Ethical and Legal Issues in
Psychiatric/Mental Health Nursing
Chapter 26
Group Discussion
• Have you had any ethical dilemmas?
• How did you deal with them?
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
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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
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
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
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 selfdetermination
– 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
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
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
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
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
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
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
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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
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
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
Avoiding Liability
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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