Legal and Ethical Basis for Practice Ethics Study of philosophical beliefs about what is considered right or wrong

ng in society Bioethics Ethical questions arising in health care Principles of bioethics Beneficence: duty to act to benefit others Autonomy: respecting rights of others to make decisions Justice: duty to distribute resources equally Fidelity: maintaining loyalty and commitment to patient Veracity: duty to communicate truthfully Mental Health Laws: Civil Rights and Due Process Civil rights: people with mental illness are guaranteed same rights under federal/state laws as any other citizen Civil Rights and Due Process Due process in civil commitment: courts have recognized involuntary commitment to mental hospital is massive curtailment of liberty requiring due process protection, including: Writ of habeas corpus: procedural mechanism used to challenge unlawful detention Least restrictive alternative doctrine: mandates least drastic means be taken to achieve specific purpose Admission to the Hospital Voluntary: sought by patient or guardian Patients have right to demand and obtain release Many states require patient submit written release notice to staff Involuntary admission (commitment): made without patients consent Necessary when person is danger to self or others, and/or unable to meet basic needs as result of psychiatric condition Types of Involuntary Commitment Emergency involuntary hospitalization Commitment for specified period (1-10 days) to prevent dangerous behavior to self/others Observational or temporary involuntary hospitalization Longer duration than emergency commitment Purpose: observation, diagnosis, and treatment for mental illness for patients posing danger to self/others Types of Involuntary Commitment

Long-term or formal commitment Purpose: extended care and treatment of mentally ill (60-180 days) Involuntary outpatient commitment Used as preventive measure; mandates treatment

Discharge from Hospital Conditional release Requires outpatient treatment for specified period Unconditional release Discharge or termination of patient-institution relationship Release against medical advice (AMA) When patient and physician disagree that treatment is necessary, yet no compelling reason to seek involuntary commitment Patient Rights: Section 66-346, Idaho Code Right to communication and visitation Communicate by sealed mail or otherwise, with persons, inside or outside the facility and access to reasonable amounts of letter writing material and postage Receive visitors at all Reasonable times wear his own clothes; to keep and use his own personal possessions including toilet articles Keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases Access to individual storage space for his private use Refuse specific modes of treatment Visited by his attorney or any employee of his attorney's firm or a representative of the state protection and advocacy system at any times Exercise all civil rights, including the right to dispose of property with exceptions Enter into contractual relationships Vote unless limited by prior court order Reasonable access to all records concerning himself notwithstanding any limitations Communication, every patient shall be entitled to communicate by sealed mail with the court, if any, which ordered his commitment. The director of a facility may have limited rights to deny a patient's rights. A statement explaining the reasons for any denial of a patient's rights shall be immediately entered in his treatment record and if the patient has been committed pursuant to court order, copies of such statement shall be submitted to the committing court and sent to the patient's spouse, guardian, adult next of kin or friend and attorney, if any. A list of the foregoing rights shall be prominently posted in all facilities and brought to the attention of the patient by such means as the board of health and welfare shall designate. Patients Rights

Right to treatment: requires that medical and psychiatric care and treatment be provided to everyone admitted to public hospital Right to refuse treatment: right to withhold or withdraw consent for treatment at any time Issue of right to refuse psychotropic drugs has been debated in courts with no clear direction yet forthcoming Right to informed consent: based on right to self-determination Informed consent must be obtained by physician or other health care professional to perform treatment or procedure Presence of psychosis does not preclude this right Issue of Legal Competence All patients must be considered legally competent until they have been declared incompetent through legal proceeding Determination made by courts If found incompetent, court-appointed legal guardian, who is then responsible for giving or refusing consent Implied consent Many procedures nurse performs has element of implied consent (e.g., giving medications) Some institutions require informed consent for every medication given Rights Regarding Restraint and Seclusion Doctrine of least restrictive means of restraint for shortest time always the rule Legislation provides strict guidelines for use When behavior is physically harmful to patient/others When least restrictive measures are insufficient When decrease in sensory overstimulation (seclusion only is needed) When patient anticipates that controlled environment would be helpful and requests seclusion Recent legislative changes have further restricted use of these means and some facilities have instituted restraint free policies Patient Confidentiality Ethical considerations Confidentiality is right of all patients ANA Code of Ethics for Nurses (2001) asserts duty of nurse to protect confidentiality of patients Legal considerations Health Insurance Portability and Accountability Act (HIPAA), 2003 Health information may not be released without patients consent, except to those people for whom it is necessary in order to implement the treatment plan Rights after death Dead Mans Statute protects confidential information about people when they are not alive to speak for themselves

Patient Confidentiality

Exceptions Duty to Warn and Protect Third Parties Tarasoff v. Regents of University of California (1974) ruled that psychotherapist has duty to warn patients potential victim of potential harm Most states have similar laws regarding duty to warn third parties of potential life threats Staff nurse reports threats by patient to the treatment team Child and Elder Abuse Reporting Statutes All states have enacted child abuse reporting statutes Many states specifically require nurses to report suspected abuse Numerous states have also enacted elder abuse reporting statutes Agencies receiving federal funding (i.e., Medicare/Medicaid) must follow strict guidelines for reporting abuse of older adults Tort Law A tort is a civil (civil laws) wrong against a person that violates his or her rights. Intentional Weigh seclusion and restraints carefully Assault threat to use force against another with the opportunity and ability Battery harmful touching of another without their consent Treatment without patients consent Unintentional unintended acts against another that produce harm Negligence The nurse fails to act in a responsible and prudent manner in carrying out his/her professional duties Malpractice - being held liable for negligence Act or omission to act that breaches the duty of due care and results in or is responsible for a persons injury (pg. 129) Tort Law Applied to Psychiatric Settings Protection of patients: legal issues common in psychiatric nursing are related to failure to protect safety of patients Protection of self Nurses must protect themselves in both institutional and community settings Important for nurses to participate in setting policies that create safe environment Negligence/Malpractice Negligence or malpractice is an act or an omission to act that breaches the duty of due care and results in or is responsible for a persons injuries Elements necessary to prove negligence Duty Breach of duty Cause in fact

Measured by standard of care Nurse represents self as being capable of providing care and accepting employment; a duty of care is established Breach of duty Conduct that exposes patient to unreasonable risk of harm, through either commission or omission of acts by the nurse Examples: Failure to document and report suspected negligence Following an order known to be incorrect Abandonment of a client failure to leave a client in a safe situation Negligence/Malpractice Cause in fact Evaluated by asking except for what the nurse did, would this injury have occurred? Proximate cause or legal cause Evaluated by determining whether there were any intervening actions or individuals that were in fact the causes of harm to patient Damages Include actual damages as well as pain and suffering Foreseeability of harm Evaluates likelihood of outcome under circumstances Determination of Standard of Care ANA has established standards for psychiatricmental health nursing practice and credentialing for psychiatricmental health RN and the advanced practice RN (ANA, 2007) Standards differ from minimal state requirements Determination of Standard of Care Nurses are held to standards of care provided by other nurses possessing the same degree of skill or knowledge in same or similar circumstances Hospital policies and procedures set up institutional criteria for care Substandard institutional policies do not absolve nurse of responsibility to practice on basis of professional standards of care Nursing Intervention: Suspected Negligence Most states require legal duty to report risks of harm to patient Nurse has obligation to report peer suspected of being chemically impaired Report to supervisor is requirement If nurse knows physicians orders need to be clarified or changed, it is nurses duty to intervene and protect patient Abandonment

Duty

Proximate cause Damages

Legal concept may arise when nurse does not leave patient safely back in hands of another health care professional before discontinuing treatment Documentation of Care Purpose of medical records: provide accurate and complete information about care and treatment of patients and give health care personnel responsible for that care means of communicating Utilization review analysts: review chart to determine appropriate use of hospital and staff resources consistent with reimbursement Documentation of Care Medical records can be used as evidence to determine: Extent of patients damages and pain and suffering in personal injury cases Nature and extent of injuries in child/elder abuse cases Nature and extent of physical/mental disability in disability cases Nature and extent of injury and rehabilitation potential in workers compensation cases Nursing Guidelines for Computerized Charting Federal legislation provides guidelines for agencies that use computerized charting Staff assigned password for entering patients records to identify which staff have gained access to patients confidential information Penalties for staff if they enter record for which that are not authorized to have access Password must be kept private Sample Test Question #1 In a team meeting a nurse says, Im concerned about whether we are behaving ethically in using restraint to prevent one patient from engaging in self-mutilating behavior while the care plan for another self-mutilating patient calls for one-on-one supervision. Which ethical principle most clearly applies to this situation? A. Beneficence B. Justice C. Fidelity D. Autonomy Rationale #1 Correct Answer B The nurse is concerned about justice, that is, fair distribution of care, which includes treatment with the least restrictive methods for both patients. Beneficence means promoting the good of others. Autonomy is the right to make ones own decisions. Fidelity is the observance of loyalty and commitment to the patient. Sample Test Question #2 A newly admitted acutely psychotic patient is a private patient of the chief of staff and a privatepay patient. To whom does the psychiatric nurse assigned to the patient owe the duty of care? A. Health care provider B. Hospital

 C. Profession D. Patient Rationale #2 Correct Answer - D Although the nurse is accountable to the health care provider, the agency, the patient, and the profession, the duty of care is owed to the patient. Sample Test Question #3 A family member of a patient with delusions of persecution asks the nurse, Are there any circumstances under which the treatment team is justified in violating a patients right to confidentiality? The nurse should reply that confidentiality may be breached: A. under no circumstances. B. at the discretion of the psychiatrist. C. when questions are asked by law enforcement. D. if the patient threatens the life of another person. Rationale #3 Correct answer - D The duty to warn a person whose life has been threatened by a psychiatric patient overrides the patients right to confidentiality. The right to confidentiality is not suspended at the discretion of the therapist or for legal investigations Sample Test Question #4 A new antidepressant is prescribed for an elderly patient with major depression, but the dose is more than the usual geriatric dose. The nurse should: A. consult a drug reference. B. teach the patient about possible side effects and adverse effects. C. withhold the medication and confer with the health care provider. D. encourage the patient to increase oral fluids to reduce drug concentration. Rationale #4 Correct Answer C The dose of antidepressants for elderly patients is often less than the usual adult dose. The nurse should withhold the medication and consult the health care provider who wrote the order. The nurses duty is to intervene and protect the patient. Sample Test Question - #5 A patient with schizophrenia believes a local minister stirred evil spirits and threatens to bomb a local church. The psychiatrist notifies the minister. Select the answer with the correct rationale. The psychiatrist: A. released information without proper authorization. B. demonstrated the duty to warn and protect. C. violated the patients confidentiality. D. avoided charges of malpractice. Rationale #5 Correct Answer - B

It is the health care professionals duty to warn or notify an intended victim after a threat of harm has been made. Informing a potential victim of a threat is a legal responsibility of the health care professional. It is not a violation of confidentiality. 1. A patient says, My disability check will arrive next week, and I plan to give half of it to Praise Be Ministries. The nurse knows this action will result in the patients being unable to buy groceries by the end of the month. Select the nurses best response to this patient. A. Its your legal right to donate your money according to what you think is important. B. Lets discuss how much you could donate and still be able to buy your groceries. C. Why do you want to donate so much money to that organization? D. Lets talk to the social worker about appointing a guardian to manage your money. 2. A nurse finds a patient with active suicidal ideation trying to hang herself using her bra. The patient has very large, pendulous breasts and will be uncomfortable without a bra. Is the nurse justified in taking this personal possession from this patient? a. Yes b. No c. Not sure 3. Which individual with mental illness may need involuntary hospitalization? a. A person with alcoholism who has been sober for 6 months but begins drinking again b. An individual with schizophrenia who stops taking prescribed antipsychotic drugs c. An individual with bipolar disorder, manic phase, who has not eaten in 4 days d. Someone who repeatedly phones a national TV broadcasting service with news tips