Legal and Ethical

ETHICAL AND
LEGAL ISSUES IN
PSYCHIATRIC/M
ENTAL HEALTH
NURSING
ETHIC
S Study of philosophical beliefs about what is considered right or wrong in society
Bioethics
Ethical questions arising in health care
Principles of bioethics
LEGAL AND ETHICAL
Justice:
ISSUES Autonomy:
▪ The duty to distribute resources or care Respecting the rights of others to make their own decisions
equally, regardless of personal attributes e.g., acknowledging the patient’s right to refuse medication
• e.g., an ICU nurse devotes equal attention to promotes autonomy
someone who has attempted suicide as to
someone who suffered a brain aneurysm.
Veracity:
Nonmaleficence:
▪ doing no wrong to the patient; doing no harm – One’s duty to communicate truthfully
to patient, whether intentionally or
unintentionally • e.g., describing the purpose and side effects of
• e.g., maintaining expertise in nursing skill
psychotropic medications in a truthful and
through nursing education. non-misleading way
Beneficence:
The duty to act to benefit or promote the good of Fidelity
others
e.g.,spending extra time to help calm an extremely • obligation to honor commitments and contracts
anxious patient.
• E.g. if the nurse promise her patient that she will be
available during the procedure she must be there
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 patient’s 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 patient’s 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
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
– Involuntary admission (commitment): made without patient’s consent
– Necessary when person is danger to self or others, and/or unable to meet basic needs as result of psychiatric condition
– Emergency involuntary hospitalization
– Commitment for specified period (1-10 days) to prevent dangerous behavior to self/others
– 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
RIGHTS OF CLIENTS
▪ Right to treatment Right to treatment in the least restrictive
requires that medical and psychiatric care and
treatment be provided to everyone admitted to environment appropriate to their needs
public hospital
– Free of restraint or seclusion
▪ Right to refuse treatment:
right to withhold or withdraw consent for treatment – Restraint

at any time • Is the direct application of physical force to
Issue of right to refuse psychotropic drugs has been a person, without his or her permission, to
debated in courts with no clear direction yet forthcoming restrict his or her freedom of movement
▪ Right to informed consent: based on right to
self-determination – Seclusion
▪ Informed consent must be obtained by physician or • The involuntary confinement of a person in
other health care professional to perform treatment a specially constructed, locked room
or procedure
equipped with security window or camera
▪ Presence of psychosis does not preclude this right
for direct visual monitoring
RIGHTS OF
Right to confidentiality/privacy
CLIENTS The individual has the right to access his/her medical records.
Right to informed consent
▪ Elements of informed consent ( knowledge, competency, The individual has the right to decide with whom His/her medical
freewill) information may be shared.
▪ Treatment may be performed without obtaining informed – Breach of Confidentiality
consent under these conditions:
– Revealing aspects about a client’s case
▪ The client is mentally incompetent to make a decision
– Revealing that an individual has been hospitalized
Endangers the life or health of another
▪ An emergency situation
▪ Client is below 18 years old.
Reproductive and sexual rights

Right to treatment/refuse treatment ▪ right to marry
(Autonomy)
▪ right to have children
If client competency is questionable, the physician
▪ right to use contraception
can give the information to a legally appointed
guardian or a family member designated by the ▪ right to follow lifestyle of their own
patient
CRITERIA FOR
HOSPITALIZATION OF A Issue of Legal
MENTALLY ILL CLIENT Competence
– All patients must be considered legally
1. The client is a threat to competent until they have been declared
himself/herself incompetent through legal proceeding
– Determination made by courts
2. The client is a threat to the safety – If found incompetent, court-appointed legal
and/or well-being of others guardian, who is then responsible for giving or
refusing consent
3. The client is unable to provide for
his/her basic needs
4. The client is out of control – 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
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 person’s 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
Nursing Intervention: Steps to Avoid Liability:
Suspected Negligence
– Most states require legal duty to • Practice within the scope of nursing laws
report risks of harm to patient • Collaborate with colleagues to determine the best action
– Nurse has obligation to report peer • Use established practice standards to guide decisions/actions
suspected of being chemically • Develop effective interpersonal relationship with clients and families
• Accurate documentation of assessment data, intervention and client’s
impaired
• response to care
– Report to supervisor is requirement
– If nurse knows physician’s orders ⚫ Respond to the client
need to be clarified or changed, it is ⚫ Educate the client
nurse’s duty to intervene and protect ⚫ Comply with the standard of care
patient ⚫ Supervise care
– Abandonment ⚫ Adhere to the nursing process
⚫ Document carefully
– Legal concept may arise when nurse ⚫ Follow up and evaluate
does not leave patient safely back in ⚫ Maintain a good interpersonal
hands of another health care relationship with client and family
professional before discontinuing
treatment
Nursing Liability
– Nurses are responsible for providing safe, 3. Respondeat superior- the employer is responsible for
competent, legal and ethical care to clients the acts of its employees, thus liable for damage to the
third parties.
and families.
4. Negligence - the commitment of an act that a reasonable
and prudent person would not have done, or the omission
1. False imprisonment - the intentional, of a duty that a prudent person would have completed,
resulting in harm to a client.
unjustified detention or confinement of a
client for any length of time. 5. Malpractice - incorrect or negligent treatment by a
professional that causes injury or harm to a client.
2. Invasion of privacy - violation of a
person's right to be left alone and free
from unwarranted contact, intrusion or
publicity.

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ETHICAL AND

Mental Health Laws: Admission to the Hospital

right to withhold or withdraw consent for treatment – Restraint

Reproductive and sexual rights

CHILD AND ELDER ABUSE : REPORTING

▪ All states have enacted child abuse reporting statutes

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