Legal Issues in Nursing Legal Aspects of Nursing

American Legal System U.S. Constitution: provides balance of powers to establish legal relationships between persons and the government There are three major types of American laws: Common law Statutory law: Has particular importance for nurses Administrative law 2

Authority of State Nurse Practice Acts The nurse practice act is the statute that defines nursing practice. Found in all 50 states, Washington, DC, and several U.S. territories Accomplishes four objectives Defines practice of professional nursing Sets educational and other requirements for licensure Determines legal titles and abbreviations Provides for disciplinary action Also defines authority of the state board of nursing (SBN) 3

State Boards of Nursing State Boards regulate practice Your SBN is responsible for enforcing the nurse practice act in your state. Publish rules and regulations that expand law Revise to keep up with new health care developments Nurse practice act in your state Usually this is the most important law affecting nursing practice within state bounds. 4

Nursing Organizations American Nurses Association's (ANA) Model Practice Act (1996) Developed to guide revisions in states' nurse practice acts National Council of State Boards of Nursing (NCSBN) Model Nurse Practice Act and Model Nursing Administration Rules (2011) Comprehensive documents to guide states in developing and revising their nurse practice acts 5

Executive Authority of State Boards of Nursing Have power to clarify provisions of nurse practice act Cannot enlarge the law Three functions mirror federal and state governments. Executive: administers nurse practice act Legislative: adopts necessary rules to implement act Judicial: authority to discipline a licensee or deny licensure 6

Licensing Powers Mandatory law Requires licensure Permissive law Protects use of the title but does not prohibit practice if people do not use the title All states now have mandatory licensure for the practice of nursing at the registered nurse (RN) and licensed practical/vocational nurse (LPN/LVN) levels. The primary purpose of licensing is to protect public health, safety, and welfare. 7

Enforcing Educational Requirements and Discipline SBNs set and enforce minimum criteria for nursing education programs. Schools of nursing must have state approval to operate. SBNs have the power to discipline a licensee. Discipline is to protect the public from dangerous practice. The most frequent reason for discipline is practicing while impaired. 8

Licensure Examinations National Council Licensure Examination for Registered Nurses (NCLEX-RN  ) Tests critical thinking and nursing competence NCSBN Established in 1978 to develop the examination Each state participates in licensing process through the NCSBN. Each state is responsible for licensing through the state board of nursing. 9

Licensure by Endorsement States recognize licensure awarded in other states. Because NCLEX is a national examination RNs may practice in different states without repeating the licensing examination. Nurses must submit proof of licensure in another state and pay a licensure fee to receive a license in a new state. 10

Nurse Licensure Compact Nurse Licensure Compact (NLC) allows RNs to have one license yet practice in other compact member states. NLC does not require application for licensure by endorsement. NLC has been adopted by 24 states, with 6 more states having pending legislation as of early

Legal Risks in Professional Nursing Practice Malpractice: greatest legal concern for nursing practice Negligence is the central issue. "Negligence" is defined as "failure to act as a reasonably prudent person would act in the same circumstances." Malpractice does not have to be intentional. Occurs through commission or omission The central question in malpractice charge is: Was the prevailing standard of care met? Standard of care reflects basic minimum level of prudent care. 12

Requirements of a Malpractice Action Two requirements Nurse (defendant) practices with specialized knowledge and skills. Through this practice, the nurse caused patient's (plaintiff's) injury. All four elements of a cause of action for negligence must be proved. Nurse has assumed the duty of care. Nurse breached the duty by failing standard of care. This failure was the proximate cause of the injury. The injury is proven. 13

Six Major Causes of Negligence Failure to follow standards of care Failure to use equipment in a responsible manner Failure to communicate Failure to document Failure to assess and monitor Failure to act as a patient advocate 14

Delegation Defined as giving someone authority to act for another A nurse's primary legal and ethical consideration is safe, effective care for patients. Professional nurses retain accountability for acts delegated to another person. There are five rights to ensure safe delegation of tasks to unlicensed assistive personnel (UAPs). The most debated area of delegation involves medication administration by UAPs. 15

Informed Consent All patients or their guardians must grant informed consent before treatment, except for life-threatening emergencies. Three major conditions exist: Consent must be voluntary. It must be given by the individual with capacity and competence to understand. The patient must be provided enough information to be the ultimate decision-maker. Informed consent must entail a comprehensive set of information about treatments, risks, side effects, benefits, costs, and alternatives. 16

Confidentiality Confidentiality is both a legal and ethical concern. It protects private information about a patient during provision of medical services. ANA Code of Ethics addresses obligations of confidentiality. Nurses are not usually protected by statutorily protected privileged communications. Nurses may be ordered to share information without patient consent. Nurses have a duty to report certain information, such as abuse of a child. 17

Confidentiality: The Health Insurance Portability and Accountability Act of 1996 The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the first federal privacy standard to protect patients' medical records It protects medical records and individually identifiable health information communicated on paper, electronically, or verbally. HIPAA requires that all health care providers and their assistants ensure patients' privacy/confidentiality. A summary of the complicated HIPAA regulations is available at a government website (see full text). Burgeoning use of social media complicate HIPAA compliance for nurses. (see 2011 NCSNB white paper reported in text) 18

Assault and Battery Occasionally the basis for legal action against a nurse defendant Assault: a threat or attempt to make bodily contact with another without that person's consent Precedes battery Battery: assault carried out Impermissible, unprivileged touching Actual harm may or may not occur as a result. 19

Role Changes in Health Care Nurses are legally exposed and vulnerable. Role changes for nurses require expansion of the legal authority for nursing practice. Increases in the scope of nursing practice, especially advanced practice nurses (APNs) Prescriptive authority Supervision of UAP Payment mechanisms for nurses Patient Self-Determination Act (1991) Supports ethical principle of autonomy Uses advance directives 20

Preventing Legal Problems in Nursing Practice Practice in a safe setting. Communicate with other health professionals, patients, and families. Meet the standard of care. Carry and understand professional liability insurance. Promote positive interpersonal relationships. 21