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Course: Fundamentals of Nursing�Topic: Legal Concepts in Client Care

The Nurses International Community

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Module Goals

Learners will be able to:

Describe the concept of client Rights and client Responsibilities.
Describe the Nurse’s role in client’s rights.
Explain the relationship between law and nursing practice.

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Client Rights

Entitlements of the client while receiving healthcare.
Informs client about the kind of care they can expect from the healthcare providers.
Clients’ rights declared in constitutions are legally binding and varies across nation and states.
Bill of Patients’ Rights or Charter of Patients’ Rights declared by international/national/local institutions may not be legally binding but carries moral weight for compliance (AHRC, n.d.)

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Common Clients’ Rights Used

Informed Consent

Confidentiality

Refusal of Treatment

Medical Treatment in an Emergency

Continuity of Care

Olejarczyk & Young, 2020

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Informed Consent

Interchangeably used with informed decision
Composite of two parts¹:

1st part- Right to adequate information which must include,

nature, consequences and risks of proposed medical treatment²
likely consequences of not undertaking the treatment²
any alternative treatment or courses of action (with their consequences) that could be considered²

2nd part- Right to autonomy:

Ability to make the decision independently, free of threats or coercion

1. Olejarczyk & Young, 2020

2. Legal Services Commission of South Australia, 2020

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Informed Consent

Who makes the informed decision or give consent?

Clients’ legal parent, if client is under age by law
Client of legal age when s/he is mentally sound/capable
Medical power of attorney
Legal guardian of mentally challenged client

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Confidentiality

Any information pertaining to the client must be confidential between the client care team members.
Those with legitimate access to the client’s records are not authorized to divulge any information to any third party.
Third party include

Anyone whom the client has not permitted sharing of information to
Clients’ spouse/close family members/friends

Exception to this rule is when it is required by law (e.g court order) for the information to be shared with those concerned in the case.

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Refusal of Treatment

1. Olejarczyk & Young, 2020

2. NHS UK, 2017

Client has the right to refuse treatment offered to them.
It is based upon the ethical principle of autonomy¹.
Even when refusing treatment may result in clients’ death.
Exception to this right is if the health professional in charge of the client’s care think that client lacks capacity to make informed and voluntary decision².

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Medical Treatment in an Emergency

When client shows up in emergency with life-threatening condition, life saving measures must be taken to the point of stabilization, regardless of client’s ability to pay for treatment.

Medical institutions differ in extension of this right

differ in what constitutes an emergency
differ in determination of what point a client is considered stable enough to discontinue treatment

Olejarczyk & Young, 2020

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Continuity of Care

Client can accept or refuse referrals to certain specialists and home treatment plans¹.
Treating physician are expected to cooperate in coordinating medically indicated care with other health care professionals²

during transition between care providers or between medical institutions³ (through referral or client’s own choice)

Expected that physician will not discontinue treating client prior to giving sufficient notice and reasonable assistance in making alternative arrangements for care².
Necessitates that client receives information to maintain health beyond hospital/clinical setting¹.

Olejarczyk & Young, 2020
American Medical Association, n.d.
Ministry of Health, State of Israel, n.d.

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Critical Thinking Question:

What client rights are ensured in your nation/state/province?

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Some Other Clients’ Rights

Right to medical care of good quality^1,2,3
Right to freedom of choice^1,2
Right to self-determination^1,2
Right to information^1,2,3
Right to health education^1,2
Right to dignity^1,2,3
Right to religious assistance¹

1. (World Medical Association, August 2018)

2. (National Human Rights Commission India, 2020)

3. (Government of Western Australia, n.d.)

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According to WMA DECLARATION OF LISBON ON THE RIGHTS OF THE PATIENT 1981, reaffirmed in 2015, (WMA, August 2018):

Right to medical care of good quality

Every person is entitled without discrimination to appropriate medical care.
Every patient has the right to be cared for by a physician whom he/she knows to be free to make clinical and ethical judgements without any outside interference.
The patient shall always be treated in accordance with his/her best interests. The treatment applied shall be in accordance with generally approved medical principles.
Quality assurance should always be a part of health care. Physicians, in particular, should accept responsibility for being guardians of the quality of medical services.
In circumstances where a choice must be made between potential patients for a particular treatment that is in limited supply, all such patients are entitled to a fair selection procedure for that treatment. That choice must be based on medical criteria and made without discrimination.
The patient has the right to continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care.

Right to freedom of choice

The patient has the right to choose freely and change his/her physician and hospital or health service institution, regardless of whether they are based in the private or public sector.
The patient has the right to ask for the opinion of another physician at any stage.

Right to self-determination

The patient has the right to self-determination, to make free decisions regarding himself/herself. The physician will inform the patient of the consequences of his/her decisions.
A mentally competent adult patient has the right to give or withhold consent to any diagnostic procedure or therapy. The patient has the right to the information necessary to make his/her decisions. The patient should understand clearly what is the purpose of any test or treatment, what the results would imply, and what would be the implications of withholding consent.
The patient has the right to refuse to participate in research or the teaching of medicine.

The unconscious patient

If the patient is unconscious or otherwise unable to express his/her will, informed consent must be obtained whenever possible, from a legally entitled representative.
If a legally entitled representative is not available, but a medical intervention is urgently needed, consent of the patient may be presumed, unless it is obvious and beyond any doubt on the basis of the patient’s previous firm expression or conviction that he/she would refuse consent to the intervention in that situation.
However, physicians should always try to save the life of a patient unconscious due to a suicide attempt.

The legally incompetent patient

If a patient is a minor or otherwise legally incompetent, the consent of a legally entitled representative is required in some jurisdictions. Nevertheless the patient must be involved in the decision-making to the fullest extent allowed by his/her capacity.
If the legally incompetent patient can make rational decisions, his/her decisions must be respected, and he/she has the right to forbid the disclosure of information to his/her legally entitled representative.
If the patient’s legally entitled representative, or a person authorized by the patient, forbids treatment which is, in the opinion of the physician, in the patient’s best interest, the physician should challenge this decision in the relevant legal or other institution. In case of emergency, the physician will act in the patient’s best interest.

Procedures against the patient’s will�Diagnostic procedures or treatment against the patient’s will can be carried out only in exceptional cases, if specifically permitted by law and conforming to the principles of medical ethics.
Right to information

The patient has the right to receive information about himself/herself recorded in any of his/her medical records, and to be fully informed about his/her health status including the medical facts about his/her condition. However, confidential information in the patient’s records about a third party should not be given to the patient without the consent of that third party.
Exceptionally, information may be withheld from the patient when there is good reason to believe that this information would create a serious hazard to his/her life or health.
Information should be given in a way appropriate to the patient’s culture and in such a way that the patient can understand.
The patient has the right not to be informed on his/her explicit request, unless required for the protection of another person’s life.
The patient has the right to choose who, if anyone, should be informed on his/her behalf.

Right to confidentiality

All identifiable information about a patient’s health status, medical condition, diagnosis, prognosis and treatment and all other information of a personal kind must be kept confidential, even after death. Exceptionally, descendants may have a right of access to information that would inform them of their health risks.
Confidential information can only be disclosed if the patient gives explicit consent or if expressly provided for in the law. Information can be disclosed to other health care providers only on a strictly “need to know” basis unless the patient has given explicit consent.
All identifiable patient data must be protected. The protection of the data must be appropriate to the manner of its storage. Human substances from which identifiable data can be derived must be likewise protected.

Right to Health Education�Every person has the right to health education that will assist him/her in making informed choices about personal health and about the available health services. The education should include information about healthy lifestyles and about methods of prevention and early detection of illnesses. The personal responsibility of everybody for his/her own health should be stressed. Physicians have an obligation to participate actively in educational efforts.
Right to dignity

The patient’s dignity and right to privacy shall be respected at all times in medical care and teaching, as shall his/her culture and values.
The patient is entitled to relief of his/her suffering according to the current state of knowledge.
The patient is entitled to humane terminal care and to be provided with all available assistance in making dying as dignified and comfortable as possible.

Right to religious assistance The patient has the right to receive or to decline spiritual and moral comfort including the help of a minister of his/her chosen religion.

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Client Responsibilities

National/state/provincial/local laws might require clients to fulfil certain responsibilities for provision of best care possible.
Some of the examples of client responsibilities:

Respect the rights of other clients and health providers^1,2,3.
Utilise the health care system properly and not abuse it^1,3.
Know his or her local health service and what they offer^1,3.
Provide health care providers with relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purpose^1,2,3.
Comply with prescribed treatment or rehabilitation procedures^1,2,3.

Western Cape Government. Department of Health, 2014
Western Australia. Department of Health, n.d.
Scottish Government, 2019

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Nurse’s Role in Client Right

Nurses must respect client's rights
Nurses must protect and advocate for the clients rights

Responsible and accountable to embed client rights in self practice
Must report violation of clients rights when observed

Nurse must inform and educate client of their rights and responsibilities to assist client in making informed decision about their care

Therefore, nurses must know their national/state/local legislation pertinent to client rights and responsibilities!!!!

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What Would a Nurse Do?

During history taking, client was asked if he was currently on any medication. Client hid the fact that he was HIV positive and on antiretroviral medication. He replied ‘no’ to the question. Client was prescribed with medication that interacted with the antiretroviral medication and negatively affected the client. Client came back to the care provider with the complaint of adverse effect. Client then confessed to being on antiretroviral medication. The nurse told the client that it was his fault for not being honest with care provider.

What should the nurse have done?

How could the problem have been prevented?

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What should the nurse have done?

Instead of pointing fingers or giving negative feedback, the nurse should have tried to understand why client hid the information with the care provider. By knowing the real reason for client hiding accurate information, nurse can then identify right course of action to ensure client shares accurate information about his health problems in future where necessary for his treatment.

How could the problem have been prevented?

May be educating client about his rights to confidentiality of his informations could have helped client feel at ease to share about his HIV status/ treatment.

Informing/educating the client about his responsibility to provide relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purposes and its importance in providing him the best treatment care, might have encouraged him to provide correct information and prevented the problem.

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Law and Nursing Practice

Nursing profession, in any country, is regulated by law such that it contributes to and maintains the safety of the health of the public.
Functions of law in nursing practice:

Ensure only qualified/competent nurses provide safe care.
Set standard and scope for nursing practice.
Set code of ethics to guide nursing practice.
Provide autonomy to practice independently within the nursing scope of practice.
Also hold nurses responsible and accountable to their own practice.

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Sources of Law

Constitution: a set of basic laws that specifies the powers of the various parts of government. Grants the authority to make, implement, and interpret laws.
Legislative bodies: enact laws at national (federal) and local (province, district, state, municipality) levels.
Administrative agencies: draft the rules that implement or apply the law (e.g, Ministry of Health, Department of Health, Nursing Council).
Judicial branch: interprets the law while ruling in court cases.
Common law: courts set precedents that are used by other courts; over time, these have the force of law.

Burke, 2021

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Criminal Law

Some examples of criminal law affecting the nurse:

Nurses may be required to report suspicious injuries that may be signs of physical violence.
Many health care agencies check for criminal backgrounds of potential employees.
Laws require health care agencies to regulate and monitor regulated drugs.
A nurse also may be affected by criminal behavior outside the workplace; e.g., discovery of alcohol or drug abuse can result in the nurse’s license being revoked.

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Malpractice and Negligence

Malpractice refers to a professional’s wrongful conduct

Failure to meet standards of care for the profession which results in harm to another individual entrusted to the professional’s care.

Negligence is the failure to provide the care a reasonable and prudent person would ordinarily provide in a similar situation.

Burke, 2021

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Liability and Policies & Procedures of Institutions

Liability defines a person’s responsibility for their actions or omissions.
Usually employed nurses are covered by employer’s legal insurance as long as they follow employer’s policies in providing care.
Failure to follow the policies and procedures of the institution in giving care can expose the nurse to personal liability without the protection of the institution.
Nurses must know the policies and procedures of their employers and adhere to these in everyday practice.

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Nursing Practice Act/Nurse Act

The most important piece of legislation for nursing practice

Defines categories of nurse (e.g. RN,LPN, APN) and their practice
Education requirements
Registration and licensing requirements
Establishes regulatory bodies (e.g. Nursing council, State Boards or “Colleges”)

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Following Doctors Orders

Usually, the nurse is required to follow the doctor’s orders in giving care to the client unless doing so would cause the client harm.
The nurse must ensure that the orders are clear and accurate.
If necessary, the nurse may have to contact the physician for clarification.
If the nurse is still uncomfortable following the order, the nurse should notify the supervisor and follow the institution’s policies regarding notification.

Always document conversation with the physician for clarification of orders!

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NOT DOCUMENTED.

is considered NOT DONE.

Remember:

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What Would a Nurse Do?

The nurse receives a doctor’s order to give the client a medication. After reviewing the order, the nurse realizes that the prescribed dose is above the normal safe dosing range. Although the nurse knows that giving a large dose of this medication may harm the client, the nurse gives it because it is what the doctor prescribed and the nurse was worried that the doctor may become angry if confronted with the mistake.

What should the nurse have done?

How could the problem have been prevented?

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References:

American Cancer Society. (2019, May). Advanced Directive: Types of Advanced Directives. https://www.cancer.org/treatment/finding-and-paying-for-treatment/understanding-financial-and-legal-matters/advance-directives/types-of-advance-health-care-directives.html

American Medical Association (AMA) (n.d.). ETHICS: Patient Rights. https://www.ama-assn.org/delivering-care/ethics/patient-rights

ANA (2015). Code of Ethics for Nurses: With Interpretive Statements. https://www.nursingworld.org/coe-view-only

Australian Human Rights Commission (AHRC), n.d., Human Rights Explained: Fact Sheet 5- The International Bill of Rights. https://humanrights.gov.au/our-work/education/human-rights-explained-fact-sheet-5the-international-bill-rights

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References:

Burke, A. (2021, August). Legal Rights and Responsibilities: NCLEX-RN. RegisteredNursing.org. Retrieved on September 4, 2021 from https://www.registerednursing.org/nclex/legal-rights-responsibilities/

Legal Services Commission of South Australia, August 2020, Consent. Retrieved from: https://lawhandbook.sa.gov.au/ch29s02.php

Ministry of Health, State of Israel (n.d.), Patient’s Bill of Rights. https://www.health.gov.il/English/Topics/RightsInsured/Pages/patient_rights.aspx

National Human Rights Commission India. (2020, January). The Charter of Patient Rights. https://nhrc.nic.in/document/charter-patient-rights

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References:

NHS UK. (2017). Do I have the right to refuse treatment?. https://www.nhs.uk/common-health-questions/nhs-services-and-treatments/do-i-have-the-right-to-refuse-treatment/

Olejarczyk, J.P., & Young, M.(2020) Patient Rights. [Updated 2020 Sep 7]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing. Available from: https://www.ncbi.nlm.nih.gov/books/NBK538279/

Scottish Government. (2019, June). Patient rights and responsibilities: Charter. https://www.gov.scot/publications/charter-patient-rights-responsibilities-2/pages/2/

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References:

Western Cape Government. Department of Health(2014, March). Patients’ Rights and Responsibilities. https://www.westerncape.gov.za/general-publication/patients-rights-and-responsibilities

Western Australia. Department of Health. (n.d.). Your rights and responsibilities as a patient. https://healthywa.wa.gov.au/Articles/F_I/Going-to-hospital/Your-rights-and-responsibilities-as-a-patient

World Medical Association. (2018, August). WMA DECLARATION OF LISBON ON THE RIGHTS OF THE PATIENT. https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/

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