Nursing Continuing Education

Nursing Jurisprudence and Ethics

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This is Your Course on Nursing Jurisprudence and Ethics

Syllabus

Purpose

The purpose of this course is to review Texas laws and rules governing nursing practice to facilitate understanding of the laws.  The mission of the Texas Board of Nursing (BON) is to protect and promote the welfare of the people of Texas by ensuring that each person holding a license as a nurse in the State of Texas is competent to practice safely (Texas Board of Nursing, 2013).  

Objectives

  1. Describe the scope of practice in accordance with Texas Board of Nursing

  2. Online standards of practice for professional nurses.

  3. Describe the code of ethics in nursing practice.

  4. Describe legal implications (negligence and malpractice) for breach in practice.

  5. Explain unprofessional nursing conduct and reporting requirements for unprofessional conduct.

  6. Describe professional boundaries between the nurse-client relationship

Background

The National Practitioner Data Bank (NPDB) collects and releases information related to professional competence and conduct in all levels of nursing and according to the NPDB, in 2012, there were 22,741 adverse actions related to nurses’ practice. Similarly, medical malpractice reports demonstrated an increase from 483 in 2003 to 711 in 2012 (Cooper, 2016).

Definitions

Professional nursing. Professional nursing means the performance of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures.

Advanced practice registered nurse. An advanced practice nurse is a registered nurse licensed by the board to practice as an advanced practice registered nurse based on completion of an advanced educational program.  The term includes a nurse practitioner, nurse midwife, nurse anesthetist, and clinical nurse specialist.  The term is synonymous with “advanced nurse practitioner” and “advanced practice nurse.”

Vocational nursing. A vocational nurse is one who has a directed scope of nursing practice, including the performance of an act that requires specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of vocational nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures. (BON, 2013)

Moral turpitude. Conduct that is believed to be contrary to community standards of honesty, good morals, or justice.

Adjudication. The legal process of resolving a dispute; a matter that may have to go to court.

Scope of practice. Activities that an individual health care provider performs in the delivery of patient care.

Beneficence. A principle of medical ethics according to which a person should do good to others, especially when one has a professional duty to do so. To act in the best interest of others.

Jurisprudence.  The theory of philosophy of law.

Justice.  The ethical principle that persons who have similar circumstances and conditions should be treated alike; sometimes known as distributive justice.

Confidentiality.  The legally protected right afforded to (and duty required of) specifically designated health care professionals not to disclose information discerned or communicated during consultation with a patient.

Negligence.  A failure to behave in a reasonable and prudent manner (cause injury usually by a breech in duty).

Malpractice.  The negligent acts of persons engaged in profession or occupation in which highly technical or professional skills are employed.

Non-maleficence.  The duty to do no harm.



Scope of Practice

The Texas Nursing Practice Act (NPA) defines the legal scope of practice for professional registered nurses (RNs).  “Professional nursing” means the performance of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or the prescription of therapeutic or corrective measures. 

Professional nursing involves:

  1. The observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes;

  2. The maintenance of health or prevention of illness;

  3. The administration of a medication or treatment as ordered by a physician, podiatrist, or dentist;

  4. The supervision or teaching of nursing;

  5. The administration, supervision, and evaluation of nursing practices, policies, and procedures;

  6. The requesting, receiving, signing for, and distribution of prescription drug samples to patients at practices at which an advanced practice registered nurse is authorized to sign prescription drug orders as provided by Subchapter B, Chapter 157;

  7. The performance of an act delegated by a physician under Section 157.0512, 157.054, 157.058, or 157.059;

  8. The development of the nursing care plan.

The RN takes responsibility and accepts accountability for practicing within the legal scope of practice and is prepared to work in all health care settings, and may engage in independent nursing practice without supervision by another health care provider. The RN, with a focus on patient safety, is required to function within the parameters of the legal scope of practice and in accordance with the federal, state, and local laws; rules and regulations; and policies, procedures and guidelines of the employing health care institution or practice setting. The RN is responsible for providing safe, compassionate, and comprehensive nursing care to patients and their families with complex healthcare needs.


Licensed Vocational Nurse.   It is important for all nurses to understand the scope of practice of other healthcare employees such as Licensed Vocational Nurses (LVNs). The Licensed Vocational Nurse Scope of Practice includes the act to gather data and perform a focused assessment regarding a patient, to recognize significant changes in a patient’s condition, and to report data and observation of significant changes to the physician.

The LVN’s focused assessment should include nursing observations to determine the presence or absence of the following presumptive or conclusive signs of death.  An LPN is to report clinical findings (signs of death) to the physician, and in accordance with facility policy, the LVN may accept reasonable physician’s orders regarding the care of the client such as the notification of family, postmortem care, contacting the funeral home or appropriate legal authority, documentation; however, a LVN may not accept an order that would require the LVN to “pronounce death,” or to complete the state-required “medical certification” of a death that occurs without medical attendance (TBON, 2018).


Advanced Practice Nursing. The Texas Board of Nursing recognizes that advanced nursing practice is dynamic. The scope of advanced practice evolves through experience, acquisition of knowledge, evidence-based practice, technology development and changes in the health care delivery system. Therefore, advanced practice registered nurses may need to practice in new settings, perform new procedures, and develop new skills during their professional careers.

Both professional and individual scopes of practice exist. Professional scopes of practice are derived from professional specialty and advanced practice registered nursing organizations. An individual advanced practice registered nurse may or may not practice to the full scope of the professional role and specialty. Decisions regarding individual scope of practice are complex and related to an advanced practice registered nurse's knowledge, skills and competencies. Each advanced practice registered nurse must practice within his/her individual scope.


Professional Scope. National professional specialty and advanced practice registered nursing organizations broadly define scope of practice for each role. These documents address role, function, population served, and practice setting. They offer advanced practice registered nurses the broadest parameters for scope of practice. Therefore, professional scopes of practice are recommended as the initial resource in defining an individual's scope of practice.

Standards of Practice

The Texas Board of Nursing is responsible for regulating the practice of nursing within the State of Texas for Vocational Nurses, Registered Nurses, and Registered Nurses with advanced practice authorization. The standards of practice establish a minimum acceptable level of nursing practice in any setting for each level of nursing licensure or advanced practice authorization. Failure to meet these standards may result in action against the nurse's license even if no actual patient injury resulted.

Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall:

  1. Know and conform to the Texas Nursing Practice Act and the board's rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse's current area of nursing practice; 
  2. Implement measures to promote a safe environment for clients and others;
  3. Know the rationale for and the effects of medications and treatments and shall correctly administer the same; 
  4. Accurately and completely report and document: 
    1. The client's status including signs and symptoms
    2. Nursing care rendered 
    3. Physician, dentist or podiatrist orders 
    4. Administration of medications and treatments
    5. Client response(s) 
    6. Contacts with other health care team members concerning significant events regarding client's status
  5. Respect the client's right to privacy by protecting confidential information unless required or allowed by law to disclose the information;
  6. Promote and participate in education and counseling to a client(s) and, where applicable, the family/significant other(s) based on health needs; 
  7. Obtain instruction and supervision as necessary when implementing nursing procedures or practices;
  8. Make a reasonable effort to obtain orientation/training for competency when encountering new equipment and technology or unfamiliar care situations; 
  9. Notify the appropriate supervisor when leaving a nursing assignment;
  10. Know, recognize, and maintain professional boundaries of the nurse-client relationship; 
  11. Comply with mandatory reporting requirements of Texas Occupations Code Chapter 301 (Nursing Practice Act), Subchapter I, which include reporting a nurse: 
    1. Who violates the Nursing Practice Act or a board rule and contributed to the death or serious injury of a patient
    2. Whose conduct causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse
    3. Whose actions constitute abuse, exploitation, fraud, or a violation of professional boundaries
    4. Whose actions indicate that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior. 
    5. Except for minor incidents (Texas Occupations Code §§301.401(2), 301.419, 22 TAC §217.16), peer review (Texas Occupations Code §§301.403, 303.007, 22 TAC §217.19), or peer assistance if no practice violation (Texas Occupations Code §301.410) as stated in the Nursing Practice Act and Board rules (22 TAC Chapter 217). 
  12. Provide, without discrimination, nursing services regardless of the age, disability, economic status, gender, national origin, race, religion, health problems, or sexual orientation of the client served
  13. Institute appropriate nursing interventions that might be required to stabilize a client's condition and/or prevent complications
  14. Clarify any order or treatment regimen that the nurse has reason to believe is inaccurate, non-efficacious or contraindicated by consulting with the appropriate licensed practitioner and notifying the ordering practitioner when the nurse makes the decision not to administer the medication or treatment 
  15. Implement measures to prevent exposure to infectious pathogens and communicable conditions 
  16. Collaborate with the client, members of the health care team and, when appropriate, the client's significant other(s) in the interest of the client's health care 
  17. Consult with, utilize, and make referrals to appropriate community agencies and health care resources to provide continuity of care
  18. Be responsible for one's own continuing competence in nursing practice and individual professional growth 
  19. Make assignments to others that take into consideration client safety and that are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made 
  20. Accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse's educational preparation, experience, knowledge, and physical and emotional ability 
  21. Supervise nursing care provided by others for whom the nurse is professionally responsible 
  22. Ensure the verification of current Texas licensure or other Compact State licensure privilege and credentials of personnel for whom the nurse is administratively responsible, when acting in the role of nurse administrator
  1. Standards Specific to Vocational Nurses. The licensed vocational nurse has a directed scope of nursing practice that falls under the supervision of a registered nurse, advanced practice registered nurse, physician's assistant, physician, podiatrist, or dentist. Supervision is the process of directing, guiding, and influencing the outcome of an individual's performance of an activity. The licensed vocational nurse shall assist in the determination of predictable healthcare needs of clients within healthcare settings and:
  1. Shall utilize a systematic approach to provide individualized, goal-directed nursing care by:
    1. Collecting data and performing focused nursing assessments
    2. Participating in the planning of nursing care needs for clients
    3. Participating in the development and modification of the comprehensive nursing care plan for assigned clients
    4. Implementing appropriate aspects of care within the LVN's scope of practice; and
    5. Assisting in the evaluation of the client's responses to nursing interventions and the identification of client needs
  2. Shall assign specific tasks, activities and functions to unlicensed personnel commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made and shall maintain appropriate supervision of unlicensed personnel.
  3. May perform other acts that require education and training as prescribed by board rules and policies, commensurate with the licensed vocational nurse's experience, continuing education, and demonstrated licensed vocational nurse competencies.

Standards Specific to Registered Nurses. The registered nurse shall assist in the determination of healthcare needs of clients and shall:

  1. Utilize a systematic approach to provide individualized, goal-directed, nursing care by:
    1. Performing comprehensive nursing assessments regarding the health status of the client
    2. Making nursing diagnoses that serve as the basis for the strategy of care
    3. Developing a plan of care based on the assessment and nursing diagnosis
    4. Implementing nursing care
    5. Evaluating the client's responses to nursing interventions
  2. Delegate tasks to unlicensed personnel in compliance with Chapter 224 of this title, relating to clients with acute conditions or in acute are environments, and Chapter 225 of this title, relating to independent living environments for clients with stable and predictable conditions.

Standards Specific to Registered Nurses with Advanced Practice Authorization. Standards for a specific role and specialty of the advanced practice nurse supersedes standards for registered nurses where conflict between the standards, if any, exist. In addition, a registered nurse who holds authorization to practice as an advanced practice nurse (APN) shall:

  1. Practice in an advanced nursing practice role and specialty in accordance with authorization granted under Board Rule Chapter 221 of this title (relating to practicing in an APN role; 22 TAC Chapter 221) and standards set out in that chapter.

  2. Prescribe medications in accordance with prescriptive authority granted under Board Rule Chapter 222 of this title (relating to APNs prescribing; 22 TAC Chapter 222) and standards set out in that chapter and in compliance with state and federal laws and regulations relating to prescription of dangerous drugs and controlled substances.

Ethics and Legal Implications

The nursing code of ethics is established by the American Nurses Association (ANA) and state boards of nursing.  Codes of ethics are guiding principles that all members of a profession agree upon, addresses professional group’s questions and standards of practice/behaviors, and establishes rules on advocacy, responsibility, accountability, and confidentiality.  It is important to consider legal implications related to the nursing profession. Safe nursing practice is imperative and requires knowledge of the laws that govern nursing practice in each state. Nurses are accountable for their practice and actions as well as the delivery of safe competent care to the public.  By following the state’s rules and regulations while maintaining nursing competency, an individual can avoid legal implications.

Negligence.  Negligence is a civil wrong, or tort, and is best defined as an actionable harm. Negligence in the health-care setting is grounded in laws made by judges who set rules based on previously decided cases (Bolam v Friern HMC [1957]; Griffith, 2016). Common examples of nursing negligence include care that results in malnutrition, inadequate hydration, a medication error or physical, mental, and/or emotional abuse. In nursing homes or other places of long term care, there are also often injuries due to bedsores, infections and falls. Malnutrition and dehydration cases come from leaving a patient unattended for too long, ignoring his or her needs, or simply neglecting to feed and provide water. Abuse comes in a variety of forms and, in many cases nurses do not feel that they will be reported, especially if the patient is mentally handicapped. Medication errors, bedsores, infections and falls are most frequently the result of carelessness or paying inadequate attention to their patients compromising their personal and/or environmental safety.

Malpractice.  Nursing malpractice is on the rise according to a recent report from a major insurance company that insures a great number of nurses. The average amount of monies paid in claim settlements and court judgments in 2015 was approximately $164,586 (Brown, 2016). A few of the malpractice issues filed against nurses include (1) failure to communicate, (2) medication errors, (3) charting by exception and legal risks, and (4) nursing fatigue (Brown, 2016).

To prove nursing malpractice, it is common practice to prove that the nurse was negligent. Proving negligence involves showing that (1) the nurse owed a duty to exercise a standard of care to use reasonable care and provide a safe environment to patient, (2) the nurse disregarded this duty and breached by failing to exercise the required standard of care that a reasonable and competent nurse would follow (breach of duty), (3) there was a causal connection between the nurses conduct and the plaintiff's injury, and (4) the plaintiff suffered damages as a result of the nurses malpractice.  The standard of care must be disregarded or breached and resulted in the patient’s injuries and the injuries must be calculable into a monetary figure. 

Grounds for Disciplinary Action (Unprofessional Conduct)

Disciplinary action is defined by the board of nursing and the nurse may be denied a license for any of the following violations:

  1. Fraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing;
  2. A conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony or for a misdemeanor involving moral turpitude;
  3. Conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude;
  4. Use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered;
  5. Impersonating or acting as a proxy for another person in the licensing examination required under Section 301.253 or 301.255;
  6. Directly or indirectly aiding or abetting an unlicensed person relating to the unauthorized practice of nursing;
  7. Revocation, suspension, or denial of, or any other action relating to, the person’s license or privilege to practice nursing in another jurisdiction or under federal law;
  8. Intemperate use of alcohol or drugs that the Board determines endangers or could endanger a patient (includes practicing nursing or being on duty or on call while under the influence of alcohol or drugs);
  9. Unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud, or injure a patient or the public;
  10. Adjudication of mental incompetency;
  11. Lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or
  12. Failure to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the Board’s opinion, exposes a patient or other person unnecessarily to risk of harm

According to section 301.4532 there are specific situations that require suspension, revocation or refusal of license for certain offences and include:

  1. Murder or manslaughter
  2. Kidnapping or unlawful restraint and the offense was punished as a felony or state jail felony
  3. Sexual assault
  4. Aggravated sexual assault;
  5. Continuous sexual abuse of young child or children or indecency with a child;
  6. Aggravated assault;
  7. Intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual;
  8. Intentionally, knowingly, or recklessly abandoning or endangering a child;
  9. Aiding suicide and the offense was punished as a state jail felony;
  10. An offense involving a violation of certain court orders or conditions of bond or punished as a felony;
  11. An agreement to abduct a child from custody;
  12. The sale or purchase of a child;
  13. Robbery
  14. Aggravated robbery
  15.  An offense for which a defendant is required to register as a sex offender;
  16. An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.

Reporting Violations and Patient Care Concerns

It is the professional nurse’s responsibility to advocate for patient safety.  In the role of the advocate there are discoverable moments that require escalation to protect patient safety.  Good faith report by a nurse is true if the person reporting believed that the report was required or authorized and there was a reasonable factual or legal basis for that belief. A person may not suspend or terminate the employment of, or otherwise discipline, discriminate against, or retaliate against, a person who (1) reports in good faith under this section; or (2) advises a nurse of the nurse's rights and obligations under this section. Moreover, certain circumstances are deemed mandatory to report (301.402) to the board if the nurse has reasonable cause to suspect:

  1. Another nurse has engaged in conduct subject to reporting
  2. The ability of a nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency.

Professional Boundaries

Texas Board Rule 217.1(29) defines professional boundaries as the appropriate limits which should be established by the nurse in the nurse/client relationship. It also refers to the provision of nursing services within the limits of the nurse/client relationship which promote the client’s dignity, independence and best interest and refrain from inappropriate involvement in the client’s personal relationships and/or the obtainment of the nurse’s personal gain at the client’s expense. Nurses need to maintain professional boundaries and strengthen the therapeutic nurse-patient relationship

Professional boundaries are the spaces between the nurse’s power and the patient’s vulnerability. The power of the nurse comes from the nurse’s professional position and access to sensitive personal information.  An imbalance can occur when a nurse unintentionally shares personal information to a patient about themselves and thus compromises the therapeutic relationship.

A nurse’s use of social media is another way that nurses can unintentionally blur the lines between their professional and personal lives. Making a comment via social media, even if done on a nurse’s own time and in their own home, regarding an incident or person in the scope of their employment, may be a breach of patient confidentiality or privacy.

Case Scenario

Jane Owen is a new community nurse responsible for the care of Mary, an 85-year-old woman who has recently been discharged from a hospital and needs stitches removed from a surgical wound.  Jane realizes that she does not have a sterile pack or stitch remover and asks Mary’s husband for a clean towel to cover the area while she removes the stitches with her pocket scissors. Two weeks later, Jane discovers that Mary is in intensive care with septicemia caused by an infected wound. Mary’s daughter is now threatening to sue for damages over the nurse’s carelessness” (Griffith, 2016, p.155).  

References

  1. Brown, G. (2016). Averting Malpractice Issues in Today's Nursing Practice. ABNF Journal, 27(2), 25-27.
  2. Cooper, P. (2016). Nursing Leadership and Liability: an analysis of a malpractice case. Nursing Leader, 14(1), 47-51.
  3. Griffith, R. (2016). Repercussions of negligence in community nursing practice. British Journal of Community Nursing, 21(3), 155-158. doi:10.12968/bjcn.2016.21.3.155
  4. National Councils of State Boards of Nursing (2014)
  5. Texas Board of Nursing (2013)
  6. Texas Board of Nursing (2013)
  7. Texas Board of Nursing (2013) 
  8. Texas Board of Nursing (2018)



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