Ethical and Legal Issues
Nurses, therapists, and other health care workers are expected to make informed and effective patient care decisions quickly by utilizing rational problem solving skills.
Learning objectives
After studying this chapter, you should be able to:
Construct the six-step model of ethical nursing care designed by Chally and Loriz.
Articulate why nurses must become knowledgeable about genetics and the issues surrounding this topic.
Recognize five forms of nursing malpractice.
Discuss implications for psychiatric care related to the Tarasoff ruling of duty to warn.
Compare the criteria for voluntary and involuntary admission to a psychiatric facility.
Interpret the concept of competency.
Compare the legal rights of adults and minors admitted to psychiatric facilities.
Discuss the impact of the Omnibus Reconciliation Act (OBRA) on the placement of clients with psychiatric disorders in long-term care facilities.
Distinguish the legal phrases diminished capacity, not guilty by reason of insanity, and guilty but mentally ill.
Explain forensic psychiatry and the role of the forensic nurse.
Key Terms
Assault
Autonomy
Battery
Beneficence
Bill of Rights for Registered Nurses
Civil commitment
Client confidentiality
Client privacy
Code of Ethics for Nurses
Defamation
Diminished capacity
Doctrine of Charitable Immunity
Ethics
Failure of duty to warn
False imprisonment
Fidelity
Forensic psychiatry
Genetic testing
Guilty but mentally ill
Incompetent
Informed consent
Intentional tort
Involuntary admission
Libel
Malpractice
Miranda warning
Negligence
Not guilty by reason of insanity
Nurse Practice Act
Omnibus Reconciliation Act
Paternalism
Risk management
Slander
Tarasoff decision
Veracity
Voluntariness hearing
Writ of habeas corpus
Historically, the care of those deemed mentally ill included questionable practices and involved the loss of individual rights. Ethical and legal issues concerning nurse–client relationships were identified and subsequently addressed by the nursing profession. For example, nursing as a profession is influenced in each state by legislative acts referred to as Nurse Practice Acts.
In the early 1900s, all states had accepted the Doctrine of Charitable Immunity, or the Good Samaritan Act. Initially, this doctrine originally provided immunity from prosecution for hospitals, churches, and schools. If a client was harmed by the negligence of another, the doctrine prevented the client from suing to recover damage. In 1959, California became the first state to enact Good Samaritan legislation. Since that time, all states have implemented similar legislation to protect health care providers who render assistance at the scene of an emergency without threat of a legal action (Morrison & Bagalio, 2004).
The concept of health care risk management, a systematic approach to the prevention of financial loss, evolved in the mid-1970s to decrease liability exposures, integrate risk reduction strategies, and ultimately create a risk-free environment (Miranda, Saliba, Cerimele, et al., 2004). Preventive law in medicine was addressed and standards of psychiatric–mental health clinical nursing practice were developed.
The everyday practice of psychiatric–mental health nursing is full of values-laden decisions requiring the use of critical thinking skills. Such decisions demand a knowledge of the law, particularly the rights of clients, their legal status, and the prescribed quality of their care. This chapter discusses the major ethical and legal issues that occur in psychiatric–mental health nursing.
Ethics in Nursing
Ethics has been defined as a branch of philosophy that refers to the study of values or values-laden decisions that conform to moral standards of a group or a profession (Kelly, 1998). In 1950, the American Nurses Association (ANA) developed a Code of Ethics for Nurses to use when faced with ethical challenges. Specifically, the ANA identified four primary principles to guide ethical decisions. Governing the relationship between nurse and client, these principles include the client’s right to autonomy (making decisions for oneself), the client’s right to beneficence (doing good by the nurse), the client’s right to justice or fair treatment, and the client’s right to veracity (honesty and truth by the nurse) regarding the client’s condition and treatment. The ethical principle of fidelity is closely related to veracity. It implies that the nurse is faithful to duties, obligations, and promises when providing care for the client (ANA, 1985).
In 1994, the ANA Center for Ethics and Human Rights conducted a survey to identify ethical dilemmas most frequently encountered by nurses on a daily or weekly basis. Respondents noted the most common dilemmas to be cost-containment issues that jeopardize client welfare; end-of-life care; informed consent; incompetent, unethical, or illegal practices of colleagues; and access to care. As a result of this survey, a task force was formed to thoroughly revise the 1985 code of ethics (Chally & Loriz, 1998; Daly, 1999). The revised code (ANA, 2001b) is described in Box 5-1.
“This new code will serve the profession even more efficiently because it clearly explains the mission of nursing in society and how nurses partner with the public with regard to health promotion, patient recovery, and illness prevention” (White, 2001, p. 73). The code is also expected to better serve nurses involved in legal challenges.
“This new code will serve the profession even more efficiently because it clearly explains the mission of nursing in society and how nurses partner with the public with regard to health promotion, patient recovery, and illness prevention” (White, 2001, p. 73). The code is also expected to better serve nurses involved in legal challenges.
Box 5.1: Code of Ethics for Nurses—Provisions
The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems.
The nurse’s primary commitment is to the patient, whether an individual, family, group, or community.
The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient.
The nurse is responsible and accountable for individual nursing practice and determines the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.
The nurse owes the same duties to self as to others, including the responsibility to preserve integrity and safety, to maintain competence, and to continue personal and professional growth.
The nurse participates in establishing, maintaining, and improving health care environments and conditions of employment conducive to the provision of quality health care and consistent with the values of the profession through individual and collective action.
The nurse participates in the advancement of the profession through contributions to practice, education, administration, and knowledge development.
The nurse collaborates with other health professionals and the public in promoting community, national, and international efforts to meet health needs.
The profession of nursing, as represented by associations and their members, is responsible for articulating nursing values, for maintaining the integrity of the profession and its practice, and for shaping social policy.
Voted on and accepted by the American Nurses Association House of Delegates on June 30, 2001.
The Code of Ethics for Nurses is available for sale from American Nurses Publishing at (800) 637-0323 or www.nursesbooks.org.
Reprinted with permission from American Nurses Association. (©2001). Code of Ethics for Nurses with Interpretive Statements. Washington, DC: American Nurses Publishing, American Nurses Association.
Model of Ethical Nursing Care
Commonly, nurses think that they know what is best for their clients, often imposing their own methods for care and treatment decisions. This behavior, referred to as paternalism, may occur in the psychiatric clinical setting where clients exhibit clinical symptoms of confusion, depression, or anxiety or when clients are unable to communicate their needs because of communication disorders or mental retardation. The nurse may fail to recognize an ethical dilemma as a result of lack of training in ethics or lack of available resources to describe ethical issues (Box 5-2 lists examples of nursing resources on ethics). The nurse may also fail to act or intervene when an ethical dilemma is identified. Failure to act can violate the Code of Ethics for Nurses With Interpretive Statements (ANA, 1985). This action could constitute a breach of standard of care and violate a state’s Nurse Practice Act. The nurse may be subject to liability if the breach of care results in any harm or injury to the client.
Chally and Loriz (1998) developed a six-step ethical decision-making model for nurses to use when confronted with ethical dilemmas or moral problems that involve two or more mutually exclusive, morally correct courses of action. During the implementation of this model, the nurse must respect the individuality of all clients, protect clients from harm, treat all clients equally, and evaluate the result of full disclosure regarding treatment. The following is an example of the application of the six steps of Chally and Loriz’s model during an ethical dilemma:
Clarify the ethical dilemma. A client exhibits clinical symptoms of major depression and verbalizes suicidal thoughts but refuses to take antidepressant medication. The nurse evaluates whose problem it is, who should make the decision regarding the use of antidepressant medication, who is affected by the decision, and what ethical principles are related to the problem.
Gather additional data, including any legal issues related to the ethical dilemma. The nurse considers the following situations. Does the client have a suicide plan? Is anyone else aware of the client’s depression, or does the client wish to keep the information confidential? Who would be responsible if the client did commit suicide?
Identify options to determine what alternate, acceptable solutions are available. For example, does the client have a significant other or support group? Is the client agreeable to a suicide contract? Should the client be admitted to an inpatient psychiatric program? What options does the client propose?
Make a decision to determine which option is the most acceptable and therapeutic. Discuss this decision with the client, considering risks and benefits.
Act or carry out the decision. Collaboration with others may be necessary.
Evaluate the impact of the decision regarding what went right or what went wrong.
Box 5.2: Examples of Nursing Resources on Ethics
Books: Chambliss, D. F. (1996). Beyond caring: Hospitals, nurses, and the social organization of ethics. Chicago: University of Chicago Press.
Continuing education courses: LearnWell.org at http://www.learnwell.org/ provides courses in ethics with instant online processing and certification 24/7.
Ethic rounds or discussions: Hospital-based committees discuss ethical situations.
Journals: Nursing Ethics: An International Journal for Healthcare Professionals
Journal of Bioethics
Journal of Nursing Law
Online resources: International Centre for Nursing Ethics lists seminars, issues of Nursing Ethics Journal, and assists student nurses with research in ethics.
ANA Center for Ethics and Human Rights: Addresses complex ethical and human rights issues.
Staff development programs: Hospital-based nursing education programs are given to comply with various credentialling boards such as the joint Commission for Accreditation of Health Care Organizations (JCAHO).
Ethics in Pain Management
Concentration on pain management—considered the fifth vital sign—and comfort measures should be an ethical responsibility of all clinician–client relationships. Psychiatric–mental health nurses provide care for clients who verbalize symptoms of pain, especially those clients who present with a comorbid medical condition, terminal illness, or clinical symptoms of a somatoform disorder (see discussion in Chapter 20). Individuals with a history of substance abuse, especially narcotics, may also present with complaints of pain. The nurse may find it difficult to determine whether such clients are indeed experiencing pain or are attempting to obtain their addictive drugs of choice.
In 1995, the Journal of the American Medical Association published a study in which 4,300 terminally ill clients were followed up on until their deaths. According to the data, 50% of the clients’ physicians claimed that they had no indication of the clients’ end-of-life wishes. In the same study, 2,300 terminally ill clients were assigned a registered nurse who intervened weekly with each client, the client’s physician, and the client’s family. Again, 50% of the physicians claimed that they were unaware of their clients’ wishes regarding pain management and end-of-life care. More than 50% of the family members stated that their loved ones suffered moderate to severe pain in the last 3 days of life (Dunegan, 2000; issues related to end-of-life care are addressed in Chapter 7).
Although rating tools to assess pain intensity and guidelines for pain management are available, some nurses still have difficulty participating in the pain
management of their assigned clients. In the past, nurses were overly cautious because most available pain medication was highly addictive. Nurses were faced with ethical dilemmas, that is, administering pain medication but not wanting to promote substance abuse by clients. Now, more than 30 states have established clinician guidelines for pain management. The federal and state licensing boards meet regularly with representatives from the Drug Enforcement Agency (DEA) to review the actions of clinicians who prescribe pain medication. In addition, the federal government has mandated that any hospital receiving federal funding must make pain management a priority. Pain must be rated and relieved, with the effectiveness evaluated for every client. Clinicians who refuse to address the pain and suffering of clients may be sanctioned. Box 5-3 lists examples of situations in the psychiatric setting that may pose ethical dilemmas associated with pain management.
management of their assigned clients. In the past, nurses were overly cautious because most available pain medication was highly addictive. Nurses were faced with ethical dilemmas, that is, administering pain medication but not wanting to promote substance abuse by clients. Now, more than 30 states have established clinician guidelines for pain management. The federal and state licensing boards meet regularly with representatives from the Drug Enforcement Agency (DEA) to review the actions of clinicians who prescribe pain medication. In addition, the federal government has mandated that any hospital receiving federal funding must make pain management a priority. Pain must be rated and relieved, with the effectiveness evaluated for every client. Clinicians who refuse to address the pain and suffering of clients may be sanctioned. Box 5-3 lists examples of situations in the psychiatric setting that may pose ethical dilemmas associated with pain management.
Box 5.3: Examples of Ethical Dilemmas Associated With Pain Management
A 23-year-old male client with a suspected history of substance abuse (narcotics) is hospitalized with a back injury. He requests a “stronger pain pill” because he feels that the prescribed muscle relaxant and nonsteroidal anti-inflammatory agent are not effective.
A 31-year-old woman, married and the mother of two small children, with a history of fibromyalgia was admitted to the emergency department for treatment of what she describes as an accidental overdose of pain pills. She asks for a prescription of Xanax, an antianxiety agent that she has taken in the past, to help her deal with insomnia secondary to pain because pain medication “never helps.”
A 67-year-old retired car salesman is admitted to the nursing home for rehabilitation after hip surgery. He tells you that pain medication is ineffective but that a “shot or two of whiskey” helps him to relax at night and fall asleep. His wife reveals to you in private that she thinks her husband fell because he drinks too much but that she doesn’t know what to do about it.
Ethics in Genetic Testing and Clinical Research
Nurses in every specialty care for clients and/or families who have or are at risk for the development of various genetic disorders, such as Huntington’s disease, cystic fibrosis, or muscular dystrophy, and common diseases such as heart disease and diabetes that are caused by altered genes. A genetic marker also has been identified for eating disorders. Research scientists continue to search for genetic markers related to various psychiatric disorders. Research also focuses on the development of second- and third-generation psychotropic medications with fewer adverse effects to alleviate clinical symptoms of psychiatric disorders.
Nurses must become knowledgeable about genetics and the issues surrounding this topic. Genetic testing, the laboratory analysis of cells for gene products (eg, proteins, enzymes, metabolites) or DNA analysis (eg, chromosomal analysis), promises early identification of diseases and cure. Genetic testing also is making advances in prenatal predictive testing. Genetic testing may allow providers to discover a person’s genetic predisposition to a given disease; to predict the onset, extent, and severity of the disease; and to determine treatment options. Caring for clients who undergo genetic testing presents ethical dilemmas because it tests our knowledge as well as our conscience. A potential for coercion exists, for example, when grown children urge parents to undergo genetic testing for a disease known to determine their own risk (Sanders, 2001b; Silberstein, 2003; Spahis, 2002).
Genetics or biotechnology is not unique to the 21st century. Gregor Mendel, a botanist, is considered to be the founder of genetics in 1865. The X and Y chromosomes were identified in 1905. In 1941, the term genetic engineering was coined. In 1982, insulin was genetically engineered; in 1989, a gene for cystic fibrosis was found. Since then, a series of events occurred that led President George W. Bush to announce the funding of embryonic stem-cell research on August 9, 2001 (Sanders, 2001b).
Nurses can participate in clinical research, including research associated with psychiatric–mental health. Karigan (2001) identifies three ethical dilemmas that the nurse may confront during participation in clinical research if he or she is not familiar with research protocol. The first ethical dilemma addresses the issue of informed consent (the client’s right of self-decision). Violations of the ethical principles of
informed consent are committed when there is no consent; when a consenting client is not fully informed of the details of the research study, including expected outcomes, benefits, or risks; or when the client is not continually informed of study changes or results.
informed consent are committed when there is no consent; when a consenting client is not fully informed of the details of the research study, including expected outcomes, benefits, or risks; or when the client is not continually informed of study changes or results.
A second ethical dilemma may involve documentation of research protocols. Nurses need to know the outline of the protocol and how to locate specific information related to it. The protocol outline should be kept in a designated location, readily available so that nurses can refer to any guidelines that pertain to their roles. If the nurse is unable to locate the protocol and is given an order to administer an investigational drug or provide a specific treatment, the nurse may refuse the physician’s order until consultation with appropriate resources—such as a pharmacist—occurs.
The third ethical dilemma may involve the client’s right to full disclosure about the research study or trial. If the client makes any statements that indicate misunderstanding or lack of understanding about research protocol, or if the client indicates perceived coercion by others, the nurse is responsible for alerting the program research investigator of such statements.
Legal Issues in Nursing