Forensic nursing practice is regulated and influenced by state and federal laws. Each level of government can create laws through the legislative process. Laws passed by state legislatures or the U.S. Congress are called statutes. Most nurses are familiar with the process of legislative lawmaking, but they may be unaware of the process government agencies use to create law. The purpose of legislation is to provide a framework for the government to create standards for regulating a subject. But many areas of government regulation require detailed descriptions of what and how an area of subject matter will be legally controlled.

Because elected officials often do not have the technical expertise to write regulations for a specific subject matter, they often delegate this task to governmental agencies. The process government agencies use to make rules and regulations is called administrative rule making. In most states and within the federal government, administrative rule making follows strict procedures. These procedures protect the rights of citizens, because once these rules are made and approved, they become enforceable law. When an agency wants to create a new regulation, it usually publishes a draft of the proposed rule. After the publication of a proposed rule, the public is usually allowed to comment in writing. Sometimes the agency will open a public hearing to allow interested groups and individuals to make comments. Once the public has been given an opportunity to comment on the proposed rule, then a final rule is published and a date of enforcement is announced. This is a very simplified explanation of what, at times, can be a very complex process. If certain groups or individuals believe a rule or regulation is not properly promulgated, they may be able to challenge the agency in court to prevent enforcement of the rule.

Rules and regulations often govern details that may need to be modified or changed frequently. For example, the Nevada Nurse Practice Act gives the Nevada Board of Nursing the power to “adopt regulations establishing reasonable standards … of professional conduct for the practice of nursing” (Nev. Rev. Stat. § 632.120(1)(a)(2), 1985). Using this legislative mandate to regulate the professional conduct of nurses, the Nevada Board of Nursing can create regulations to control nursing practice as new practice areas develop. In 1996 the Nevada Board passed a regulation that determines how nurses will identify themselves to a client or patient when practicing telenursing (Nev. Admin. Code § 632.248, 1996). Because the Board has been granted the power to create rules, change can occur without involving the legislative process. This two-tiered approach to creating laws to regulate a practice or subject matter area allows the elected officials to create broad policies for regulating a field, while the details of the regulations are left to professionals with expertise in that area.

The federal government uses legislation and administrative rule making when there is a need for the uniform application of standards across the nation. For example, Medicare is a national health insurance program for the elderly and disabled. The Social Security Act describes who qualifies for Medicare, but there are many pages of regulations that describe the details concerning what kind of care is covered and how healthcare providers must bill for their services. The law of the United States is found in the U.S. Code Annotated (U.S.C.A.), and federal regulations are recorded in the Code of Federal Regulations (C.F.R.).

In addition to laws created by legislators and rules and regulations created by agencies, the state and federal courts can interpret existing law and create case law by making decisions in appellate cases. Both state and federal case law can have an impact on nursing practice. For example, in 1991 Richard Heinecke argued before the Utah Court of Appeals that having sexual relations with a patient was not unprofessional conduct and therefore was not a violation of the Utah Nurse Practice Act that should result in revocation of his license (Heinecke v. Department of Commerce, 1991). In this case, the court interpreted the Utah Nurse Practice Act to prohibit sexual relations with a patient by looking at the clause that stated that a nurse can be charged with unprofessional conduct if he or she is “guilty of immoral, unethical, or unprofessional conduct as it relates to the practice of nursing” (Utah Code Ann. §58-31-14(1)(b), 1990). When a judge makes a decision in an appellate case, that decision becomes appellate case law. It is important to understand that attorneys may use case law to argue for a desired interpretation of the law in other legal cases.

For a judge to rule that a previous decision in a court case is the legal rule for another situation, the facts need to be similar. The Utah Board of Nursing did not want a different judge to decide that a different fact situation might allow a nurse to have sexual relations with a patient. As a result of this concern, in 1998 language was added to the Utah Nurse Practice Act to specify when sexual relations with a patient or former patient would be considered unprofessional conduct (Utah Code Ann. §58-31b-502, 1998).

State laws are the source of regulation for most areas of health and safety for state residents. State laws that are important to forensic nursing practice include the practice acts for each healthcare profession, including both nurse and physician practice acts. A forensic nurse should also be familiar with state laws that regulate the licensing of healthcare facilities, laws that protect public health, and mandatory reporting laws for child or elder abuse.

Each state is also responsible for creating criminal codes. Criminal codes specify which acts are considered crimes and what the punishment will be if a person is convicted of a crime. Because a criminal conviction can result in the loss of an individual’s liberty, these laws must be written in a manner that specifies what types of behavior are prohibited. Forensic nurses need to understand that criminal codes may define the same unlawful act differently in different states. Legal activity in one state may be illegal in another. For example, the age of consent for sexual intercourse varies from age 12 to age 18 in different U.S. states (Sutherland, 2003). The federal government also creates criminal statutes. These laws deal with crimes that occur on federal property or deal with criminal activity that crosses state borders. Federal criminal laws also deal with areas of the law that are enforced by federal agencies. For example, the U.S. Security and Exchange Commission (SEC) regulates the trading of stocks and bonds. When a person illegally trades stocks or bonds, these criminal violations are prosecuted under federal law.

As standards for nursing become more global, there is also a need to appreciate the importance of international law. International law is created through treaties signed by two or more countries and through decisions made by international courts. The United Nations is the source of many international treaties that protect human rights and have potential application to nursing practice. The Universal Declaration of Human Rights (UDHR) is the document that provides the legal foundation for the protection of human rights throughout the world. On December 10, 1948, 48 of the 56 member nations of the United Nations General Assembly ratified this document that states in Article I, “All human beings are born free and equal in dignity and rights. They are endowed with reason and with conscience and should act towards one another in a spirit of brotherhood” (UDHR, 1948).

The Declaration goes on to state what rights are basic to both women and men, such as freedom to own property and the right to a standard of living that is adequate for health and well-being (UDHR, 1948). The Declaration also prohibits practices that deprive individuals of human rights, such as torture and slavery (UDHR, 1948). When looking at treaties as sources of international law, it is important to see if a nation that signs a treaty has created a reservation to a particular part of the document. A reservation allows a nation to opt out of any part of a treaty that it does not want to support or enforce. For example, the U.S. has adopted the International Covenant on Civil and Political Rights but has reserved the right to not enforce Article 6, which prohibits the execution of persons who committed capital crimes prior to the age of 18 (International Covenant on Civil and Political Rights, 1966).

In recent years, there has been an increased use of international courts to investigate and prosecute war crimes and violations of human rights. Forensic nurses with training in death investigation and injury identification are in a unique position to assist with these international proceedings (Weaver & Lynch, 1998).

Nurses can request a ruling from their board of nursing to determine whether they are functioning within their scope of practice. In Florida, sexual assault nurse examiners (SANEs) went before the Board of Nursing to discuss their forensic practice. The SANEs petitioned the Board to obtain a determination about whether performing evidence collection on adult and adolescent sexual battery patients was within a registered nurse’s scope of practice. After examining national standards for the education and practice of SANEs, the Board voted to affirm that the role of the SANE was within the scope of practice of the registered nurse (Florida Board of Nursing Minutes, 2003).

Challenges to the expansion of nursing practice can come from nursing or other healthcare professions. In Missouri, two nurses who worked for a family planning clinic were charged with the unauthorized practice of medicine ( Sermchief v. Gonzales, 1983). In their jobs they performed pelvic examinations and provided contraception under standing protocols from the clinic’s physicians. Many organizations and individuals felt these nurses were functioning beyond the scope of the Missouri Nurse Practice Act, and the nurses were charged with the unlawful practice of medicine. The Supreme Court of Missouri examined the trend both nationally and within the state of Missouri to change nurse practice acts to allow for the expansion of responsibilities for professional nurses. The court determined that if the nurses had postgraduate training to perform family planning services and were using written standing orders and protocols, the nurses were well within the definition of professional nursing ( Sermchief v. Gonzales, 1983).

Nurses who want to expand their scope of practice should maintain comprehensive records of education and training ( Hoffson v. Orentreich, M.D., 1989). They should also work closely with their professional organizations to create and follow standards of practice for their specialty area. In 1995, the American Nurses Association recognized forensic nursing as a specialty and in collaboration with the International Association of Forensic Nurses (IAFN) published the Scope and Standards of Forensic Nursing Practice (McHugh & Leake, 1997). The 2009 edition of the Scope and Standards of Forensic Nursing Practice (ANA and IAFN, 2009), identifies for the first time standards for both the basic forensic registered nurse and the advanced practice registered nurse. Collaborative relationships with other professionals in the field who value and support an expansion of forensic nursing practice is another way to demonstrate the need for a change in nursing practice.

It is important for the expansion of forensic nursing practice to be evidence based. By collecting practice data, nurses can demonstrate increased access to care and the increased quality of care. Nurses should understand how to evaluate forensic programs and forensic practice. Documenting the outcomes of forensic practice will help forensic nurses continue to be pioneers in the field of providing care and improving the lives of victims of interpersonal violence.

In addition to understanding the general nursing practice for the purpose of legally expanding forensic nursing practice, nurses need make sure that they are not violating the nurse practice act when they collaborate with other professionals who are not healthcare providers. Nurses are often placed in challenging situations when requests are made by other professionals such as law enforcement or prosecutors to alter their nursing practice. For example, a nurse may be requested to limit documentation about a patient’s mental health status or previous history of drug abuse to prevent this potentially damaging information to be available to a defense attorney. It is important that the nurse be able to justify his or her forensic nursing practice based on the healthcare needs of the patient, not the prosecutorial needs of the criminal justice system. Failure to document findings that may affect a patient’s healthcare may be a direct violation of the nurse practice act. In the state of Alaska, “failing to maintain a record for each client which accurately reflects the nursing problems and interventions for the client” is considered to be unprofessional practice (Alaska Administrative Code, Chapter 12, §44.770.10).