Legal psychiatric Nursing

Issues Commitment issues

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 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
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
• 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
Ethico-Legal Considerations
• Medical Professionals and caregivers who do their best to perform the
requirements of their jobs make decisions or complete tasks that can result
in legal action being initiated against them by clients/patients and
coworkers. The concerned, informed, dedicated professional always strives
to implement the education and competency to successfully accomplish all
tasks, treatments, and responsibilities correctly and accurately. However,
there are rare instances when regardless of the application of the most strict
standards for quality care, variations occur which result in litigation. To help
avoid these instances, it is important to be educated and informed about
current laws, statutes, and standards that directly apply to your daily job
requirements and the options available to you if your best efforts are
questioned in a court of law.
Legal Psychiatric Nursing Issues
• Tort Law
• A tort is a civil wrong committed against a person or
property (real or personal) and is punishable by damages
(i.e., monetary compensation) rather than imprisonment.
There are three basic categories of torts: intentional torts,
negligent torts and strict liability torts in which liability is
assessed irrespective of fault. This last tort falls under the
product liability umbrella, which will not be discussed in this
course.
Intentional Torts
• Torts may be intentional or unintentional, and was "intentional",
meaning it was known with a high degree of certainty that harm to
another would result. An example of intentional tort is an angry
punch in the nose -- but is far more likely to result from carelessness
(called "negligence"), such as riding your bicycle on the sidewalk and
colliding with a pedestrian. While the injury that forms the basis of a
tort is usually physical, this is not a requirement -- libel, slander, and
the "intentional infliction of mental distress" are on a good-sized list
of torts not based on a physical injury.
Negligent Torts

• Negligent tort means a tort committed by failure to

act as a reasonable person to someone to whom s/he
owes a duty, as required by law under the
circumstances. Further, negligent torts are not
deliberate, and there must be an injury resulting from
the breach of the duty. Examples of negligent torts are
car accidents, slip and fall accidents, and most medical
malpractice cases.
Strict Liability Tort

• Is basically something becomes your fault because it is

your liability. An example of this is:
• Failure to follow a physician's order
• Failure to report significant changes in a client's condition
• Patient Falls
• Patient Burns
• Medication Errors
Independent and collaborative Interventions
that protect Client’s Health Care Rights
• Informed consent is defined as the patient's
election of a treatment or procedure which is
based on their full understanding of the
treatment or procedure, its benefits, its risks,
and any alternatives to the particular treatment
or procedure.
3 Types of Consent
• Explicit consent: Explicit consent entails the expression of
a direct and formal consent to agree to or not to agree to
any and/or all treatments. 
• Implicit consent: An implicit or implied consent, in contrast
to an explicit consent, is indirect rather formal and direct.
• Opt out consent: Opt out consent is passive and indirect.
This type of consent is given when a patient does NOT
refuse a treatment.