Legal and Ethical Aspects in Clinical Practice Chapter 9: Legal and Ethical Aspects in Clinical Practice Copyright © 2012, 2007 Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.

Historical Review Roman Law Concerned with legal status of mentally disabled Middle Ages Incompetence decided by jury Mentally ill committed to care of friend

Historical Events In the United States: 1600s Cared for by families or wandered 1752 First hospital for mentally ill 1841 Dorothea Dix crusades Late 1800s Civil commitment 1900–1950s  State hospital populations

Historical Events, cont’d. 1963: Community Mental Health Act Deinstitutionalization Lack of community treatment resources Expanded commitment laws

Historical Events, cont’d. Managed Behavioral Health Treatment access restricted Carve outs to control costs Insurance benefits meager Premature discharges

Commitment Voluntary Patient consents to admission Patient may request discharge Emergency Risk of harm to self or others Short term Longer-term judicial or civil Protects community from persons posing a threat Mandatory outpatient treatment

Least Restrictive Alternative Use least restrictive environment Use least restrictive treatment Evolved to: Use most clinically appropriate treatment Use most cost-effective interventions

Confidentiality and Privileged Communication Protection and privacy of health information guaranteed by HIPAA Signed release necessary Privileged Communication No forced disclosure in court of certain information given to professionals

Tarasoff Duty to Warn and Protection A treating mental health professional has a duty to warn potential identifiable victims.

Rights of Patient Vote Manage financial affairs Make contracts Seek advice of attorney Send and receive unopened mail Wear own clothes Receive visitors Make phone calls Have Informed consent regarding treatment and research participation

Right to Be Restraint Free Seclusion and Restraint CMS standards: Client right to be restraint free is paramount Use only when less restrictive alternatives fail One hour rule

Right to Treatment A nondangerous individual cannot be hospitalized without being provided with some form of treatment.

Right to Refuse Treatment Medications Voluntary and involuntary patients can refuse medication. In emergency situations, if potential danger is present, patient can be medicated against his or her will. ECT Requires informed consent. State laws vary regarding refusal.

Right to Advocacy Nursing Responsibilities Obtain authorization for treatment. Inform client of right to appeal for denial of care. Provide data for utilization review. Report violation of rights.

Competency to Stand Trial Does the person understand: The criminal charges? The legal process? The consequences of the charges? Can the person advise an attorney and defend the charges?

Criminal Responsibility M’Naghten Rule (Insanity Defense) Refers to person’s state of mind at the time of the offense. To be found guilty, person must be able to form intent. If unable to form intent because of mental illness, person cannot be found guilty. If not guilty, person is usually evaluated for commitment to a hospital for treatment.

Guilty but Mentally Ill Possible plea in some states Person found guilty, but mental illness caused commission of offense Sent to prison and treated for mental illness

Malpractice A health professional omits or commits an act that a reasonable prudent professional would not do.

Elements of Malpractice Suit Based on Negligence Legal duty to provide a certain standard of care Breach of duty Proximate cause “But-for” test Substantial factor test Proven injury

Documentation in the Medical Record Legal document Communication with other professionals Validation that professionals adhered to scope of practice Validation for reimbursement Support for ongoing care/chosen care level

Other Malpractice Lawsuits Involving Health Professionals Sexual misconduct Wrongful death actions for: Suicide Homicide Injury to third party

Ethics Explores moral problems raised about specific issues. Ethical dilemmas in psychiatric nursing often relate to conflicts between mental health law and nurses’ personal beliefs.

Ethical Principles Autonomy Beneficence Distributive justice