LEGAL AND ETHICAL ISSUES SOURCES OF LAW

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 SELFDETERMINATION 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 ACKNOWLEDGMENT 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!!!!