1.6 Legal & Ethical Considerations

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.

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.

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.

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.

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.