LEGAL ASPECTS OF NURSING The Philippine Nursing Law Definition and Meaning of Law The word "law" may be defined as a rule of conduct pronounced by controlling authority, which may be enforced. There are three essential characteristics of every law. The first one is the authority or the right to declare the rule exists. The second is that such rule is pronounced or expressed and that its source can be identified. Lastly, a right to enforce the same must be provided. Nursing Jurisprudence department of law which comprises all legal rules and principles effecting the practice of nursing includes the study and interpretation of rules and principles and their application in the regulation of the practice of nursing Functions of Law in Nursing - provides a framework for establishing what nursing actions in the care of patients are legal - delineates the nurse’s responsibilities from those of other professionals - helps to establish the boundaries of independent nursing actions - assists in maintaining a standard of nursing practice by making nurses accountable to the law Brief History of the Philippine Nursing Law The first law that had to do with the practice of nursing was contained in Act No.2493 in 1915, which regulated the practice of medicine. This act provided for the examination and registration of nurses in the Philippine Islands. During that time, the applicants need to be only twenty years old, of good physical health and good moral character. Graduates of intermediate courses of the public school could enter the school of nursing, which was then giving only two years, and a half of instruction. These graduates were called first class nurses. Those who desired to be second-class nurses filed an application with the district health officer in the district where they resided. In 1919 Act 2808 was passed- this is known as the First True Nursing Law. It created among others a board of examiners for nurses. However, it was in 1920 that the first board examination in the Philippines was given. On June 19, 1953, the Philippine Nursing Law or R.A. 877 was passed. This act regulated the practice of nursing in the Philippines. One of the landmarks in the history of the nursing profession in the Philippines is the Presidential Proclamation of a Nurses' Week. Under Proclamation No. 539 dated October 17, 1958 the President of the Philippines designated the last week of October every year beginning in 1958 as Nurses' Week. On June 18, 1966, Republic Act 4704 amended certain portions of R.A. 877. The following were included among the salient changes: a. The scope of nursing practice was broadened to circumscribe the whole management of the care of patients and the acts constituting professional practice of nursing were spelled out to include such services as reporting, recording and evaluation of a patient’s case, execution of nursing procedures and techniques, direction and education to secure physical and mental care and the application and execution of physician’s orders concerning treatment and medication. b. The minimum age required of applicants for admission to the nurse’s examination was lowered from 21 to 18 years of age, but no candidate who passed the examination was permitted to practice the profession until he or she reached the age of 21. Republic Act 7164, introduced by Senator Heherson Alvarez, codified and revised all the laws regulating the practice of nursing in the Philippines. It was known as the Philippine Nursing Act of 1991. In October 21, 2002, Republic Act No. 9173 otherwise known as “The Philippine Nursing Act of 2002” replaced R.A. 7164 . There are laws governing the practice of Nursing, one of which is House Bill No. 4955, AN ACT PUNISHING THE MALPRACTICE OF ANY MEDICAL PRACTITIONER IN THE PHILIPPINES AND FOR OTHER PURPOSES Legal Liabilities in Nursing As nurses begin their professional obligations, their legal responsibilities begin as well. Their license to practice attests that they are qualified under the law to practice their profession. The Philippine Nursing Act of 1992 is the best guide the nurse can utilize as it defines the scope of nursing practice. There are also standards of care that may be used as criteria in evaluating their work. The nurses are enjoined to be familiar with the Philippine Nursing Law, and the standards of nursing care, other laws which affect nursing practice and their code of ethics. Responsibility and Accountability for the Practice of Professional Nursing When nurses undertake to practice their profession, they are held responsible and accountable for the quality- of performance of their duties. Nurses employed in an agency, institution, or hospitals are responsible directly to their immediate supervisors. Private duty nurses, being independent practitioners, are held to a standard of conduct that is expected of reasonably prudent nurses. The standard is clearly defined, legal expectation to which nurses are held accountable. A nurse assumes responsibility and accountability for all nursing care delivered. Responsibility refers to the execution of duties associated with a nurse’s particular role. That is, the nurse is responsible for providing care within established standards of the profession. The responsible nurse demonstrates characteristics of reliability and dependability. Accountability refers to the ability to answer for one’s own actions. The nurse is accountable to herself most of all. He/she also balances accountability to the patient, the profession, the employing institution, and society. Liability - an obligation one has incurred or might incur through any act or failure to act. When the nurse fails to meet the legal expectations of care, the client can initiate action if harm or injury is incurred by the client. Professional Negligence The term negligence refers to the commission or omission of an act, pursuant to a duty, that a reasonably prudent person in the same or similar circumstances would or would not do, and acting or the non-acting is the proximate cause of injury to another person or his property. The elements of professional negligence are (1) existence of a duty on the part of the person charged to use due care under circumstances, (2) failure to meet the standard of due care, (3) the foreseeability of harm resulting from failure to meet the standard, and (4) the fact that the breach of this standard resulted in an injury to the plaintiff. Malpractice Malpractice in the usual sense implies the idea of improper or unskillful care of a patient by a nurse. It would also see that malpractice also denotes stepping beyond one's authority with serious consequences. Medical Orders, Drugs, and Medications R.A. 6675 states that only validly registered medical, dental and veterinary practitioners, whether in private institution/ corporation or in the government, are authorized to prescribe drugs. Prescriptions made by unauthorized persons constitute illegal practice of medicine, dentistry or veterinary medicine and is punishable under R.A. 2832 of the Medical Act of 1959, R.A. 4419 of the Dental Act, and R.A. 382 or the Veterinary Act. In accordance with R.A. 5921, or the Pharmacy Act as amended, all prescriptions must contain the following information: name of the prescriber, office address, professional registration number, professional tax receipt number, patient’s/client’s name, age and sex, and date of prescription. R.A. 6675 requires that the drugs be written in their generic names. The dependent and coordinated function of the nurse pertains to the application and execution of written legal orders of physicians concerning treatment and medications. Only when these orders are legal in writing and bear the doctor’s signature does the nurse have the legal right to follow them. Written orders are better understood and chances of error are minimized if they are clear, specific, complete and legible. Verbal orders can be minimized if the nurse seeks a clear understanding from the physicians in establishing a policy concerning the importance of written orders. The general rule requiring a nurse to execute all lawful orders of a physician is tempered by common sense. The nurse must not execute an order if she is reasonably certain it will result in harm to the patient. In such case she must speak out and risk incurring the physician’s resentment or ire rather than a lawsuit. It is preferable to raise the matter of carrying out the procedure as a point of clarification in a tactful, acceptable manner . A nurse must see to it that she understands the action of a drug, its minimum and maximum dosages, route of administration, and untoward effects so that she may skillfully, safely, and effectively carry them out. She should be able to report and record the effects on the patient so that the doctor can judge its therapeutic value and know when to discontinue its use. Tests and treatments should be explained to the patient in accordance with the general plan of his care so that the patient can give full consent and cooperate in its implementation. Any unfavorable psychologic or physical reaction should be likewise reported so that the proper action may be taken. Sometimes, however, refusal may be due to inaccurate presentation of facts. Patients must receive special sympathetic attention from the nurses. Every effort should be made to correct inaccurate views and modify superficially-held beliefs. Intravenous Therapy and Legal Implications Nurses now participate in complex intravenous therapy procedures that were once performed only by doctors. Because of this change, nurses must remember that their legal right to give intravenous injections is based on the Philippine Nursing Act of 1991 Section 28 which state that "in the administration of intravenous injections, special training shall be required according to protocol established." Therefore, nurses have to undertake a certified training course on intravenous therapy. In giving intravenous injections, nurses should also follow the policies of their agencies. Even if nurses have formal training on IV therapy, if the hospital does not allow them to do so, then they may not do the procedure. Board of Nursing Resolution no. 8 states that any registered nurse without such training and who administers IV injections to patients, shall be held liable, either criminally under Sec. 30 ( c) Art. VII of said law or administratively under Sec. 21 Art. III or both (whether causing or not injury or death to the patient). Telephone Orders There are legal risks by telephone orders. These may be misunderstood or misinterpreted by the receiving nurse. Sometimes too, messages from telephones may sound unclear or garbled because of some trouble in the telephone lines. Most importantly, the signature of the ordering physician is not present and this order may later be denied incase errors exist or court litigations arise. Consent to Medical and Surgical Procedures Consent is defined as a “free and rational act that presupposes knowledge of the thing to which consent is being given by a person who is legally capable to give consent.” The consent signed by the patient or his authorized representative/legal guardian upon admission is for the initial diagnosis and treatment. Subsequent treatments/operations require individual, informed consent. Before any medical or surgical procedure can be performed on a patient, consent must be obtained from the patient or his authorized representative who may be his parent or guardian. It is only in case of emergency where the consent requirement does not apply. The physician should give as much information about a contemplated procedure and the patient should receive enough information to allow him to give an informed consent for such procedure or treatment. The intentional touching or unlawful beating of another person without authorization to do so is a legal wrong called battery. Nature of Consent. Consent is an authorization, by a patient or a person authorized by law to give the consent on the patient's behalf that changes a touching from non-consensual to consensual. It is the nurse who actually secures the consent of the patient upon admission. This consent is usually for diagnostic procedures and initial treatment deemed necessary by the medical staff. To substantiate the patient’s consent, a written authorization is needed as proof against any liability that may arise due to an alleged unlawful touching of a patient. Informed consent. “It is established principle of law that every human being of adult years and sound mind has the right to determine what shall be done with his own body. He may choose whether to be treated or not and to what extent, no matter how necessary the medical care, or how imminent the danger to his life or health if he fails to submit to treatment.” The essential elements of informed consent include (1) the diagnosis and explanation of the condition; (2) a fair explanation of the procedures to be done and used and the consequences; (3) a description of alternative treatments or procedures; (4) a description of the benefits to be expected; (5) material rights if any; and (6) the prognosis, if the recommended care, procedure, is refused. Proof of Consent. A written consent should be signed to show that the procedure was the one consented to and that the person understood the nature of the procedure, the risks involved and the possible consequences. A signed special consent is necessary before any medical or surgical treatment is done such as x-rays, special laboratory tests, blood transfusions, operations, cobalt therapy, or chemotherapy and the like. Who Must Consent. Ordinarily, the patient is the one who gives the consent in his own behalf. However, if he is incompetent (such as in the case of minors or the mentally ill) or physically unable and is not an emergency case, consent must be taken from another who is authorized to give it in his behalf. Consent of Minors. Parents, or someone standing in their behalf, give the consent to medical or surgical treatment of a minor. Parental consent is not needed however, if the minor is married or otherwise emancipated. Consent of Mentally ill . A mentally incompetent person cannot legally consent to medical or surgical treatment. The consent must be taken from the parents or legal guardian. Emergency Situation. When an emergency exists, no consent is necessary because inaction at such time may cause greater injury. A mother who is on the advanced stage of labor or a patient who goes to the emergency room gives an implied consent to an immediate treatment or attendance. However, if time is available and an informed consent is possible, it is best that this be taken for the protection of all parties concerned. Refusal to Consent. A patient who is mentally and legally competent (sane mind and of legal age) has the right to refuse to permit touching of his body or to submit to a medical or surgical procedure no matter how necessary, nor how imminent the danger to his life or health if he fails to submit to treatment. Examples are patients who, because of their religious beliefs, may refuse blood transfusion. A patient may refuse to consent due to inadequate information regarding the procedure to be done. If after the explanation, he still refuses to sign the consent form, he should be made to fill out the release form to protect the hospital and/or agency and its personnel from any liability that may result from his refusal. If he refuses to sign the release form, this should be noted in his chart. The competent person has a legal and ethical right to refuse treatment, and this right is formally established. Consent for Sterilization. Sterilization is the termination of the ability to produce offsprings. The husband and the wife must consent to the procedure if the operation is primarily to accomplish sterilization. When the sterilization is medically necessary, the sterilization is an incidental result such as in cases of abruptio placenta, ectopic pregnancies or ruptured uterus, the patient's consent alone is sufficient. Medical Records The value of medical records is both scientific and legal. As a record of illness and treatment, it saves duplication in future cases and aids in prompt treatment. The record supplies rich material for medical and nursing research. It serves as a legal protection for the hospital, doctor and nurse by reflecting the disease or condition of the patient and his management. Nurses must remember the rule. "If it was not charted, it was not observed or done.” In the performance of their duties, nurses are expected to record fully, accurately, legibly, and promptly their observations from admission to the time of the patient’s discharge. Daily notes should include not only medications and treatments given or rendered but also the physical and emotional symptoms exhibited by the patient. The nurses’ notes are aids to medical diagnosis and in understanding the patient’s behavior. Since patients have the right to confidentiality of these records, nurses are legally and ethically bound to protect the patient’s chart from unauthorized persons. Permission has to be taken from the hospital authorities for authorization to secure any information from the patient’s chart. Nurses are responsible for safeguarding the patient’s record from loss or destruction or from access by persons who are not legally authorized to read such. Legal Responsibilities of Students Nursing students are responsible for acquiring the knowledge and skills necessary to become a safe practitioner. Included in this knowledge and skill development is the awareness of ethical principles and the process of ethical decision making. Nursing students must act as reasonably prudent persons, equivalently with education and experience, when performing nursing duties. They must perform only those tasks that they are competent to perform. Liability for the Work of Nursing Students Under the Philippine Nursing Act of 2002 R.A. 9173, nursing students do not perform professional nursing. They are to be supervised by their Clinical Instructors. In order that the errors committed by nursing students will be avoided/minimized, the following measures should be taken: 1. Nursing students should always be under the supervision of their Clinical Instructors. 2. They should be given assignments that are in level of their training, experience and competency. 3. They should be advised to seek guidance specially if they are performing a procedure for the first time. 4. They should be oriented to the policies of the nursing unit where they are assigned. 5. Their performance should be assessed frequently to determine their strengths and their weaknesses. 6. Frequent conferences with the students will reveal their problems, which they may want to bring to the attention of their instructors or vice-versa. Discussions of these problems will iron out doubts and possible solutions may be provided Charting Done by Nursing Students When a nurse or a clinical instructor countersigns the charting of a nursing student, she attests that she has personal knowledge of information and that such is accurate and authentic. Anyone who countersigns without verification commits herself to possible legal risk. Source: Venzon, L. & Venzon, R. (2010). Professional Nursing in the Philippines 11 th edition ***Incident Reports The primary purpose of an incident report is to document and prevent possible consequent injuries. Classifying an event, as an incident does not imply that someone made a mistake, it only means that something unusual happened.