Chapter 8 Legal Aspects of Gerontological Nursing

Terms to Know Consent: granting of permission to have an action taken or procedure performed Durable power of attorney: allows competent individuals to appoint someone to make decisions on their behalf in the event that they become incompetent Duty: a relationship between individuals in which one is responsible or has been contracted to provide service for another HIPAA: Health Insurance Portability and Accountability Act of 1996, assures confidentiality of health information and consumers’ access to their health records

Terms to Know (cont.) Injury: physical or mental harm to another or violation of a person's rights resulting from a negligent act Malpractice: deviation from standard of care Negligence: failure to conform to the standard of care Private law: governs relationships between individuals and/or organizations Public law: governs relationships between private parties and the government Standard of care: the norm for what a reasonable individual in a similar circumstance would do

Introduction Nurses must know basic laws and confirm their practice falls within sound boundaries. Gerontological nurses function in autonomous roles. They supervise unlicensed personnel and accountable for their actions. Problems faced by older adults may lead to legal issues. Nurses need to advocate for older adult rights.

Laws Governing Gerontological Nursing Practice Variation among states Public laws Scope of nursing practice Requirements for licensure Private laws Individual rights Standards of conduct

Legal Risks in Gerontological Nursing Situations that may increase the risk of liability Working with insufficient resources Not following agency policies and procedures Bending rules Taking shortcuts Working when physically/emotionally exhausted

Malpractice Provision of service in a competent manner within standards of care When performance deviates from standard of care, liable for malpractice Negligent acts do not always warrant damages Conditions that warrant malpractice: Duty Negligence Injury

Malpractice (cont.) Delegation of responsibilities Increased responsibilities accompanied by increased risk of malpractice Be aware of risks of practice and be proactive in preventing malpractice Nurses should carry own malpractice insurance

Question Is the following statement true or false? Nurses can be protected from malpractice suits if they are following the accepted standard of care.

Answer True Rationale: Nurses are expected to provide services to patients in a careful, competent manner according to a standard of care. The standard of care is considered the norm for what a reasonable individual in a similar circumstance would do. When performance deviates from the standard of care, nurses can be liable for malpractice.

Situations That May Result in Negligence Failing to take action Contributing to patient injury Failing to report a hazardous situation Handling patient possessions inappropriately Failing to follow policies and procedures

Confidentiality Health Insurance Portability and Accountability Act (HIPPIE) Patients have access to their medical records Patients have control over how personal health information is used and disclosed Other provisions Nurses need to be familiar with policies and procedures necessary to protect patients’ privacy

Patient Consent Patients are entitled to know full implications of procedures, ability to make independent choices and decisions Consent must be obtained prior to any medical/surgical procedure Consider mental status Consent must be informed Nurses should not influence patients’ decision

Question Elements of informed consent include all of the following except? The purpose of the procedure The time required to complete the procedure Alternatives to the procedure Expected consequences and risks of the procedure

Answer B. The time required to complete the procedure Rationale: Written informed consent includes a description of the procedure, its purpose, alternatives to the procedure, expected consequences, and risks.

Elements of Informed Consent Written description of the procedure and its purpose Explanation by the person performing the procedure Alternatives to the procedure Expected consequences and risks Signature of the patient, witnessed, and dated

Patient Competency Persons who are mentally incompetent are unable to give legal consent. Next of kin may not be legal guardian and may not be able to give consent. Guardianship differs from power of attorney for health care. Various forms of legal guardianship All are court appointed

Staff Supervision Nurses responsible for supervision of other staff Risks for nurses in supervisory role: Permitting unqualified or incompetent persons to deliver care Failing to follow up on delegated tasks Assigning tasks to unqualified staff Allowing staff to work under conditions with known risks

Medications Nurses are responsible for safe administration of prescribed medications. Scope of practice does not include preparing, compounding, dispensing, or retailing medications.

Restraints Omnibus Budget Reconciliation Act (OBRA) Imposes strict standards on use of restraints: both chemical and physical Restraints: anything restricting movement Alternatives to restraints should be used whenever possible Physician order required with specific conditions Agency must have a policy

Question Which statement is true related to the use of restraints? Geriatric chairs are not restraints. Alternatives to restraints should be used whenever possible. Physicians’ orders for restraints are not required in long-term care facilities. The Omnibus Budget Reconciliation Act (BORA) heightened the impact of restraints in acute care settings.

Answer B. Alternatives to restraints should be used whenever possible. Rationale: Geriatric chairs are considered restraints, physician orders are required for restraint use in any health care setting, and BORA increased the awareness of restraint use in long-term care. Alternatives to restraints should be used whenever possible to promote safe and effective care.

Telephone Orders Minimize risks Have physician fax written order Do not involve third parties Communicate all relevant information Do not offer diagnostic interpretations Write down order as it is given and read back Place order on physician’s order sheet Obtain physician’s signature within 24 hours

Do Not Resuscitate Orders High caseload of terminally ill older adults in gerontological nursing DNR (do not resuscitate)—medical order Consent for DRY must be obtained Every agency should develop DRY policy to guide staff

Advance Directives and Issues Related to Death and Dying Advance directives express patient desires for terminal care, life-sustaining measures. Patient Self-Determination Act requires health care facilities to ask a patient about advance directives. States vary in use and types of advance directives. Nurses should not be the legal witness to a will. Pronouncement of death falls within the scope of medical, not nursing, practice in several states. Consent for autopsy must be obtained, except in cases of criminal act, malpractice, or occupational disease.

Elder Abuse Caregiver stress can lead to abuse. Elder abuse can be physical, emotional, sexual, exploitation, neglect, or abandonment. Elder Assessment Instrument (EAR) helps identify those being abused. Indications of possible abuse or neglect include malnutrition and dehydration, among others. Nurses have legal responsibility to report abuse Know individual state laws

Legal Safeguards for Nurses Common sense best ally Sound nursing practice Know the rules and laws Know agency policies Determine employee competency and check their work

Question Is the following statement true or false? To prevent unsafe care and the potential for malpractice, nurses should be knowledgeable about their agency’s policies and procedures and adhere to them.

Answer True Rationale: Legal safeguards for nurses include following agency policies and procedures as laws and regulations impose additional responsibilities in patient–provider and employee–employer relationships.