act of continuing conduct of a professional that does not meet the standard of professional competence, thus leading to provable damages to their pt
elements of malpractice lawsuit
duty to the pt existed based on the recognized standard of care
breach of duty occurred
pt was injured
injury was directly caused by the breach of care
Types of lawsuits that occur in psychiatric nursing
breach of confidentiality; revealing part of a pts case, even if it is just disclosing that the pt is hospitalized
defamation of character; when information about the pt is shared and this information is detrimental to the pt’s reputation
libel; when the information is in writing
slander; oral defamation
invasion of privacy; pt is searched without probable cause
assault; action that results in a pt’s genuine fear and apprehension that they will be touched w.o consent
battery; unconsented touching of another person
Avoiding liability
effective communication
accurate and complete documentation in the medical record
complying w. standards of care
rapport w. and knowledge of clients
practicing within the nurse’s lvl of competence and scope of practice