Chapter 9 Legal & Ethical Issues

Question 1

(T/F) True or False: Clients receiving mental health care retain all civil rights afforded to people including, the right to leave the hospital in the case of involuntary commitment

Answer 1

False

Those that are involuntarily committed do NOT have the right to leave the hospital

Question 2

Examples of Rights Restrictions

Answer 2

A suicidal client may not be permitted to keep a belt, shoelaces, or scissors because they may use these items for self-harm

A client who becomes aggressive after having a particular visitor may have that person restricted from visiting for a period of time

A client making threatening phone calls to others outside the hospital may be permitted only supervised phone calls until their condition improves

Question 3

Highlights of Patient’s Bill of Rights

Answer 3

To be informed about benefits, qualifications of all providers, available treatment options, and appeals and grievance procedures

Least restrictive environment to meet needs

Confidentiality

Choice of providers

Treatment determined by professionals, not third-party payers

Parity

Nondiscrimination

All benefits within scope of benefit plan

Treatment that affords greatest protection and benefit

Fair and valid treatment review processes

Treating professionals and payers held accountable for any injury caused by gross incompetence, negligence, or clinically unjustified decisions

Question 4

Autonomy

Answer 4

The person’s right to self-determination & independence

Question 5

Fidelity

Answer 5

Refers to the obligation to honor commitments & contracts

Question 6

Nonmaleficence

Answer 6

The requirement to do no harm to others either intentionally or unintentionally

Question 7

Justice

Answer 7

Refers to fairness or treating all people fairly and equally without regard for social or economic status, race, sex, marital status, religion, ethnicity, or cultural beliefs

Question 8

Veracity

Answer 8

The duty to be honest/truthful

Question 9

Beneficence

Answer 9

Refers to one’s duty to benefit or to promote good for others

Question 10

Voluntary Hospitalization

Answer 10

Patients are willing to seek treatment & agree to be hospitalized

Question 11

Conditions for Involuntary Hospitalization

Answer 11

Clients who are at risk to harm themselves (suicide) or others are committed to a facility until they no longer pose a threat

Involuntary hospitalization cuts off the right of the patient to leave the hospital whenever they wish

They can be detained in a psych facility for 48–72 hrs until a hearing can be conducted

Question 12

Release from the Hospital

Answer 12

Can sign a written request for discharge and can be released from the hospital against medical advice.

If a voluntary client is dangerous to themself or to others signs a request for discharge: May file for a civil commitment to detain the client against their will until a hearing can take place to decide the matter

While in the hospital, the committed client may take medications and improve fairly rapidly, making them eligible for discharge when they no longer represent a danger
- Some clients stop taking their medications after discharge and once again become threatening, aggressive, or dangerous
- Mental health clinicians have increasingly been held legally liable for the criminal actions of such clients

Question 13

Mandatory Outpatient Treatment

Answer 13

AKA “Legally Assisted”

The requirement that clients continue to participate in treatment on an involuntary basis after their release from the hospital into the community

May involve taking prescribed medication, keeping appointments with health care providers for follow-up, and attending specific treatment programs or groups

Question 14

Benefits of Mandatory Outpatient Treatment

Answer 14

Shorter inpatient hospital stays (may be hospitalized more frequently)

Reduced mortality risk for clients considered dangerous to themselves or others

Protection of clients from criminal victimization by others

More cost-effective than repeated involuntary hospital stays after the initial financial investment

Question 15

What population is seen the most often in mandated outpatient trestment?

Answer 15

Persons w/ severe & persistent mental illness who have had frequent and multiple contacts with mental health, social welfare, and criminal justice agencies

Question 16

The Court’s Concern w/ Psychiatric Disorders

Answer 16

1) Clients with psychiatric disorders have civil rights and should not be unreasonably required to participate in any activities against their will

2) Once court-ordered treatment was permitted, it would be used with ever-increasing numbers of people
- Increase has not occurred
- Communities have a right to be protected against dangerous people that have hx of not taking their meds & pose a threat

Question 17

Clients that May Require a Guardian/ Conservatorship

Answer 17

People who are gravely disabled

Found to be incompetent

Cannot provide food, clothing, and shelter for themselves even when resources exist

Cannot act in their own best interests may require the appointment of a conservator or legal guardian

Question 18

Client & Guardian Relationship

Answer 18

Legal Guardian Responsibilities: Giving informed consent, writing checks, and entering contracts
- Client w/ a guardian loses the right to enter into legal contracts or agreements that require a signature (e.g., marriage or mortgage)

Guardians speak for the client-> nurse must obtain consent from the guardian

Question 19

Conservator

Answer 19

Refers to a person assigned by the court to manage all financial affairs of the client

Can include receiving the client’s disability check, paying bills, making purchases, and providing the client with spending money

Question 20

Least Restrictive Environment

Answer 20

Treatment appropriate to meet the client’s needs with only necessary or required restrictions

It means that a client does not have to be hospitalized if they can be treated in an outpatient setting or in a group home

Client must be free of restraint or seclusion unless it is necessary

Question 21

Restraint

Answer 21

The direct application of physical force to a person w/out their permission to restrict their freedom of movement

Question 22

Human Restraint

Answer 22

Occurs when staff members physically control the client and move them to a seclusion room

Question 23

Mechanical Restraint

Answer 23

Devices, usually ankle and wrist restraints, fastened to the bed frame to curtail the client’s physical aggression, such as hitting, kicking, & hair pulling

Question 24

Seclusion

Answer 24

The involuntary confinement of a person in a specially constructed, locked room equipped w/ a security window or camera for direct visual monitoring

Room often has a bed bolted to the floor & a mattress

Any sharp or potentially dangerous objects, such as pens, glasses, belts, & matches, are removed from the client as a safety precaution

Decreases stimulation, protects others from the client, prevents property destruction, & provides privacy for the client

Question 25

Goal of Seclusion

Answer 25

Give the client the opportunity to regain physical & emotional self-control

Question 26

General Nursing Considerations for Seclusion

Answer 26

Monitored one-to-one for the first hour & may then be monitored by audio and video equipment

Question 27

Indications for Seclusion & Restraints

Answer 27

ONLY when the client is imminently aggressive and dangerous to self or to others and all other means of calming the client have been unsuccessful

Question 28

Nursing Considerations for Adult Client Seclusion/Restraint

Answer 28

Requires a face-to-face evaluation by a licensed independent practitioner w/in 1 hour of restraint or seclusion and every 8 hours thereafter

A physician’s order every 4 hours, documented assessment by the nurse every 1 to 2 hours, and close supervision of the client

Question 29

Nursing Considerations for Pediatric Client Seclusion/ Restraint

Answer 29

For children, the physician’s order must be renewed every 2 hours, w/ a face-to-face evaluation every 4 hours

Question 30

General Nursing Considerations for Restraints

Answer 30

Assess for any injury & provide treatment as needed

Req continuous 1-on-1 monitoring of client

Monitor and document:
- The client’s skin condition
- Blood circulation in hands & feet
- Emotional well-being
- Readiness to discontinue seclusion or restraint.

Observe the client closely for side effects of medications, which may be given in large doses in emergencies

Nurse or designated care provider also implements and documents offers of food, fluids, and opportunities to use the bathroom per facility policies and procedures

ASAP: Staff members must inform the client of the behavioral criteria that will be used to determine whether to decrease or to end the use of restraint or seclusion

Frequent contact by the nurse promotes ongoing assessment of the client’s well-being and self-control.
- Provides an opportunity for the nurse to reassure the client that restraint is a restorative, not a punitive, procedure.

Following release from seclusion or restraint, a debriefing session is required within 24 hours.

A careful and thorough explanation about the client’s behavior and subsequent use of restraint or seclusion is important.
- If the client is an adult, however, such discussion requires a signed release of information.
- In the case of minor children, signed consent is not required to inform parents or guardians about the use of restraint or seclusion

Question 31

Ethical Decision Making

Answer 31

Gathering information

Clarifying values

Identifying options

Identifying legal considerations and practical restraints

Building consensus for decision reached

Reviewing and analyzing decision

ANA’s Code of Ethics for Nurses guides choices about ethical actions

Question 32

Highlights of Patient’s Bill of Rights

Answer 32

To be informed about benefits, qualifications of all providers, available treatment options, and appeals and grievance procedures

Least restrictive environment to meet needs

Confidentiality

Choice of providers

Treatment determined by professionals, not third-party payers

Parity

Nondiscrimination

All benefits within scope of benefit plan

Treatment that affords greatest protection and benefit

Fair and valid treatment review processes

Treating professionals and payers held accountable for any injury caused by gross incompetence, negligence, or clinically unjustified decisions

Question 33

Confidentiality

Answer 33

HIPPA: Health Insurance Portability & Accountability Act

Protected health information is any individually identifiable health information in oral, written, or electronic form.
- Mental health and substance abuse records have
additional special protection under the privacy rules

Both civil (fines) and criminal (prison sentences) penalties exist for violation of patient privacy

In community settings, compliance with the privacy rule has decreased communication and collaboration among providers and communication with family caregivers, which may have a negative impact on patient care as well as the rights of families

Question 34

Duty to Warn

Answer 34

The exception to the client’s right to confidentiality

When health care providers are legally obligated to warn another person who is the target of the threats or plan by the client, even if the threats were discussed during therapy sessions otherwise protected by confidentiality

When making a decision about warning a third party, the clinician must base their decision on the following:
- Is the client dangerous to others?
- Is the danger the result of serious mental illness?
- Is the danger serious?
- Are the means to carry out the threat available?
- Is the danger targeted at identifiable victims?
- Is the victim accessible?

Ex) A man admitted to a psychiatric facility stating he was going to kill his wife, the duty to warn his wife is clear.
- However, if a client with paranoia were admitted saying, “I’m going to get them before they get me” but providing no other information, there is no specific third party to warn

Question 35

What is the nurse’s responsibility w/ “duty to warn”?

Answer 35

The responsibility of the nurse is to report and document any client statements about such threats

Question 36

What are the 4 versions of the insanity defense?

Answer 36

1) M’Nagehen Rule
2) Irresistible impulse
3) Substantial capacity test
4) Durham

Question 37

M’Nagehen Rule of Insanity Defense

Answer 37

The defendant did not know the nature or quality of the act or did not know it was wrong because of a mental disease or defect

Question 38

Irresistible Impulse Insanity Defense

Answer 38

The defendant could not control their conduct owing to mental disease or defect

Question 39

Substantial Capacity Test Insanity Defense

Answer 39

The defendant lacks substantial (but not total) capacity to appreciate their conduct as wrong or cannot conform their conduct to the law

Question 40

Durham Insanity Defense

Answer 40

The defendant’s criminal conduct is excused when it is caused by a mental disease or defect

Question 41

General Considerations of the Insanity Defense

Answer 41

When the person meets the criteria, they may be found not guilty by reason of insanity

Public Perception: Used frequently and that it is usually successful
- The person accused of the crime “gets off” and is free immediately.

Actuality: This defense can be used only when the person meets the criteria for an insanity defense.
- Used infrequently and is not usually successful
- When the insanity defense is successful, it is widely publicized, leading to the perception that it is commonplace.

A few states allow a verdict of guilty but insane when the client has an insanity defense

Four states—Idaho, Kansas, Montana, and Utah—have abolished the insanity defense, although all but Kansas will allow a verdict of guilty but insane
- Ideally, this means that the person is held responsible for the criminal behavior but can receive treatment for mental illness.

Critics of this verdict, including the APA, argue that people do not always receive needed psychiatric treatment and that this verdict absolves the legal system of its responsibility

Question 42

Standards of Care

Answer 42

The care nurses provide to clients meets set expectations and is what any nurse in a similar situation would do

Developed from professional standards (cited earlier in this paragraph), state nurse practice acts, federal agency regulations, agency policies and procedures, job descriptions, and civil and criminal law

Professional guidelines such as the American Nurses Association’s (ANA’s) Code of Ethics for Nurses with Interpretive Statements and the ANA’s Psychiatric–Mental Health Nursing: Scope and Standards of Practice outline the nurse’s responsibilities and provide guidance

Question 43

Tort

Answer 43

A wrongful act that results in injury, loss, or damage

Can either be intentional or unintentional

Question 44

What are some examples of unintentional torts?

Answer 44

Negligence & Malpractice

Question 45

Negligence

Answer 45

An unintentional tort that involves causing harm by failing to do what a reasonable and prudent person would do in similar circumstances

Question 46

Malpractice

Answer 46

A type of negligence that refers specifically to professionals such as nurses and physicians

Clients or families can file malpractice lawsuits in any case of injury, loss, or death
- The issues are whether or not the client’s actions were predictable or foreseeable (and therefore preventable) and whether the nurse carried out appropriate assessment, interventions, and evaluation that met the standards of care.

In the mental health setting, lawsuits are most often related to suicide and suicide attempts
- Other areas of concern include clients harming others (staff, family, or other clients), sexual assault, and medication errors

Question 47

In order to have a successful malpractice suit, what are the four elements that the client or the family needs to prove?

Answer 47

1) Duty
2) Breach of Duty
3) Injury or Damage
4) Causation

Question 48

Duty

Answer 48

A legally recognized relationship (i.e., physician to client, nurse to client) existed.

The nurse (or physician) had a duty to the client, meaning that they were acting in the capacity of a nurse (or physician)

Question 49

Breach of Duty

Answer 49

The nurse (or physician) failed to conform to standards of care, thereby breaching or failing the existing duty.

The nurse (or physician) did not act as a reasonable, prudent nurse would have acted in similar circumstances

Question 50

Injury or Damage

Answer 50

The client suffered some type of loss, damage, or injury

Question 51

Causation

Answer 51

The breach of duty was the direct cause of the loss, damage, or injury

In other words, the loss, damage, or injury would not have occurred if the nurse (or physician) had acted in a reasonable, prudent manner

Question 52

Intentional Tort

Answer 52

Voluntary acts that result in harm to the client

Question 53

What are some examples of intentional torts?

Answer 53

Assault, battery, and false imprisonment

Question 54

Assault

Answer 54

Involves any action that causes a person to fear being touched in a way that is offensive, insulting, or physically injurious without consent or authority

Question 55

Example of Assault

Answer 55

Making threats to restrain the client to give them an injection for failure to cooperate

Question 56

Battery

Answer 56

Involves harmful or unwarranted contact with a client
- Actual harm or injury may or may not have occurred

Question 57

Example of Battery

Answer 57

Touching a client without consent or unnecessarily restraining a client.

Question 58

False Imprisonment

Answer 58

Defined as the unjustifiable detention of a client

Question 59

Example of False Imprisonment

Answer 59

Inappropriate use of a restraint or seclusion

Question 60

What are the 3 elements of proving liability for an intentional tort?

Answer 60

1) The act was willful and voluntary on the part of the defendant (nurse)

2) The nurse intended to bring about consequences or injury to the person (client)

3) The act was a substantial factor in causing injury or consequences

Question 61

Steps to Avoid Liability

Answer 61

Practice within the scope of state laws and nurse practice act.

Collaborate with colleagues to determine the best course of action.

Use established practice standards to guide decisions and actions.

Always put the client’s rights and welfare first.

Develop effective interpersonal relationships with clients and families.

Accurately and thoroughly document all assessment data, treatments, interventions, and evaluations of the client’s response to care.

Question 62

Ethics

Answer 62

A branch of philosophy that deals with values of human conduct related to the rightness or wrongness of actions and to the goodness and badness of the motives and ends of such actions

Question 63

Ethical Theories

Answer 63

Sets of principles used to decide what is morally right or wrong

Question 64

Utilitarianism

Answer 64

A theory that bases decisions on “the greatest good for the greatest number”

Decisions based on utilitarianism consider which action would produce the greatest benefit for the most people

Question 65

Deontology

Answer 65

A theory that says decisions should be based on whether an action is morally right with no regard for the result or consequences

Question 66

What principles are used as guides for decision-making in deontology?

Answer 66

Principles used as guides for decision-making in deontology include autonomy, beneficence, nonmaleficence, justice, veracity, and fidelity

Question 67

Autonomy

Answer 67

Refers to a person’s right to self-determination & independence

Question 68

Beneficience

Answer 68

Refers to one’s duty to benefit or to promote the good of others

Question 69

Nonmaleficence

Answer 69

The requirement to do no harm to others either intentionally or unintentionally

Question 70

Justice

Answer 70

Refers to fairness, treating all people fairly and equally without regard for social or economic status, race, sex, marital status, religion, ethnicity, or cultural beliefs

Question 71

Veracity

Answer 71

The duty to be honest or truthful

Question 72

Fidelity

Answer 72

Refers to the obligation to honor commitments and contracts

Question 73

Significance of These Concepts in Relation to Nursing

Answer 73

Autonomy: The nurse respects the client’s autonomy through patient’s rights and informed consent and by encouraging the client to make choices about their health care

Beneficence & Nonmaleficence: The nurse has a duty to take actions that promote the client’s health (beneficence) and that do not harm the client (nonmaleficence).

Justice, Veracity, & Fidelity: The nurse must treat all clients fairly (justice), be truthful and honest (veracity), and honor all duties and commitments to clients and families (fidelity)

Question 74

Ethical Dilemma

Answer 74

A situation in which ethical principles conflict or when there is no single clear course of action in a given situation

Often complicated and charged with emotion, making it difficult to arrive at fair or “right” decisions.

The legal aspect of an action is behavior that is allowed or required by law—there is almost always a clear “answer” to a question about the legality of an action.
- The ethical aspect of an action involves what is “right” or what a person should do. T

The answer is not always clear, and there is often more than one possible course of action
- Ethical points of view are influenced by values, opinions, and beliefs

Question 75

Example of Ethical Dilemma

Answer 75

Client who refuses medication or treatment is allowed to do so on the basis of the principle of autonomy.
- If the client presents an imminent threat of danger to themself or others, however, the principle of nonmaleficence (do no harm) is at risk.
- To protect the client or others from harm, the client may be involuntarily committed to a hospital, even though some may argue that this action violates their right to autonomy

Rationale: In this example, the utilitarian theory of doing the greatest good for the greatest number (involuntary commitment) overrides the individual client’s autonomy (right to refuse treatment).

Question 76

Points to Consider When Confronting Ethical Dilemmas

Answer 76

Talk to colleagues or seek professional supervision.
- Usually, the nurse does not need to resolve an ethical dilemma alone.

Spend time thinking about ethical issues, and determine what your values and beliefs are regarding situations before they occur.

Be willing to discuss ethical concerns with colleagues or managers
- Being silent is condoning the behavior