NCM 103 –

FUNDAMENTALS OF
NURSING
Chapter 4 – Legal
Aspect of Nursing
Maria Lourdes L. Reposar
 Chapter 4 : Legal Aspects of Nursing
 Nursing practice is governed by many legal concepts,
nurses must know the basics of legal concepts, because
they are accountable for their professional judgment and
action.
 Knowledge of the laws that regulate and affect nursing
practice is needed for 2 reasons;
1.To ensure that the nurse’s decisions and actions are
consistent with current legal principle.
2.To protect the nurse from liability.
General Legal Concepts:

LAW is defined as “the sum total of rules and

regulations by which a society is governed

“It is created by people and exists to regulate all

persons”(Guido,2014,p.2)
Functions of the Law in Nursing
 The law serves a number of functions in nursing;
1.It provides a framework for establishing which nursing
action in the care of clients are legal.
2.If differentiates the nurse’s responsibilities from those
of other health professionals.
3.It helps establish the boundaries of independent
nursing action.
4.It assists in maintaining a standard of nursing practice
by making nurses accountable under the law.
Sources of Law
Constitutional Law:
 It is the supreme law of the country
 Fundamental law written or unwritten,
establishes the character of government by
defining the basic principle to which a society
must conform.
Legislation (Statuatory Law):
 Laws enacted by any Legislative body are called
Statutory laws
 A written law passed by a legislature on the state or
federal level.
o Legislature: an officially elected or otherwise
selected body of people vested with the
responsibility & power to make laws for a
political unit, such as a state or unit
Administrative Law:
 When a state legislature passes a statute, an administrative
agency is given authority to create rules & regulations to
enforce the statutory laws.
o E.g. State Board of Nursing writes rules and regulations to
enforce & implement Nurse Practice Act, which was
created by Statutory Law.
Common Law:
 Laws evolving from court decisions are referred to as common
law.
 Law developed by judges through decision of courts and
similar tribunals.
Types of Laws:
Public Law – it refers to the body of law that deals with
relationship between individuals and the government
and the governmental agencies

Important segment of public law is criminal law

which deals with safety and welfare of the public
e.g. theft, manslaughter, homicide etc.
Private Law or the Civil Law – it is the body of the law
that deals with relationship among private individuals.
It is again classified into Contract Law and Tort Law
Contract Law – is the enforcement of agreements
among private individuals.
Tort Law – it defines and enforces duties and rights
among private individuals that are not based on
contractual agreement. E.g. invasion of privacy,
assault and battery.
Kinds of Legal Actions:
 There are 2 kinds of legal actions:
1.Civil action – deals with the relationship among
individuals in society, ex. A man may file a suit against a
person who he believes cheated on him.
Civil action that are of concern to nurses include the
torts and contracts
2. Criminal action – deals with disputes between an
individual and society as a whole, ex., if a man shoots a
person, society brings him to trial
 The major difference between the civil and criminal law is
the potential outcome for the defendant.
o If found guilty in a civil action, such as professional
negligence, the defendant will have to pay a sum of
money, but if found guilty in a criminal law, the
defendant may lose money, be jailed or be executed
and, if a nurse, could lose his/her license.
 Litigation – is the action of a lawsuit, and the lawyers who
participated in lawsuits may be referred as litigators.
The Civil Judicial Process
 The judicial process primarily functions to settle disputes
peacefully and in accordance with the law. A lawsuit has
strict procedural rules, there are generally 5 steps:
1.A document, called a complaint, is filed by a person
referred to as a plaintiff, who claims that his legal
rights have been infringed on by one or more other
persons or entities, referred to as defendants.
2.A written response, called an answer, is made by the
defendants.
 3. Both parties engage in pretrial activities, referred to
as discovery, in an effort to obtain all the facts of the
situation.
4. In the trial of the case, all relevant facts are presented
to a judge or to a jury.
5. The judge renders a decision, or the jury renders a
verdict. If the outcome is not acceptable to one of the
parties, an appeal can be made for another trial.
 During a trial, a plaintiff must offer evidence of the
defendant’s wrongdoing. This duty to prove an
assertion of wrongdoing is called the burden of proof.
Nurses as Witnesses
 A nurse may be called to testify in a legal action, it is
advisable that any nurse who is asked to testify in
such a situation seek the advice of an attorney
before providing testimony
 A nurse may also be asked to provide testimony as
an expert witness. An expert witness has special
training, experience or skill in a relevant area and is
allowed by the court to offer an opinion on some
issue within his/her area of expertise
Selected Categories Of Law Affecting Nurses:
REGULATION OF NURSING PRACTICE
 Regulation for Nursing Practice helps to bring a
standard in nursing are and thus to protect the public.
Nurse Practice Acts
Each state has a nurse practice act, which protects
the public by legally defining and describing the
scope of nursing practice and it is also legally
control nursing practice through licensing
requirement.
But acts differ from country to country.
Credentialing
 Credentialing is the process of determining and maintaining
competence in nursing practice.
 Credentialing process helps to maintain standards of practice
and accountability for educational preparation of its members.
1. Licensure – a license is a legal permit that a government agency
grants to individual to engage in the practice of profession & to use
a particular title.
o Each country has its own method to grant or maintain and
revoke the licensure.
o However, a nurse can practice anywhere within the country
with her state’s licensure. This is known as mutual recognition
model.
2. Certification – is the voluntary practice of validating
that an individual nurse has met minimum standards
of nursing competence in specialty areas such as
maternal-child health nursing, pediatrics, school
nursing etc.
3. Accreditation – it is the function of a state board of
nursing is to ensure that schools preparing nurses
maintain minimum standard of education.
Standard of Care
Standard of care are the skills & learning commonly possessed by
members of a profession.
These standards are used to evaluate the quality of care nurses
provide & therefore become legal guidelines for nursing practice.
It can be internal – job description, education, policy &
procedure
It can be external – Nurse Practice Act, Professional organizations
o It is important for a nurse remain competent through reading
professional journals & attending continuing education & in-
service programs.
CONTRACTUAL ARRANGEMENTS IN NURSING
 Contract – is the basis of the relationship between a
nurse and an employer – for example, a nurse and a
hospital or a nurse and a primary care provider.
It is an agreement between 2 or more competent
persons, on sufficient consideration
(remuneration), to do or not to do some lawful act.
Kinds of Contracts:
o 1. Formal Contract- refers to an agreement among parties
involved and is required to be in writing by some special
laws. Examples: marriage contracts, mortgages, deeds of
sale or work contract
o 2. Informal Contract- is one which is concluded as the
result of a written document or correspondence where the
law does not required the same to be in writing, or as the
result of oral and spoken discussion between the parties or
conduct between the parties, evidence and intention to
contract.
o 3. Express Contract- is one in which the conditions &
terms of the contract are given orally or in writing by the
parties concerned. Example: this is usually found in formal
contracts wherein the kind of services offered, salary, date
& time of effectively including fringe benefits, if any are
specified. If a private duty nurse is asked by a physician to
go on special duty for his patient and the patient himself
and his relatives do not object to the service, it is implied
that the private duty nurse will be paid under the doctrine
of facio ut des which means “I do that you may give”
o 4. Implied Contract- is one that is concluded as a result of acts of
conduct of the parties to which the law ascribes an objective
intention to enter into a contract.To avoid subsequent problems,
nurses are advised to clarify the terms and conditions of
employment before assumption of work with the prospective
employer.
o 5. Void Contract- is one that is inexistent from the very beginning
& therefore may not be enforced.
o 6. Illegal Contract- is one that is expressly prohibited by law.
Contracts obtained through use of fraud (deception & trickery),
undue (unlawful), influence or duress (coercion) in securing such,
and those that are expressly prohibited by the law
 A lawful contract requires the following four features:
(Guido 2014)
1.Promise or agreement between two or more persons
for the performance of an action or restraint from
certain actions.
2.Mutual understanding of the terms and meaning of
the contract by all.
3.A lawful purpose (i.e. the activity must be legal).
4.Compensation in the form of something of value – in
most cases, compensation is monetary.
Legal Roles of Nurses
1.Provider of Service
The nurse is expected to provide safe & competent
care.
Nurse is liable to his/her action. Liability is the quality
or state of being legally responsible for one’s obligations
and to make financial restitution for wrongful act. Ex. A
nurse can refuse a task if the nurse will feel that it may
harm the client and it can be reported to the supervisor.
2. Employee or contractor for service
It vary among practice settings.
A independent nurse practitioner has an independent
contractual relationship with the client.
Nurse who is employed by an agency works as an
representative of the agency.
The nurse in the role of employee or contractor for service
has obligations to the employer, the client, and other
personnel.
Nursing care provided must be within the limitations and
term specified.
3. Citizen
The rights & responsibilities of a nurse in the role
of citizen are the same as those of any individual
under the legal system
A right is a privilege or fundamental power
A responsibility is the obligation associated with
the right.
SELECTED LEGAL ASPECT OF NURSING PRACTICE
 Informed Consent – is an agreement by a client to accept a
course of treatment or a procedure after being provided
complete information, including the benefits and risks of
treatment, alternative to the treatment, prognosis if not
treated by a health care provider.
Obtaining informed consent is a responsibility of the person
performing the procedure. Nurse is a witness.
Witnessing with a signature it shows that client gave consent
voluntarily, signature authentic, client appears competent to
give signature.
 Delegation – is defined as “transferring a competent
individual the authority to perform a selected nursing task in
a selected situation”.
 Violence, Abuse & Neglect –violent behavior can include
domestic violence, child abuse, elder abuse, and sexual
abuse.
Neglect is the absence of care necessary to maintain the
health & safety of a vulnerable individual such as a child
or elder.
To use wrongly or improperly or to hurt or injure
someone.
 Controlled Substances – mainly include stimulants,
depressants, narcotics, hallucinogens etc.
Misuse of these leads to criminal penalties
 The Impaired Nurse – refers to a nurse inability to
perform essential job functions because of chemical
dependency on drugs or alcohol or mental illness.
 Abortions – To save the life of the woman, to preserve
physical health, to preserve mental health = Yes; but in
Philippine law, abortion in whatever reason is illegal.
 Sexual harassment – defined as “unwelcome sexual
advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature”.
 Death & related issues – nurses role in legal issues
related to death is prescribed by the laws of the
region and the policies of the health care institution
Beliefs and attitudes about deaths, its causes and
the soul also vary among cultures.
ADVANCE HEALTH CARE DIRECTIVES
o Include a variety of legal and lay documents that
allow persons to specify aspects of care they wish
to receive should they become unable to make or
communicate their preferences.
o 2 types of advance health care directives;
1.Living will - is a document prepared by a competent
adult that provides direction regarding medical care in
the event that the person becomes unable to make
decisions personally.
2.Health Care Proxy – also referred to as Durable power
of attorney for health care is an authorization that
enables any competent individual to name someone to
exercise decision-making authority, under specific
circumstances, on the individual’s behalf.
AUTOPSY
o Or postmortem examination is performed to determine the cause of
death. Autopsy results are used in cases of suspicious death or the
presence of communicable diseases. The cause of death also has
implications regarding payment from insurance policies and workers’
compensation.
CERTIFICATION OF DEATH
o The formal determination of death, or pronouncement, must be
performed by a primary care provider, a coroner, or a nurse.
o A death certificate must be made out when the individual dies. It is
usually signed by the attending primary care provider and filed with a
local health or other government office.
DO-NOT-RESUSCITATE ORDERS
o Primary care providers may order “no code” or “do not
resuscitate”(DNR) for clients who are in a stage of terminal,
irreversible illness or expected death.
o The order is written when the client or proxy has expressed
the wish for no resuscitation in the event of a respiratory or
cardiac arrest.
EUTHANASIA
o Is the act of painlessly putting to death people suffering
from incurable or distressing disease.
o It is sometimes referred to as “mercy killing”
INQUEST
o Is a legal inquiry into the cause or manner of a death.
o It is conducted under the jurisdiction of a coroner or
medical examiner
1.Coroner – is a public official, not necessarily a
physician, appointed or elected to inquire into the
cause of death
2.Medical examiner – is a physician and usually has
advanced education in pathology or forensic medicine
ORGAN DONOR
o In the United States and Canada, any person aged 18 or
older may become an organ donor by written consent.
o In the absence of appropriate documentation, a family
member or legal guardian may authorize donation of the
organs.
o Nurses and other caregivers are expected to approach
families for organ donation in the absence of documentation
of the client’s wishes.
o Consent for an organ donation requires the collaborative
efforts of the nurse with prescribing practitioners, social
workers, and clergy to ensure timely removal of the organs.
AREAS OF POTENTIAL LIABILITY IN NURSING
 Nursing liability is usually involved with tort law
Crimes and Torts
- Crime – is an act committed in violation of public (criminal)
law and punishable by a fine or imprisonment.
Crimes are punished through criminal action by the
state against an individual.
 It may be in terms of imprisonment or by a fine.
 It is classified into Felony and Misdemeanor
 Felony – is a crime of a serious nature, such as
murder, punished by a term in prison.
 Misdemeanor – is an offense of a less serious nature
and is usually punishable by a fine or a short term jail
sentence or both.
- Tort – is a civil wrong committed against a person or
a person’s property.
The person or persons claimed to be responsible for
the tort are sued for the damages.
It is classified in Unintentional Tort and Intentional
Tort
 Unintentional Tort – examples are negligence and
malpractice
- Negligence is misconduct or practice that is below the
standard expected of an ordinary, reasonable, and
prudent person. Such conduct places another person
at risk for harm.
- Malpractice – is “professional negligence”, negligence
that occurred while the person was performing as a
professional.
There are 6 elements that must be present for a case of
nursing malpractice to be proven:
1.Duty – the nurse must have a relationship with the
client that involves providing care and following an
acceptable standard.
2.Breach of Duty – standard of care that is expected in
the specific situation but that the nurse did not
observe
3.Foreseeability – a link must exist between the nurse’s
act and the injury occurred.
4. Causation – it must be proved that harm occurred as
a direct result of nurse’s failure to follow the standard of
care.
5. Harm or Injury – the client must demonstrate some
type of harm or injury (physical, financial, or emotional)
6. Damages – if malpractice caused the injury, the nurse
is held liable for damages that may be compensated.
 Intentional Tort – the defendant executed the act on purpose
or with intent.
 There are 5 intentional torts which is related with
nursing:
1.Assault – it is an attempt or threat to touch another
person unjustifiably
- e.g. a nurse who threatens a client with an injection for
refusing an oral medicine
2. Battery – is the willful touching of a person that may or
may not harm
- A nurse threatens and gives an injection without consent
3. False Imprisonment – it is the unjustifiable detention
of a person without legal warrant or confine the person.
- Not allowing a person to a LAMA or insisting a
client to confine on bed.
4. Invasion of Privacy – it injuries the feeling of a person
and does not take into account the effect of revealed
information on the standing of the person in the
community
5.Defamation – it is a communication that is false, or made with a
careless disregard for the truth.
- A nurse writes in her nurse’s notes that a physician is incompetent
or telling a client that her colleague is incompetent.
a. Libel – is defamation by means of print, writing, or pictures.
Writing in the nurses’ notes that a primary care provider is
incompetent because he did not respond immediately to a call
is an example of libel.
b.Slander – is defamation by the spoken word, stating
unprivileged (not legally protected) or false words by which a
reputation is damaged.
Privacy of Clients’ Health Information
 Protecting client’s confidentiality has always been an
important responsibility of nursing.
 Republic Act No. 10173, otherwise known as the Data
Privacy Act is a law that seeks to protect all forms of
information, be it private, personal, or sensitive. It is
meant to cover both natural and juridical persons
involved in the processing of personal information.
Social Media - inappropriate use of social
networking by nurses can results in losing their
job and being disciplined by the board of nursing.
 Guidelines for avoiding the inappropriate use
of social media
1.Remember that the standards of professionalism
(e.g. an ethical and legal obligation to maintain
client privacy and confidentiality at all times) are
the same online as in any other circumstances.
2. Do not take photos or videos of clients on personal
devices including cell phones.
3. Maintain professional boundaries when using
electronic media
4. Do not transmit or pace on-line individually
identifiable client information
6. Report any identified breach of confidentiality or
privacy.
Loss of Client Property
 Loss of client property, jewelry, money, dentures
etc. is a constant concern to hospital personnel.
 Agencies today takes less responsibility for
property and are generally requesting clients to
sign a waiver on admission relieving the hospital
and its employees of any responsibility for
property.
Unprofessional Conduct
 It includes incompetence or gross negligence,
conviction for practicing without a license,
falsification of client record, and illegally obtaining,
using or possessing controlled substances.
LEGAL PROTECTION IN NURSING PRACTICE
 There are some laws and strategies in place to protect the
nurse against litigation;
1.Good Samaritan Act
- The Good Samaritan Law has been passed to encourage
on-the-spot volunteer first aid in emergency situations by
persons with the proper knowledge and skill. A nurse
therefore who renders first aid or treatment at the scene of
an emergency & who does so within the standard of care,
acting in good faith, is relieved of the consequences of the
act.
2.Professional Liability Insurance
- Because of the increase in the number of professional
negligence lawsuits against health professional, nurses are
advised to carry their own liability insurance
3.Carrying out a Physician Order
Question any order a client questions
Question any order that is illegal, unclear, or incomplete
Question any order if the client’s condition has changed
 Question and record verbal orders to avoid
miscommunications
4. Providing Competent Nursing Care
- Competent practice is a major legal safeguard for nurses. Nurses
need to provide care that is within the legal boundaries of their
practice and within the boundaries of agency policies and
procedures.
5. Record Keeping / Documentation
- The client’s medical chart is a legal document and can be produced
in court as evidence., it needs to be accurate and complete
documentation of the nursing care provided to clients.
6. The Incident Report
- Is an agency record of an accident or unusual occurrence.
REPORTING CRIMES, TORTS, AND UNSAFE PRACTICES
 Nurses may need to report nursing colleagues or
other health professional for practices that endanger
the health and safety of clients.
 Reporting these events is referred to as whistle-
blowing, there are laws that prevent wrongful
termination of whistle-blower by employers.
LEGAL RESPONSIBILITIES OF STUDENTS
 Nursing students are responsible for their own actions and
liable for their own acts of negligence committed during
the course of clinical experience.
 When they perform duties that are within the scope of
professional nursing, such as administering an injection,
they are legally held to the same standard of skill and
competence as a registered professional nurse.
 Lower standards are not applied to the actions of nursing
students.