Chapter 4: Legal
Aspects of Nursing
Bonnie M. Wivell, MS, RN, CNS
The U.S. Constitution
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Ensures order
Protects individuals
Resolves disputes
Promotes the general welfare
Branches
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Executive: Charged to implement law
(President)
Legislative: Charged to create law (Congress)
Judicial: Charged to interpret law (Supreme
Court)
American Legal System
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Laws are rules of conduct that are authored and
enforced and hold people accountable for
compliance
Common Law: decisional, judge-made
Statutory Law: legislative process
Administrative Law: legislative branch delegates
authority to government agencies to create laws
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Administrative cases result when a person violates the
rules and regs established by this law (i.e. RN or MD
practices without a valid license)
Civil Law: enforces rights of individuals
Criminal Law: protects society
Nursing as a Regulated Practice
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Licensing is to protect the public health, safety,
and welfare
All states have nurse practice acts which are
statues that define and control nursing
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Defines practice of a professional nursing
Sets minimum educational qualifications and other
requirements for licensure
Determines legal titles & abbreviations nurses may
use
Provides for disciplinary action of licensees for certain
causes
State board of nursing
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Responsible for administering and enforcing nurse
practice act in its state
ANA Urges The Use of the
Following Content
1.
2.
3.
4.
5.
Differentiation between advanced and
generalist nursing practice
Authority to regulate advanced nursing
practice including prescription writing
Authority to oversee unlicensed assistive
personnel
Clarification of nurse’s responsibility for
delegation to & supervision of others
Support of mandatory licensure for nurses
while retaining flexibility for changing nature of
nursing practice
Executive Authority of SBN
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Governor (or state executive) delegates
responsibility for administering the nurse
practice act to an executive agency – the State
Board of Nursing
State Board of Nursing consists of
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RNs, LPNs, & Consumers appointed by governor
Functions
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Executive: administer the nurse practice act
Legislative: adopt rules to implement the act
Judicial: authority to deny, suspend, or revoke a
license or otherwise discipline a licensee or deny
application for licensure
Licensing
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All states have a mandatory licensure law for the
practice of nursing to safeguard the public
Has the power to discipline for performing
professional functions in dangerous manner
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Practicing while impaired #1 reason for license
revocation, suspension
Peer assistance programs for substance abuse;
voluntary alternative to suspension or revocation
of license
Minimum criteria for nursing education programs
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Schools of nursing must be state approved to operate
National approval demonstrates higher than minimal
standards
Licensure Examinations
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National Council Licensure Examination: NCLEXRN (Since 1978)
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Tests critical thinking and nursing competence in all
phases of the nursing process
NCSBN develops tests, updates, validates and
sets minimum scores
Since 1994 computerized adaptive testing
Test plan: https://www.ncsbn.org/1287.htm
Licensure by endorsement (since 1944)
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RNs can practice in other states without having to
retake another licensure exam
Must submit proof of licensure & pay fee
Trends in Licensure
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Society mobile: traveling nurse, telehealth
NCSBN developed mutual recognition model—
license in one state of residency yet practice in other
compact member state without additional licenses
Nurse Licensure Compact (NLC) started 2000 with
Utah, Texas Wisconsin & by mid 2008, 23 states
had joined
https://www.ncsbn.org/nlc.htm
Global perspective of licensure on NCSBN agenda—
recruitment from other nations controversial.
NCSBN began administering NCLEX internationally
to competent nurses applying for U.S. licensure in
January 2005.
Legal Risks in Nursing Practice
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Malpractice: greatest legal concern
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Negligence—failure to act as a reasonably
prudent person would have acted in similar
circumstances
Commission = doing something that should not
have been done
 Omission = failing to do things that should have
been done
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Central question in any charge of
malpractice
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“Was the prevailing standard of care met?”
Legal Risks in Nursing Practice
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Malpractice claim, evidence presented to jury to
determine if elements of liability are present.
Consider:
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Prevailing standards of care: what another prudent
nurse would have done
Expert witness testimony
SOC that prevailed at the time
National standards of nursing practice
Patient record
Direct testimony of patient, nurse, and others
Prerequisite of a Malpractice Action
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Nurse (defendant) has specialized skills & knowledge, &
through practice causes the patient (plaintiff) injury
Patient proves nurse is liable with all following elements
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Nurse has assumed duty of care (responsibility for pt’s care)
Nurse breached duty of care by failing to meet SOC
Failure of nurse to meet SOC was proximate cause of the injury
Injury is proved
Monetary damages are awarded when plaintiff prevails
In past, MD or hospital paid damages
Nurse liability has risen due to increased expertise,
autonomy and authority
Case Summary from 1995-2001
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Acute Care Hospitals = 60%
Nursing Homes/Rehab/TCU = 18%
Psychiatric Settings = 8%
Home Health = 2%
MD Offices = 2%
APN cases = 9%
Nurse Liability
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Six major categories
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Failure
Failure
Failure
Failure
Failure
Failure
to
to
to
to
to
to
follow standard of care
use equipment in responsible manner
communicate
document
assess and monitor
act as a patient advocate
Note: student nurse errors & omissions may also
be considered by courts as malpractice
Delegation
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The nurse is ultimately responsible for acts
he/she delegates
ANA’s Code of Ethics for Nurses states
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“The nurse is responsible and accountable for
individual nursing practice and determines the
appropriate delegation of tasks consistent with the
nurse’s obligation to provide optimum patient care.”
RNs delegate care (tasks), but not nursing
process; cannot delegate assess. & eval.
Most debated area: medication administration
to unlicensed assistive personnel (22 states
allow)
Note: State nurse practice acts do not give
delegation authority to LPNs
5 Rights of Delegation
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Right
Right
Right
Right
Right
task
circumstances
person
direction/communication
supervision/evaluation
Assault & Battery
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Assault: threat or attempt to make bodily
contact without another person’s consent;
causes fear that battery about to occur
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Battery: assault carried out, impermissible
touching; actual harm may or may not occur
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Example: Threat to give patient vitamin injection if
does not eat
Example: Give pt. vitamin injection against their will
Patients have the right to refuse
treatment, meds, etc.
Informed Consent
Must be given voluntarily—freedom to
accept or reject
2. Must be given by a competent person
with capacity to understand—minors,
under influence of drugs/alcohol, or
mental deficits consent by parent,
spouse, court-ordered guardian/proxy
3. Must be given enough information
to make a decision
1.
Confidentiality
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Code of Ethics for nurses
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“the nurse has a duty to maintain confidentiality of all
patient information..”
Exceptions:
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Discussing with others involved in patient care,
quality assurance, legal mandates, third party payers
Privileged communication: lawyers, clergy
Duty to report: child abuse, gunshot wounds, threats
to another, vulnerable adult abuse, certain
communicable diseases
HIPPA
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Requires all health care providers to
ensure patient privacy and confidentiality
Patient protections
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Patient can see & obtain medical records
Providers must give written notice of pt. rights
Limitations placed on time records can be
retrieved, what information shared, who can
be present when it is shared
Evolving Legal Issues & the Nurse
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Role changes in health care--advanced
practice nursing; based on state’s nurse
practice act
Prescription authority-prescription writing
Supervision of unlicensed assistive
personnel—certified nursing assistants
Payment mechanisms for nurses practicing
in non-traditional roles and in advanced
practice
Patient Self-Determination Act
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Applies to acute care & LTC that receive
Medicare and Medicaid & encourages patients to
consider which life-prolonging options they
desire
Acute care and LTC facilities must provide
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Written information about rights
Ensure compliance with advanced directives
Educate staff & community on advanced directives
Document in the medical record advanced directives
Prevent Legal Problems
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Practice in a safe setting
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Communicate with providers, patient, family
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Employs appropriate number and skill mix of personnel
Has P&P that promotes quality improvement (Risk management
and JC)
Keeps equipment in good working order
Provides orientation and continuing education
Document accurately, in timely manner, and concisely
If not documented, not done
Rapport with patient & family can be protection from lawsuits
Meet the standard of care in facility, trends in area of
practice, ANA Nursing: Scope & Standards of Practice;
Stay within own limits of education, expertise & state’s
Nurse Practice Act
Liability Insurance
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Carry own nurses’ liability insurance
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Nurses Service Organization (NSO)
www.nso.com/nursing5 or call 1-800-2137-1500
National Practitioner Data Bank – 1986
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Encourages identification and discipline of
practitioners who engage in unprofessional behavior
Reported problem areas for nurses
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Monitoring patients
Implementing treatments
Medication problems
Positive Interpersonal
Relationships Important
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Prevent disgruntled patients; key is
positive relationship with patient/family
Provide personalized care; include in
planning; show compassion & caring
(RBC)
Avoid criticizing or blaming health care
providers
Maintain a concerned and non-defensive
manner
7 Legal Tips
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Administer meds properly
Monitor for & report deterioration
Communicate effectively
Delegate responsibly
Document accurately & timely
Know & follow facility policies & procedures
Use equipment properly
Austin,S.(2008). Seven legal tips for safe nursing practice. Nursing2008. March 2008, p
34-40.
Chapter 5: Ethics: Basic
Concepts for Nursing Practice
Bonnie M. Wivell, MS, RN, CNS
Definitions
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Morals: rules of conduct in regard to decisions of right
or wrong
Values: attitudes, ideals, or beliefs that one holds &
uses to guide behavior
Ethics: reflects what actions one should take; habits or
customs
Bioethics: application of ethical theories and principles
to moral issues or problems in health care
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Ethical dilemma caused by advances in technology that allow us
to keep patients alive
Moral distress: pain/anguish affecting mind, body,
relationships in response to a situation in which the
person is aware of a moral problem, acknowledges
moral responsibility, and makes a moral judgment about
the correct action; however, as a result of real or
perceived constraints, participates in perceived moral
wrongdoing
Nursing Code of Ethics
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Code of ethics is a hallmark of a profession—
guidelines of professional self-regulation
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Provision 2 describes the nurse’s primary commitment
to the patient
Provision 5 describes the responsibility of nurses to
maintain their own integrity
A wise nurse who is aware of deep personal values
and moral standards will make decisions regarding
practice setting so the nurse’s own personal integrity
remains intact, while putting patients and their needs
first
Moral Reflection = critical analysis of one’s
morals beliefs and actions
Kohlberg’s Levels of Moral
Development
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Kohlberg: 1976-1986; research on men & boys; justice
focused
1. Preconventional: perspective is self-centered;
decisions based on wants/needs, not right/wrong;
children < 9 yo, adolescents, adult criminals; respond to
punishment
2.Conventional: moral decisions conform to
expectations of family/society; what pleases others;
most adolescents & adults function at this level; respond
to prospect of personal reward
3. Post-conventional: individual develops own
moral values; ignore self-interest and group norms in
making moral choices; may sacrifice themselves on
behalf of the group; create own morality; minority of
adults achieve this level
Gilligan’s Levels of Moral
Reasoning
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Gilligan: 1982; research on women
Gilligan believed women’s identities based largely on
relationships with others & care focused
Kolberg’s theory inadequate for women as it was justice
focused and studies were on men.
Gilligan’s levels of moral development
1. Individual survival
2. Goodness, self-sacrifice
3. Morality of caring & responsible to others and self
A moral person responds to need & demonstrates a
considerations of care & responsibility in relationships
Put an Ethical Theory
to Practice
Ethical Theories
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Deontology: duty to do what is right
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Act: get facts & decide; same judgment in similar situations
Rule: principles guide actions; “always keep a promise”; promise
kept regardless of the change in circumstances
Beneficence: do no harm
Autonomy: make own decision
Utilitarianism: usefulness of action is utility of what
brings about greatest good for greatest number of
people
Virtue Ethics: Virtues refer to specific character traits
of truthfulness, honesty, courage, kindness, respect,
fairness & integrity
Principalism: uses ethical principles of beneficence,
nonmaleficence, autonomy & justice in resolution of
ethical conflict or dilemmas
Ethical Principles
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Autonomy: right to determine own actions & freedom
to make own decisions
Beneficence: “the doing of good” (benefit)
Nonmaleficence: duty to do no harm
Veracity: “telling the truth”
Fidelity: faithfulness; honoring commitment/ promises
Justice: fair & equal; equals treated same and unequals
treated differently—those with greater or less needs
should get different care; allocation of resources a
problem in health care
The Nightingale Pledge
I solemnly pledge myself before God and in the presence of this assembly,
to pass my life in purity and to practice my profession faithfully (fidelity).
I will abstain from whatever is deleterious and mischievous, and will not take
or knowingly administer any harmful drug (nonmaleficence).
I will do all in my power to maintain and elevate the standard of my
profession (beneficence)
and will hold in confidence all personal matters committed to my keeping
and all family affairs coming to my knowledge in the practice of my
calling (confidentiality).
With loyalty will I endeavor to aid the physician in his work (fidelity),
and devote myself to the welfare of those committed to my care (justice).
Nursing Code of Ethics
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Code of ethics is a hallmark of a profession—
shape professional self-regulation, serving as
guidelines to members of the profession, who
then meet their responsibility as trustworthy,
qualified, and accountable caregivers
ANA Code of Ethics with Interpretive
Statements is the latest version of the ethical
code (1896-2003)
COE is backed by ANA’s Scope & Standards of
Practice (2004) which guides nursing practice
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Standard 12 states “the RN integrates ethical
provisions in all areas of practice”
ICN’s COE
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International Council of Nurses (ICN)
Code of Ethics (1953;2000); nursing’s
respect for the life, dignity, & rights of all
people in a manner that is unmindful of
nationality, race, creed, color, age, sex,
political affiliation, or social status
Ethical Decision Making
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Clarify the ethical dilemma
Gather additional data
Identify options
Make a decision
Act
Evaluate—dilemma resolved or not?
Understanding Ethical Dilemmas
in Nursing
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From personal value systems & beliefs
Involving peers’ & other’s behaviors
Regarding patient rights: right to privacy, informed
consent, to die, confidentiality, respectful care, care
without discrimination, information concerning medical
condition & treatment, right to refuse to participate in
research studies; partnership regarding treatment plan
Patient self-determination act (1991) gives patients legal
right to determine how they wish to be treated in life-ordeath situations.
Ethical issues related to immigration and migration
Dilemmas created by institutional issues
Dilemmas created by patient data access issues