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Chapter 3

Legal and Ethical Issues

Standard of care is a guideline for nursing practice and establishes an expectation for the nurse to provide safe, effective, and appropriate care.

Published standards like the Scope and Standards of Gerontological Nursing Practice are important in establishing the proper standard of care.

Accreditation is another way to ascertain the appropriate standard of care.

Professional Standards

Statutes

Case law

Regulations

Federal laws

State laws

Sources of Law

Limits the use of preexisting condition exclusions

Prohibits group health plans from discriminating by denying coverage or charging extra for coverage

Guarantees certain small employers and certain individuals who lost job-related coverage the right to purchase health insurance

Guarantees that employers or individuals who purchase health insurance can renew the coverage regardless of any health conditions.

Health Insurance Portability and Accountability Act (HIPAA)

Domestic elder abuse: form of maltreatment by someone who has a special relationship with the older adult

Institutional abuse: abuse that occurs in residential institutions such as nursing facilities

Self-neglect: related to a diminished physical or mental decline, identified by a failure or refusal to provide adequate shelter, food, water, hygiene, safety, clothing, or health care.

Elder Abuse as Defined by State Law

Physical abuse

Sexual abuse

Emotional abuse

Financial and material exploitation

Neglect

Abandonment

Self-neglect

Seven Types of Elder Abuse

Refers to the range of laws and regulations enacted to deal with abusive situations

Nurses must be alert to recognize signs and symptoms of abuse and caregiver stress.

Laws and regulations are typically administered by an agency within the state and levy criminal penalties against those who commit harmful acts against older adults.

Nurses are “mandated reporters.”

Adult Protective Services

The nurse is working at a health fair and notices an older gentleman with his son. The older man appears to be in need of a haircut. His clothing is soiled and torn; however, the son's clothing is clean and fresh. The nurse suspects that the older man be a victim of which type of abuse?

a. Physical

b. Neglect

c. Emotional

d. Abandonment

Quick Quiz!

ANS: B

Answer to Quick Quiz

Provides regulatory oversight

Medicare pays only for skilled care—which includes nursing, physical therapy, occupational therapy, and speech therapy—for Medicare-insured persons in long-term care facilities

Intermediate care is considered custodial in nature and is supervised by professional nurses.

Medicaid pays for both intermediate and skilled care for indigent persons.

Centers for Medicare and Medicaid Services

Focuses on the quality of life of residents in nursing facilities and assurances of the preservation of their human rights and due process interests.

The regulations address virtually every element of life in a nursing facility.

OBRA’s regulations are enforced through a survey process that focuses on the outcomes of residential care and includes sanctions designed to force compliance.

Omnibus Budget Reconciliation Act (OBRA)

Provision of service requirements for nursing facilities

Survey and certification processes

Enforcement mechanisms and sanctions

OBRA’s Three Major Parts

Quality of care—nursing facility residents must be assessed to detect medical problems, evaluation of their capacity to perform daily life functions

Resident rights—provisions to protect and promote the rights of residents to enhance their quality of life

Provision of Service Requirements (1 of 2)

Unnecessary drug use and chemical and physical restraints—require nursing facility residents be free of unnecessary drugs of all types; chemical restraints, commonly thought of as psychotropic drugs; and physical restraints

Urinary incontinence—nursing facilities are required to include incontinence in the comprehensive assessment and to provide the necessary treatment—bladder retraining, prompted voiding, pelvic floor exercises, etc.

Provision of Service Requirements (2 of 2)

The CMS is determined to see that every nursing facility implements and complies with the OBRA’s requirements.

The standard survey is conducted to review the quality of care by evaluation of criteria such as medical, nursing, and rehabilitative care; dietary services; infection control; and the physical environment.

Surveys are conducted by a multidisciplinary survey team of professionals with at least one RN.

Facility Survey and Certification

DHHS and the states may apply sanctions or penalties against a facility for failure to meet requirements and standards.

Sanctions may include civil monetary penalties, appointment of a temporary manager to run a facility while deficiencies are remedied, closure of a facility or move residents to another facility.

Deficiencies and violations must be fixed by formulating a plan of correction to submit to the regulatory officials.

Enforcement Mechanisms and Sanctions

Main goal is to reduce the number of Americans who do not have health insurance and to further reduce the overall costs of health care in the United States.

Will continue to be phased in with the final changes as noted—that all existing health insurance plans must cover preventive care and checkups without copayments, last phase in January 2020 will close the Medicare Part D coverage gap.

Affordable Care Act (ACA)

A strong judicial deference toward individual autonomy ensures that every human has the right to determine what shall be done with his or her own body.

Individual autonomy reflects a belief that individuals have a right to be free from nonconsensual interference with their persons, and the basic moral principle that it is wrong to force others to act against their will.

Autonomy

The right to self-determination is based on the doctrine of informed consent.

Informed consent—process by which competent individuals are provided with information that enables them to make a reasonable decision about any treatment or

The right to self-determination covers all decisions about one’s care and treatment, including the removal of life support or life-sustaining treatments and life-prolonging or lifesaving measures.

Self-Determination

DNR: specific order from physician which instructs health care providers not to use or order specific methods of therapy such as CPR

For a person to choose to accept or reject medical care, that person must be determined to be competent.

It is imperative for the nurse to request that the facility have a detailed and specific policy to provide the necessary guidance for DNR orders.

Do Not Resuscitate Orders (DNR)

Legal documents that permit people to put in writing their wishes and preferences regarding health care

Are used to indicate their decisions if the time should come when they are unable to speak for themselves

May also permit people to designate someone to convey their wishes in the event they are unable to do so

Advance Medical Directives (AMDs)

Is a process of communicating health care wishes during a medical crisis, or decline in health

Is not meant to replace traditional end-of-life care communication tools like advance directives or DNR statuses

Components of the POLST are: Cardiopulmonary resuscitation (CPR), medical interventions, and artificially administered nutrition

Physician Orders for Life-Sustaining Treatment (POLST)

Living Wills—provide written expression of wishes regarding the use of medical treatments in the event of a terminal illness or condition

The patient has the right to revoke or change their LW at any time.

Designation of Health Care Agents—appointment of a trusted person to express wishes regarding the withholding or withdrawal of life support

Legal Tools

Durable Power of Attorney for Health Care—legal instrument to designate someone else to make health care decisions at a time in the future when he or she may be rendered incompetent

General Power of Attorney—does not cover medical decision making and becomes invalid upon incompetence of the person delegating the power of attorney

Durable Power of Attorney

Laws uphold the expressed desire of a patient over those of the family, but families can exert influence that is sometimes contrary to the patient’s expressed wishes.

Should conflict occur, most AMD statutes specifically provide immunity for physicians who follow, in good faith, the wishes of a patient

Conflicts Between Directives and Family Desires

Intent of law is to ensure patients are given information about the extent to which their rights are protected under state law.

Requires hospitals, nursing facilities, and other health care providers who receive federal funds to give patients written information explaining their legal options for refusing or accepting treatment should they become incapacitated

The Patient Self-Determination Act

Requires maintenance of written policies and procedures guaranteeing that every adult receiving medical care be given written information regarding their involvement in treatment decisions

Providers must offer education to staff and the community on issues concerning AMDs.

States are required to develop a written description of the law concerning AMDs and distribute the material to providers.

Secretary of the DHHS is required to develop and implement a national campaign to inform the public of the option to execute AMD.

Four Significant Provisions of the PSDA

Nurses should know the laws of the state in which (they) practice and should be familiar with the strengths and limitations of the various forms of advance directive.

The nurse has a responsibility to facilitate informed decision making, including but not limited to advance directives.

Nurses’ Responsibilities

Instrument that asks questions related to quality versus length of life and tries to determine the values a person sees as important to maintain during terminal care.

As life-and-death situations become more complex and begin to demand factual knowledge of the patient’s wishes, the values history may help preserve the autonomy of the individual.

Values History

Ethics relate to the moral actions, behavior, and character of an individual.

Code of ethical conduct offering general principles to guide and evaluate nursing actions

Role of health care professional is to maintain patient autonomy, maintain or improve health status, and do no harm.

Nurses’ Ethical Code and End-of-Life Care

Autonomy or self-determination

Beneficence (doing good)

Nonmaleficence (avoiding evil)

Justice (allocation of resources)

Veracity (truthfulness)

Key Ethical Principles

The American Medical Association (AMA) and the American College of Physicians (ACP) have maintained their opposition to physician-assisted suicide.

An act of affirmative euthanasia (actual administration of the instrumentality that causes death) constitutes an illegal criminal offense in all 50 states.

Code of Ethics for Nurses prohibits nurses from participating in assisted suicide.

Euthanasia, Suicide, and Assisted Suicide

Patients may refuse to participate in experimental research and may refuse to be examined, observed, or treated by students or other staff without jeopardizing their access to care.

Both state and federal regulatory provisions govern human research investigations.

Experimentation and Research

Ethics committees act as the primary organizational mechanism for studying, educating about, and providing advice on value conflicts and dilemmas face in health care.

Provide education and help guide policy making regarding ethical issues, facilitate the resolution of ethical dilemmas, and take an activist role in involving all interested parties in promoting the best care for patients.

Ethics Committees

Provide education and help guide policy making regarding ethical issues

Facilitate the resolution of ethical dilemmas

Take an activist role to involve all interested parties in promoting the best care for patients

Purpose of Ethics Committees