Chapter 5:

Selected Nursing Legal

Responsibilities
 Learning Objectives
• After finishing this session, you should be able to:
• List sources of law and types of laws.
• Describe how nurse practice acts, credentialing, standards of
care, and agency policies and procedures affect the scope
• of nursing practice.
• Discuss the impaired nurse and available diversion or peer
assistance programs.
• Recognize the nurse’s legal responsibilities with selected
aspects of nursing practice.
Ethical and Legal Issues in Healthcare
• Informed consent
• Delegation
• Violence, abuse, neglect
• Controlled substances
• Impaired nurse
• Sexual harassment
• Abortions
• Death and related issues
 Informed Consent
• Informed consent is an agreement by a client to accept a
course of treatment or a procedure after being provided
complete information, including the benefits and risks of
treatment, alternatives to the treatment, and prognosis if not
treated by a health care provider.
• The main goal of informed consent is “mutual decision making
between professional and patient over the treatment option.
• Based on the principle of autonomy.
• There are two types of informed consent:
➢ Expressed consent may be either an oral or written agreement.
Usually, the more invasive the procedure is or the greater the
potential for risk to the client, the greater the need for written
permission.
➢ Implied consent: It exists when the individuals’ nonverbal behavior
indicates agreement.
❖ For example, clients who position their bodies for an injection or
cooperate with the taking of vital signs imply consent.
❖ Consent is also implied in a medical emergency when an
individual cannot provide express consent because of a physical
condition.
➢ Obtaining informed consent for specific medical and surgical
treatment is the responsibility of the person who is going to
perform the procedure.
➢ Generally, this person is the primary care provider; however, it
could also be a nurse practitioner, nurse anesthetist, clinical
nurse specialist, or physician assistant who is performing the
procedures in their advanced practice.
➢ Informed consent also applies to nurses who are not independent
practitioners and are performing direct nursing care for such
procedures as nasogastric tube insertion.
➢ The nurse relies on orally expressed consent or implied consent
for most nursing interventions. It is imperative to remember the
importance of communicating with the client by explaining nursing
procedures, ensuring the clients understand, and obtaining
permission.
• General guidelines for giving enough information required for
the client to make an informed decision:
1. The diagnosis or condition that requires treatment.
2. The purpose of treatment.
3. What the client can expect to feel or experience.
4. The benefits of the treatment.
5. Possible risks or negative outcomes of the treatment.
6. Advantages or disadvantages of possible alternatives to the
treatment.
• Informed consent has three major elements:
1. Consent must be voluntary. The client must not feel coerced.
2. A consenting individual must have the capacity to understand.
3. The Consenting individual must receive enough information to
be the ultimate decision maker.
❖ Communication is critical for client safety.
❖ There is a link between literacy, health, and client safety. Therefore,
the client needs to understand the written material.
❖ The consent must be read to the client appropriately to be certain the
client understands.
❖ A competent adult is a person over 18 years of age who is conscious
and oriented. A client who is confused, disoriented, or sedated is not
considered functionally competent.
❖ The competent adult client is expected to have the autonomy to
make his or her own health care decisions.
❖ A legal guardian or representative can provide or refuse consent for
the incompetent adult.
• Except in specific circumstances, the following individuals
cannot provide informed consent:
1. A minor (person under 18 years or younger).
2. The unconscious or a person injured in such a way that they are
unable to provide consent.
3. A mentally ill person judged by professionals to be
incompetent.
• Nurse’s role: nurses are often asked to obtain a signed consent
form. The nurse is not responsible for explaining the procedure
but for witnessing the client's signature on the form.
• The nurse’s signature confirms three things:
1. The client gave consent voluntarily.
2. The signature is authentic.
3. The client appears competent to give consent.
• The nurse advocates for the client by verifying that the
client received enough information to give consent.
Therefore, the nurses need to assess the client’s
understanding and identify any misconceptions.
 Delegation
• Delegation is how a nurse directs another person to perform
nursing tasks and activities.
• Competent unlicensed assistive personnel (UAP) can be
assistance to the nurse, which allows the nurse to perform
those functions appropriate to the nurse’s scope of practice.
• From a legal perspective, however, the nurses’ authority to
delegate is based on laws and regulations. Therefore, nurses
must be familiar with their nurse practice act.
• Nurses must know not only their scope of practice but also the
scope of practice of the UAP, which may vary depending on a
facility’s policies and procedures.
• Thus, the nurse must know the employer’s policies and
procedures for delegation, the UAP job description, and the
UAP skill level. Is the UAP competent to perform the delegated
task?
 Violence, Abuse, and Neglect
• Violent behaviour can include domestic violence, child abuse,
and sexual abuse.
• Neglect is the absence of care necessary to maintain the health
and safety of a vulnerable individual, such as a child or older
adult.
• Nurses can often identify and assess cases of violence against
others. As a result, they are often considered mandated
reporters, meaning that they are required by law to report
suspected abuse, neglect, or exploitation.
• Mandated reporting is designed to detect cases of abuse and
neglect at an early stage, protect children, and facilitate the
provision of services to children and families.
 The impaired nurse
• Impaired nurse refers to a nurse’s inability to perform
essential job functions because of chemical dependency on
drugs or alcohol, or mental illness.
• Many factors make nurses susceptible to substance use
disorders in the workplace:
1. Stress can be caused by increased workloads, decreased
staff, and fatigue. Substance abuse may be a way of
coping with stress.
2. Lack of education on the addictive process and its signs
and symptoms.
3. The ready availability of drugs.
4. Attitude.
 Crimes and torts
• A crime is an act committed in violation of public (criminal)
law and punishable by a fine or imprisonment. A crime does
not have to be intentional to be a crime.
• For example, a nurse may accidentally give a client an
additional and lethal dose of a narcotic to relieve discomfort.
• Crimes are classified as:
1. Felony is a crime of a serious nature, such as murder,
punishable by a term in prison.
2. Misdemeanor is an offence of a less serious nature and
is usually punishable by a fine or short-term jail.
• Tort is a civil wrong committed against a person or a person’s
property.
• Does not require intent but requires an element of harm.
• Torts are classified as:
▪ Unintentional torts, for example, Negligence that occurs
in a healthcare setting.
➢ Negligence is misconduct or practice that is below the
standard expected of a person. Gross negligence
involves an extreme lack of knowledge and skills or
decision-making that the person clearly should have
known would put others at risk for harm.
➢ Malpractice is “professional negligence” that occurred while
the person was performing as a professional.
❖ Elements of Malpractice
✓ Duty
✓ Breach ‫ خرق‬of duty
✓ Foreseeability ‫إمكانية التنبؤ‬
✓ Causation
✓ Harm or injury
✓ Damages
▪ Intentional torts, in contrast, the defendant executed the act on
purpose or with intent. No harm need be caused by intentional
torts for liability to exist.
➢ There are four intentional torts related to nursing:
❖ Assault: attempt or threat to touch unjustifiably, Battery:
willful touching that may or may not cause harm.
❖ False imprisonment: unjustifiable detention without a legal
warrant.
❖ Invasion of privacy: direct wrong of a personal nature.
❖ Defamation: communications that are false and result in
injury to the reputation of a person.
✓ Libel – defamation through print, writing, or pictures
✓ Slander – defamation by spoken word
 References
1. Berman, A., Snyder, S. J., Levett-Jones, T., Dwyer, T., Hales, M., Harvey, N.,
... & Stanley, D. (2018). Kozier and Erb's Fundamentals of Nursing [4th
Australian edition].
2. Park, K. (n.d.). Park’s textbook of preventive and social medicine.
3. Beaglehole, Robert, Bonita, Ruth, Kjellström, Tord & World Health
Organization. (1993). Basic epidemiology, Updated reprint. World Health
Organization.