Ethical and Legal Context
of Psychiatric Care
Chapter 10
Rochelle Roberts RN MSN
Psychiatry and the
Law
Psychiatry and the law
• Relationship
between
Psychiatry and
the Law reflects a
tension between
individual rights
and social needs.
Ethical considerations for
Psychiatric Nurses
• Ethical dilemmas
• “What is the right
thing to do?”
• When is it
appropriate for
society to regulate
personal behavior?
Ethical Considerations
• Sensitivity to patient’s
rights and needs.
• The element of power
• Skilled clinician
versus”keeper of the keys”
• Paternalistic attitude:
deciding what is best for
another person, without
considering the person’s
thoughts, feelings, or
preferences.
Types of Hospital Admission
• Voluntary
• Involuntary
Characteristics of Voluntary
Admission
• Written application by the patient
• Civil rights are fully retained by the patient
(right to vote, hold a driver’s license, buy
and sell property, hold office, practice a
profession, engage in a business.
• Discharge is initiated by the patient
• Justification: patient voluntarily seeks help
Characteristics of Involuntary
Admission (Commitment)
• Admission did not originate with patient
• Discharge is initiated by the hospital or court
• Patient may retain some, none or all civil rights
depending on state law.
• Justification: mentally ill and one or more of the
following:
• Dangerous to self or others
• Need for treatment
• Unable to meet own basic needs
The Commitment Process
• Process begins with a sworn petition by a relative,
friend, physician stating that the person is
mentally ill and needs treatment.
• Examination of the patient’s mental status. (Some
states require at least one of the physicians be a
psychiatrist.
• Determination as to whether to hospitalize the
patient or release them is made next by the
physician or courts (judge or formal jury)
Three Lengths of Hospital Stay
• Emergency- to control an immediate threat
to self or others
• Short-term or Observational- to diagnose
and for short-term therapy
• Long-Term is for an indefinite time or until
the patient is ready for discharge. Periodic
reviews may be made every 3, 6, or 12
months.
Research on “Dangerousness”
(McConnell & Catalano) 2000
• Studies show that most mentally ill people
are not inherently dangerous to themselves
or others.
• Research does suggest, however, that a subgroup of people with mental illness may be
more dangerous.
Sub-Group Characteristics
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A history of one or more of the following:
Violent behavior
Psychosis
Noncompliance with medications
Current substance abuse
Antisocial personality disorder
Patients’ Rights (AHA) Patient’s
Bill of Rights
• Evolved into the Patient Care Partnership
document (AHA, 2003)
• Right to communicate with people outside
the hospital. This allows for telephone
conversations and visits and send unopened
letters.The hospital can limit the access
when it could harm the patient.
Patient Rights (cont)
• Patient may bring clothing and personal items to
the hospital.
• Right to religious freedom
• Right to enter contractual relationships, if the
person understands the circumstances of the
contract and its consequences. Mental competency
is related to this right. Incompetence is a legal
term without a precise medical meaning.
Incompetence
• To prove incompetence in court, all of the
following must be shown:
• The person has a mental disorder.
• This disorder causes a defect in judgment.
• This defect makes the person incapable of
handling personal affairs.
Patient Rights (cont)
• Right to Education is guaranteed by the
Constitution.
• Right to legal representation.
• Right to treatment and to refuse treatment.
• Right to habeas corpus. It provides for the
speedy release of any person who claims to
be detained illegally.
• Right to privacy.
Confidentiality
• Health Insurance Portability and Accountability
Act (HIPAA) guarantees 4 patient rights:
• To be educated about HIPPA privacy protection
(hx, diagnosis,treatment)
• To have access to their own medical records
• To request correction or amendment of their health
information to which they object
• To require their permission for disclosure of their
own personal information
The Circle of Confidentiality as a
model
• Inside the circle:
patient, treatment team
members, students and
faculty, health care
consultants and staff
supervisors can share
patient information.
Circle of Confidentiality
• Outside the circle:
• Family is not
automatically entitled. The
nurse must first obtain
clear consent from the
patient.
• Lawyers, reimbursers,
law enforcement,
regulators, support staff
must also obtain
permission from the
patient.
Exception of confidentiality: “Duty
to Warn” (Tarasoff case 1974)
• When a therapist is
reasonably certain that a
patient is going to harm
someone, the therapist has
the responsibility to
breach the confidentiality
of the relationship and
warn or protect the
potential victim.
Right to consent
• Psychosis does not necessarily mean that a
person is unable to consent to treatment and
many psychotic patients are capable of
giving informed consent.For patients not
able to consent and for all minors, informed
consent should be obtained from a
substitute decision maker.
Right to refuse medication
• Symptoms such as delusions and
denial may cause the refusal.
• Nurses should judge each situation on
a case-by-case basis.
Three criteria that may justify
coerced treatment
• The patient must be judged to be dangerous
to self or others
• It must be believed by those administering
treatment that it has a reasonable chance of
benefiting the patient.
• The patient must be judged to be
incompetent to evaluate the necessity of the
treatment.
Right to treatment in the least
restrictive setting
• Maintain the greatest
amount of personal
freedom, autonomy,
dignity, and integrity in
determining treatment
• Restriction includes the
nature of the choices being
restricted and the method
by which choices are
restricted.
Hierarchy or levels of
Restrictiveness
• Four-point restraint
• movement in space,
(seclusion rooms)
• Decisions of daily life,
(selection of TV program,
food)
• Activities
• Treatment choice
• Control of resources ($)
• Verbal or non-verbal
expression (censorship)
Legislative Initiatives
• Protection and Advocacy Act (1986) all
states must designate an agency that is
responsible for protecting the rights of the
mentally ill. Mission is to investigate
incidents of abuse and neglect of persons
who live in institutions.
Americans with Disabilities Act
(1990)
• Protects Americans with physical or mental
disabilities form discrimination in jobs,
public services, and accommodations. It
also prohibits discrimination in hiring,
firing, training, compensation, and
advancement in employment.
Advance Directives
• Federal regulations require all facilities that
receive Medicare or Medicaid to inform
patients, including psychiatric patients, at
the time of their admission about their rights
under state law to sign advance directives.
These are documents that are written while
a person is competent, that specifies their
personal decisions regarding treatment.
Mental Health Courts
• First authorized in 2000
by Congress.
• Created innovative
approach to divert
offenders into treatment
programs.
• Keeps people who have
severe and persistent
mental illness and commit
minor offenses from being
incarcerated in jails and
prisons and, instead, get
treatment.
Legal Role of the Nurse
• Nurse as Provider: If nurses fail to provide
competent care that results in harm to the patient,
malpractice occurs.
• To avoid litigation, the psychiatric nurse can
follow the following preventive measures:
• Implement nursing care that meets the Scope and
Standards of Psychiatric Mental Health Nursing
Practice (ANA, 2000)
Legal Role of the Nurse
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Know one’s state laws
Keep accurate and concise records
Maintain patient confidentiality
Consult a lawyer if any questions arise.
Nurse as Employee
• Nurses are responsible to supervise and
evaluate those under their authority for the
quality of care given.
• They must observe their employer’s rights
and responsibilities to clients and other
employees, fulfill the obligations of the
contracted service.
Nurse As Citizen
• This role forms the foundation for the
nurse’s other legal relationships.
• These are inherent rights that include civil
rights, property rights, right to protection
from harm, and right to due process.
Common areas of liability in
psychiatric services
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Sexual contact with a patient
Preventing patient suicide
Med errors
Problems related to ECT
Breach of confidentiality
Failure to refer a patient
Failure to obtain informed consent
failure to report abuse