Download Chapter 9

Chapter 9:
Legal and Ethical Aspects in
Clinical Practice
Copyright © 2012, 2007 Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.
Historical Review
Roman Law
 Concerned with legal status of mentally
disabled
Middle Ages
 Incompetence decided by jury
 Mentally ill committed to care of friend
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Historical Events
United States
 1600s
 1752
 1841
 Late 1800s
 1900–1950s
Cared for by families or wandered
First hospital for mentally ill
Dorothea Dix crusades
Civil commitment
 State hospital populations
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Historical Events, cont’d.
1963: Community Mental Health Act
 Deinstitutionalization
 Lack of community treatment resources
 Expanded commitment laws
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Historical Events, cont’d.
Managed Behavioral Health
 Treatment access restricted
 Carve outs to control costs
 Insurance benefits meager
 Premature discharges
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Commitment
Voluntary

Patient consents to admission

Patient may request discharge
Emergency

Risk of harm to self or others

Short term
Longer-term judicial or civil

Protects community from persons posing a threat

Mandatory outpatient treatment
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Least Restrictive Alternative
Use least restrictive environment
 Use least restrictive treatment
Evolved to:
 Use least restrictive environment
 Use most clinically appropriate treatment
 Use most cost-effective interventions

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Confidentiality and Privileged
Communication
Confidentiality
 Protection and privacy of health information
guaranteed by HIPAA
 Signed release necessary
Privileged Communication
 No forced disclosure in court of certain
information given to professionals
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Tarasoff
Duty to Warn and Protection

A treating mental health professional has a
duty to warn potential identifiable victims.
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Rights of Patient

Vote

Manage financial affairs

Make contracts

Seek advice of attorney

Send and receive unopened mail

Wear own clothes

Receive visitors

Make phone calls

Have Informed consent regarding treatment and
research participation
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Right to Be Restraint Free
Seclusion and Restraint
CMS standards:
 Client right to be restraint free is paramount
 Use only when less restrictive alternatives fail
 One hour rule
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Right to Treatment
A nondangerous individual cannot be
hospitalized without being provided with some
form of treatment.
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Right to Refuse Treatment
Medications
 Voluntary and involuntary patients can refuse
medication.
 In emergency situations, if potential danger is
present, patient can be medicated against
his or her will.
ECT
 Requires informed consent.
 State laws vary regarding refusal.
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Right to Advocacy
Nursing Responsibilities
 Obtain authorization for treatment.
 Inform client of right to appeal for denial of
care.
 Provide data for utilization review.
 Report violation of rights.
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Competency to Stand Trial

Does the person understand:

The criminal charges?
 The legal process?
 The consequences of the charges?

Can the person advise an attorney and
defend the charges?
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Criminal Responsibility
M’Naghten Rule (Insanity Defense)
 Refers to person’s state of mind at the time of
the offense.
 To be found guilty, person must be able to
form intent.
 If unable to form intent because of mental
illness, person cannot be found guilty.
 If not guilty, person is usually evaluated for
commitment to a hospital for treatment.
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Guilty but Mentally Ill



Possible plea in some states
Person found guilty, but mental illness caused
commission of offense
Sent to prison and treated for mental illness
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Malpractice
A health professional omits or commits an act that
a reasonable prudent professional would not do.
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Elements of Malpractice Suit
Based on Negligence



Legal duty to provide a certain standard
of care
Breach of duty
Proximate cause



“But-for” test
Substantial factor test
Proven injury
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Documentation in the Medical
Record





Legal document
Communication with other professionals
Validation that professionals adhered to
scope of practice
Validation for reimbursement
Support for ongoing care/chosen care level
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Other Malpractice Lawsuits
Involving Health Professionals
Sexual misconduct
Wrongful death actions for:
 Suicide
 Homicide
 Injury to third party
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Ethics


Explores moral problems raised about
specific issues.
Ethical dilemmas in psychiatric nursing often
relate to conflicts between mental health law
and nurses’ personal beliefs.
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Ethical Principles



Autonomy
Beneficence
Distributive justice
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