ETHICAL AND

LEGAL ISSUES IN
PSYCHIATRIC/M
ENTAL HEALTH
NURSING
ETHIC
S Study of philosophical beliefs about what is considered right or wrong in society
Bioethics
Ethical questions arising in health care

Principles of bioethics
 LEGAL AND ETHICAL
Justice:
ISSUES Autonomy:
▪ The duty to distribute resources or care Respecting the rights of others to make their own decisions
equally, regardless of personal attributes e.g., acknowledging the patient’s right to refuse medication
• e.g., an ICU nurse devotes equal attention to promotes autonomy
someone who has attempted suicide as to
someone who suffered a brain aneurysm.
Veracity:
Nonmaleficence:
▪ doing no wrong to the patient; doing no harm – One’s duty to communicate truthfully
to patient, whether intentionally or
unintentionally • e.g., describing the purpose and side effects of
• e.g., maintaining expertise in nursing skill
psychotropic medications in a truthful and
through nursing education. non-misleading way

Beneficence:
The duty to act to benefit or promote the good of Fidelity
others
e.g.,spending extra time to help calm an extremely • obligation to honor commitments and contracts
anxious patient.
• E.g. if the nurse promise her patient that she will be
available during the procedure she must be there
 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
 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
 RIGHTS OF CLIENTS
▪ 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
self-determination
▪ 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
Right to treatment in the least restrictive
environment appropriate to their needs
– Free of restraint or seclusion
– Restraint
• Is the direct application of physical force to
a person, without his or her permission, to
restrict his or her freedom of movement
– Seclusion
• The involuntary confinement of a person in
a specially constructed, locked room
equipped with security window or camera
for direct visual monitoring
RIGHTS OF
Right to confidentiality/privacy
CLIENTS The individual has the right to access his/her medical records.
Right to informed consent
▪ Elements of informed consent ( knowledge, competency, The individual has the right to decide with whom His/her medical
freewill) information may be shared.
▪ Treatment may be performed without obtaining informed – Breach of Confidentiality
consent under these conditions:
– Revealing aspects about a client’s case
▪ The client is mentally incompetent to make a decision
– Revealing that an individual has been hospitalized
Endangers the life or health of another
▪ An emergency situation
▪ Client is below 18 years old.

Reproductive and sexual rights

Right to treatment/refuse treatment ▪ right to marry
(Autonomy)
▪ right to have children
If client competency is questionable, the physician
▪ right to use contraception
can give the information to a legally appointed
guardian or a family member designated by the ▪ right to follow lifestyle of their own
patient
 CRITERIA FOR
HOSPITALIZATION OF A Issue of Legal
MENTALLY ILL CLIENT Competence
– All patients must be considered legally
1. The client is a threat to competent until they have been declared
himself/herself incompetent through legal proceeding
– Determination made by courts
2. The client is a threat to the safety – If found incompetent, court-appointed legal
and/or well-being of others guardian, who is then responsible for giving or
refusing consent
3. The client is unable to provide for
his/her basic needs
4. The client is out of control – 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

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
▪ 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
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
Steps to Avoid Liability:
• Practice within the scope of nursing laws
• Collaborate with colleagues to determine the best action
• Use established practice standards to guide decisions/actions
• Develop effective interpersonal relationship with clients and families
• Accurate documentation of assessment data, intervention and client’s
• response to care
⚫ 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
 Nursing Liability
– Nurses are responsible for providing safe, 3. Respondeat superior- the employer is responsible for
competent, legal and ethical care to clients the acts of its employees, thus liable for damage to the
third parties.
and families.
4. Negligence - the commitment of an act that a reasonable
and prudent person would not have done, or the omission
1. False imprisonment - the intentional, of a duty that a prudent person would have completed,
resulting in harm to a client.
unjustified detention or confinement of a
client for any length of time. 5. Malpractice - incorrect or negligent treatment by a
professional that causes injury or harm to a client.
2. Invasion of privacy - violation of a
person's right to be left alone and free
from unwarranted contact, intrusion or
publicity.