1. Ethical and Legal Issues in Psychiatric/Mental Health Nursing
Chapter 26

2. Group Discussion Have you had any ethical dilemmas?
How did you deal with them?

3. 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

4. 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

5. 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 staff
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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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 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

14. 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

15. 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