Legal aspects of psychiatric nursing

      The practice of psychiatric nursing has changed immensely in recent decades. Advances in understanding of mental illness and innovations in treatment, societal forces, economic restrictions, and informed patients and families have promoted the changes. With the clinical evolution of psychiatric care, the definition of legal practice also has evolved over time. Psychiatric nurses are held accountable to practice according to current laws and standards. This article briefly reviews the major legal issues that affect psychiatric nursing practice today.

      Standards for legal psychiatric nursing practice

      Legal parameters for practice are established through a variety of sources. Many measures exist against which a nurse's practice can be judged. State boards of nursing govern the scope of practice, defining the requirements and limitations for nursing practice within a given state. Federal and state statutes direct practice; for example, virtually all states have laws outlining the reporting of child and elder abuse. Case law (ie, legal findings related to particular court cases) also set precedence for legal practice; for example, the Tarasoff case of the mid-1970s set a standard for the duty to protect third parties against harm that has become the benchmark in subsequent cases in other states. The Centers for Medicare and Medicaid Services, formerly known as the Health Care Financing Administration (HCFA), set stringent regulations for organizations that receive such federal funding; for example, regulations define acceptable inpatient staff-to-patient ratios and proper training and use of seclusion and restraint. The Joint Commission on the Accreditation of Healthcare Organizations is another body that sets rigorous standards for institutions that seek accreditation [
      • Wysoker A.
      Standards of care.
      ].
      Psychiatric nurses look to professional nursing organizations to define safe and acceptable practice through published standards. The American Nurses Association published Scope and Standards of Psychiatric-Mental Health Nursing Practice [
      • American Nurses Association
      Scope and standards of psychiatric-mental health nursing practice.
      ] in 2000. This comprehensive document outlines levels of psychiatric nursing practice and identifies specific standards of practice for nursing activities and criteria for measuring the standards. Similarly the American Psychiatric Nurses Association (APNA) and the International Society of Psychiatric Nurses (ISPN) have published standards that guide practice. Involvement in professional organizations can help nurses keep informed of current published standards as well as other issues [
      • Wysoker A.
      Standards of care.
      ].
      Finally, developments in clinical practice guide legal practice. In addition to the foundation of knowledge and skills attained through basic nursing preparation, psychiatric nurses should remain current in clinical areas through participating in educational programs and reviewing the literature.

      Patient rights and nursing responsibilities

       Least restrictive alternative: seclusion and restraint

      By law, psychiatric treatment must be provided in a manner that allows the most freedom and the least restriction to meet the particular needs of a patient [

      Dixon v. Weinberger, 405 F Supp. 974 (1975).

      ]. Consequently a variety of treatment settings exist, and inpatient treatment is reserved for patients who are mentally ill and require a high degree of monitoring for personal safety or the safety of others. Likewise, seclusion and restraint must be used only when other less restrictive means have been considered and ruled out.
      There has been a major movement to decrease if not eliminate the use of seclusion and restraint in psychiatric settings in the United States. Concerns about the immorality of the use of such measures, including the potential for physical and psychological injury to patients, and concerns about the violation of civil rights have fueled this movement. Today hospital policies and governmental agencies and psychiatric organizations provide stringent guidelines that dictate the use of these treatment options. In 1999, the HCFA issued new guidelines for the use of seclusion and restraint, which include the requirements of a face-to-face assessment within 1 hour of the initiation of seclusion or restraint and limit the amount of time before a renewal order for seclusion or restraint is required [
      • Currier G.W.
      • Farley-Toombs C.
      Datapoints: use of restraint before and after implementation of the new HCFA rules.
      ].
      Seclusion and restraint may be used legally only in emergent situations for the least amount of time necessary to protect the patient or others from imminent harm. Objective documentation must support the emergent need for such measures and that alternatives were considered. Nurses are responsible to uphold these standards and to ensure that seclusion and restraint are not used as threats, as punishment, or for staff convenience. Seclusion and restraint may not be used as part of a behavioral management program or as a unit policy (eg, a unit policy indicating that any patient found with contraband will be secluded for 1 hour). The APNA published its Position Paper on the Use of Seclusion and Restraints in 2000 [
      • Anonymous
      APNA position paper on the use of seclusion and restraints.
      ]. Excerpts from this paper follow:
      • Training programs focused on the prevention and use of seclusion and restraint must be provided during a staff member's orientation and at least annually thereafter.
      • The decision to initiate seclusion or restraint is made only after it is determined that the benefits associated with the use of restraint or seclusion outweigh the risks of their use.
      • Within 1 hour of the initiation of seclusion or restraint, a face-to-face evaluation by a physician or Licensed Independent Practitioner is conducted to determine the patient's current status, including mental status, physical status, and any risks associated with the initiation or continuation of seclusion or restraint [
        • Anonymous
        APNA position paper on the use of seclusion and restraints.
        ].

       Right to refuse treatment

      The right to refuse treatment often is regarded as a patient's right to refuse medication. Today patients have the right to refuse medications unless court ordered to take the medication or in emergent situations and then with limited use. This is a change from previously when it was accepted that a patient who was involuntarily committed did not have decision-making capacity and was not able to refuse medication.
      Even patients who are under civil commitment and prisoners who are mentally ill do not forfeit all of their civil liberties and have the right to refuse medication. Involuntary medications can be administered to patients with a physician's order to prevent immediate danger to the patient or others. Nurses are responsible to assess and document objectively in such cases. There is also a judicial process by which a patient can be determined to be incompetent to refuse medication, in which case medication may be court ordered [
      • Wettstein R.M.
      The right to refuse psychiatric treatment.
      ].
      With the advent of newer psychotropic medications, clinicians may believe that the benefits far outweigh the risks of medication; however, the patient retains the right to make this decision. In addition to concerns about side effects, there are a multitude of reasons why patients might refuse medications, including denial about having a mental illness and the stigma of taking a psychotropic medication. Although psychiatric nurses can inform patients about benefits, risks, and alternatives to medication, forcing a patient to take medication, without the aforementioned exceptions, exposes the nurse to possible liability.

       Confidentiality

      Psychiatric nurses are responsible for maintaining the confidentiality of information shared by patients with the treatment team and within the medical record. The American Nurses Association Code of Ethics for Nurses [
      • American Nurses Association
      Code of ethics for nurses with interpretive statements.
      ], many state nursing practice acts, and most mental health facilities have statements regarding confidentiality. Because of the nature of psychiatric care, patients must be able to trust that what is shared is used for treatment purposes only and is not released to parties who have no need to know and no legal right to know.
      Nurses must safeguard confidentiality by discussing patient care matters in private areas and protecting the medical record by not leaving documents within the view of others outside the treatment team, properly disposing of discarded documents with patient information such as report sheets, and closing computer screens displaying patient information when not in use. In groups and in family situations, nurses also must be mindful of what information is shared without the patient's consent and instead encourage self-disclosure by the patient when indicated. When patients wish to have information shared with other people or organizations, such as an insurance agency or other health care provider, proper consent for release of information should be obtained.
      Privileged communication is a right of patients that protects information from being shared in a court of law. Although lawyer-patient and psychiatrist-patient privileged communication rules have been established, not all states clearly define privileged communication between nurse and patient [
      • Wysoker A.
      Confidentiality.
      ]. There may be cases in which a nurse could be compelled to share in court information that would be considered confidential. In some circumstances, breach of confidentiality is legal, including the duty to protect third parties and mandated reporting of abuse, which are discussed subsequently.

       Duty to protect third parties

      In the mid-1970s, what has come to be known as the Tarasoff decision [

      Vitaly Tarasoff et al. plantiffs and appellants v. the regents of the University et al., defendants and respondent, SF 23042. (1976). Pacific Reporter, 551p.2d, 334–62.

      ] established a therapist's duty to protect third parties from foreseeable harm. In this case, a college student, Tatiana Tarasoff, was killed by a fellow student who had told his therapist of his plan to kill her. Although the psychologist notified campus police of the threat and sought unsuccessfully to have the patient committed to a mental hospital, the therapist failed to inform the intended victim or her family. This widely held principle states that when specific threats are made to a therapist about a specific victim, the therapist has a duty to warn the intended victim. There have been many variations among jurisdictions of this position since the original findings, not all in agreement with the Tarasoff decision, that weigh the patient's right to confidentiality against the duty to protect the third party, and some rulings argue against a therapist's ability to predict violence accurately. In general, the duty to warn exists in cases when a patient makes a specific threat about a specific intended victim and in cases when a patient has a prior history of violence. Clinicians are protected against breach of confidentiality when making a warning in good faith [
      • Walcott D.M.
      • Cerundolo P.
      • Beck J.C.
      Current analysis of the Tarasoff duty: an evolution towards limitation of the duty to protect.
      ].

       Mandated reporting

      As mentioned earlier, virtually all states have mandated reporting laws for health care workers regarding suspected child and elder abuse and neglect. Some states have mandatory domestic violence reporting laws. State departments of social or human services oversee this reporting mechanism. There must be clear evidence of harm except in cases in which serious harm may result from neglect. Careful assessment and clinical judgment are invaluable in such cases [
      • Dubowitz H.
      • Giardino A.
      • Gustavson E.
      Child neglect: guidance for pediatricians.
      ]. When reports are made in good faith, health care workers are protected from breach of confidentiality and civil action. Failure to follow reporting regulations is subject to legal action.
      Psychiatric home health nurses may find evidence of abuse or situations of imminent danger in patient's homes. In emergent situations, local law enforcement may be contacted. It may be helpful for home health nurses and other psychiatric nurses to inform patients of the duty to report during the initial assessment [
      • Freed P.E.
      • Drake V.K.
      Mandatory reporting of abuse: practical, moral, and legal issues for psychiatric home healthcare nurses.
      ].

       Informed consent

      Informed consent is not simply the signing of a form. Informed consent is the process by which information is shared about treatment options, risks, and alternatives [
      • Schouten R.
      Law and psychiatry: what should our residents learn?.
      ]. Nurses often are involved in this process, and it may involve written information and the patient being asked to sign a form. The patient must have the capacity to understand the proposed treatment, have adequate information to make a decision, and have the option to make a choice [
      • Wysoker A.
      Thoughts for the millennium: the rights of the mentally ill.
      ].

       Treatment of minors

      Minors are considered legally incompetent to make treatment decisions for themselves, and parents or legal guardians have the right to make such decisions. The age of majority varies by state but is most often 18 years old. In general, persons younger than age 18 who are married or are in the military are considered emancipated minors. Some states also consider minors with children to be emancipated. Some jurisdictions make exceptions for minors to consent for certain types of treatment, such as substance abuse, prescribing of contraceptives, treatment for sexually transmitted diseases, and suicide prevention [
      • Muscari M.E.
      When can an adolescent give consent?.
      ].
      The Association of Child and Adolescent Psychiatric Nurses (ACAPN), a division of the ISPN, published a position paper regarding the rights of children in treatment settings [
      • Anonymous
      ACAPN (Division of ISPN) position statement on the rights of children in treatment settings.
      ]. Some statements selected from the paper follow:
      • ACAPN opposes the abduction and involuntary transport of children to facilities for confinement unless such measures have been clinically justified in specific, operational terms by a licensed mental health professional with the legal authority to do so.
      • Before the child's admission, a copy of his or her rights (written in clear and understandable language) should be given to the child and explained verbally by a licensed staff member.
      • ACAPN opposes any prohibition or barriers to communication imposed by any facility, including rigid and restrictive visiting policies, policies that restrict parents from visiting their children, limited access to telephones, and barriers to mail service.
      • ACAPN opposes any and all punitive measures. Children should not be physically restrained (restriction of body parts by device or by placement in an isolated, locked room) unless every avenue of prevention of harm to themselves or others has been exhausted [
        • Anonymous
        ACAPN (Division of ISPN) position statement on the rights of children in treatment settings.
        ].

       Documentation

      Documentation is the primary method by which the record of treatment, progress and response, and patient care is communicated. Additionally, for purposes of internal and external auditing, the medical record is typically the sole informant. In a court of law, the medical record defines what occurred in treatment. Documentation is an important nursing responsibility that must be thoughtful and complete.
      In a study that examined the documentation of registered nurses on the medical records of hospitalized psychiatric patients, 20% of the entries were found to be pejorative and filled with jargon, words and phrases such as manipulative, visible on the unit, and limit testing. Documentation must be more than simply a “ritual.” Documentation must be based on solid assessment and provide evidence to support the observations and interpretations [
      • Mohr W.K.
      Deconstructing the language of psychiatric hospitalization.
      ].
      Many medical records today are computerized or have checklists that limit the possible responses. Although these methods often make nurses' work easier, they may be too restrictive to allow for complete and individualized documentation, and additional entries may be necessary. In any complex case in which liability may be increased, the nurse should document as though describing the situation to a colleague or “thinking aloud for the record,” thoroughly describing the nurse's assessment and thought process for decision making [
      • Wettstein R.M.
      The right to refuse psychiatric treatment.
      ].

       Supervision of patients

      One of the key responsibilities of psychiatric nurses is to maintain safety within the patient setting. The safety of patients with mental illness also must be maintained in settings such as the emergency department. Often, in inpatient and other settings, nonlicensed personnel provide and document monitoring of patients, yet the responsibility ultimately lies with the nurse to ensure that proper supervision occurs. The nurse is responsible to carry out procedures and physician's orders regarding patient safety and supervision. An institution may have policies regarding opposite-sex staff supervising patients in certain situations and specific procedures for monitoring patients at risk for self-harm, such as constant observation. Claims of inadequate staffing do not justify failure to follow procedure [
      • Fiesta J.
      Psychiatric liability: part 1.
      ]. In addition, nurses must assess potentially dangerous situations and vulnerable patients (eg, a patient who is disoriented and agitating peers) and make reasonable plans to control the risk. Patient supervision, removal of unsafe objects, documentation, communication among staff members, and treatment planning are some methods of addressing these concerns. Institutions are responsible for ensuring that employees have adequate competence, skills, and training to maintain safety [
      • Lemmer B.
      A review of violence and personal injury legal cases in psychiatric and mental health nursing to identify a practical framework for risk assessment.
      ]. Institutions have been found liable for failing to supervise patients properly in situations that have resulted in self-inflicted injury to the patient [
      • Fiesta J.
      Psychiatric liability: part 1.
      ,
      • Fiesta J.
      Psychiatric liability: part 2.
      ]. Nursing staff also may be charged with failure to provide adequate supervision in cases in which patients are assaulted by other patients or staff members.

      Forensic psychiatric issues (pertaining to the court system)

       Civil commitment process

      Civil commitment laws allow the state to hospitalize a person involuntarily. A century ago, it was possible to have a family member hospitalized with little or no justification as long as a physician authorized it, and not until the 1960s and 1970s were specific legal criteria for such hospitalization established [
      • Lidz C.W.
      • Coontz P.D.
      • Mulvey E.P.
      The “pass-through” model of psychiatric emergency room assessment.
      ]. Today's commitment laws are based on the “dangerousness standard,” under which someone who is mentally ill can be involuntarily hospitalized when he or she is unable to care for himself or herself or when he or she is a danger to self or others. This process allows for family members or the police to seek commitment for persons with mental illness who are imminently dangerous yet refuse hospitalization. Civil commitment laws have changed dramatically, and current trends toward supporting the civil liberties of the mentally ill resulting in deinstitutionalization have been blamed for increased homelessness, morbidity, and criminalization of the mentally ill [
      • Bloom J.D.
      • Williams M.H.
      • Bigelow D.A.
      The forensic psychiatric system in the United States.
      ].
      Civil commitment laws, including the specific criteria for commitment, vary from one state to another and include common criteria, such as the person must have a mental illness, must lack the judgment to make decisions regarding hospitalization, and must be an immediate risk to harming self or others. Treatment is usually inpatient, although some jurisdictions allow outpatient civil commitment. Courts have ruled that nurses should not be found liable for holding a hospitalized patient who is later found to be wrongfully committed [
      • Fiesta J.
      Psychiatric liability: part 2.
      ].

       Competency

      Within the criminal justice system, legal competency to stand trial is based on a defendant's ability to understand legal charges being made and to aid an attorney in his or her defense. These criteria are referred to as the Dusky Standard based on a 1960 Supreme Court case [

      Dusky v. US, 363 US 402 (1960).

      ]. A person who lacks such capacity because of a severe mental illness or because of a severe developmental disability is considered legally incompetent. Defendants are considered competent unless there is some question about this presumption, usually raised by the person's behavior (eg, if the person exhibits bizarre behavior). Incompetence is not regarded as a static condition, and if and when competence is reestablished, the person resumes the criminal process [
      • Ciccone J.R.
      The United States Supreme Court and psychiatry in the 1990s.
      ,
      • Guthiel T.G.
      A confusion of tongues: competence, insanity, psychiatry, and the law.
      ].
      Other than competency to stand trial, there are many acts for which a patient might be considered competent within and outside of the criminal justice system. For example, a patient agreeing to take medication must be able to understand the treatment and alternatives and be able to communicate a choice to be considered competent [
      • Wysoker A.
      Thoughts for the millennium: the rights of the mentally ill.
      ].

       Insanity defense

      The defense of insanity is used in the criminal process when a person is considered so severely mentally ill as to lack free choice or rationality at the time of committing an illegal act. In other words, the person did not know right from wrong and did not make a conscious decision to commit the crime. Not all persons who are mentally ill meet the criteria for the insanity defense, and the criteria have some variation among jurisdictions. Persons found to be legally insane do not receive prison terms but typically are remanded to treatment in forensic hospitals. State laws vary regarding the criteria, disposition, and release from treatment regarding the insanity defense [
      • Bloom J.D.
      • Williams M.H.
      • Bigelow D.A.
      The forensic psychiatric system in the United States.
      ].
      The insanity defense has received a great deal of recent attention because of the 2002 trial of Andrea Yates. Yates was found guilty in the drowning deaths of her children despite unsuccessful arguments by her attorneys for a finding of innocence by reason of insanity. Yates had a long-standing history of depression and psychosis and was under the care of a psychiatrist. The prosecution did not dispute that Yates was mentally ill but argued that she knew it was wrong to drown her children yet made a decision to do so anyway [

      Asher E, Markley M. Victim's rights group praises verdict, Yates backers: mental illness misunderstood. Houston Chronicle, p 29, March 13, 2002.

      ]. The Yates conviction prompted the American Psychiatric Association to release a statement regarding concerns about how society and the legal system deal with severely mentally ill persons [

      Harding RK. American Psychiatric Association statement on the insanity defense and mental illness. Press Release Number 02–08: March 15, 2002.

      ].

      Legal issues in advanced practice

      Advanced practice psychiatric nursing involves additional legal concerns, discussion of which is beyond the range of this article. The scope of practice for the advanced practice registered nurse and requirements for the use of protocols, supervision, and other limitations vary widely from state to state and are outlined in each state's nursing practice act. The journal Nurse Practitioner publishes a legislative update on the status of advanced practice registered nurses across the United States each January [
      • Pearson L.
      Annual legislative update: How each state stands on legislative issues affecting advanced practice nursing practice.
      ].
      Advanced practice registered nurses are exposed to additional liability through prescriptive authority, billing practice, and the unique nurse-patient relationship of therapy [
      • Buppert C.
      Let's talk money.
      ]. Many state nurse associations have resources dedicated to advanced practice registered nurses. The Association of Advanced Practice Psychiatric Nurses, based in the Pacific Northwest, may be another source of information for advanced practice registered nurses.

      Legal trends

      Courts and regulations tend to favor the individual rights of patients over the rights of society as a whole, and this trend most likely will continue. Treatment must reflect the individual needs of patients as well. In a case in New Jersey, a jury found unanimously for a patient against a health care provider on the charge that the patient had received substandard care because of a language barrier. The jury also found for the patient that his health and well-being had been damaged. The patient could speak but not read English, and he was asked to complete some forms in English. A receptionist helped him complete the forms, and information provided was inaccurate, which later led to patient injury. This case did not involve a psychiatric patient; however, the circumstances might be applied easily to the mental health setting, in which communication is so crucial to all aspects of treatment [
      • Starr D.S.
      Language barrier leads to a lawsuit.
      ].
      To improve communication when nurses do not speak the patient's language, translators may be available to assist staff, and forms may be available in multiple languages. Relatives may be asked to translate for patients (or vice versa), although this raises concerns about confidentiality and accuracy of translation. For hospitalized patients, there may be times when none of the staff present are proficient in the patient's language. It is difficult, at best, to meet the standards of acceptable psychiatric care with such substantial barriers to communication. With many patients in the mental health system who speak English as a second language or not at all, the potential for similar language barriers and cultural barriers exists for psychiatric nurses, and this is an area in which further litigation may occur.

       Minimizing the risk of litigation in psychiatric nursing

      The following are suggestions to minimize the risk of litigation in psychiatric nursing:
      • Be familiar with the nursing practice act for your state
      • Be familiar with laws governing your practice
      • Know the policies and procedures of your institution
      • Be involved in professional nursing organizations and other informal nursing groups that can help keep you informed
      • Be acquainted with published standards that affect your practice
      • Participate in continuing education programs in your field of practice
      • Keep abreast of the current literature
      • Use the support and advice of colleagues
      • Use legal assistance when needed
      • In complex situations, document thoroughly your assessment and decision-making process

      Summary

      In attempting to practice within legal limits, psychiatric nurses must demonstrate safe and acceptable clinical practice. Clinical standards and legal standards change over time, and it can be difficult to be aware of all the changes that occur. Ways exist to minimize the risk of litigation, however. Keeping focused on the patient and attempting to provide the best clinical care possible should guide practice, not fear of litigation. It is wise to be familiar with the law, institutional policies, and professional standards, but nothing can replace sound clinical judgment.

      Acknowledgements

      The author thanks Bobby Greenwood, MS, RN, who assisted in the review of the manuscript.

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