Each state nurse practice act defines nursing, describes the scope of nursing, and identifies limits on nursing practice within that state.

Malpractice is a particular kind of tort action brought by a consumer plaintiff against a defendant professional from whom the consumer plaintiff feels that he has received injury during the course of the professional- consumer relationship. "Malpractice is professional negligence."

1. The nurse professional had a duty to use due care toward the plaintiff.

2. The nurse's performance fell below the standard of care and was therefore a breach of that duty.

3. As a result of the failure to meet the standard of care, the plaintiff was injured and the nurse's actions was the proximate cause of the injury.

4. The act in which the nurse engaged could foreseeably have caused an injury.

5. The plaintiff must prove his injuries.

In a malpractice action, the proof of the standard of care becomes an essential and important ingredient.

Expert witness testimony is usually presented by both sides of give the jury the perspectives of experts on professional practices and standards.

The appropriate expert witness for psychiatric nursing practice is another psychiatric nurse.

The jury is asked by the court to apply the reasonable person test to the facts in the case at hand. The reasonable person test, s applied to the nurse defendant, is what the reasonably prudent nurse would have done under similar circumstances if that nurse came from the same or similar community.

The law of negligence seeks a peer standard for reasonableness of action- no a quality performance standard of excellence.

When nurses are found liable for less-than-adequate nursing care, employers are usually found liable to the plaintiff under the legal theory of respondent superior. Respondent superior states that the acts of employees are attributable to the employer for the purpose of being responsible for damages to injured third parties.

Good quality client care can only be legally proved by clear, concise, accurate, complete and outcome-oriented documentation.

The medical record is the best source of legal protection in a malpractice suit.

All clients have a right to informed consent before health care interventions are undertaken.

A client will prevail in a lawsuit alleging battery (the unpermitted touching of another) if it can be proved that the client did not consent to the procedure.

Consent is an absolute defense to battery, and informed consent is required in health care situations.

Informed consent can be defined as that given in a interaction or series of interactions between the treating provider and the client that allows the client to consider fully information about the treatment that is being proposed (the way it will be administered, its prognosis, its s/e, risks, the possible consequences of refusing the treatment, other treatment alternatives).

1. Adequate and accurate knowledge and information.

2. An individual with legal capacity to consent.

3. Voluntarily given consent.

The Patient Self-Determination Act (PSDA) requires that health facilities provide clear information in writing to every client concerning the client's legal rights to make decisions about his health care, including the right to accept or refuse treatment.

Because of the unreliability of some mental clients, major nursing considerations for informed consent in psychiatric-mental health are the constant monitoring and observing of client's for the following:

1. A state of legal capacity or competence.

2. Continuing understanding of information.

3. Power and opportunities to revoke consent at any time.

Substituted Consent is authorization given by another person on behalf of one who is in need of a procedure or treatment. Can e a court-appointed guardian or next of kin.

If there is no one - the health care agency may initiate a court proceeding to appoint a guardian so the procedure can be carried out.

If an emergency exists, the client can be given medication without consent to prevent harm or others.

The nurse is the client's advocate, unless serving as the primary provider; it is not the nurse's responsibility to obtain informed consent, that is an activity between the client and primary provider.

It is the nurse’s job to protect client's rights during treatment.

What do we know about confidentiality? Well we know it is a professional and ethical duty to use knowledge gained about the client only for the enhancement of their care and not for other purposes, such as gossip, personal gain or curiosity.

According to the Bill of Rights of American Hospital Association, each client has a right to a written record that enhances care. We know that records are legal documents that can be used in court, therefore, all nursing notes and progress records should reflect descriptive, nonjudgmental and objective statements.

Privileged communication is provided by statute in each state. The statute delineates which categories of professionals are given the legal privilege not to be required to reveal conversations and communications with a citizen.

A high duty to protect the public safety intervenes and subsumes the duty of confidentiality.

An important issue in psychiatric-mental health nursing care is the recognition of the basic rights of clients - because the treatment of mentally ill clients tends to be more coercive, less voluntary, and less open to public awareness and scrutiny than are the treatment and hospitalization of other types of clients.

A psychiatric client - loses their freedom to come and go, to schedule their time, and to choose and control ADL.

The courts and advocates closely guard and value the rights that the psychiatric client retains. These rights include the right to communicate with an attorney, the send and receive mail without censorship, visitors, basic necessities of life, safety from harm while hospitalized.

Use of restraints and seclusion as treatment approaches is considered suspect, because such approached reflect a flavor of possible punishment; therefore, the when, where, why and how long of restraints and seclusion need to be addressed by policy in every facility.

Clients have the limited right to be paid for work within institutions. Forced or even voluntary labor by clients without payment violates the principles of law in our society.

Clients have the right not to be subjected in research projects without their informed consent.

Nowhere is the advocacy role more important than in the psychiatric care system as an assessor of and spokesman for the protection of client rights.

1. Voluntary

2. Emergency

3. Involuntary commitments (indefinite duration)

Clients who present themselves at psychiatric facilities and request hospitalization are considered voluntary admission clients. Also clients evaluated as being of danger to themselves or to others or being so seriously mentally ill that they cannot adequately meet their own needs in the community but who are willing to submit to treatment and are competent to do so have voluntary admission status.

Voluntary clients are considered competent unless otherwise adjudicated and therefore have the absolute right to refuse treatment, including psychotropic meds, unless they are dangerous to themselves or others.

Voluntary clients do not have absolute right to discharge at any time, but may be required to request discharge. This time delay gives the health team an opportunity to initiate a procedure to change a client’s admission status to involuntary if the client meets the necessary requirements.

Clients are considered to have emergency involuntary admission status when they act in a manner that indicates that they are mentally ill and due to the illness, likely to harm themselves or others, they are taken into custody and detained in a psychiatric facility.

All emergency admission clients are admitted for the purposes of diagnosis, evaluation and emergency treatment. At the end of statutorily limited admission period, the client must be discharged, changed to voluntary status, or attend a civil hearing to determine their need.

Emergency admission - the client's right to come and go is restricted, can consult with an attorney, can be forced to take meds but eletroconvulsive therapy or psychosurgery is not permitted.

A person who refuses psychiatric hospitalization or treatment but poises a danger to self or others whom is mentally ill, and for whom less drastic treatment means are unsuitable may be adjusted to indefinite involuntary admission status in a psychiatric hospital for an indefinite period.

Mental health professionals become involved with clients who are charged with criminal acts (Forensic) in two major circumstances: for the evaluation of a defendants competency to stand trial and pretrial treatment if needed and for the evaluation of a defendants mental condition at the time of an alleged crime and concomitant treatment if the defendant pleads and is acquitted on insanity defense. This is called forensic psychiatry.

1. Ability to assist attorney with defense.

2. Understanding of the nature and consequences of the charge against him or her.

3. Understanding of courtroom procedures.

If the defendant is incompetent to stand trial, treatment begins with the defendant being judicially committed to a psychiatric hospital with a forensic unit.

1. M'Naughten rule - right-wrong test- states that if at the time of his criminal act, the defendant suffered from a disease of the mind that so affected his reason that he was unaware of the act or that the act was wrong.

2. Irresistible impulse rule - broadened M'Naughten rule but also provide that a person acting in response to an irresistible impulse also lacked criminal responsibility, even though he knew the wrongfulness of the act.

3. Durham rule- not widely used.

4. Adopted by the American Law Institute and is widely used - person is not responsible if suffered mental illness, was unable to appreciate the wrongfulness of the act and unable to conform or conduct to the requirements of the law.

Mens rea is the mental element necessary for defendant to be convicted of a crime, it involves a notion of deliberate criminal intent and foresight of the consequences.

The Supreme Court held that juveniles can be authorized for admission by their parents but that accompanying the admission, some neutral fact finders should determine whether statutory requirements for admission are satisfied.

1. Treatment must give some realistic opportunity to improve or be cured.

2. Custodial care is insufficient to meet treatment requirements.

3. A lack of funding does not excuse a state from treatment requirements.

4. Commitment without treatment violates the due process rights of clients.

Least restrictive environments can be community resources instead of hospitalization; open wards instead of locked wards, or outpatient care instead of inpatient care.

The doctrine of informed consent implies that clients have a right to choose or refuse medical and health treatment.

Only in rare or life-threatening instances do courts intervene in client’s negative treatment decisions.

Voluntary clients who have not been adjudicated incompetent have an absolute right to refuse treatment or meds.

ADDITIONAL NOTE:

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