Legal Aspects of Nursing Study Guide
General Legal Concepts and Functions of Law
Accountability is an essential concept of professional nursing practice and the law.
Knowledge of laws regulating nursing practice is necessary for two primary reasons:
To ensure that the nurse's decisions and actions are consistent with current legal principles.
To protect the nurse from liability.
Definition of Law: According to Guido (), law is the "sum total of rules and regulations by which a society is governed. As such, law is created by people and exists to regulate all persons."
Functions of Law in Nursing:
Provides a framework for establishing which nursing actions in client care are legal.
Differentiates nursing responsibilities from those of other health professionals.
Helps establish the boundaries of independent nursing action.
Assists in maintaining a standard of nursing practice by making nurses accountable under the law.
Sources of Law in Nursing
Constitutional Law:
A constitution embodies the fundamental principles and ideals of a country, defining basic rights of citizens and governmental structures.
It is considered the highest set of laws in countries like the United States, India, the Philippines, South Africa, Italy, and France.
All nursing legislation must align with constitutional principles to possess a legal basis.
Legislation (Statutory Law):
These laws are enacted by legislative bodies and are superior to local or administrative laws.
In the U.S. and Philippines, nursing is regulated by state laws.
In the United Kingdom, the Nursing and Midwifery Council (mandated by the Parliament's Health Act ) regulates practice.
Administrative Law:
State legislatures grant administrative agencies the authority to create rules and regulations to enforce statutory laws.
Example: State boards of nursing write regulations to implement and enforce a nurse practice act.
Common Law:
Evolution of law from court decisions; involves interpreting and applying constitutional or statutory law to resolve disputes.
Stare Decisis: Follows the doctrine of "to stand by things decided," or following precedent, where courts apply rules from previous similar cases.
Types of Laws and Legal Actions
Public Law:
Deals with relationships between individuals and the government.
Criminal Law: A segment of public law dealing with actions against public safety and welfare (e.g., homicide, manslaughter, theft). Classified as felonies or misdemeanors.
Private Law (Civil Law):
Deals with relationships among private individuals.
Contract Law: Enforcement of agreements or compensation for failed agreements.
Tort Law: Defines and enforces duties and rights among individuals not based on contracts (e.g., professional negligence, invasion of privacy).
Kinds of Legal Actions:
Civil Actions: Concern relationships in society (e.g., a man suing another for cheating). Outcomes usually involve paying a sum of money.
Criminal Actions: Disputes between an individual and society (e.g., trial for shooting someone). Outcomes include fines, jail, execution, or loss of professional license.
Litigation: The action of a lawsuit; participants are referred to as litigators.
The Civil Judicial Process in the United States
Process Steps:
1. Complaint: Document filed by a plaintiff claiming legal rights were infringed by defendants.
2. Answer: Written response made by the defendants.
3. Discovery: Pretrial activities to obtain all facts (e.g., interrogatories, depositions, production of documents).
4. Trial: Facts presented to a judge or jury.
5. Decision/Verdict: Rendered by the judge (decision) or jury (verdict). Appeals can be made if outcomes are unacceptable.
Burden of Proof: The plaintiff's duty to prove the assertion of wrongdoing.
Nurses as Witnesses:
Nurses should seek legal advice before testifying. Employer attorneys usually support the nurse unless the nurse is the defendant.
Expert Witness: A nurse with special training/skill allowed to offer opinions on issues within their expertise (e.g., whether a standard of care was met).
Regulation of Nursing Practice
Nurse Practice Acts:
Each U.S. state has an act that protects the public by defining and describing the scope of nursing practice.
Advanced practice often requires additional licenses for prescribing or ordering treatments (e.g., nurse midwife, nurse anesthetist, nurse practitioner).
Credentialing Methods:
Licensure: A legal permit granted by a government agency. Standardized exams (e.g., in Canada, U.S., Australia) or graduation-based (e.g., Mexico, UK).
Certification: Voluntary validation of minimum standards in specialty areas (e.g., maternal-child, gerontology). Conducted by the ANA or specialty organizations.
Accreditation/Approval: Evaluation of nursing education programs to ensure they meet quality and curricular standards.
Standard of Care:
Skills and learning commonly possessed by members of a profession used to evaluate quality.
Internal Standards: Job descriptions, education, expertise, and institutional policies.
External Standards: Nurse practice acts, professional organizations (ANA), specialty groups, and federal guidelines (The Joint Commission, Medicare).
Multistate Licensure and the eNLC
Mutual Recognition Model: Developed by the National Council of State Boards of Nursing (NCSBN), allowing nurses to practice across state lines under one license.
Nurse Licensure Compact (NLC): The original agreement for mutual recognition.
Enhanced Nurse Licensure Compact (eNLC):
Revision of the NLC to include Uniform Licensure Requirements.
Includes: Education qualifications, English proficiency, passing NCLEX-RN/PN, criminal background check, no felony/misdemeanor convictions, valid U.S. Social Security number.
As of January , state legislatures have adopted eNLC.
Contractual Arrangements and Legal Roles of Nurses
Contract Features: Must include a promise/agreement, mutual understanding, lawful purpose, and compensation (monetary or otherwise).
Expressed vs. Implied Contracts:
Expressed: Terms agreed upon orally or in writing.
Implied: Exists based on legal expectation (e.g., a nurse expected to follow policies, a hospital expected to provide supplies).
Provider of Service: Responsibility to provide safe/competent care. Includes Liability (legal responsibility for obligations) and Contractual Obligations (duty of care).
Employee/Contractor for Service:
Respondeat Superior: "Let the master answer"; the employer is responsible for the employee's conduct and professional negligence.
The nurse remains liable as an individual if actions are extraordinarily inappropriate (e.g., hitting a client).
Citizen: Nurses have the same rights and responsibilities as any individual under the legal system (e.g., right to privacy, physical safety).
Collective Bargaining and Labor Relations
Process: Formalized decision-making between management (employer) and labor (employee) representatives to negotiate wages, hours, and benefits.
Collective Bargaining Agent: Can be a union, trade association, or professional organization (like the ANA state constituent associations).
Strikes: Organized work stoppages used when bargaining breaks down. The ANA supports striking for economic and general welfare, though it presents a moral dilemma for nurses regarding client safety.
Informed Consent and Shared Decision Making
Informed Consent: Agreement to a treatment after receiving complete information on benefits, risks, alternatives, and prognosis.
Shared Medical Decision Making: A collaborative process where providers offer treatment facts and clients provide personal information to find the most appropriate therapy.
Types of Consent:
Express Consent: Oral or written agreement (required for high-risk/invasive procedures).
Implied Consent: Nonverbal behavior indicating agreement (e.g., holding out an arm for an injection) or emergency situations where the client is unable to respond.
Three Major Elements of Informed Consent:
. Given voluntarily.
. Given by an individual with capacity and competence to understand.
. Provided with enough information to be the ultimate decision maker.
Guidelines for Disclosure: Must include diagnosis, purpose of treatment, what the client will feel, benefits, risks, and alternatives.
Nurse’s Role: Not responsible for explaining medical procedures but for witnessing the signature. Witnessing confirms: the client gave consent voluntarily, the signature is authentic, and the client appears competent.
Patient-Centered Care and CLAS Standards
Health Literacy: Over million Americans have low health literacy. Scott () found BSN programs include HLE (Health Literacy Education) varying from to hours.
Limited English Proficiency (LEP): Health institutions must provide language access services at no cost.
National CLAS Standards: standards established by the Office of Minority Health to improve health equity. Key communication points include:
Offering language assistance.
Informing individuals of available services in their preferred language.
Ensuring competence of interpreters (avoid using minors or untrained relatives).
Providing easy-to-understand multimedia and print materials.
Working with Interpreters: The nurse should talk to the client directly (not the interpreter), use short sentences, avoid jargon, and document the interpreter's full name and title.
Legal Nuances: Minors, Incompetence, and Delegation
Informed Consent Exceptions:
Minors: Usually require parent/guardian consent. Exceptions include "emancipated minors" (married, pregnant, in military) or specific treatments for substance abuse and reproductive health.
Unconscious Individuals: Consent obtained from the closest relative or implied in life-threatening emergencies.
Mentally Ill: Individuals judged incompetent by professionals have legal representatives make decisions.
Delegation: Allowing a delegatee (RN, LPN/VN, or AP) to perform an activity beyond their traditional role.
Delegator is accountable for the client; delegatee is responsible for the performance of the task.
Judgment, reasoning, and critical decision-making cannot be delegated.
Five Rights of Delegation: Help nurses make safe delegation decisions (NCSBN).
Violence, Discrimination, and Substance Use Disorder
Mandated Reporters: Nurses are required by law to report suspected abuse, neglect, or exploitation of children and older adults.
Americans with Disabilities Act (ADA, ): Prohibits discrimination based on disability in employment and public services. Individuals are eligible if they have a physical/mental impairment limiting major life activities.
Substance Use Disorder (SUD):
Affects approximately of nurses (similar to the general population). The ANA estimates to of nurses are impaired by drugs or alcohol.
Signs of SUD: Behavioral changes (frequent absences, late arrival), physical changes (decreased alertness, confusion), and drug diversion (incorrect counts, client complaints of ineffective pain meds).
Regulatory Options: Disciplinary action or Alternative-to-Discipline Programs (ADP). ADPs allow supervised practice and rehabilitation without license revocation.
Death and Advance Healthcare Directives
Patient Self-Determination Act (): Requires facilities to recognize advance directives and provide educational materials on rights to refuse treatment.
Advance Directives:
Living Will: Specific instructions on omitting/refusing treatments (e.g., ventilator) if the client is unable to decide.
Healthcare Proxy (Durable Power of Attorney for Healthcare): Appoints a surrogate to make decisions.
Pronouncement of Death: Performable by primary care providers, coroners, or nurses (regulated by state law).
Do-Not-Resuscitate (DNR):
Also called "Allow Natural Death" (AND).
Nurses must participate in DNR discussions, ensure documentation is updated, and respect wishes while providing comfort care.
In Texas (IHS Acquisition v. Crowson), a nurse was faulted for an -minute delay in CPR while looking for DNR paperwork.
Euthanasia: Illegal in the U.S. except for physician-assisted suicide in: California, Colorado, D.C., Oregon, Vermont, Washington, Hawaii, and Montana (via court ruling). Oregon's Death with Dignity Act () reports prescriptions and deaths as of Jan .
Autopsy and Organ Donation
Autopsy (Postmortem Examination): Conducted to establish cause of death or collect data. Required if death is sudden or within hours of hospital admission. Consent from next of kin follows a priority hierarchy (spouse, children, parents, siblings).
Coroner vs. Medical Examiner:
Coroner: Public official (not necessarily a physician).
Medical Examiner: Physician with education in pathology/forensics.
Organ Donation: Under the Uniform Anatomical Gift Act, persons or older may donate.
National Organ Transplant Act (NOTA): Created the Organ Procurement and Transplantation Network (OPTN).
Donation Path: Brain death declared → Body kept functioning by artificial means → OPO evaluation → Consent → Placement in UNOS system → Recovery → Funeral.
Areas of Potential Liability: Torts and Crimes
Crime: Act in violation of criminal law.
Felony: Serious (e.g., murder, manslaughter, lethal narcotic dose error).
Misdemeanor: Less serious offenses.
Tort: Civil wrong committed against an individual or property.
Unintentional Torts (Negligence/Malpractice): Six elements required for absolute proof:
1. Duty: Relationship with client.
2. Breach of Duty: Failure to observe a standard of care.
3. Foreseeability: Link between act and injury.
4. Causation: Direct result of failure to follow standards.
5. Harm/Injury: Physical, financial, or emotional damage.
6. Damages: Compensation to assist the injured party.
Legal Doctrines:
Res Ipsa Loquitur: "The thing speaks for itself" (e.g., surgical instrument left in body).
Statute of Limitations: Time limit for bringing a suit.
Intentional Torts and Privacy Laws
Assault: Threat to touch another unjustifiably (e.g., threatening an injection).
Battery: Willful touching without permission (e.g., giving the injection after refusal).
False Imprisonment: Unjustifiable detention (e.g., preventing a client from leaving against their will). Exception: AMA (Against Medical Advice) forms.
Invasion of Privacy: Breach of confidentiality or intrusion into private domain.
Breaches include using a name for profit without consent, unreasonable intrusion, public disclosure of private facts, or putting a client in a false light.
Defamation: Communication injured reputation.
Libel: Defamation via print/writing/pictures.
Slander: Defamation via the spoken word.
HIPAA (): National privacy legislation addressing:
Electronic transfer of info.
Standardized ID numbers for providers/plans.
Security Rule: Protection of ePHI (electronic protected health info).
Privacy Rule: Disclosure standards and client rights (accessing records).
Social Media: ANA and NCSBN guidelines emphasize that online professional standards are the same as offline; transmitting identifiable client info is a breach.
Legal Protections: Good Samaritan Acts and Liability Insurance
Good Samaritan Acts: Protect healthcare providers at emergency scenes against negligence claims unless there is gross departure/willful wrongdoing. Nurses should limited actions to first aid, not insist on help, and not accept compensation.
Professional Liability Insurance: Defrays costs of defending a nurse and settling claims. Recommended even if an employer provides coverage, as hospitals may countersue employees.
Physician's Orders: Nurses must analyze orders and question those that:
The client questions.
Are rendered unsafe by a change in condition.
Are verbal (must be read back and confirmed).
Are illegible, unclear, or incomplete.
Incident Reports: Agency records of accidents/near misses used for risk management ( part of the medical record). Must describe facts objectively with witness IDs.
Legal Responsibilities of Nursing Students
Students are liable for their own acts of negligence.
Legally held to the same standard of skill/competence as a registered professional nurse.
Instructor/Preceptor Accountability: Responsible for assigning students to capability-appropriate clients and providing reasonable supervision.
Criminal Background: Most state boards require reporting of criminal history at licensure; serious offenses may result in denial of license.
Dual Roles: Students working as aides/assistants can legally perform tasks in that specific job description, regardless of clinical skills learned in school.
Questions & Discussion
Critical Thinking Scenario regarding Consent:
Q: What questions should the nurse ask if a husband offers to sign for his blind wife?
A: The nurse must determine if the client is her own guardian and if she has the capacity to understand the procedure regardless of her vision.
Q: Can someone who is blind give consent?
A: Yes, being blind does not imply mental incompetence. The form must be read to her or provided in an accessible format.
Q: How can the nurse ensure the client feels involved?
A: Ask the client to restate the procedure details in her own words.
Test Your Knowledge Review Items:
If dosage is unusually large: Notify the prescriber.
Inserting a tube against refusal: Constitutes battery.
Client fall without foreseeable risk: May lack the element of foreseeability in a malpractice claim.
Professional negligence examples: Forgetting assessments or failing to follow up on complaints.
Good Samaritan liability: Usually applies only in cases of gross negligence.