Ethical and Legal Issues in Psychiatric/Mental Health Nursing

Chapter 26

Group Discussion
Have you had any ethical dilemmas? How did you deal with them?

Legal and Ethical Concepts

Ethics
Study of philosophical beliefs about what is considered right or wrong in society

Bioethics
Ethical questions arising in health care

Principles of bioethics
Beneficence: duty to act to benefit others Autonomy: respecting rights of others to make decisions Justice: duty to distribute resources equally Fidelity: maintaining loyalty and commitment to patient Veracity: duty to communicate truthfully

Mental Health Laws: Civil Rights and Due Process

Civil rights: people with mental illness are guaranteed same rights under federal/state laws as any other citizen Due process in civil commitment: courts have recognized involuntary commitment to mental hospital is massive curtailment of liberty requiring due process protection, including:
Writ of habeas corpus: procedural mechanism used to challenge unlawful detention Least restrictive alternative doctrine: mandates least drastic means be taken to achieve specific purpose

Mental Health Laws: Admission to the Hospital

Voluntary: sought by patient or guardian
Patients have right to demand and obtain release Many states require patient submit written release notice to staff Necessary when person is danger to self or others, and/or unable to meet basic needs as result of psychiatric condition
Commitment for specified period (1-10 days) to prevent dangerous behavior to self/others

Involuntary admission (commitment): made without patients consent Emergency involuntary hospitalization

Observational or temporary involuntary hospitalization

Longer duration than emergency commitment Purpose: observation, diagnosis, and treatment for mental illness for patients posing danger to self/others

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 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

Right to informed consent: based on right to selfdetermination

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 patients 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 patients 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 persons 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 psychiatricmental health RN and the advanced practice RN (ANA, 2007) 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 Standards differ from minimal state requirements

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 physicians orders need to be clarified or changed, it is nurses 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

Avoiding Liability
Respond to the client Educate the client Comply with the standard of care Supervise care Adhere to the nursing process Document carefully Follow up and evaluate Maintain a good interpersonal relationship with client and family