LEGAL ISSUES AFFECTING MENTAL HEALTH NURSINGLegal and Ethical Concepts Ethics — Study of philosophical beliefs about what is considered right or wrong 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 * 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Mental Health Laws: 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 sta Involuntary admission (commitment): made without patient’s consent — Necessary when person is danger to self or others, and/or unable to meet basic needs as result of psychiatric condition 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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 patient's consent, except to those people for whom it is necessary in order to implement the treatment plan * Exceptions — Duty to Warn and Protect Third Parties * Tarasoff v. Regents of University of California (1974) ruled that psychotherapist has duty to warn patient's 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 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 person’s injuries Elements necessary to prove negligence — Duty — Breach of duty — Cause in fact — Proximate cause DamagesCause 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 psychiatric mental health nursing practice and credentialing for psychiatric-mental health RN and the advanced practice RN (ANA, 2007 — Standards differ from minimal state requirements ¢ Nurses are held to standards of care provided Ft other nurses possessing the same degree of skil 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 physician’s orders need to be clarified or changed, it is nurse’s duty to intervene and protect patient Abandonment — Legal concept may arise when nurse does not leave patient safely back in hands of another health care professional before discontinuing treatmentAvoiding Liability Respond to the client Educate the client Comply with the standard of care Supervise care Adhere to the nursing process Document carefully Follow up and evaluate Maintain a good interpersonal relationship with client and family