N2111 UNIT 4 - Ch. 8 Legal implications in nursing practice PDF

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Legal Implications in Nursing Practice...

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2111 - Unit 4 Ch. 8 Legal implications in nursing practice Legal Limits of Nursing - Nurses have a fiduciary relationship with their patients – where a professional (the nurse) provides services that cause the recipient (patient) to trust in the specialized knowledge and integrity of the professional. 1. Sources of Law - Constitution of Canada is the primary source of Canadian Law and divides areas of responsibility between federal gov’t and the provinces. - Federal law applies to the country, and provinces have authority over management of hospitals. In Canada, there are 2 systems that deal with Private Law issues: (Civil & Common) - Civil Law = is based on Roman law in Quebec. - Common Law = is based on British common law in the rest of the country. - When a civil/criminal goes to court, decisions are based on statute law & previous case rulings (precedent). - not every jurisdiction has case law on a given issue; cases regarding the right to refuse treatment, are not found in every province. - Statute Law = created by elective legislative bodies (Parliament and provincial/territorial legislatures). Examples: Federal statute can be the Criminal Coe of Canada, Assisted Human Reproduction Act, Controlled Drugs and Substances Act, Food and Drugs Act. Provincial Statute can be the Regulated Health Professions Act. 2. Professional Regulation - Nursing is governed at the provincial/territorial level: each province & territory has legislation that grants authority to a nursing regulatory body. They are accountable to public for ensuring safe, competent and ethical nursing care. - These bodies are responsible for: granting certificates of registration, offer practice support, investigate complaints against members’ conduct, disciplining members when necessary. - There are separate regulatory bodies for RNs and PNs, sometimes RPNs. These are called either Provincial Association or College of Nursing. Nurses must be registered by the professional nursing association or college of the province they - All provinces & territories use the N-CLEX Exam except Quebec (they have their own exam called the OIIQ). - Registration can be suspended or revoked by regulatory body if the nurse violates. Due process (nurses must be notified of the charges brought against them) to have an opportunity to defend themselves. 3. Regulation of Nurse Practitioners - Roles and responsibilities of Nurse Practitioners (NPs) has evolved.

- NP utilization and regulation varies across the countries, so it is important to nurses communicate their regulated title to patients, families and other members of health care team. 4. Standards of Care - Standards of care are legal guidelines for nursing practice, which establish an expectation of nurses to provide safe & appropriate patient care. - All provincial & territorial legislatures passed health professions acts, Nursing practice acts, or both. They set educational requirements for nurses, distinguish between nursing & medical practice. - Professional organizations also define standards of care, such as the Canadian Nurses Association (CNA). - The Canadian Council on Health Services Accreditation requires that health care institutions have nursing g policies/procedures in writing that detail how nurses are to perform their duties. Usually found in procedure manuals on most units. Legal Liability Issues in Nursing Practice 1. Torts - A tort is a civil wrong committed against a person or property (they can be classified as intentional or unintentional. 2. Intentional Torts - Intentional torts are willful acts that violate another person’s rights (assault, battery, invasion of privacy, and false imprisonment). Assault - Assault is conduct (such as physical or verbal threat) that creates in another person apprehension or fear of imminent harmful or offensive contact. No actual contact is necessary for assault to be awarded. - Threatening a patient with injection, or to restrain a patient for an X-ray procedure. Battery - Battery is any intentional physical contact with a person without that person’s consent. The contact may be harmful to the patient and cause injury, or offensive to the patient’s personal dignity. - In the example above where nurse is threatening to give injection, the nurse would commit battery is she actually gave the injection. - Battery can even be life-saving. - Jehovah’s Witness who is unconscious and bleeding profusely is saved by blood transfusion by a physician. The patient successfully recovers and can sue the physician for battery. Invasion of Privacy - Protects the patient’s right to be free from unwanted intrusion into his or her private affairs. - Confidential information cannot be shared with anyone else except on a need to know basis. - Nurses don’t need to release info to the police EXCEPT in rare cases in which the life, safety or health of the patient or an innocent 3rd party is in jeopardy (when patient tells a nurse that he intends to hurt/kill someone). This needs to be reported to employer’s administration before the police.

- If nurse is concerned about public safety (a patient has HIV and admits to unsafe sex or donating blood), the nurse should first suggest and strongly encourage patient to disclose the info. If patient refuses, nurse should consult a professional/supervisor. - Be mindful of health care records stored online and social media communications. False Imprisonment - Serves to protect a person’s individual liberty and basic rights. - Inappropriate use of restraints, or preventing patient from leaving the hospital. 3. Unintentional torts - When nurses are sued, usually the proceedings against them are for the tort of negligence. Negligence - In other words, malpractice. - Negligence in nursing is conduct that does not meet a standards of care established by law. No intent is needed for negligence to occur. It is characterized chiefly by inadvertence, thoughtlessness, or inattention. - Carelessness such as not checking an I.D. bracelet, performing a procedure without much education are examples. - Courts define nursing negligence as the failure to use the degree of skill or learning ordinarily used under the same or similar circumstances by members of the nursing profession. - Nurses can be liable for negligence if:

(1) the nurse (defendant) owed a duty of care to patient (2) the nurse did not carry out that duty (3) the patient was injured (4) the nurse’s failure to carry out the duty caused injury

- Ie: A patient with epilepsy history who falls of examining table and suffers from severe are injury because nurse left the room can sue for negligence.

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Preventing negligence Follow standards of care Give competent health care Insist on appropriate orientation, continuing education, and adequate staffing Communicate with other health care providers Develop a caring rapport with the patient Document assessments, interventions and evaluations fully.

4. Criminal Liability - Canadian nurses have been charged with criminal offence such as assault, administering noxious substance, and criminal neglect that causes death. - The difference between the tort of negligence and criminal negligence charges is the degree of which the act deviated from the standard of reasonable competent practitioner. - In criminal negligence, the court must prove that a nurse was extremely careless, indicating wanton or reckless disregard for life. 5. Consent

- A signed consent is required for all routine treatments, procedures, such as surgery. - For a consent to be legally valid: (1) Patient must have legal and mental capacity to make a decision. (2) consent must be given voluntarily & without coercion. (3) patient must understand risks and benefits of procedure & risks of not undergoing the proced0ure. - If patient is deaf, illiterate or does not speak language, an official interpreter must explain the terms of consent. This does not include a family member interpreter. - Nurses must be mindful that different cultures communicate differently with their families about important decisions. Informed consent - Is a person’s agreement to allow a medical action to happen, such as surgery or an invasive procedure, on the basis of a full disclosure of the likely risks and benefits of the action, alternatives of the action, and the consequences of refusal. - Failure to obtain consent in situations other than emergencies may result in a claim of battery. - In the absence of informed consent, a patient may sue the nurse for negligence. 6. Nursing students and Legal liability - Must know their own capabilities and competencies, must not perform nursing actions unless competent to do so. - If a nursing student performs a nursing action which is one an RN would perform (administering oral medication), the student will be held to the same standard for their own actions. - However, if patient is harmed as a direct result of a nursing student’s actions or lack of action, liability is shared upon student, instructor, the hospital and university. - Students must make it known that they are student nurses. - Must separate your student nurse role from your work as an unregulated care provider. 7. Professional Liability Protection - Most nurses employed by publicly funded health care facilities that carry malpractice insurance. - Facilities are considered employers because of this, an employer will generally be liable to those who suffered damages from employee negligence. This is as long as nurses are working within the normal scope and course of practice. - Nurses need to be aware of the availability and extent of their professional liability coverage. - Must be a contract between nurse and the insurance company. - Provides a defence when a nurse is in lawsuit involving negligence or malpractice insurance. - Nurses covered by their institution’s insurance while working. 8. Abandonment, Assignment, and Contract Issues Short staffing - During nursing shortages or staff downsizing, inadequate staffing can occur which lead to legal problems. - Nurses should not walk out when staffing is inadequate because they may be charged with abandonment. - They should report to nursing supervisor if they are assigned too many patients to care for. Floating

- Sometimes nurses are required to float from the area in which they normally practice to other units. - Nurses should not be floated to areas where they have not been trained properly.

Prescriber’s Orders - The physician is responsible for directing medical treatment. - Nurses are obligated to follow orders unless they believe an order is in error, violates agency policy, or is harmful to patients. - If physician still confirms the order, and nurse believes it is unsafe, a supervisor should be informed (written memorandum detailing the events). - Verbal orders are not recommended because of increased risk of error, (must be written and signed by physician). Dispensing advice over the phone - High risk activity and legally accountable Contracts and Employment Agreements - Nurse is expected to perform competently, adhering to policies and procedures of agency. Legal Issues in Nursing Practice Abortion - Many health care facilities are not obliged to offer abortions, but abortion is unregulated by law. Drug Regulation and Nurses -

Canadian law closely regulates drug administration. Nurses are not legally entitled to prescribe medication Nurses administer with physician’s orders. Nurses must: (1) Know the purpose and effect of any medication administered (2) Know potential side effects and contraindications (3) Are responsible for questioning any doctor’s orders that may be incorrect (4) May be found negligent if they follow a doctor’s order that is unclear or incorrect. Communicable Diseases

- Nurses have an ethical and legal obligation to provide care to all assigned patients. - Employers have an obligation to provide their employees with necessary protective gear. - Communicable diseases like HIV, hepatitis, severe acute respiratory syndrome (SARS) or during possible influenza pandemic. - Nurses must balance the rights of protecting themselves with protecting the patient’s rights. - Nurses who flatly refuse to care for HIV, SARS, or Ebola patients, maybe be fired for insubordination. Nurses must not discriminate on the basis of a person’s race, ethnicity, culture, political/spiritual beliefs, social/marital status, gender (identity, expression), sexual orientation, age, health status, place of origin, lifestyle, mental/physical ability.

- If care requested is contrary to the nurse’s personal values, such as assisting with abortion or medical assistance in dying (MAID), the nurse must provide appropriate care until alternative care arrangements are made.

End – of – Life Issues - There is no federal legislation in Canada that defines death. - Until 1960’s death was defined as “irreversible cessation of cardiopulmonary function” - Two developments at the time led to consideration of the brain: (1) The emergence of artificial life-support devices that could maintain cardiopulmonary function in a brain-dead person. (2) The emergence of organ transplantation. Homicide or Natural Death? - The law states that killing is an act of homicide, and letting die is with-holding or with-drawing treatment. - Mentally competent patient has legal right to refuse life-prolonging treatment. - Euthanasia is an act undertaken by one person with the motive of relieving another person’s suffering and the knowledge that the act will end the life of that person. - Medical assistance in dying (MAID) is when mentally competent adults who are suffering from a grievous medical illness in an advanced state causing intolerable suffering can request euthanasia. The prescriber can also prescribe a substance (assisted suicide). - Nurses who are morally opposed to this, do not have to participate in MAID and can instead assist in discussing aggressive symptom management with families. Eligibility for MAID: - Person is eligible for publicly funded health service in Canada - At least 18 yrs of age & capable of making health care decisions - Has grievous and irremediable medical condition - Voluntary request (no coercion) in writing (or by proxy if patient can’t write), with 2 witnesses. Advance Directives and Health Care Surrogates - An advance directive is a mechanism enabling a mentally competent person to plan for a time when mental capacity is lost (unlike living will, the focus is on treatment preferences). - A living will is a document in which the person makes an anticipatory refusal of life-prolonging measures during a future state of mental incompetence. - A psychiatric advance directive is a new type that outlines how the patient wishes to be treated in the future if the illness causes him to lose decision-making capacity. Organ Donation - Legally competent people are free to donate their bodies or organs.

- Legislation varies between provinces - Inter vivos (live donor) and post-mortem (cadaveric) donation of tissue/organs. - If deceased patient leaves no direction for post-mortem donation, consent can be obtained from family. Mental health issues - Individuals with severe mental health problems can lack ability to appreciate the consequences of their health condition. - Patient can be admitted to psychiatric unit involuntarily or on a voluntarily basis. - Patients admitted on voluntary basis: have the right to refuse treatment and right to discharge themselves from hospital. If the patient causes harm to self or others, provincial mental health legislation permits police to bring the person for examination and treatment without person’s consent. Public health issues - Public health acts assist in prevention, treatment, and suppression of communicable disease. - Nurses have legal responsibility to follow the laws enacted to protect the public health: - Reporting suspected abuse/neglect - Report communicable diseases - Report other health-related issues enacted to protect the public’s health. - Some provinces have mandatory immunizations. Risk Management - Risk management is a system of ensuring appropriate nursing care by identifying potential hazards and preventing harm from occurring. - One tool used in risk-management is incident report (adverse occurrence report): completed by nurse when patient is harmed/endangered by incorrect care, drug error. - Steps involved are: - identify possible risks - analyze risks - act to reduce risks - evaluate steps taken. Professional involvement - Nurses must be involved in their professional organizations....