NCLEX: Legal Issues in Nursing Practice

Terms you’ll need to understand:
Assault
Battery
Civil laws
Common laws
Consent
Criminal laws
Ethics
Felony
Incident report
Informed consent
Intentional torts
Invasion of privacy
Licensure
Malpractice
Malpractice insurance
Misdemeanor
Negligence
Nursing Practice Act
Patient’s Bill of Rights
Regulatory laws
Restraints
Tort

Legal Issues in Nursing Practice
Safe nursing practice requires a knowledge of the practice boundaries of the registered nurse, the licensed practical nurse, and the nursing assistant.
In the United States the state boards of nursing govern nursing practice.
State boards of nursing are generally made up of practicing nurses, physicians, and consumers, as well as an attorney and an executive officer appointed by the governor of the state. Some boards of nursing are also made up of directors of nursing from nursing schools within the state. The state boards of nursing are responsible for assuring that those licensed to practice nursing are safe practitioners and that they abide by approved standards of nursing practice. The state boards of nursing also have the ability to suspend, restrict, or revoke the license of a nurse who has been convicted of a felony or misdemeanor. In the case of alcohol and drug addiction the state boards of nursing can require the nurse to enter a recovering nurse program under the direction of the board.
No matter in which state you become licensed to practice, you will be bound by the Nursing Practice Act of that state. Nursing Practice Acts vary from state to state, but in many ways they are all very much the same. Nursing Practice Acts define the authority of the board of nursing, define the boundaries of scope of nursing practice, state the requirements for licensure, identify grounds for disciplinary action, and identify titles and types of licensure.
Boards of nursing are authorized to take legal action against a nurse or a group of nurses found to be in violation of the state’s nursing practice standards as set out by the legislature.
This guide explores these laws and the impact they have on your nursing practice. It also defines and discusses issues affecting your nursing practice and some questions you will be asked on the NCLEX® exam related to legal and ethical issues.
If you are asked to perform any activity or skill that is out of your scope of practice by a physician, a supervisor, an administrator, or any other person in direct authority over you, you have the right and the obligation to refuse. If you are asked to perform a skill that you were taught in school but have never performed, ask for help. If you are asked to operate a type of equipment that you are unfamiliar with, ask for help. Remember that the law and the National Council of State Boards of Nursing expect you to ensure the safety of the client and you are held responsible if harm comes to the client as a result of your care or lack of care.

Types of Laws
Several types of laws govern nursing practice: regulatory, civil, statutory, and criminal. The nurse is responsible for abiding by each type of law.

Statutory Laws/Regulatory Laws
Statutory laws are laws created by elected officials within the legislative body. An example of this type of law is the Nursing Practice Acts. These rules and regulations tell the nurse which activities he can perform. It is imperative that the newly licensed nurse be aware of these standards and that he abide by them in daily practice. Often the nurse is asked to perform duties he does not feel comfortable performing. Remember that, if a task or skill was not taught in your nursing school, it probably is out of your scope of practice. Nursing curriculums are routinely reviewed and approved by professional organizations, such as the National League for Nursing and others.
So, you can be fairly certain that if you didn’t learn a task in school, it is not within your rights to perform that task.

Civil Law
Civil laws are laws passed to protect the rights of individuals within a group and to ensure fair treatment without bias or prejudice. These laws ensure that all clients are treated equally without regard to race, social status, ability to pay for services, or country of origin. If a violation of civil law is found, federal or state funds can be withheld or suit can be brought against the doctor, the nurse, or the facility for which they work. Damages usually involve money and sanctions. If the nurse can be found to have caused harm to the client, because of a lack of care, further damages can be filed.

Criminal Law
A felony is a crime of a serious nature that is punishable by jail time and loss of the nurse’s license. A misdemeanor, on the other hand, is a lesser crime that can result in imprisonment for less than one year or a fine. An example of a misdemeanor is the use of a controlled substance. A felony example is the possession of large quantities of drugs with the intent to sell. Many other types of crimes are considered criminal. Examples of these are stealing from a client or abusing a client. These involve action be taken by the police and the board of nursing. Even if the nurse is not caring for clients at the time the crime is committed, the state board of nursing can take actions against the nurse. Actions taken by the board can include suspension or loss of the license to practice nursing.

Common Law
Common laws are laws created to provide consent for services that need to be rendered when the client is unable to give consent herself or to provide for the right to refuse consent. These provisions are described in the Patient’s Bill of Rights, which is listed here: As a client you have the right to

1. - Receive respectful treatment that will be helpful in the course of your recovery.
2. - Refuse a treatment or to end treatment without harassment by the healthcare community. This is often a problem because physicians want the client to survive. However, the client and family might be more concerned with death and dignity while dying. Hospice care can help during this time.
3. - A safe environment that is free from fear of physical, emotional, or sexu- al abuse or neglect. This includes cleanliness of the facility and the healthcare providers.
4. - Refuse electronic recording of your conversations with healthcare work- ers. You can also request that conversations be recorded.
5. - Have written information regarding any care that is being provided or that the physician proposes. You also have the right to a written statement of all fees and services and the cost of each. You also have the right to see the licensure, educational training, and experience of your healthcare provider. You can also ask to see to which professional organizations your healthcare providers belong and any limitations that have been placed on her by her regulatory organization.
6. - Report unethical or illegal behavior that you observe and to ask ques- tions about your care.
7. - Refuse to answer questions or to disclose any information you choose not to share.
8. - Confidentiality. You can take legal action if the healthcare worker does not abide by the Health Information Protection Privacy Act (HIPPA).
9. - Receive a second opinion from another healthcare worker, physician, counselor, or nurse practitioner.
10. - See your files and receive a photocopy of your chart.
11. - Request that the doctor, counselor, or nurse inform you of your progress or lack of progress during your treatment.
12. - Know who will know about you and be able to see your chart.

Code of Ethical Behavior in Nursing Practice
Ethics are the principles that guide nursing decisions and conduct as they pertain to what is right or wrong. They also involve moral behavior. The nurse is expected to behave in a way that maintains the integrity of the client and family. Situations often arise that require the nurse to make a judgment; a dilemma results when the nurse’s values differ from those of the client and family. The nurse must remember that the client has the right to make decisions for herself without the nurse expressing his opinion. In 2001, the American Nurses Association released the Code of Ethics for Nursing. This code discusses the obligation and duties of the nurse. The following list describes the Code of Ethics for Nursing:

1. - The nurse practices with compassion and respect for the dignity, worth, and uniqueness of the individual, unrestricted by social or economic status, personal attributes, or the nature of the disease. For example, the nurse might not be comfortable caring for the alcoholic client but is ethically obligated to provide the best and most compassionate care possible.
2. - The nurse is committed to the client, whether the client is an individual, a family, or a community. The home health nurse might be asked to care not only for the client, but also the family and or the whole community.

In some cultures, the family and community are included in decision making. The nurse must respect the client’s wishes in this matter.
- The nurse is expected to promote the protection of the client and pro- tect the health, safety, and rights of the client.
- The nurse is responsible for and accountable to delegate tasks consistent with optimal client care. The nurse is expected to be aware of the roles and responsibilities of other healthcare workers.
- The nurse is expected to preserve the integrity and safety to maintain competence and to continue personal and professional growth. This basically means that in states where continuing education units are required, the nurse will abide by these regulations to keep his license current.
- The nurse participates in activities that improve the conditions of the work environment. He is also responsible for promoting activities that foster ethical values in nursing.
- The nurse participates in the advancement of the profession through education, research, and development of nursing knowledge.
- The nurse collaborates with others in the health community to meet client needs.
- The nurse is responsible for maintaining the integrity of nursing and its practice and for shaping social policy. This is done through professional organizations.

Legalities That Affect Nursing Practice
Standards of care apply to the practice of nursing. Because legal actions can be taken against the nurse, it is important for the nurse to be familiar with legal terminology. Several issues affecting nursing practice are discussed in the following section. These include negligence, malpractice, assault, tort, and fraud. These are the most common charges taken against the nurse, so we will cover each in detail.

Negligence
First, negligence is defined as a lack of reasonable conduct and care.
Negligence involves omitting an act expected of a person with knowledge. If the nurse fails to perform an act, such as putting the side rail up on a bed and the client falls out of bed, resulting in injury, the nurse can be charged with negligence. It is reasonable for the client to expect the nurse to know that the side rail should be used to prevent injury. Other examples of negligence are the failure to administer medications that are ordered by the physician and the nurse charting vital signs she has not obtained.

Malpractice
Malpractice is professional negligence, misconduct, or unreasonable lack of skill that results in injury or loss of professional services. A nurse can be charged with negligence and malpractice in the same context. If the nurse fails to take the vital signs and the client’s condition deteriorates and the client eventually dies, the nurse can be charged with both negligence and malpractice. Although malpractice is often thought of as more severe, both can result in harm to the client. Other examples of malpractice include medication errors, carelessness with heat and cold application, and failure to assess symptoms such as shock and respiratory distress.

Assault
Assault is the unjustifiable threat or attempt to touch or injure another person. An example is a nurse on the psychiatric unit who uses undue power to restrain the client during an altercation. In such a situation, the nurse can be charged with assault. Assault and battery is the unlawful touching or injuring of another. This might or might not involve the use of a weapon.

Torts
A tort is a legal wrong against a person or his property intentionally. If the psychiatric nurse is given the responsibility of searching the belongings of a client admitted to the unit and, during the search of the client’s luggage, the clothes are torn and the property destroyed, the nurse can be charged with a tort.

Fraud
Fraud is the attempt to mislead in any form. Examples of fraud are the recording of vital signs that are not taken and the recording of blood glucose levels that were not obtained.

Witnessing Consent for Care
The nurse is responsible for witnessing informed consent and can legally witness a will if asked by the client. The nurse is not responsible for obtaining informed consent, even though the nurse might get the client to sign the form before surgery or blood administration. This, however, is the ultimate responsibility of the physician. The nurse documents and communicates information regarding client care to the doctor.

Managing Client Care
A portion of the NCLEX® exam, called Safe Effective Care, includes the management and delegation of client care. The nurse is responsible for delegating client assignments. The usual team of healthcare workers includes the registered nurses, the licensed practical nurses/licensed vocational nurses, and the nursing assistants (UAP-unlicensed assistive personnel). The
National Council of State Boards of Nursing (NCSBN) and state boards of nursing are responsible for ensuring the safety of clients. They work with the American Hospital Association to formulate rules and regulations that govern the nursing practice of these workers. The nurse must utilize Maslow’s Hierarchy of Needs when delegating care to others. The most critical clients should be assigned to the most educated and experienced nurse, whereas the most stable clients should be assigned to the care of the lesser-qualified personnel. The registered nurse cooridinates the healthcare and makes assignments to other workers. When the client is admitted to the unit, the registered nurse should see the client first. A client being discharged home or to another unit must be seen by the registered nurse before discharge, as well.
The licensed practical nurse should be assigned to care for the client who needs skilled nursing care but is stable. Care of central venous infusions, blood transfusions, intravenous infusion of chemotherapy agents, and unstable clients are duties that should be assigned to the registered nurse.
Administering medications orally or by injection, sterile dressing changes, and inserting nasogastric tubes are examples of duties that can be performed by the licensed practical nurse. The nursing assistant can perform activities of daily living, such as feeding and bathing the client. The nursing assistant can also be assigned to take the vital signs of the stable client. The following gives examples of activities that can be performed by the registered nurse and activities that licensed practical nurses can perform:
- Ambulating the client—The nurse (RN/LPN) can measure the client for crutches, assist the client to ambulate using crutches, and teach him regarding the correct methods of ambulation with crutches. The nurse (RN/LPN) can ambulate the client, but the nursing assistant can only ambulate the stable client.

The nurse (RN/LPN) can measure the client for a walker, ambulate the client with a walker, and teach him how to use the walker.
The nurse (RN/LPN) can measure the client for a cane, ambulate the client with a cane, and teach him how to use the cane.

- Applying heat and cold—The nurse (RN/LPN) can apply heat lamps, heating pads, warm, moist soaks. The nurse (RN/LPN) can also apply cold applications.
- Applying restraints of all types—The RN and the physician are the only two who can place the client in seclusion on the psychiatric unit.
- Bathing the client—The nurse (RN/LPN/ULP) can bathe the client and assist the client with performing the activities of daily living.
- Central venous pressure monitoring—The nurse (RN/LPN) can check the central venous pressure and assist the doctor with inserting a central catheter. Even though both the RN and LPN have knowledge of the hemodynamics of the heart, the best nurse to assign to interpreting central venous pressures is the registered nurse.
- Collecting specimens—The nurse (RN/LPN) can collect specimens such as sputum, wound, urine, and stool.
- Electrocardiogram interpretations—The nurse (RN/LPN) can inter- pret the ECG monitor and should know the life-threatening arrhythmias and the management of each.
- IV therapy—The registered nurse can start, manage, and discontinue intravenous infusions. The licensed practical nurse can maintain, regulate, and discontinue IV infusions according to written protocol. The LPN is not authorized to start IV therapy unless the LVN/LPN is certified to perform this task.
The RN can insert peripherally inserted central venous catheters (PICCs) with certification. The LPN, however, is not authorized to perform this skill.
The RN can hang and monitor blood transfusions. The LPN can take the vital signs of the client receiving the blood transfusion, but she should not be the primary nurse responsible for this client.
- Medication administration—The nurse (RN/LPN) can insert supposi- tories vaginal and rectal. The registered nurse can administer IV medications, IV push, and IV piggyback medications. The licensed practical nurse should not be assigned to this task unless he is IV certified.
Intravenous push medications are not usually included in this certification. The nurse (RN/LPN) can administer oral medications, topical medications, intramuscular medications, intradermal medications, and subcutaneous medications.
- Nasogastric tubes—The nurse (RN/LPN) can insert nasogastric tubes for Levine suction or gavage feeding. The nurse (RN/LPN) can insert medications through nasogastric feeding tubes and percutaneous esophagoscopy gavage feeding tubes (PEG tubes). The RN and LPN can discontinue nasogastric tubes.
- Tracheostomy care/endotracheal care—The nurse (RN/LPN) can suction and provide ventilator support (the nurse is expected to know how to manage the client on the ventilator). The RN and LPN can clean the tracheostomy and provide oxygenation.
- Traction—The nurse (RN/LPN) can set up and maintain skin traction but cannot implement skeletal traction.
- Urinary catheters—The nurse (RN/LPN) can insert Foley and French catheters. The RN and LPN can irrigate Foley catheters with a physician’s order. They both can discontinue Foley and French catheters, as well.
- Vital signs—The nurse (RN/LPN) can perform the task of taking the vital signs and evaluating them. The nusing assistant can take the vital signs of the stable client.
- Wound care (sterile)—The nurse (RN/LPN) can perform decubitus care, cast care, and sterile dressing changes.

The Nursing Practice Act varies from state to state. Contact the state in which you want to be licensed to find specific details affecting nursing practice. The state board of nursing has been authorized to take action against a nurse who has been found guilty of failure to comply with rules and regulations set forth by the law. These examples are not a comprehensive list of all the skills registered nurses/licensed practical nurse can do. D. not assign a nursing assistant to calculate hourly intake and output, take postoperative vital signs, or care for an unstable client. The registered nurse or licensed practical nurse should be assigned to these tasks.

The nurse must be aware of infection control and isolation needs. If the client has an infection, he should not be assigned to share a room with a client who is immune suppressed or has had surgery. The pregnant client should not be assigned to share a room with a client with teratogenic infections or who is receiving medications that can be harmful to the fetus. The pregnant nurse should also not be assigned to care for the client who has a radium implant or one who is receiving chemotherapy or other medication that can harm the baby.
Another responsibility of the registered nurse and the licensed practical nurse is to serve as a client advocate. She must ensure that referrals are made and that facility policies are maintained. The registered nurse helps with formulating the policies and often serves as the head nurse, supervisor, or director of nursing. Often the registered nurse is the one assigned to call social services, dietary, and other services, although the licensed practical nurse can assist with these responsibilities. As the charge nurse, the RN also might be called on to council co-workers and settle differences that arise among personnel.