Legal Issues - National Commission on Correctional Health Care
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Legal Issues

Legal Issues

Legal implications of nursing practice are based on licensure, standards of nursing care, scope of practice, state nursing practice act, other state and federal laws, and a public expectation that nurses practice at a high professional standard. The nurse’s education, licensure, skills, and nursing standards provide the framework by which nurses are expected to practice. This framework is derived from state nursing practice acts, evidenced-based nursing standards of care, and nursing code of ethics. When a nurse’s practice falls below acceptable standards of care and competence, the nurse may be exposed to litigation and state board of nursing investigation.

The basis for litigation can relate to negligence, which is a failure to exercise the level of care that a reasonable and prudent nurse would under the same or similar circumstances; malpractice; and criminal acts of assault, abuse, or fraud committed in the nurse’s professional role. Any of these acts can subject the nurse to civil and/or criminal litigation.

Nurses who are named in civil or criminal litigation may be subject to professional license investigation by state boards of nursing because the nurses’ competence to practice is questionable. A common myth among nurses is that state boards of nursing exist to protect nurses. Fact: state boards of nursing exist to monitor nursing practice in order to protect public safety.

A state board of nursing investigation can result in stipulations on a nurse’s license. Stipulations vary from warnings, fines, educational remediation, restricted, supervised nursing practice, and limitations of settings where nurses can or cannot practice for a given amount of time, generally one to two years. State boards of nursing also have the authority to suspend or revoke a nurse’s license. State boards of nursing investigations may occur whether or not the litigation is dropped or settled. Nurses should be familiar with their state nursing practice acts as they contain the standards under which nurses are expected to practice in order to be competent. These state nursing practice acts also contain the parameters of what is considered to be nurses’ scope of practice based on education, knowledge, and skills.

Correctional nurses can be especially vulnerable to litigation because the justice-involved patient population has a constitutional right to health care. Compounding this, justice-involved-patients (hereinafter “patients”) encounter nurses more than any other type of health care provider. Failure to provide patients with access to health care to meet their serious medical needs can be litigated under the Eighth Amendment as deliberate indifference or under the 14th Amendment as a civil rights violation. Justice-involved individuals have several ways to access health care: by submitting a request slip or form, through oral communication by telling a correctional officer of a need to be seen by health care, or by mentioning a health concern to the nurse during medication administration.

Regardless of the patient’s access method, nurses have a legal and ethical obligation to respond to requests for care. In general, nurses have a nursing duty to see patients to evaluate their health needs and determine the level of care required. If the communication is from the correctional officer to the nurse, the nurse has a responsibility to speak to the patient. An in-person discussion with patients is the most appropriate encounter. If in-person contact is not available, the nurse should use the next available means of speaking with the patient — usually by telephone. The nurse should ask appropriate questions to elicit enough information to determine if the patient should be moved to the medical unit or if the nurse should go to the patient’s housing area.

Based on the information provided, the nurse must determine the type and level of nursing intervention required, prioritize the care needed, and implement appropriate actions. The nurse must (1) determine if the patient’s health needs can be managed within his or her scope of practice, (2) determine if a higher level of care is needed by an advanced practice registered nurse, physician assistant, or physician, or (3) refer the patient for transfer to a health facility that can provide the level of care needed. It is always appropriate for the nurse to perform a follow up evaluation to determine the patient’s response to health care intervention.

The nurse must document all pertinent information of encounters with patients that include assessment, identified health needs, source of information, interventions taken, patient education and ascertaining the patient comprehension of the education, as well as evaluation, which includes patients’ outcomes.

In conclusion, nursing practice has a variety of legal components, many of which can be found in state nursing practice acts and evidenced-based nursing standards of care. Nurses involved in civil and/or criminal litigation may also be subject to state boards of nursing investigations for alleged nursing practice incompetency. Regardless of the presence or absence of litigation, documentation is important as it reveals whether nurses adhered to evidenced-based nursing standards in their interactions with patients.

Author Patricia Blair, PhD, LLM, JD, MSN, CCHP-RN is an attorney in private practice, as well as an associate professor in the graduate nursing program at UTMB. She is also a member of NCCHC Board of Representatives, the NCCHC Nurse Advisory Council and the CCHP-RN Committee.

Also see Ethical Issues, Moral Courage, and Moral Resiliency in Correctional Nursing