1.6 Legal & Ethical Considerations
Open Resources for Nursing (Open RN)
Legal Considerations
As discussed earlier in this chapter, nurses can be reprimanded or have their licenses revoked for not appropriately following the Nurse Practice Act in the state they are practicing. Nurses can also be held legally liable for negligence, malpractice, or breach of client confidentiality when providing client care.
Negligence and Malpractice
Negligence is a general term that denotes conduct lacking in due care, carelessness, and a deviation from the standard of care that a reasonable person would use in a particular set of circumstances.[1] Malpractice is a more specific term that looks at a standard of care, as well as the professional status of the caregiver. [2]
To prove negligence or malpractice, the following elements must be established in a court of law[3]:
- Duty owed the client
- Breach of duty owed the client
- Foreseeability
- Causation
- Injury
- Damages
To avoid being sued for negligence or malpractice, it is essential for nurses and nursing students to follow the scope and standards of practice care set forth by their state’s Nurse Practice Act; the American Nurses Association; and employer policies, procedures, and protocols to avoid the risk of losing their nursing license. Examples of a nurse’s breach of duty that can be viewed as negligence includes the following:[4]
- Failure to Assess: Nurses should assess for all potential nursing problems/diagnoses, not just those directly affected by the medical disease. For example, all clients should be assessed for fall risk and appropriate fall precautions implemented.
- Insufficient monitoring: Some conditions require frequent monitoring by the nurse, such as risk for falls, suicide risk, confusion, and self-injury.
- Failure to Communicate:
- Lack of documentation: A basic rule of thumb in a court of law is that if an assessment or action was not documented, it is considered not done. Nurses must document all assessments and interventions, in addition to the specific type of client documentation called a nursing care plan.
- Lack of provider notification: Changes in client condition should be urgently communicated to the health care provider based on client status. Documentation of provider notification should include the date, time, and person notified and follow-up actions taken by the nurse.
- Failure to Follow Protocols: Agencies and states have rules for reporting certain behaviors or concerns. For example, a nurse is considered a mandatory reporter by law and required to report suspicion of abuse or neglect of a child based on data gathered during an assessment.
Patient Self Determination Act
The Patient Self Determination Act (PSDA) of 1990 is an amendment made to the Social Security Act that requires health care facilities to inform clients of their right to be involved in their medical care decisions. This law specifically applies to facilities accepting Medicare or Medicaid funding but is considered a right of all clients regardless of their method of reimbursement.
Under the PSDA, clients must also be asked about their advance directives and care wishes. Clients must be provided with teaching about advance directives, appointment of an agent or surrogate in the event they become incapacitated, and their right to self-determination. Conversations about these topics and clients wishes must be documented in the medical record. It is considered an ethical duty of nurses and other health care professionals to ensure clients are aware and understand these healthcare-associated rights.[5]
Informed Consent
Informed consent is written consent voluntarily signed by a client who is competent and understands the terms of the consent without any form of coercion. In the event the client is a minor or deemed incompetent to make their own decisions, a parent or legal guardian signs the informed consent.[6]
Informed consent is crucial for upholding the client’s right for self-determination. Informed consent provides documentation signed by the client of their understanding of health care being provided; its benefits, risks, potential complications; reasonable alternatives to treatment; and the right to withdraw consent. It is the health care provider’s responsibility to fully discuss the treatment, procedure, or other health care action being proposed that requires consent. The nurse often signs as a witness to the client’s signature on the form, affirming that person signed the form. However, it is not the nurse’s responsibility or role to provide information. If the client (or their parent/legal guardian) expresses questions, concerns, or lack of understanding, the nurse has an ethical responsibility to notify the provider and advocate for further discussion before signing the form.[7]
In emergency situations where the delay to obtain consent would cause undue harm to the client, verbal or telephone consent may be temporarily obtained that is valid for no more than ten days. Verbal consent and the reason for verbal consent must be documented in the medical record by the provider.[8]
See the following box for examples of situations requiring informed consent in the state of Wisconsin according to the Wisconsin Department of Health Services.
Examples of Situations Requiring Informed Consent[9]
- Receipt of medications and/or treatment, including psychotropic medications (unless court-ordered)
- Undergoing customary treatment techniques and procedures
- Participation in experimental research
- Undergoing psychosurgery or other psychological treatment procedures
- Release of treatment records
- Videorecording
- Performance of labor beneficial to the facility
Confidentiality
In addition to negligence and malpractice, confidentiality is a major legal consideration for nurses and nursing students. Patient confidentiality is the right of an individual to have personal, identifiable medical information, referred to as their protected health information (PHI), protected and known only by those health care team members directly providing care to them. This right is protected by federal regulations called the Health Insurance Portability and Accountability Act (HIPAA). HIPAA was enacted in 1996 and was prompted by the need to ensure privacy and protection of personal health records and data in an environment of electronic medical records and third-party insurance payers. There are two main sections of HIPAA law, the Privacy Rule and the Security Rule. The Privacy Rule addresses the use and disclosure of individuals’ health information. The Security Rule sets national standards for protecting the confidentiality, integrity, and availability of electronically protected health information. HIPAA regulations extend beyond medical records and apply to client information shared with others. Therefore, all types of client information should only be shared with health care team members who are actively providing care to them.
How do HIPAA regulations affect you as a student nurse? You are required to adhere to HIPAA guidelines from the moment you begin to provide client care. Nursing students may be disciplined or expelled by their nursing program for violating HIPAA. Nurses who violate HIPAA rules may be fired from their jobs or face lawsuits. See the following box for common types of HIPAA violations and ways to avoid them.
Common HIPAA Violations and Ways to Avoid Them[10]
- Gossiping in the hallways or otherwise talking about clients where other people can hear you. It is understandable that you will be excited about what is happening when you begin working with clients and your desire to discuss interesting things that occur. As a student, you will be able to discuss client care in a confidential manner behind closed doors with your instructor. However, as a health care professional, do not talk about clients in the hallways, elevator, breakroom, or with others who are not directly involved with that client’s care because it is too easy for others to overhear what you are saying.
- Mishandling medical records or leaving medical records unsecured. You can breach HIPAA rules by leaving your computer unlocked for anyone to access or by leaving written client charts in unsecured locations. You should never share your password with anyone else. Make sure that computers are always locked with a password when you step away from them and paper charts are closed and secured in an area where unauthorized people don’t have easy access to them. NEVER take records from a facility or include a client’s name on paperwork that leaves the facility.
- Illegally or unauthorized accessing of client files. If someone you know, like a neighbor, coworker, or family member is admitted to the unit you are working on, do not access their medical record unless you are directly caring for them. Facilities have the capability of tracing everything you access within the electronic medical record and holding you accountable. This rule holds true for employees who previously cared for a client as a student; once your shift is over as a student, you should no longer access that client’s medical records.
- Sharing information with unauthorized people. Anytime you share medical information with anyone but the client themselves, you must have written permission to do so. For instance, if a husband comes to you and wants to know his spouse’s lab results, you must have permission from his spouse before you can share that information with him. Just confirming or denying that a client has been admitted to a unit or agency can be considered a breach of confidentiality. Furthermore, voicemails should not be left regarding protected client information.
- Information can generally be shared with the parents of children until they turn 18, although there are exceptions to this rule if the minor child seeks birth control, an abortion, or becomes pregnant. After a child turns 18, information can no longer be shared with the parent unless written permission is provided, even if the minor is living at home and/or the parents are paying for their insurance or health care. As a general rule, any time you are asked for client information, check first to see if the client has granted permission.
- Texting or e-mailing regarding client information on an unencrypted device. Only use properly encrypted devices that have been approved by your health care facility for e-mailing or faxing protected client information. Also, ensure that the information is being sent to the correct person, address, or phone number.
- Sharing information on social media. Never post anything on social media that has anything to do with your clients, the facility where you are working or have clinical, or even how your day went at the agency. Nurses and other professionals have been fired for violating HIPAA rules on social media.[11],[12],[13]
Social Media Guidelines
Nursing students, nurses, and other health care team members must use extreme caution when posting to Facebook, Instagram, Twitter, Snapchat, and other social media sites. Information related to clients, client care, and/or health care agencies should never be posted on social media; health care team members who violate this guideline can lose their jobs and may face legal action and students can be disciplined or expelled from their nursing program. Be aware that even if you think you are posting in a private group, the information can become public.
The American Nurses Association (ANA) has established the following principles for nurses using social media:[14]
- Nurses must not transmit or place online individually identifiable client information.
- Nurses must observe ethically prescribed professional client-nurse boundaries.
- Nurses should understand that clients, colleagues, organizations, and employers may view postings.
- Nurses should take advantage of privacy settings and seek to separate personal and professional information online.
- Nurses should bring content that could harm a client’s privacy, rights, or welfare to the attention of appropriate authorities.
- Nurses should participate in developing organizational policies governing online conduct.
In addition to these principles, the ANA has also provided these tips for nurses and nursing students using social media:[15]
- Remember that standards of professionalism are the same online as in any other circumstance.
- Do not share or post information or photos gained through the nurse-client relationship.
- Maintain professional boundaries in the use of electronic media. Online contact with clients blurs this boundary.
- Do not make disparaging remarks about clients, employers, or coworkers, even if they are not identified.
- Do not take photos or videos of clients on personal devices, including cell phones.
- Promptly report a breach of confidentiality or privacy.
Read more about the ANA’s Social Media Principles.
Code of Ethics
In addition to legal considerations, there are also several ethical guidelines for nursing care.
There is a difference between morality, ethical principles, and a code of ethics. Morality refers to “personal values, character, or conduct of individuals within communities and societies.”[16] An ethical principle is a general guide, basic truth, or assumption that can be used with clinical judgment to determine a course of action. Four common ethical principles are beneficence (do good), nonmaleficence (do no harm), autonomy (control by the individual), and justice (fairness). A code of ethics is set for a profession and makes their primary obligations, values, and ideals explicit.
The American Nursing Association (ANA) guides nursing practice with the Code of Ethics for Nurses.[17] This code provides a framework for ethical nursing care and a guide for decision-making. The Code of Ethics for Nurses serves the following purposes:
- It is a succinct statement of the ethical values, obligations, duties, and professional ideals of nurses individually and collectively.
- It is the profession’s nonnegotiable ethical standard.
- It is an expression of nursing’s own understanding of its commitment to society.[18]
The ANA Code of Ethics contains nine provisions. See a brief description of each provision in the following box.
Provisions of the ANA Code of Ethics[19]
The nine provisions of the ANA Code of Ethics are briefly described below. The full code is available to read for free at Nursingworld.org.
Provision 1: The nurse practices with compassion and respect for the inherent dignity, worth, and unique attributes of every person.
Provision 2: The nurse’s primary commitment is to the patient, whether an individual, family, group, community, or population.
Provision 3: The nurse promotes, advocates for, and protects the rights, health, and safety of the patient.
Provision 4: The nurse has authority, accountability, and responsibility for nursing practice; makes decisions; and takes action consistent with the obligation to promote health and to provide optimal care.
Provision 5: The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence, and continue personal and professional growth.
Provision 6: The nurse, through individual and collective effort, establishes, maintains, and improves the ethical environment of the work setting and conditions of employment that are conducive to safe, quality health care.
Provision 7: The nurse, in all roles and settings, advances the profession through research and scholarly inquiry, professional standards development, and the generation of both nursing and health policy.
Provision 8: The nurse collaborates with other health professionals and the public to protect human rights, promote health diplomacy, and reduce health disparities.
Provision 9: The profession of nursing, collectively through its professional organizations, must articulate nursing values, maintain the integrity of the profession, and integrate principles of social justice into nursing and health policy.
The ANA Center for Ethics and Human Rights
In addition to publishing the Code of Ethics, the ANA Center for Ethics and Human Rights was established to help nurses navigate ethical and value conflicts and life-and-death decisions, many of which are common to everyday practice.
Check your knowledge with the following questions:
- Missouri Department of Health & Senior Services. (n.d.). Negligence and malpractice. https://health.mo.gov/living/lpha/phnursing/negligence.php#:~:text=Negligence%20is%3A,a%20particular%20set%20of%20circumstances ↵
- Missouri Department of Health & Senior Services. (n.d.). Negligence and malpractice. https://health.mo.gov/living/lpha/phnursing/negligence.php#:~:text=Negligence%20is%3A,a%20particular%20set%20of%20circumstances ↵
- Missouri Department of Health & Senior Services. (n.d.). Negligence and malpractice. https://health.mo.gov/living/lpha/phnursing/negligence.php#:~:text=Negligence%20is%3A,a%20particular%20set%20of%20circumstances ↵
- Vera, M. (2020). Nursing care plan (NCP): Ultimate guide and database. https://nurseslabs.com/nursing-care-plans/#:~:text=Collaborative%20interventions%20are%20actions%20that,to%20gain%20their%20professional%20viewpoint ↵
- Teoli, D., & Ghassemzadeh, S. (2023). Patient Self-Determination Act. StatPearls [Internet]. https://www.ncbi.nlm.nih.gov/books/NBK538297/ ↵
- Wisconsin State Legislature. (2024). Chapter DHS 94: Patient Rights and Resolution of Patient Grievances. https://docs.legis.wisconsin.gov/code/admin_code/dhs/030/94/i/02/22 ↵
- Strini, V., Schiavolin, R., & Prendin, A. (2021). The role of the nurse in informed consent to treatments: An observational-descriptive study in the Padua hospital. Clinics and Practice, 11(3), 472-483. https://doi.org/ 10.3390/clinpract11030063 ↵
- Wisconsin State Legislature. (2024). DHS 94.03 Informed Consent. https://docs.legis.wisconsin.gov/code/admin_code/dhs/030/94/i/03 ↵
- State of Wisconsin. (2022). Client rights: Informed consent. Wisconsin Department of Health Services. https://www.dhs.wisconsin.gov/clientrights/informedconsent.htm ↵
- Patterson, A. (2018). Most common HIPAA violations with examples. Inspired eLearning. https://inspiredelearning.com/blog/hipaa-violation-examples/ ↵
- Karimi, H., & Masoudi Alavi, N. (2015). Florence Nightingale: The mother of nursing. Nursing and Midwifery Studies, 4(2), e29475. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557413/ ↵
- American Nurses Association. (n.d.). About ANA. https://www.nursingworld.org/ana/about-ana/ ↵
- American Nurses Association. (n.d.). Scope of practice. https://www.nursingworld.org/practice-policy/scope-of-practice/ ↵
- American Nurses Association. (n.d.). Social media. https://www.nursingworld.org/social/ ↵
- American Nurses Association. (n.d.). Social media. https://www.nursingworld.org/social/ ↵
- American Nurses Association. (2015). Code of ethics for nurses with interpretive statements. American Nurses Association. https://www.nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/coe-view-only/ ↵
- American Nurses Association. (2015). Code of ethics for nurses with interpretive statements. American Nurses Association. https://www.nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/coe-view-only/ ↵
- American Nurses Association. (2015). Code of ethics for nurses with interpretive statements. American Nurses Association. https://www.nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/coe-view-only/ ↵
- American Nurses Association. (2015). Code of ethics for nurses with interpretive statements. American Nurses Association. https://www.nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/coe-view-only/ ↵
A general term that denotes conduct lacking in due care, carelessness; and a deviation from the standard of care that a reasonable person would use in a particular set of circumstances.
A specific term that looks at a standard of care, as well as the professional status of the caregiver.
Keeping your patient’s Protected Health Information (PHI) protected and known only by those health care team members directly providing care for the patient.
A code that applies normative, moral guidance for nurses in terms of what they ought to do, be, and seek.
Personal values, character, or conduct of individuals within communities and societies.
A general guide, basic truth, or assumption that can be used with clinical judgment to determine a course of action