TOPIC: MEDICO-LEGAL ISSUES IN NURSING

PRESENTED BY

AB AKINYEMI LOLADE AFUSAT

NATIONAL DEFENCE COLLEGE NIGERIA

OBJECTIVES

The purpose of this paper is to:

1. Give practitioners and health service staff such general information on these basic
questions as may help them to do their work correctly and with confidence.
2. Examine the concept of medico-legal issues, clinical practice and importance of
complaints from patients in the clinical setting.
3. Examine the various forms of medico-legal issues and precautionary measures.
4. Look at the rights and obligations of patients and clinicians.
5. Examine the available defenses to the clinician in the event of litigation and legal
consequences of these medico-legal cases.

Introduction

Nursing is defined as providing care to the healthy or sick individuals for preventive, promotive,
curative and rehabilitative needs. The Consumers are patients with complex needs. With
increased awareness of health care, health care facilities and Consumer Protection Act,
patients/clients are getting awareness about their rights. Nurses also have now the expanded role;
with the result the legal responsibility is increased. Hence, it is important for nursing personnel
working in hospital, community and educational field to develop understanding of Legal and
Ethical Issues of Nursing. The clinicians work is very likely to involve Law if anything goes
wrong in the course of treatment, administration of drugs, prescription or surgery. The problem
of professional practice is of course, the ones which give rise to the most obvious and immediate
concern, but apart from these issues nurses face the same wide range of legally enforceable rights
and duties as other employees in their everyday work. Nurses make decisions every day that, just
take into account laws and ethical standards. Therefore, in order to make appropriate decisions,
nurses require an understanding of how laws, ethics and nursing interface.
DEFINITION OF TERMS
Laws: man-made rules that regulate human social conduct in a formally prescribed and legally
binding manner
Legislation: Oxford dictionary gives the definition of legislation as ‘the process of making
laws’. Legislation is a method of improving public services. To control and maintain standard in
nursing education and nursing practice, the nursing councils develop the Act in each state.
Nursing legislation is developed in relation to nursing education, nursing practice and
Nurse: The term ‘nurse’ refers to a person who has completed a program at basic nursing
education and is qualified and authorized in her/his country to provide the most responsible
Quality Nursing Practices: service of a nursing nature for the promotion of health, the
prevention of illness and care of the sick (ICN Constitution as revised and adopted in 1965).
Nurse’s Responsibility: The main responsibilities of a nurse are to provide care based on
nursing diagnosis, prioritizing the needs; planning, implementing and evaluating the nursing
care. Nurse provides care to the patient based on needs, respect, dignity and right without
considering race, nationality, caste, creed, color or socio economic status.
Malpractice: Professional misconduct; negligence performed in professional practice; any
unreasonable lack of skill in professional duties or illegal or immoral conduct that result in injury
or death to the client/consumer.
Negligence: Negligence is described as lack of proper care and attention; carelessness; ‘An act
of carelessness’ (Oxford Dictionary). The law imposes certain specific responsibilities on the
nurse with respect to both the duty and the standard of care to be given to a patient. Negligence
by the nurse can be explained as:
i) the failure to do something that a nurse guided by those considerations that ordinarily regulate
the conduct of nursing would do.
ii) doing something that a prudent and reasonable nurse would not do.
iii) the failure to expertise ordinary care under circumstances.
iv) conduct that a reasonably prudent nurse should realize that not to get involved in an
unreasonable risk of invading a patient’s interest.
Informed Consent: All patients should be given opportunity to grant informal consent.
Informed consent implies to when patient is given the complete knowledge and understanding
about any treatment/procedure and agrees to sign for treatment/procedure. For any
procedure/treatment consent is required according to the institutional policies. Nurse must
witness while doctor gives explanation of a procedure/treatment in detail before taking the
consent. Sometimes an information leaflet/pamphlet can be prepared for patient to read.
Nursing Personnel must keep in mind the following point:
1. Patient can consent for herself/himself or legally authorize someone to consent for
her/him.
2. If a patient is below 18 years of age, then the legal guardian has to give the consent.
3. Consent should be taken from the spouse or legal guardian if a person has mental
disorder or mental incompetence.
4. Consent of husband and wife should be obtained for legal abortion.
5. Legal policy need to be followed for the consent for an orphan according to the State.
Intentional Torts
Intentional torts are, when others interfere in individual’s privacy, mobility, property or personal
interests. These rights of the individual should be protected. Intentional torts can be Assault,
Battery, False imprisonment or defamation.
a) Assault: It is the unjustifiable attempt to touch another person or the threat to do so in such
circumstances as to cause the other reasonably to believe that it will be carried out.
b) Battery: It involves an intentional act that is harmful or offensive – touching another person
without that person’s consent.
c) False Imprisonment: It is an intentional act which prevents an individual from moving about
where s/he wants to be.
d) Defamation: Publication of a false statement about an individual made either verbally or in
some other form to the third person, which damages his/her reputation.

Scope:

The scope shall cover the following: The scope shall cover the following: definition of terms,
ethics and ethical issues related to nursing, ethical theories and approaches, ethical principle of
respect for autonomy, legal and ethical implications in various nursing situations, role of nurse in
admission and discharge of mentally ill patients, legal implications in few selected situations.

ETHICS AND ETHICAL ISSUES RELATED TO NURSING

Ethics and ethical issues related to nursing are an important area of concern while dealing with
human being. Let us first clarify the difference between ethics, morals and bioethics. It is a
branch of philosophy which is concerned with human character and conduct. Ethics are defined
as the science of moral in human conduct.
Morals are ‘ought’s’ and ‘should’ of society whereas ethics are the principles behind the
‘should’, the ‘whys’ of moral codes are statements. Study of ethics can help health professionals
in making decision in ethical dilemma, by learning what should be considered in carrying out
ethical responsibilities
Bioethics refer to concerns, choices around such health care issues as longevity versus freedom
from illness, rights of individual versus rights of society. Code of ethics is often considered as an
essential characteristics of a profession and provides the means for professional regulation.
Ethical Theories and Approaches
The most significant Ethical theories/approaches can be classified as:
a) Deontological approach
b) Utilitarian approach
Deontological Approach
The word Deontology is derived from a Greek word ‘Dean’ meaning duty and ‘Logo’ means
discuss. The approach is substantially derived from the writings of Immanuel Kant. It emphasis
on:
i) Duties derived from the supreme principle of morality known as ‘categorical
Imperative’. It is explained in nursing by Kant that “Act in such a way that you treat
humanity, whether in your own person or in person of another, always at the same
time as an end and never simply as a mean.
ii) It also emphasis on right or wrong irrespective of person, situation, time, and
circumstances.
iii) It is also based on ethical actions, principles and rules.
For examples code for nurses prescribed by ANA describes about Deontological approach. Also
another example is lying or killing is wrong. Let us clarify with the help of example. A Head
Nurse/Nurse In-charge using deontological approach would apply rules relevant to a situation.
Use of restraints which may be to prevent patient from harming herself/himself would demand
the In-charge to act from conscience, faith or duty in making such a decision. The nurse In-
charge would make a decision which is based on moral rule. As per deontological approach,
right and wrong of an act is determined by feature of an act or its consequences.

Utilitarian Approach
Utilitarian approach is concerned with the end product of action. What are the consequences of
action? The end product, goal or consequence of the action is important. This theory has been
emphasized by David Hume and others. The Emphasis in the theory is on: greatest goods for
the greatest number. No acts are right or wrong. The right act is the one that leads to the
greatest good consequences or least possible consequences for all persons affected. It emphasis
on how certain action affect the general welfare in all given situations. It is more a community
ethic: for example, how are the resources of health care allocated?
Egoistic/Hedonistic Approach
In egoistic approach, the solution to the problem is based on what is best for one self. The nurse
acting as per the egoistic approach feels that whatever decision s/he has made is best for the
patient, and with such a decision nurse feels comfortable. The decision may not have any
benefit/harm for the patient or relatives. According to this approach the patient is not the primary
consideration. For example, a nurse plans to give bath to all the patients at 8 O’clock in the
morning or all patients should be given medicine at 8 O’clock in the morning are examples of
Egoistic/Hedonistic approach. The nurse is dealing with human beings who have complex s/he
needs to be flexible in her/his approach.
Ethical Principles
In addition to learning about ethical approaches/theories it is significant for you as a nurse to
know some of the Ethical Principles. The important ethical principles are:
Ethical Principle of Respect for Autonomy
This principle involves two concepts: a) Respect for a Person; b) Autonomy.
a) Respect for a person involves level of understanding of another person or empathy and
reducing exploitation. For example, if patient is talking to a nurse about how upset patient is
because of sickness. Nurse needs to allow/encourage the patient to talk because being a bread
earner in the family, having dependent family members, patient is worried. Nurse is able to
empathize with him when he says “he is upset because of his sickness”.
b) Autonomy means self-determining action. It is an ethical action on the part of nurse to allow
the patient to make decision for surgery. Once the nurse has explained the pros and cons of
surgery, it should be determined by the patient himself/herself.

LEGAL AND ETHICAL IMPLICATIONS IN VARIOUS NURSING SITUATIONS

Legal Implications in Admission and Discharge
a) Admission and Discharge of Medico-Legal Cases (MLC) While providing nursing care in
any Medico-Legal Case, as a nurse you must take care of the following areas:
 After receiving the patient in OPD, immediately inform the physician.
 All the OPD records, admission cards, and other records of patient should be kept under
lock and key.
 No records of patient should be shown to anyone else than the physician looking after the
patient.
 All the belongings of the patient should be kept under safe custody.
 If relatives or police want to take the belongings of patient, the prior permission of
physician is important. Description of the belonging should be written. Relationship with
the patient, signature and thumb impression should be obtained from the person
collecting the belongings.
 Body discharge of the patient should not be thrown until confirmed by the physician.
Accurate recording of body discharge, its quantity, color and consistency should be
maintained.
 Don’t destroy/discard any evidence without discussing with physician.
 Take consent of relative or patient (if patient is conscious) for any kind of
procedure/treatment.
 Allow the relative to be with the patient on request of patient.
 Avoid answering enquiries to an insurance agent.
  The condition of patient should be reported verbally only. It is not obligatory on the part
of nurse to provide information to the police officer, to the press reporter or any agent of
the public. In case of any difficulty s/he may inform the immediate higher authority.
On Discharge
 If patient is transferred from one ward to another, or to any other hospital, it should be
clearly entered and signed.
 No records should be handed over to police. If required, physician attending the patient
should give in writing to Nurse.
 Name and address of the relative should be written clearly before allowing the patient to
leave the hospital.
 Physician must inform the discharge of patient to Chief Medical Officer (CMO).
 Discharge notes should be kept under lock and key, until handed over to the department
concerned.
In Case of Death of Patient
 If death occurs in the hospital, Physician on duty must inform the CMO and withhold the
body for post mortem examination according to hospital policy.
 Nurse must get written instruction from the medical officer for handing over the body to
mortuary/relative/police officer with: complete name and signature, complete address of
the person from mortuary/relative/police officer, identification number and signature of
witness.
 List of all articles of patient should be made in triplicate while handing over the body.
 Maintain the privacy of the dead body while attending last offices or care of the dead.
 All the articles should be disposed off, after making list and with approval of medical
officer.
b) Role of Nurse in Admission and Discharge of Mentally Ill Patients

As per the Indian Mental Health Act, 1987 (which is an amendment of the Indian Lunacy Act,
1912) “Mentally ill patient gets admitted on a voluntary basis (except a minor). After 24 hours, a
board should decide regarding continuation of treatment or discharge of the patient”. Admissions
can be made under special condition where patient is brought by relative, friend or neighbor.
Application form for admission is accompanied by report of two medical officers out of which
one should be in government service.
Discharging a Patient with Mental Illness
As a nurse you must remember that:
1. Voluntarily admitted patient may ask for discharge and psychiatrist/medical officer on duty
will make discharge slip.
2. Check the signature of the patient and relatives/witness.
3. Note the address of patient on discharge.

c) Discharge of Patient in Other Conditions

the following will give you information about some of the following conditions which legal
implications are involved.
1. Lama (Left Against Medical Advice).
2. Parole (Mentally ill patient goes home on leave).
3. Absconding (Patient runs away from the hospital without informing any one).
i) Lama
Patient leaves against medical advice, when the patient and relatives are not satisfied of the
treatment in the hospital. If the patient is in a critical condition, as a Nurse, your
responsibility is to:
1) explain about the critical condition of the patient to relatives,
2) inform the medical officer, and get it written from the medical officer that patient can go on
LAMA,
3) signature of relative should be taken in which s/he writes that s/he is taking full responsibility
of taking away the patient, that the Doctors and nurses have explained the critical condition, and
the risk of taking away the patient.
4) if it is a hospital policy, the life support system should not be withdrawn,
5) all the records should be kept under lock and key.

ii) Parole
In parole, patient has not been discharged from the hospital, but is away for two/three days or
more. After submission of application by the relatives with approval of psychiatrist the patient
goes home. Sometimes the patient does not come back after parole.
iii) Absconding
If the patient runs away from the ward/hospital, it becomes a major responsibility of a nurse. To
avoid this problem, you must remember the following:
1. Check the number of patients admitted, with the actual number of patients present in the ward
while handing over, and taking over, during change of shifts.

2. Inform immediately the CMO, if any patient is reported absconded, in writing and get is
signed. Record of absconded patient should be kept under lock and key.

Legal Implications in Few Selected Situations

a) Examination of Female Patient: When the female patient is being examined by male Dr., nurse
must ensure that she should:
1. maintain total privacy during the physical examination.
2. be present during the physical examination of the female patient.
3. expose the patient as little as possible.
4. protect the right of the patient if she refuses to be examined by a male doctor.
5. discourage repeated examination of breast, abdomen and perineal part of patient.

b) Legal Responsibility of Nurse while Administering Medication: “5R” must be kept in mind
while giving medication to the patient, that is right medicine, to right patient, in right dose,
through right route, and at right time. It is essential for you to keep the following points in mind
while giving medication to the patient.

1. No verbal instructions from physician should be carried on for giving medicine.

2. There are limited number of days for administering antibiotics.
3. Strict monitoring of medicine, especially ones which may change the blood chemistry
(Heparin, Digoxin).
4.Measuring of liquid medicines at eye level.
5. Error cause in medication, by a nurse should be reported immediately, though at times the
nurse may feel:
– there is no need to inform
– if informed, ‘I will be labeled as careless nurse’.
– there may be punishment.
– to wait for consequences.
Where the fears may be, it is important to save the life of human being.

● Ensure that all the medicine containers are labeled clearly.

c) Nursing Records and its Legal Implications
On admission of patient to the hospital, various records are maintained. Some of them are:
– Nurse’s Notes
– T.P.R. records
– Poisonous and essential drugs records
– Admission and Discharge records.
The nursing care records are important, as these may be required by:
– employer (For employment, promotion, disposition)
– Court of law for various purposes
– Used for a Job, and leave from work place
– Lawyers use it for divorce, compensation, liability
– Damages against negligent act
– Execution of will
– Medico legal reasons
– For use in consumer court
– Any other.
Discharge records should be kept under the lock and key, until they are handed over to the
medical record section. Discharge record should include:
– Date of admission of patient
– Diagnosis
d) Euthanasia
Euthanasia denotes killing someone on account of his/her distressing physical and mental state.
Euthanasia is an act or practice, of painlessly putting the person to death, to relieve him/her from
suffering of an incurable or a distressing disease. Voluntary euthanasia is at the request of person
himself. Euthanasia, even if voluntary, is criminal in almost all the countries including India.
There are lots of questions related to euthanasia. The parents of new born, with congenital
defects may tell the doctor not to take extraordinary measures to save the life. If doctor agrees,
that means the treatment will not start and eventually the child may die. It becomes more
complicated in case of mentally incompetent person. Should the life support be withdrawn? It
has gone through ethical debate. Who should make the decision?
A family – Who may have guilt feeling throughout life
The physician – Whose oath does not permit
Family and physician – both should be protected together by Court of Law
An ethics committee – It is difficult to come to the Conclusion & The legislative/court. Over a
period, time, it is said that if relatives agree, and physician ascertains, that without life support
measure may declare a patient having ‘Brain Death’. Should the life support system be
withdrawn is questionable?
“In no case nurse should participate in euthanasia.” You must have noticed as a community
health nurse, that a mother who has pressure of inlaws and husband to produce a son neglects a
female baby, by not feeding, not bothering if the baby is getting choked. This is an example of
massive murder. As a community health nurse, you need to intervene and help the mother, and
family members to accept the baby. The nursing care records are important, as these may be
required by:
– employer (For employment, promotion, disposition)
– Court of law for various purposes
– Used for a Job, and leave from work place
– Lawyers use it for divorce, compensation, liability
– Damages against negligent act
– Execution of will
– Medico legal reasons
– For use in consumer court
– Any other.
Discharge records should be kept under the lock and key, until they are handed over to the
medical record section. Discharge record should include:
– Date of admission of patient
– Diagnosis

d) Euthanasia
Euthanasia denotes killing someone on account of his/her distressing physical and mental state.
Euthanasia is an act or practice, of painlessly putting the person to death, to relieve him/her from
suffering of an incurable or a distressing disease. Voluntary euthanasia is at the request of person
himself. Euthanasia, even if voluntary, is criminal in almost all the countries including India.
There are lots of questions related to euthanasia. The parents of new born, with congenital
defects may tell the doctor not to take extraordinary measures to save the life. If doctor agrees,
that means the treatment will not start and eventually the child may die. It becomes more
complicated in case of mentally incompetent person. Should the life support be withdrawn? It
has gone through ethical debate. Who should make the decision?
A family – Who may have guilt feeling throughout life
The physician – Whose oath does not permit
Family and physician – both should be protected together by Court of Law
An ethics committee – It is difficult to come to the Conclusion & The legislative/court. Over a
period time, it is said that if relatives agree, and physician ascertains, that without life support
measure may declare a patient having ‘Brain Death’. Should the life support system be
withdrawn is questionable?
“In no case nurse should participate in euthanasia.” You must have noticed as a community
health nurse, that a mother who has pressure of inlaws and husband to produce a son neglects a
female baby, by not feeding, not bothering if the baby is getting choked. This is an example of
massive murder. As a community health nurse, you need to intervene and help the mother, and
family members to accept the baby. It is important to know while providing nursing care, there
are many ethical dilemmas you must be facing while practicing in the hospital and community.
Basic Summary of the Litigation Process
The plaintiff, or injured party, usually with the help of an attorney, files a complaint which is the
first notification in a civil action, stating the cause of action.
The plaintiff's complaint asks for damages or relief from a defendant, who is alleged to have
caused the injury. The complaint outlines the legal and factual reasons why the plaintiff believes
the defendant is responsible for his injury.
The clerk of the court then issues a summons to the defendant. Either the sheriff or a licensed
server formally delivers the summons to the defendant. The summons includes notice of the
lawsuit and a copy of the complaint.
The defendant or his lawyer has a specified time to personally appear in court. The defendant is
required to file a document referred to as an "answer". The answer addresses the facts and the
legal claims in the complaint. The answer tells the court which facts in the complaint the
defendant agrees and/or disagrees with.
Early Stage Motions
Once the complaint and answer have been filed with the court, attorneys for both sides consider
proper motions (a motion is a request to the court to issue an order). The defense may file a
motion to dismiss, stating the complaint does not contain facts making the defendant liable to the
plaintiff. A defendant may file a motion to dismiss before his answer. The plaintiff may file a
motion for summary judgment, which says the facts that make the defendant liable to the
plaintiff are not in dispute. A court granting either of these early motions may end the lawsuit,
which is why they are usually the first matters that take place. If these motions are denied, the
lawsuit proceeds. Legal settlements/agreements of any legal case are permitted throughout the
entire trial process.
Discovery and Pre-trial
Discovery is an important part of all pre-trial preparations. During discovery, the parties
exchange information and documents related to the plaintiff complaint and defenses represented
in the answer. As discovery proceeds, the parties have pre-trial conferences with the judge. The
parties advise the judge of discovery progress and discuss potential settlements. The judge aids
in negotiations and sets schedules for discovery completion.
During the pre-trial phase, lawyers may request the judge to bar specific evidence, witnesses or
arguments as legally inappropriate. The judge grants or denies the motions. Upon completion of
discovery, decisions on pre-trial motions and failure to reach a settlement results in the lawsuit
proceeding.
Trial and Judgment
At the trial, the plaintiff presents evidence first to a judge either in a bench trial or a group of
citizens in a jury. Jury selection begins when potential jurors are summoned in a random process.
Potential jurors on the panel are questioned by the judge and the attorneys. The purpose of Voir
dire (to say the truth) is to test the legal qualifications of the jury panel members to serve as
jurors. Each party's attorney is entitled to disqualify potential jurors who are not appropriate to
participate in a particular trial, or are disqualified because each attorney is entitled to 6
peremptory strikes, which involve attorney preferences for selection of potential jurors.
After the plaintiff presents evidence, the defendant has an opportunity to present the defense side
of the case. The plaintiff has the burden of proving his case by a preponderance of the evidence.
This means that it is more likely than not, that the claims of the plaintiff are true. This standard
of evidence is much lower than the criminal standard of beyond a reasonable doubt.
Both sides present their cases, and then the judge or jury decides. If the judge or jury finds
against the plaintiff, the case is over. The judge enters a judgment in favor of the defendant
releasing the defendant from liability for the plaintiff's claims.
If the judge or jury finds for the plaintiff, the defendant is found to be liable and judgment is
determined for the plaintiff. The court then awards damages (money) and/or orders the defendant
to perform a specific act. This order terminates the trial process and is a judgment in favor of the
plaintiff.
Appeals
The losing party may file an appeal if they believe the outcome was legally incorrect. An
appellate court may dismiss the appeal, hear and affirm the judgment, reverse it, or send it back
to the trial court with instructions to correct legal errors. Lawsuits may go between the appellate
court and trial court multiple times before final resolution.
Enforcement
When a judgment becomes final in favor of the defendant, the plaintiff may not file suit on the
same lawsuit basis in the future. If the ruling favors the plaintiff, the defendant must adhere to all
the terms of the judgment. Failure of the defendant to obey the judgment places the defendant in
contempt of court and implies the danger of prosecution and/or penalties. A plaintiff with a
judgment may seek to enforce it by obtaining a court order to seize the property of the defendant
to satisfy the defendant's debt.
Conclusion
All health professionals should be actively aware of current legal issues and their various key
concepts. These are primarily negligence, consent, accountability, confidentiality and advocacy.
Having knowledge and understanding of these key concepts can motivate improved
implementation of these laws and precipitate improvements in the protection of human rights of
both patients and providers in health care settings.
Recognizing that universal human rights have special relevance to healthcare providers as well
as patients, is essential to nurturing a culture of respect within the health care delivery context.
This course was written to inform a firmer understanding of the legal basis for patient and
provider rights and responsibilities and available mechanisms for enforcement among medical
professionals, public health professionals and health managers, ministries of health and justice
personnel, patient advocacy groups, and patients themselves.
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