Chapter 6 Nursing Responsibility and the Law
REFUSING AN ASSIGNMENT BECAUSE OF QUALIFICATIONS 6:2
The Nurses Alternative 6:3
Supervisors Responsibilities 6:5
REFUSING AN ASSIGNMENT BECAUSE OF CONSCIENCE 6:7
Objections Based on Religion 6:8
QUESTIONING A PHYSICIANS ORDER 6:9
POLICE REQUESTS 6:11
Nevada Statutes and Regulations 6:11
Case Law 6:13
The Nurses Decision 6:13
THE RIGHT TO DIE 6:15
Types of Advance Directives 6:15
Substituted Judgment 6:16
Assisted Suicide 6:17
Active Euthanasia 6:18
Statutes & Regulations
The unique role that a nurse plays in the health delivery system often puts her in what seems to be a no-win position. For instance, what should a nurse do when ordered to perform a task for which she does not feel qualified? Should she refuse and face possible workplace discipline, or should she attempt the task and face possible liability? Even when a nurse is superbly qualified to perform a task, however, sometimes issues of conscience may prevent her from fully performing the task. Again, failure to perform may sometimes mean discipline, but for many nurses, adverse employment actions are preferable to carrying out a task that is morally objectionable. This chapter tries to find some middle ground through which a nurse can avoid both legal liability and adverse employment consequences while maintaining her personal ethical standards.
REFUSING AN ASSIGNMENT BECAUSE OF QUALIFICATIONS
A nurse who performs a task for which she is unqualified faces potentially devastating consequences, both professionally and financially. In Nevada, the law specifically requires that nurses be competent in their duties. NAC 632.212. In fact, nursing regulations mandate that nurses ensure that they are competent to execute a task before attempting it. For example, a licensed practical nurse must determine before the performance of any task that [s]he has the knowledge, skill and experience to perform the task competently. NAC 632.230. A nurse therefore has an affirmative duty to refuse an assignment if she is unqualified to perform it.
No nurse can be forced to perform a task she is not qualified to perform. However, the pressures of a workplace often force a nurse to accept and attempt an assignment for which she is unqualified. Although a surgeon would never be asked to cover for an oncologist, nurses are often required to float to other departments in an attempt to cover staffing shortages. Unfortunately, the realities of nursing work sometime make it difficult or impossible for a nurse to refuse an assignment without risking being labeled as someone who is not part of the team or a malingerer. Perhaps the best way to avoid this problem is with open communication with your supervisor, assuming that it is not an emergency situation. In an emergency situation, as long as a nurse can perform at the minimum level required by the law, that of a reasonably prudent nurse in similar circumstances, a nurse should not refuse an assignment.
The ANA states that nurses should reject any assignment that puts patients or themselves in serious immediate jeopardy. The ANA supports a nurses decision to reject an assignment in these situations, even when a nurse is not afforded specific legal or contractual protection for rejecting the assignment. In addition, nurses who belong to a union often have the terms of staffing, patient care assignments, and procedures for refusing an assignment spelled out in their union or employment contract.
By openly communicating her reservations about accepting a task for which she may not be qualified, a nurse reduces, but does not fully eliminate, the possibility of personal liability. In addition, when voicing a concern about an assignment, the nurse may offer to instead perform a substitute task for which she is qualified, or offer to assist in the assigned task in any way that she can safely do so, thus limiting negative work-place repercussions. For instance, a new OR nurse asked to scrub at an unfamiliar procedure without adequate time to research the tasks involved can request nurse supervision at the procedure, if practical, or can offer to scrub for another surgery.
As always, the interests of the patient should take precedence over any other considerations when making a decision whether to refuse an assignment. If you are asked to work in an area in which you are unfamiliar, particularly if the area is short-staffed, ask yourself whether the patient or patients would be better served by having no nurse present, or a nurse who is perhaps only minimally qualified to carry out the necessary tasks. In many cases patients would be best served with even a minimally qualified nurse, assuming that proper supervision and assistance can also be provided.
In addition to incurring legal liability, a nurse can be professionally disciplined for performing a task for which she is unqualified. In Nevada, the State Board of Nursing considers it unprofessional conduct for a nurse to assume duties and responsibilities within the practice of nursing without adequate training. A nurse must also not assume a duty unless she is competent in that duty. NAC 632.890. Performing a procedure without adequate competence and training may lead to professional discipline, including the loss of the nurses license.
The Nurses Alternatives
As briefly discussed above, when faced with a situation where you are asked to discharge a task for which you feel unqualified, always state your reservations to the person assigning you the task. Then consider your alternatives.
It may be possible to carry out an unfamiliar task if you receive adequate supervision or assistance. Consider, with your supervisor, whether a nurse or health care professional who is more experienced at the task will be able to oversee and supervise your efforts. In reality, this is how most nursing tasks are first learned, so ask whether any assistance will be available.
Ask whether the assignment could be delayed until you are able to be properly trained on the task. Obviously in an urgent or emergency situation you will not have time to be cross-trained or to adequately research the intricacies of an unfamiliar procedure. However, in other situations, your willingness to get properly trained on the task will greatly ease any potential friction your refusal will generate.
If you continue to feel additional pressure from your employer, check your employee manual and the Nevada nurse practice act. If hospital policy prohibits you from executing a function, you should not be asked to perform it, absent truly extraordinary circumstances. Some employee manuals contain specific steps that a nurse should take if she is assigned a task beyond her qualifications. Many also follow the guidelines of the Nevada nurse practice act in detailing the responsibilities of various levels of nurses, and could provide guidance for you if an assignment is beyond the scope of your position.
Similarly, if the Nevada nurse practice act forbids a nurse at your particular level from performing a particular task, you have solid grounds for refusing the assignment. Although you may not have a copy of the act on hand, you can call the Nevada State Nursing Board for guidance. Alternatively, every nurse should have at least a passing knowledge of the scope of nursing practice allowed her by the practice act, so take the time to briefly review these regulations.
While defining the scope of practice allowed to various types of nurses, the Nevada nursing regulations also contain specific prohibitions on nurse functions. For instance, a licensed practical nurse may not independently carry out those duties which require the substantial judgment, knowledge and skill of a registered nurse. NAC 632.230. Referring specifically to these regulations when dealing with the administration will often have the effect of prompting a supervisor to change your assignment. Though not legally binding in Nevada, decisions from courts of other states have upheld the right of a nurse to refuse to float to a patient care area in which she was unskilled and untrained. Winkelman v. Beloit Memorial Hosp., 483 N.W. 2d 211 (Wisc. 1992). It is likely against public policy for an employer to attempt to terminate an employee for refusing to participate in care that conflicts with the law, as established in the nursing regulations.
If you feel that you must unwillingly perform a task for which you are unqualified, document the event. State the facts, including your objections and the reasons for them, with the emphasis on adequate patient care, and ensure that you state that you were willing to accept an alternative assignment and that you want to be trained on the specific task so that you can perform it in the future. Then give a copy of the memo to the person who assigned you the task, your supervisor, and an appropriate administrator. Obviously, do not employ this strategy except in cases of potentially egregious violations of a patients interests, or when your own interests are in serious jeopardy.
There is a significant difference from an employers perspective between a nurse who simply refuses an assignment because she says she does not feel qualified, and a nurse who voices a good faith objection to an assignment based on the interests of the patient (and the institution and, of course, the nurses own legal interests), while offering to perform alternative assignments or offering to become trained on the assignment in a reasonable time. Significantly, courts have upheld the firing of a nurse who refused to float to a unit with which he was unfamiliar when he refused the hospitals offer to orient him to that unit and any other units in which he could be asked to float. Francis v. Memorial General Hosp., 726 P.2d 852 (NM 1986).
In an emergency situation, a nurse should naturally do whatever is necessary to stabilize the patient. There are almost no conceivable emergency situations in which a patient would not be best served with a minimally trained nurse than with no medical or nursing assistance at all. Nevada law appears to allow registered nurses a greater scope of practice in emergency situations than under normal working circumstances. NRS 632.235. The legal standard of care changes slightly in an emergency situation; a nurse is required to act with the level of professionalism of a reasonably prudent nurse in an emergency situation. Any objections that a nurse has to her assigned task can usually be reserved for after the patient is stabilized.
Nurse supervisors similarly face potential liability for making assignments and delegations that are beyond the scope of the abilities of the person to whom the task is assigned. In general, a registered nurse or a licensed practical nurse may not delegate a task to a person who is not authorized to perform that task. NAC 632.244. Thus, a nurse may not delegate a task to a person if that task is beyond the scope of practice of the person to whom it is assigned. In addition, a nurse who delegates tasks is usually responsible for the performance of the assigned work, thus potentially doubling the liability of a nurse supervisor. As with most instances of negligence, the standard of care is reasonable prudence; if the assignment is made with the level of skill exercised by a reasonably prudent nurse supervisor, the supervisor may be able to avoid liability in the event that an incident occurs.
The tort of negligent supervision often includes within its scope the idea of negligent assignment. Liability will be imposed on a nurse manager who fails to properly supervise a nurse to whom a task was assigned, particularly if the nurse manager was aware, or should have been aware, that the employee was not competent to perform the task. Clearly, if a nurse employee indicates that she is unqualified to perform a procedure, the supervisor will have received the requisite knowledge of incompetence that could lead to liability.
Nevada nursing regulations are very specific in only allowing a registered nurse to delegate care to other nurses or persons if those persons are qualified to provide that care. NAC 632.222. In addition, a registered nurse who is responsible for the management of other personnel under her management (a chief nurse), must:
(a) Establish the authorized scope of practice for the nurses [s]he supervises and establish and document a process to carry out, maintain and improve the knowledge, skills and ability of those nurses to provide safe and effective care.
(b) Before assigning those persons, verify their ability to carry out safely duties which are identified in a written policy and to follow the procedures established by the employing agency.
Clearly the law holds a supervisory nurse to a high standard when she assigns or delegates tasks. It is therefore advisable that a nurse supervisor not only ensure the competence of her nurses before assigning tasks, but also listen very carefully to any objections or reservations expressed by a nurse who is assigned a task she feels incompetent to perform.
Similarly, a licensed practical nurse who delegates nursing care to another LPN or other person is responsible for the actions taken by those persons in carrying out the duties delegated or assigned. NAC 632.230. Again, it is critical that nurses of all levels ensure that a person is competent before she assigns a task and that any reservations that are voiced are carefully evaluated.
When supervising another nurse, be aware of potential problems before they surface. If staffing shortages force you to make assignments of unqualified or minimally qualified persons, document your actions and the reasons for them. Send a memo to the appropriate supervisor and administrator stating that you were forced to assign unqualified individuals to tasks unsuited to their skills. If appropriate, communicate to other personnel that a unqualified individual will be performing a task and will require additional supervision and assistance.
In addition to legal liability for negligent selection (assignment) and negligent supervision, nurse managers and supervisors face disciplinary action from the Nevada State Board of Nursing. Even if a patient is not harmed, a nurse may be disciplined for assigning or delegating functions, tasks or responsibilities to unqualified persons. Another section of the same regulation states that failing to supervise a person to whom functions of nursing are delegated or assigned will be considered unprofessional conduct that will be disciplined. NAC 632.890.
REFUSING AN ASSIGNMENT BECAUSE OF CONSCIENCE
A nurse does not have to accept an assignment that conflicts with her personal ethical standards. In particular, issues such as abortion, DNR orders, and the withdrawal of nutrition may pit a nurses conscience against the demands of her job. Although a nurse does not have to perform ethically repugnant tasks, there is a correct, sometimes legally necessary, way to refuse such assignments.
Both the ANA and the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) recognize the right of nurses to refuse to perform a task that conflicts with her conscience. The JCAHO requires each hospital to:
1) Specify those aspects of patient care that might conflict with staff members values or beliefs.
2) Have a written policy on how requests to be excused from care are handled and make that policy available to all staff.
3) Develop a process for deciding whether staff requests not to participate in care are legitimate and should be granted.
4) Ensure the safe delivery of health care in instances when a staff members request to be excused is granted.
As much as is practical, try to make your ethical opposition on certain issues known in advance. Ask that you not be assigned to those tasks that offend your conscience. It is far easier on you and your supervisor if you are never assigned to a problem task, than if you request to be pulled from the task once assigned.
It is much more difficult to withdraw from caring for a patient for reasons of conscience once care has begun. A nurse is legally responsible for the care of the patient and cannot, under any circumstances, endanger the patient or abandon him. Although courts sometimes uphold the right of a health care provider to not deliver morally objectionable care, no court will condone the abandonment of a patient, even for valid ethical reasons. Therefore, if a change in a patients status or condition requires that you perform a task that you cannot perform in good conscience, you are nonetheless responsible for him until adequate arrangements can be made for his continued care. If changed conditions make it impossible for you to continue to ethically provide care for a patient, it is important that you immediately communicate this fact to a supervisor so that alternative arrangements can be instituted as soon as possible. Similarly, in emergency situations, a nurse has a moral and legal obligation to provide care that overrides her moral objections to the care.
In everyday circumstances not involving continued care or emergencies, ensure that you follow your employers guidelines for turning down an assignment for moral reasons. Clearly state or, better yet, document, your reasons for refusing to participate in the task, and ensure that your refusal is based on religious, moral, or ethical grounds. The more specific your objection, the more likely it is to be upheld.
Nurses who belong to a union may also have an additional basis for turning down an assignment for ethical reasons — the employment contract. Many union employment contracts have an exception that allows nurses to object to duties they find unconscionable without facing work-place repercussions.
Objections Based on Religion
Because freedom of religion is guaranteed by both the U.S. Constitution and the Nevada State Constitution, which guarantees the free exercise of religious beliefs and worship without discrimination or preference, nurses whose religions prohibit them from certain practices are protected. In addition, federal anti-discrimination legislation may require that employers accommodate a nurse-employees request to not participate in a procedure that conflicts with her personal religious beliefs. However, under this legislation, an employers obligation may be limited when an accommodation would cause the employer undue hardship or where the nurses request conflicts with a basic requirement of the job.
As long as the objection is made in advance and is reasonable, courts have generally upheld an employees right to refuse to participate in a task that is in conflict with her religious beliefs.
One issue of conscience as it applies to nursing care is addressed directly by Nevada law. No nurse can be required to be involved in an abortion procedure against her will. The Nevada Revised Statutes provide that:
An employer shall not require a registered nurse, a licensed practical nurse, a nursing assistant or any other person employed to furnish direct personal health service to a patient to participate directly in the induction or performance of an abortion if the employee has filed a written statement with the employer indicating a moral, ethical or religious basis for refusal to participate in the abortion.
Nevada is serious enough about this law that the state makes it a misdemeanor crime for any person to violate the above provisions. There remains, however, an emergency exception to the law; presumably a nurse can be required to assist in performing an abortion in an emergency situation. If you cannot ethically or morally participate in the performance of an abortion, you are required to file a written statement with your employer stating your objections before you will be legally immune from any negative consequences.
QUESTIONING A PHYSICIANS ORDER
Many years ago it was considered a serious breach of hospital policy for a nurse to question or challenge a physicians instructions. Modernly, however, with the recognition of nursing as a independent profession in its own right, nurses are not only expected to question a physicians order when the order is potentially against the patients interest, in most cases, they are required to advocate for the patients interests. A nurse who follows an order that is inappropriate for her patient faces legal liability because as an independent professional, the standard of care requires that she realize that an inappropriate order is endangering her patient.
In general, the ANA code requires that a nurse act to safeguard her patient whenever the patients health care and safety could be affected by the incompetent or unethical practices of any person — including a physician. Nevada law follows the code, stating that a nurse will be disciplined by the Board if she fails to safeguard a patient from the incompetent, abusive or illegal practice of any person. NAC 632.890.
A recent case illustrates the potential conflict that occurs when a nurse questions the treatment given to a patient. In Missouri, a nurse noticed that a recently-admitted patient showed several signs of toxic shock syndrome, and attempted to relate her findings to a physician. The physician disagreed and did not order the necessary antibiotics. The nurse went to her supervisor, who also disagreed. Eventually, the nurse contacted a hospital administrator, who agreed with the nurses evaluation. Unfortunately, the patient ultimately died from toxic shock syndrome. The nurse who complained to several other people that her findings were ignored was fired for violating hospital policy. The Missouri court found that the nurse had a absolute duty to speak up on behalf of her patient, and could not have her employment terminated simply for attempting to advocate for her patient. Kirk v. Mercy Hosp., 851 S.W.2d 617 (Mo. 1993). Although the case is not binding on Nevada courts, because Nevada nursing regulations are substantially similar in nature, it is likely that a nurse who exercises her duty to advocate on behalf of a patient, even if doing so goes against a physicians order or even perhaps against hospital policy, cannot be terminated. Nonetheless, it is always advisable to carefully follow the policies of an institution for disagreeing with the care of a patient.
Nevada regulations require a registered nurse to verify any order given for the care of a patient to ensure that it is appropriate and that there are no documented contraindications in carrying out the order. NAC 632.220. Nevada specifically gives registered nurses the authority to refuse an order if [s]he takes appropriate action to ensure the safety of the patient.
Similarly, nursing regulations require that a licensed practical nurse exercise some independent judgment before carrying out an order. A LPN must verify that the order given is appropriate and must verify that there are no documented contraindications in carrying out the order. NAC 632.236. Although not given the specific authority to refuse an order, the LPN is nonetheless provided substantial legal freedom to question and to verify an order before carrying it out.
Although Nevada law gives a nurse considerable discretion, it is always advisable whenever possible to follow the hospitals policy for recording grievances and disagreements. In particular, follow the hospitals established chain of command, except perhaps in situations when it is clear that following a physicians order will result in immediate irreparable harm to a patient. Consider a consultation with the institutions risk manager when you are unable to reach agreement with the concerned physician and your supervisor.
Finally, a nurse should not refuse a physicians order unless she is absolutely certain that the patients health will not be further jeopardized by refusing the order. Nevada law only allows a nurse the discretion to refuse an order if she can ensure the continued safety of the patient. In other words, if a nurse refuses an order and she is wrong, and the patient is harmed because the order was not followed and alternative steps to maintain the patients health were not instituted, the nurse will be liable.
Law enforcement agencies often ask hospital staff to perform procedures on persons in custody. Police officers frequently bring suspects into hospital emergency rooms both for treatment and for the collection of evidence, such as blood or urine testing. In these instances, issues of informed consent (not forcing a person to undergo a procedure against his will), legal immunity (often provided by state statutes) and a nurses ethics come head to head. Particularly in cases where the patient resists a procedure, a nurse has to decide whether to continue her participation or refuse to participate. In Nevada, for instance, a police officer can direct that reasonable force be used to the extent necessary on a patient in order to obtain evidentiary samples. NRS 484.383. Naturally, it is repellent to most persons in the health care community to perform a procedure on an unwilling patient who has to be restrained by force.
The ANA supports a nurses discretion in deciding whether to participate in any procedure in which a patient has not knowingly and willingly consented. Participation in a procedure against a patients will is generally considered a violation of the professional code of conduct. However, it is important to note that the laws of most states state that a person who drives a motor vehicle has given their implied consent to evidentiary tests. This eliminates or minimizes the potential of a lawsuit. The ethical decision of whether to participate in the procedure is still the nurses to make.
An important legal distinction is sometimes made in this area between the categories of patient and suspect. For instance, in one case, a suspect who was ill with pneumonia had a blood test performed at a hospital after he was arrested for driving under the influence. The hospital was sued for failing to recognize that the suspect was ill when they drew his blood. The case was dismissed because the suspect had not told the hospital that he was ill; therefore he did not become a patient of the institution. If however, a nurse is faced with a suspect who is obviously ill, or who relates symptoms of his condition to the nurse, it is likely that a legally recognized relationship is created, and the nurse could then be liable for any omissions in her care of the patient/suspect.
Nevada Statutes and Regulations
Any person who drives or is in possession of a vehicle in Nevada has given his implied consent to submit to a test of his blood, urine, breath, or other bodily substance for the purpose of determining the presence of alcohol or a controlled substance. These evidentiary tests can only be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person being tested was driving or in physical control of a vehicle while under the influence of alcohol or a controlled substance. NRS 484.383. This implied consent specifically also applies to persons who are unconscious or deceased. There are, however, some exceptions. A person who has hemophilia or has a heart condition requiring the use of an anti-coagulant cannot be required to take a blood test, but can be required to take an urine or breath test.
If the person from whom the evidentiary samples are being obtained is less than 18 years old, the police officer directing the test is required to make a reasonable effort to notify the parent, guardian, or custodian of the juvenile before any testing is performed. NRS 483.383. In such a case, the nurse is not required to perform the test if it would constitute an ethical breach in her judgment. If consent cannot be obtained from the juveniles parent, guardian, or custodian, a nurse may refuse to perform an involuntary procedure on a minor.
A person who refuses voluntarily to submit to testing at the direction of a police officer may be forced to take an evidentiary test. The officer may direct that reasonable force to the extent necessary to obtain the samples from the patient. NRS 484.383. If a person refuses a test of any sort, a police officer is not required to give him a choice between blood, urine, or breath tests to determine blood alcohol content. In such an instance, no more than three samples can be taken against the will of a person during the five-hour period immediately following the arrest. A nurse in such a situation is not required to assist or to perform a test on a patient who is being physically forced to undergo a medical procedure. She may use her discretion and decide that the ethical problems involved with involuntary procedures are too great under the circumstances.
Because of this, any health care practitioner who draws blood from a person detained by the police at the direction of an officer cannot be subjected to civil or criminal liability. NRS 484.393. In addition, as long as no force is used, it is also highly unlikely that a nurse who collects a sample from a suspect who does not consent will be subject to federal civil rights liability.
Even if immunized by statute from liability for performing evidentiary tests on unwilling patients, a nurse must still carry out her duties in a professional manner. If she acts negligently and fails to meet the standard of care in performing a procedure, withdrawing blood, for example, she will not be immune from liability. Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998).
Nevada law allows a person arrested for driving under the influence of alcohol or a controlled substance to have a qualified person of the arrested persons own choosing, at his own expense, administer tests for determining the presence of alcohol or a controlled substance. NRS 484.391. Although this statute likely does not override the implied consent doctrine that allows a law enforcement officer to direct that a test be given against a suspects will, a nurse should keep in mind that a person has the right to be tested by a practitioner of his choice, and she should honor the suspects choice of practitioner. On a similar note, the Ninth Circuit federal appeals court (the federal circuit that encompasses Nevada) in a California case found that it was an unreasonable Fourth Amendment search to conduct a blood test when the arrested person has agreed to submit to a breath or urine test. Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998). Therefore, a nurse should likely not proceed to take an evidentiary test of a persons blood if he expresses a desire to have an alternative procedure.
Only certain health care professionals enumerated in the statute may draw blood at a law enforcement officers direction. These include qualified physicians, physicians assistants, registered nurses, licensed practical nurses, emergency medical technicians or technologists, or assistants employed in a medical laboratory for blood alcohol content analysis or for the detection of the presence of controlled substances. NRS 484.393. The Supreme Court of Nevada has found that the purpose of the statute is to ensure that only medically trained and competent persons draw blood in an acceptable manner. State v. Webster, 726 P.2d 831 (Nev. 1986). The law does not, however, specify who may collect urine or breath samples for alcohol or drug testing.
The Nurses Decision
Despite the legal immunity provided by Nevada law for evidentiary tests at the direction of law enforcement personnel, a nurse must still decide if her ethical standards allow her to perform a procedure on an unwilling patient. If you cannot in good conscience perform a procedure, even a minimally invasive one, on a restrained subject, the nurse should immediately inform her supervisor so that alternative arrangements can be made. Remember to phrase your objections in terms of conscience or ethics (or religion, if applicable) so that your grounds for refusal are clear.
In every case, the nurse should always obtain a signed request in writing from the law enforcement officer directing the test before performing an evidentiary test. This document could be critical to immunize the nurse in a later legal proceeding instituted by a patient. Ideally, the nurse should also obtain the informed consent of the suspect in writing, if at all possible. Although an informed consent under police duress and under the threat of force is ethically invalid and legally questionable, it is better than nothing.
Much of the above discussion has focused on relatively non-invasive procedures that have been granted statutory implied consent status, usually because the suspect was operating a motor vehicle. On some notable occasions, police authorities have attempted to have more invasive procedures performed, such as a surgery to remove a bullet needed for evidence. When the suspect has attempted to block these orders, courts have universally upheld the right of the patient to his bodily autonomy in refusing these police requests. Therefore, it is important for the nurse to note that in no event can any procedures other than relatively noninvasive evidentiary tests, such as blood and urine screenings, be performed on an unwilling suspect.
THE RIGHT TO DIE
One of the most morally and legally complex areas of modern medical law involves a patients right to refuse treatment, even in that refusal results in his death. A patients options range from an advance directive, which leads to a DNR order, to the active withholding of nutrition and hydration, to medically assisted suicide, which is illegal in every state (with the possible exception of Oregon) but is currently being debated in the legislatures of several states.
A nurses or institutions obligation to a patients refusal of treatment is analogous to the obligation to obtain informed consent. Like informed consent, refusal of treatment should be express, preferably in writing, but in some situations may be implied. If a patient orally or in writing expresses that he does not want a procedure performed, a nurse is obligated to honor the patients request. To do otherwise is battery, the unlawful touching of another person, which could lead to both criminal and civil liability. Similarly, if a patient physically refuses to submit to a procedure, he has undertaken an implied refusal that should be honored by a nurse. The right to informed refusal does not extend absolutely to all persons, however; for instance, minors and incompetent patients may sometimes have their parents or legal guardians override their refusal of treatment.
In order to reduce potential liability, a nurse should carefully document the patients refusal of treatment. Most institutions have a standard informed refusal form that a patient fills out when he elects not to undergo a recommended procedure. Such forms generally should include:
(a) an explanation of procedure or medication that was recommended and refuses;
(b) the likely benefits of the procedure or medication;
(c) the likely consequences of the refusal of the procedure or medication; and
(d) an explanation of any alternative treatment that was recommended.
Many institutions also request or require a patient who leaves a medical facility against medical advice to complete a similar form. Both this form and the informed refusal form sometimes contain a clause purporting to absolve the institution from a lawsuit. Although the completion of the form is critical, the hold harmless clause is usually ineffective by itself, as it is generally considered against public policy for an institution to require a patient to sign a contract absolving the institution from liability for the institutions negligence.
A nurse is required to attempt to resuscitate any patient who does not have a valid Do Not Resuscitate (DNR) order, regardless of her perception of the patients condition. Nurses also have a duty to honor a patients DNR request. A failure to do so could lead to a suit by the patient or his family and disciplinary action. A nurse should familiarize herself with the law on advance directives, resuscitation decisions, and the determination of death.
JHACO requires all hospitals to have a DNR policy, with which nurses should be familiar. Nurses should familiarize themselves with this policy, and should try to learn the wishes of their patients in advance, before an emergency rises.
Forms of Advance Directives
Incapacitated persons may have an advance directive, either in the form of a living will, a durable power of attorney, or a medical directive that must be honored. An advance directive is an anticipatory document, created in the expectation that the person will become incapacitated in the future. It generally provides guidance for health care providers concerning the patients wishes concerning consent or refusal for care.
A living will generally expresses a persons wishes for withdrawing or forgoing life-sustaining treatment. These must be in writing, signed by the patient, and witnessed by individuals who should not be any person related to the facility in which the patient is receiving care. Before a living will can take effect, a person must usually be permanently unconscious, terminal, or in a persistent vegetative state. A living will can specify that certain treatments, such as CPR, are acceptable, whereas others, such as blood transfusions and artificial nutrition and hydration, are not.
A durable power of attorney gives another person the authority and power to make health care decisions for the patient, if the patient should become incapacitated, even if only temporarily. The scope of a durable power of attorney is potentially very broad. The patient is essentially turning over all his medical decisions (or only specifically enumerated ones), including the power to refuse life sustaining treatment, to another person. As with living wills, Nevada law provides for immunity for health care workers who comply with a durable power of attorney in good faith and in accordance with the appropriate standard of care.
A medical directive is a comprehensive document that allows for both the appointment of a medical decision maker and for the patient expressing his wishes. Because medical directives are not statutory creations, they may lack some of the protections, such as immunity from liability for health care workers, that statutorily prescribed advance directives do. Nonetheless, a properly created, witnessed directive should be respected as a guide to the patients wishes.
Incompetent persons and minors must have a legal guardian or parent make their healthcare decisions for them. If a minor is capable of giving consent for treatment (a legally emancipated minor) then he is usually capable of refusing treatment. In other situations, his parent or legal guardian has the legal right to decide whether to refuse treatment. In many instances, refusal by a parent of medical care for a child will trigger mandatory reporting requirements, particularly if the refusal to provide medical care is considered child neglect. In such cases, the state may wish to step in the role of a substitute parent for the purpose of making the childs healthcare decisions. This issue often arises where the parent is religiously opposed to blood transfusions for the child, and a blood transfusion is required to save the life or health of the minor. The physician and the hospital administration must be notified if such a situation arises.
State statutes and courts often designate guardians for incompetent persons. Guardians provide their own substituted judgment for patients, generally in conformance with the patients expressed desires, if the patient is or was capable of expressing a preference. These guardians are generally required to act in the best interests of the patient, which may occasionally include actions contrary to the patients preference.
Assisted suicide, which is currently illegal in every state, except Oregon, consists of providing a person with the means to take his own life. The ill person self-administers the life-ending drug or otherwise takes the necessary action to end his life.
Oregons Death with Dignity Act, the only assisted suicide legislation to be passed by voters, is currently undergoing judicial scrutiny. The primary thrust of the act was to allow a physician to write a prescription for a lethal dose of a drug that would end the life of a terminally ill, competent person. The Act provided criminal, civil, and professional immunity to any health care provider who participated in good faith with the provisions of the legislation.
The Oregon legislation contains several safeguards to protect patients (and health care providers). The patient has to be terminally ill and competent to make a decision of this magnitude. Two physicians, the attending physician and a consulting physician, have to certify that the patient has less than six months to live. The attending physician must refer the patient for psychological help if depression or mental illness is suspected. The patient has to make three separate requests for assistance. First, the patient has to request the lethal prescription both orally and in writing. Second, after a waiting period of at least fifteen days, the patient must make another oral request for the prescription. Physicians were allowed to write the prescription only after forty-eight hours following the third request.
The ANA generally opposes any participation by nurses in assisted suicide. The ethical standards of nursing prohibit any deliberate act by a nurse to terminate the life of a patient.
A number of state legislatures are currently debating laws that would allow assisted suicide; it is likely that nurses will soon have to face head-on the legal and ethical issues raised by this issue, and even more controversial, by the issue of active euthanasia. No specific legal advice is possible until some specific legislation is enacted. In general however, nurses must ensure that they are legally immune from any civil and criminal liability and from professional sanctions before agreeing to participate in any way in an assisted suicide.
Because a nurse often has a great deal of contact with the family of a terminally ill patient, she is in the best position to gauge the extent of the familys commitment or resistance to the patients decision to end his life. Although a nurse must generally advocate for her patients, in cases where the familys wishes and those of the patient conflict, a nurse should not be perceived as advocating that the patient take his life. A grieving family who files a criminal action or lawsuit is very likely to include within their complaint the nurse who they believe encouraged the patient in his or her actions. Ideally, of course, a terminally ill patients family will be supportive of his decision.
Regardless of any immunity provided to health care providers by legislation, a nurse should ensure that all her actions are well-documented and professionally performed. No legislation is likely to provide immunity for a physicians or nurses acts of negligence or misconduct. In this area, particularly as it relates to a patients competence when providing informed consent, it is obviously critical that every possible step be triple-checked and fully ascertained before proceeding to prevent future claims against the participants.
Active euthanasia, the act of actually administering the means of death to a patient, is illegal, and is a likely avenue to criminal and civil liability and professional sanctions. If a terminally-ill patient asks a nurse for assistance in dying, the nurses best option is communication with the patient. Perhaps the patient is in pain, perhaps he fears the financial burden a prolonged illness is placing on his family, or perhaps he is expressing a fear of a protracted death. Tell the patient that you are legally prohibited from assisting in the taking of his life. Discuss the options for withholding treatment that an advance directive offers. Refer him, and his family if necessary, to a social worker, or if appropriate, to a religious counselor.
When the physician of a terminally ill patient prescribes a dose of medication that may cause the death of the patient, a nurse who notices the prescription must be cautious before administering the dose or assisting in its administration. In this instance, as is generally true, the ANA code and Nevada law requires that a nurse act to safeguard her patient whenever the patients health care and safety could be affected by the incompetent or unethical practices of any person. NAC 632.890. Before challenging the prescription, ascertain that it is inappropriate for the patient, and then raise the issue with the attending physician. If you cannot reach a resolution, contact your supervisor and, if necessary, the hospital administration, and explain why you cannot legally or ethically carry out the physicians order. As always, carefully document all your actions and contacts. A nurse who negligently administers an overdose of a lethal drug to a patient, even one who is terminally ill, faces potentially major liability.
Despite the above, aggressive treatment of terminally ill patients is legally and ethically justified, particularly if the treatment is for the control of pain and is carried out in accordance with professional standards of care. The ANAs position is that a nurse who is caring for dying patients may provide any necessary treatment, even if the treatment carries a substantial risk of hastening death. In other words, if a terminally-ill patient is near death, and is in acute pain, a nurse may, in accordance with a physicians prescription, administer such pain control as is professionally acceptable to ease the patients suffering, even if the medication has the unintended effect of hastening, but not necessarily causing, the patients inevitable death.