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LEGAL AND ETHICAL

ISSUES
SOURCES OF LAW
• STATUTORY LAW

• COMMON LAW

• ADMINISTRATIVE
LAW
STATUTORY LAW
• CREATED BY VARIOUS LEGISLATIVE
BODIES SUCH AS STATE
LEGISLATURES OR THE CONGRESS
COMMON LAW
• DEVELOPED WITHIN THE COURT
SYSTEM AS JUDICIAL DECISIONS ARE
MADE IN VARIOUS CASES AND
PRECEDENTS FOR FUTURE CASES
ARE SET
ADMINISTRATIVE LAW
• ESTABLISHED THROUGH THE
AUTHORITY GIVEN TO A
GOVERNMENT AGENCY BY A
LEGISLATIVE BODY, SUCH AS THE
STATE BOARD OF NURSING
TYPES OF LAW
• CRIMINAL LAW

• CIVIL LAW
CRMINIAL LAW
• DEVELOPED TO PROTECT SOCIETY
• THERE ARE THREE (3) CATEGORIES:
(1) FELONY (most serious! Includes
violating the Nurse Practice Act)
• (2) MISDEMEANOR (lesser offenses,
such as a traffic violation)
• (3) JUVENILE (crimes committed by those
under the age of eighteen)
• A NURSE MAY BREAK
A CRMINIAL LAW AND
BE TRIED IN CRMINAL
COURT!!!!!!!!!!!!
• EXAMPLES: ILLEGALLY
DISTRIBUTING
CONTROLED
SUBSTANCES OR
ALTERING A PATIENT’S
RECORD
CIVIL LAW
• LAW THAT IS ADMINISTERED
BETWEEN CITIZEN AND CITIZEN
• USUALLY INVOLVE THE VIOLATION OF
ONE INDIVIDUAL’S RIGHTS BY
ANOTHER INDIVIDUAL
• TORT IS A TYPE OF CIVIL LAW
TORT
• A CIVIL/LEGAL WRONG COMMITTED
AGAINST A PERSON OR PROPERTY
AND IS PUNISHABLE BY DAMAGES
(monetary) NOT IMPRISONMENT
• NEGLIGENCE IS A TYPE OF TORT
(Malpractice is the term for professional
negligence!)
FOUR LEGAL ELEMENTS OF
NEGLIGENCE
• (1) DUTY
• (2) BREACH OF DUTY
• (3) CAUSATION
• (4) HARM
ALL FOUR OF THESE
COMPONENTS MUST
BE INVOLVED TO
PROVE NEGLIGENCE!!
WHAT IS THE NURSE PRACTICE
ACT???????
• THE NURSE PRACTICE ACT IS THE
LAW!
• THE ADMINISTRATIVE RULES ARE
HOW THE BOARD OF NURSING
ENFORCES THE LAW
• KNOW YOUR PRACTICE ACT AND
RULES IN ANY STATE THAT YOU ARE
LICENSED AND PRACTICING NURSING
APPLICATION OF THE NURSE
PRACTICE ACT
• SEXUAL HARASSMENT
• WORKPLACE VIOLENCE
• END OF LIFE DECISIONS
• ADVANCED DIRECTIVES
• CONFIDENTIALITY
• INFORMED CONSENT
• MALPRACTICE ISSUES
• WHISTLEBLOWER
PROTECTION
• ORGAN DONATION
• ABANDONMENT
SEXUAL HARASSMENT
• LAWS THAT PROHIBIT
DISCRIMINATION IN THE WORKPLACE
ARE BASED ON THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE
CONSTITUTION!
• TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
IDENTIFIED TWO FORMS OF SEXUAL
HARASSMENT
• (1) QUID PRO QUO (sexual favors are given in
exchange for job security/benefits)
• (2) HOSTILE ENVIRONMENT (harassment is
based on gender and creates an offensive
workplace causing the employee not to be able
to effectively discharge the responsibilities of the
job)
IF THE NURSE IS A VICTIM OF
SEXUAL HARASSMENT
• THE ANA SUGGESTS FOUR TACTICS:
• (1) CONFRONT THE HARASSER
• (2) REPORT TO THE SUPERVISOR (file
a formal complaint)
• (3) DOCUMENT THE INCIDENT (name
any witnesses)
• (4) SEEK SUPPORT FROM
FRIENDS,FAMILY, AND
ORGANIZATIONS (such as the ANA)
• NURSES WHO ENGAGE IN SEXUAL
HARASSMENT OF OTHERS ARE
GUILTY OF INTENTIONAL TORTS AND
CIVIL RIGHTS CLAIMS. THEY ARE
GUILTY OF INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS. FURTHER,
THEY HAVE VIOLATED THE NURSE
PRACTICE ACT!!!!!!!!!!!!!
SEXUAL HARASSMENT
• DO NOT DISMISS
ANY SEXUAL
HARASSMENT AS
“JUST HAVING FUN”!
• A RESPONSE LIKE
THIS CAN HAVE
SERIOUS
CONSEQUENCES!!!!
VIOLENCE IN THE WORKPLACE
• NURSES HAVE BEEN IDENTIFIED AS A
GROUP AT RISK FOR VIOLENCE FROM
PATIENTS, FAMILY MEMBERS, AND
OTHER STAFF MEMBERS
VIOLENCE IN THE WORKPLACE
MAY INCLUDE THE FOLLOWING:

• (1) THREATS (making expressions of


intent to harm others) (This may include
verbal threats, written threats, or
threatening body language)
• (2) PHYSICAL ASSAULTS (slapping,
beating, rape, using weapons)
• (3) MUGGINGS ( assaults with the intent
to rob)
SUGGESTIONS FOR NURSES TO
IMPROVE WORKPLACE SAFETY
• PARTICIPATE IN WORKPLACE
ASSESSMENTS (identify unsafe areas as well
as factors that might contribute to violent
behaviors)
• ALWAYS BE ALERT FOR SUSPICIOUS
BEHAVIOR (threatening body language,
drug/alcohol use, a weapon)
• MAINTAIN BEHAVIOR THAT DE-FUSES
ANGER (acknowledge the person’s feelings,
remain calm)
• IF THE SITUATION CANNOT BE DE-FUSED,
QUICKLY LEAVE AND CALL SECURITY
IF THE NURSE IS THE VICTIM OF
WORKPLACE VIOLENCE, HE/SHE
SHOULD DO THE FOLLOWING:

• REPORT THE INCIDENT TO THE


SUPERVISOR
• CALL THE POLICE
• GET MEDICAL ATTENTION
• CONTACT YOUR STATE NURSES
ASSOCIATION
• BE PROACTIVE!!
END OF LIFE DECISIONS
• DNR (DO NOT RESUSCITATE) ORDERS
OR NO CODE ORDERS ARE A FORM
OF WITHHOLDING TREATMENT
• ONLY PHYSICIANS CAN WRITE A DNR,
USUALLY AFTER CONSULTING WITH
THE PATIENT (when possible) AND THE
FAMILY. ALL MEMBERS OF THE
HEALTH CARE TEAM ARE EXPECTED
TO COMPLY WITH THE ORDER!!!
DO NOT RESUSCITATE
• A DNR PERMITS
HEALTH CARE
PROVIDERS TO
WITHHOLD ONLY
TREATMENT RELATED
TO RESUSCITATION.
DOES NOT APPLY TO
WITHHOLDING
NOURISHMENT,
HYDRATION, OR IVF’S
• NURSES MUST
KNOW IF A PATIENT
IS A CODE OR NO
CODE!!
ADVANCED DIRECTIVES
• A DOCUMENT THAT MAKES ONE’S
WISHES KNOWN CONCERNING
MEDICAL LIFE-SUPPORT MEASURES
IN THE EVENT THAT ONE IS UNABLE
TO SPEAK FOR ONESELF.
THE PATIENT SELF-
DETERMINATION ACT OF 1990
• THIS LAW WAS PASSED TO PROVIDE
GUIDELINES FOR DEVELOPING
ADVANCED DIRECTIVES.
HEALTHCARE FACILITIES/AGENCIES
ARE REQUIRED TO ASK PATIENTS
ABOUT ADVANCE DIRECTIVES. MOST
FACILITIES/AGENCIES WILL PROVIDE
THE NECESSARY FORMS FOR
PATIENTS TO FILL OUT IF THEY WISH
TO SET UP ADVANCED DIRECTIVES.
ADVANCE DIRECTIVES
• THE TWO MOST COMMON FORMS:
(1) THE LIVING WILL
(2) HEALTHCARE SURROGATE
(Durable Power Of Attorney)
LIVING WILL
• A LEGAL DOCUMENT
STATING AN
INDIVIDUAL’S WISHES
REGARDING “LIFE
SUPPORT” IN THE
EVENT THAT THIS
INDIVIDUAL BECOMES
INCOMPETENT IN
MAKING INFORMED
TREATMENT
DECISIONS AND IS
SUFFERING FROM A
TERMINAL CONDITION
HEALTHCARE
SURROGATE/PROXY (Durable
Power OF Attorney)
• A DOCUMENT
AUTHORIZING
ANOTHER PERSON
TO ACT ON ONE’S
BEHALF. THIS
PERSON MAKES
KNOWN THE
PATIENT’S WISHES
TO MEDICAL
PERSONNEL
CONFIDENTIALITY
• THE ACT OF HOLDING INFORMATION
IN CONFIDENCE. IT IS NOT TO BE
RELEASED TO UNAUTHORIZED
INDIVIDUALS!!!!!!!!
• ALL INFORMATION CONCERNING
PATIENTS SHOULD BE GIVEN ONLY IN
PRIVATE, SECLUDED AREAS!!!!
CONFIDENTIALITY
• NURSES WHO FAIL
TO MAINTAIN
CONFIDENTIALITY,
ARE GUILTY OF
VIOLATING THE
NURSE PRACTICE
ACT AS WELL AS
HIPAA (Health
Insurance Portability
and Accountability Act
of 1996)
INFORMED CONSENT
• THE PATIENT HAS GIVEN PERMISSION
EITHER EXPRESSED (orally or written)
OR IMPLIED FOR THE PHYSICIAN TO
EXAMINE HIM/HER, TO PERFORM
TESTS THAT AID IN DIAGNOSIS,
AND/OR TO TREAT FOR A MEDICAL
CONDITION.
INFORMED CONSENT IMPLIES THAT
THE PATIENT UNDERSTANDS THE
FOLLOWING: (it is the responsibility of
the MD to explain this)
• PROPOSED MODE OF
TREATMENT
• REASON TREATMENT IS
NECESSARY
• RISKS INVOLVED
• ALTERNATIVE MODES OF
TREATMENT
• RISKS OF ALTERNATIVE
MODES OF TREATMENT
• RISKS INVOLVED IF
TREATMENT IS REFUSED
• NURSES ARE OFTEN REPONSIBLE FOR
GETTING CONSENT FORMS SIGNED!
• NURSES MUST BE SURE THAT A PATIENT IS
CONSIDERED ABLE OR COMPETENT TO
MAKE INFORMED DECISIONS (competency is
defined differently from state to state)
• IF THE PATIENT DOES NOT UNDERSTAND
THE PROCEDURE AND/OR TREATMENT OR
EXPRESSES UNCERTAINTY, CONTACT THE
PHYSICIAN!!!!
MALPRACTICE ISSUES
(COMMON ACTS OF
NEGLIGENCE)
• (1) MEDICATION ERRORS
• (2) FAILURE TO MONITOR (OBSERVE) AND TAKE
APPROPRIATE ACTION
• (3) FAILURE TO COMMUNICATE
• (4) FALLS
• (5) FOREIGN OBJECTS LEFT IN PATIENTS (post-surgery)
• (6) BURNS
• (7) BLOOD ADMINISTRATION (failing to follow proper
policies/procedures)
• (8)ALTERING A PATIENT’S RECORD
• (9) FAILURE TO REPORT A CO-WORKER’S NEGLIGENCE
• (10)FAILURE TO PROVIDE PROPER EDUCATION (teaching) TO A
PATIENT
• (11) DEFECTS IN EQUIPMENT
WHISTLEBLOWER STATUTES
• THIS PROVIDES PROTECTION FOR
NURSES FROM RETALIATORY ACTION
WHO REPORT THEIR EMPLOYERS,
OTHER HEALTH CARE
PROFESSIONALS, OR OTHER
AGENCIES.
(These statutes differ from state to state)
EXAMPLES OF STATUTES
INVOLVING A DUTY TO REPORT:
(1) EVIDENCE OF CHILD OR ADULT ABUSE
(2) DEATHS UNDER SUSPICIOUS
CIRCUMSTANCES
(3) INJURIES CAUSED BY VIOLENCE
(4) ILLEGAL, SUBSTANDARD,
UNETHICAL,UNSAFE OR INCOMPETENT
PRACTICE
ORGAN DONATION
• THE UNIFORM
ANATOMICAL GIFT ACT
(1968, 1987) ALLOWS
PEOPLE 18 YEARS OF
AGE OR OLDER AND
OF SOUND MIND TO
MAKE A GIFT OF ALL
OR ANY PART OF THEIR
OWN BODIES FOR
MEDICAL EDUCATION,
RESEARCH, OR
TRANSPLANTATION.
ORGAN DONATION
• SOME PATIENTS CARRY A
CARD THEY HAVE SIGNED
STATING THEY WISH TO BE AN
ORGAN DONOR
• SOME HAVE INDICIATED THEY
WISH TO BE AN ORGAN
DONOR ON THEIR DRIVER’S
LICENSE
• NURSES MAY SERVE AS A
WITNESS FOR PATIENTS
CONSENTING TO DONATE
ORGANS
• PATIENTS MAY REVOKE THEIR
DECISION BY (1)DESTROYING
THE CARD OR (2)ORALLY
RETRACTING THEIR DESIRE
TO BE A DONOR IN THE
PRESENCE OF TWO
WITNESSES
ORGAN DONATION
• NURSES ARE REQUIRED BY
LAW TO CONTACT THE
ALABAMA ORGAN CENTER AND
THE EYE BANK WHEN A
PATIENT EXPIRES. THESE
ORGANIZATIONS DETERMINE
(based on pre-determined criteria)
IF THE INDIVIDUAL IS A
CANDIDATE FOR ORGAN
DONATION. IF THESE
ORGANIZATIONS DETERMINE
THAT THE INDIVIDUAL MEETS
THE CRITERIA, THEN THE
NURSE APPROACHES THE
FAMILY TO DISCUSS THE
POSSIBILITY OF ORGAN
DONATION!
ABANDONMENT
• ACCEPTANCE OF A PATIENT
ASSIGNMENT, THUS ESTABLISHING A
NURSE-PATIENT RELATIONSHIP, AND
THEN ENDING THE RELATIONSHIP
WITHOUT GIVING REASONABLE
NOTICE TO SUPERVISORY
PERSONNEL, SO THAT OTHERS CAN
MAKE ARRANGEMENTS FOR
CONTINUATION OF NURSING CARE!!!
ABANDONMENT

• TO BE GUILTY OF
ABANDONMENT IS A
VIOLATION OF THE
NURSE PRACTICE
ACT!!!!
ETHICAL PRINCIPLES
• AUTONOMY
• BENEFICENCE
• NONMALEFICENCE
• VERACITY
• JUSTICE
• PATERNALISM
• FIDELITY
• CONFIDENTIALITY
• ACCOUNTABILITY
CODE OF ETHICS
• A FORMAL STATEMENT OF THE RULES
OF ETHICAL BEHAVIOR FOR A
PARTICULAR GROUP OF
INNDIVIDUALS.
NURSING CODE OF ETHICS
• PROVIDES VALUES,
STANDARDS, AND
PRINCIPLES TO HELP
NURSING FUNCTION
AS A PROFESSION
• THE ORIGINAL CODE
WAS DEVELOPED IN
1985 BY THE ANA
BOARD OF DIRECTORS
AND THE CONGRESS
ON NURSING
PRACTICE
PATIENT’S RIGHTS
• IN 1973, THE AMERICAN HOSPITAL
ASSOCIATION PUBLISHED A
STATEMENT KNOWN AS THE
“PATIENT’S BILL OF RIGHTS”
• IT IS NOW KNOWN AS “YOUR RIGHTS
AS A HOSPITAL PATIENT”
***DERIVED FROM THE ETHICAL
PRINCIPLE OF AUTONOMY
“YOUR RIGHTS AS A HOSPITAL
PATIENT”
• THIS DOCUMENT
REFLECTS THE
ACKNOWLEDG-
MENT OF THE
PATIENT’S RIGHT TO
ACTIVELY PARTICIPATE
IN HIS/HER HEALTH
CARE AND TO
COMMUNICATE
OPENLY WITH THE
HEALTH CARE TEAM
CURRENT ETHICAL ISSUES
• STEM CELL RESEARCH
• EUTHANASIA
• SURROGATE MOTHERHOOD
• PHYSICIAN-ASSISTED SUICIDE
• END OF LIFE CARE
• GENETIC SCREENING
• HEALTH CARE RATIONING
POLITICAL ACTION IN NURSING
• NURSES MUST REALIZE THAT
INVOLVEMENT IN THE POLITICAL
PROCESS IS A NECESSITY IF THEY
ARE TO CARRY OUT THEIR MISSION ---
PROVIDING QUALITY PATIENT CARE!!!!
PROFESSIONAL
ORGANIZATIONS

• AMERICAN NURSES ASSOCIATION

• NATIONAL LEAGUE FOR NURSING


AMERICAN NURSES
ASSOCIATION
• FUNCTIONS AS THE MAJOR VOICE OF
NURSING
• ONE OF THE PRIMARY FUNCTIONS IS TO
LOBBY CONGRESS AND REGULATORY
AGENCIES ABOUT HEALTH CARE ISSUES
AFFECTING NURSING AND THE PUBLIC
• NOT ONLY LOBBIES AT THE NATIONAL
LEVEL BUT AT THE STATE LEVEL AS WELL
TO INFLUENCE LAWS THAT AFFECT THE
PRACTICE OF NURSING AND THE SAFETY
OF THE CONSUMER
NATIONAL LEAGUE FOR
NURSING
• FOSTERS IMPROVEMENT IN NURSING
SERVICES AND NURSING EDUCATION
• LOBBIES ACTIVELY FOR NURSING
ISSUES
LOBBYING
• AN ATTEMPT TO
INFLUENCE OR
SWAY A PUBLIC
OFFICIAL TO TAKE A
DESIRED ACTION!
HOW CAN NURSES LOBBY??
• MEET THE CANDIDATE AND EVALUATE HIM/HER AS
A POTENTIAL OFFICE-HOLDER (Assess their
knowledge of health care issues)
• CONTACT THE ELECTED OFFICIAL WHEN THEY
NEED INFORMATION ON HOW TO VOTE ON AN
ISSUE (May be accomplished by a visit, writing a letter,
sending an e-mail, or making a telephone call)
• CONTACT THE ELECTED OFFICIAL WHEN A BILL IS
COMING UP THE FIRST TIME IN COMMITTEE
• PARTICIPATE IN A STATEWIDE NETWORK TO
BOMBARDE ELECTED OFFICIALS WITH LETTERS,
PHONE CALLS, AND E-MAILS WHEN A
CONTROVERSIAL BILL IS COMING UP FOR A VOTE
HOW CAN NURSES LOBBY???
• JOIN A
PROFESSIONAL
GROUP THAT
LOBBIES TO
INFLUENCE LAWS
THAT AFFECT THE
PRACTICE OF
NURSING!!!!!!!!!!!!
POLITICAL ACTION
COMMITTEES (PAC’s)
• THIS IS A MECHANISM WHEREBY
INDIVIDUALS CAN POOL THEIR
RESOURCES AND COLLECTIVELY
SUPPORT A CANDIDATE. PAC’s MUST
COMPLY WITH STATE AND/OR
FEDERAL ELECTION CODES AND
REPORT FINANCIAL SUPPORT GIVEN
TO CANDIDATES.
THE AMERICAN NURSES
ASSOCIATION’S NATIONAL PAC
IS THE ANAPAC
• THIS ALLOWS
NURSES TO
ORGANIZE AS A
GROUP TO
ENDORSE
CANDIDATES FOR
NATIONAL OFFICES
THE ANA ALSO HAS STATE NURSES
ASSOCIATIONS THAT HAVE PAC’s AT
THE STATE LEVEL

THIS ALLOWS NURSES TO ORGANIZE


AS A GROUP TO ENDORSE
CANDIDATES FOR STATE-WIDE
OFFICES
THE ANAPAC
• PROVIDES FINANCIAL AND CAMPAIGN
SUPPORT TO CANDIDATES
• DOES NOT LOBBY ELECTED
OFFICIALS
• DOES NOT “BUY” CANDIDATES
• EVALUATES CANDIDATES BASED ON
NURSING AND HEALTH CARE
CONCERNS ONLY!!!
•THE
END!!!!