Legal Aspects

• Nursing practice


  Governed by many legal concepts
• Accountability


  An essential concept of professional nursing practice and the law
• Law


  The sum total of rules and regulations by which a society is governed
• Functions of the law in nursing

  • Provides a framework for establishing which nursing actions in the care of clients are legal
  • Differentiates the nurse's responsibilities from those of other health professionals
  • Helps establish the boundaries of independent nursing action
  • Assists in maintaining a standard of nursing practice by making nurses accountable under the law
• Constitutional law


  • Establishes the general organization of the federal government, grants certain powers to the government, and places limits on what federal and state governments may do
  • Creates legal rights and responsibilities and is the foundation for a system of justice
• Legislation (statutory law)


  Laws made by the legislative branch of government that are designed to declare, command or prohibit
• Administrative law


  When a state legislature passes a statute, an administrative agency is given the authority to create rules and regulations to enforce the statutory laws
• Common law


  • Laws evolving from court decisions
  • Courts generally adhere to the doctrine of stare decisis - "to stand by things usually referred to as "following precedent"
• Types of law


  • Public law
  • Private law (civil law)
• Public law


  Deals with relationships between individuals and the government and governmental agencies
• Private law (civil law)

  Deals with relationships among private individuals
• Types of legal actions

  • Civil actions
  • Criminal actions
• Civil actions


  Deal with the relationships among individuals in society
• Criminal actions


  Deal with disputes between an individual and the society as a whole
• Litigation


  The action of a lawsuit
• The civil judicial process

  1. Filing a complaint by the plaintiff

  2. Defendant makes a written response

  3. Pretrial discovery activities

  4. Trial with presentation of facts to a jury or judge

  5. Judge renders decision or jury renders verdict
• Jury


  12 members of the public who sit in a box to one side of the judge, with one selected as foreman
• Nurses as witnesses


  • May be called to testify in a legal action, should seek legal advice
  • May be asked to provide testimony as an expert witness
• Regulation of nursing practice

  • Protection of the public is the legal purpose
  • Each state has a nurse practice act that legally defines and describes the scope of nursing practice and licensing requirements
• Credentialing


  • Licensure
  • Certification
  • Accreditation/Approval of Basic Nursing Education Programs
• Licensure


  A legal permit granted by a government agency to engage in the practice of a profession and use a particular title
• Certification


  The voluntary practice of validating that an individual nurse has met minimum standards of nursing competence in specialty areas
• Standards of care


  • Internal standards
  • External standards
• Internal standards of care

  The nurse's job description, education, and expertise as well as an institution's policies and procedures
• External standards of care

  Nurse practice acts, professional organizations, nursing specialty-practice organizations, federal organizations and federal guidelines
• Contract


  The basis of the relationship between a nurse and an employer, an agreement between two or more competent persons on sufficient consideration to do or not do some lawful act
• Features of a lawful contract

  • Promise or agreement between two or more individuals
  • Mutual understanding of the terms and meaning
  • Lawful purpose
  • Compensation in the form of something of value
• Liability


  The quality or state of being legally responsible for one's obligations and actions and for making financial restitution for wrongful acts
• Contractual obligations


  The nurse's duty of care
• Implied contract


  Expectations that the nurse is expected to be competent and follow hospital policies and procedures, even though these were not written or discussed
• Lawful contract


  • Promise or agreement between two or more individuals for the performance of an action or restraint from certain actions
  • Mutual understanding of the terms and meaning of the contract
  • A lawful purpose (i.e., the activity must be legal)
  • Compensation in the form of something of value—in most cases, compensation is monetary
• Contractual obligations


  The nurse's duty of care, that is, duty to render care, established by the presence of an expressed or implied contract
• Contractual relationships


  Vary among practice settings. An independent nurse practitioner is a contractor for service whose contractual relationship with the client is an independent one. The nurse employed by a hospital functions within an employer-employee relationship in which the nurse represents and acts for the hospital and therefore must function within the policies of the employing agency
• Respondeat superior


  The ancient legal doctrine where the master (employer) is liable for the acts of the servant (employee)
• Rights


  A privilege or fundamental power to which an individual is entitled unless it is revoked by law or given up voluntarily
• Responsibilities


  The obligation associated with a right
• Collective bargaining


  The formalized decision-making process between representatives of management (employer) and representatives of labor (employee) to negotiate wages and conditions of employment, including work hours, working environment, and fringe benefits of employment
• Strike


  An organized work stoppage by a group of employees to express a grievance, enforce a demand for changes in conditions of employment, or solve a dispute with management
• Sexual harassment


  Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
• Advance health care directives

  Legal and lay documents that allow persons to specify aspects of care they wish to receive should they become unable to make or communicate their preferences