Keltner: Psychiatric Nursing, 5th Edition

Chapter 5: Legal Issues

Chapter Focus
Historically, societies have neglected the rights of the mentally ill. In the provision of
mental health care, the rights of the mentally ill patient often have been sacrificed for the
good of the patient and of society. The judicial and legislative branches of government
have attempted to balance the constitutionally protected civil rights of the mentally ill
individual against the right of society to be protected. The court decisions that have
shaped mental health care have dealt with such issues as the insanity defense, the right to
privacy, the right to protection from unreasonable search and seizure, the right to due
process, the right to freedom of choice and self-determination, the right to treatment and
to refuse treatment, and the duty to warn of threat of harm or suicide. Federal and state
laws determine the criteria for commitment and conservatorship, the use of restraint and
seclusion, access to privileged communication, and the requirements of informed
consent. The chapter reviews key legal terms, common law, precedent-setting cases,
statutory law, administrative law, tort law, and related nursing liability.

Psychiatric nurses risk civil and criminal liability for themselves and their employers as
they make the many decisions required to provide care for psychiatric patients. They are
best protected by a thorough knowledge of the legal implications of their practice,
scrupulous adherence to legal constraints, meticulous documentation, and respectful
attention to their patients basic human rights.
Key Terms
assault
battery
civil law
common lawcase law
conservator
criminal law
gravely disabled
informed consent
involuntary commitment
least restrictive alternative or least restrictive environment

Copyright 2007 by Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.

liable
malpractice
master-servant rule
negligence
power of attorneylimited or special
probable cause
restraint
seclusion

Copyright 2007 by Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.

Instructor's Manual

5-3

standard of care
statutory law
voluntary patients

Learning Objectives
After reading this chapter, you should be able to:
1. Define the terms that apply to legal issues in psychiatric care.
2. Describe the liability of the nurse in issues such as wrongful commitment, duty to
warn, and master-servant rule.
3. Identify four landmark court rulings and their impact on psychiatric care.
4. Define and discuss involuntary commitment issues and procedures.
5. Define and apply the concept of least restrictive alternative.
6. Define and apply the concept of confidentiality.
7. Define and apply the concept of the right to treatment and the right to refuse
treatment.
Chapter Outline
Sources of Law
Common Law

Statutory Law
Administrative Law

Teaching Strategies
Common law: derived from actual court cases
MNaghten rule: established a cognitive standard; person
not criminally responsible at time of an act if person did not
know the nature and quality of the act, or did not know that
it was wrong
Wyatt v. Stickney: confirmed right to treatment
Rogers v. Orkin: determined right to give informed consent
and to refuse treatment; established that nonviolent patients
could refuse medication
Tarasoff v. The Regents of the University of California:
Duty to warn third parties of threats of harm
Statutory law: written law developed from a legislative
body
Administrative law: public law issued by administrative
agencies (e.g., established state boards of nursing)

Torts (Civil Law)

Negligence

Failure to do or not to do what a reasonably careful person

would do under the circumstances
Elements necessary to prove negligence
Duty to Care
Legal obligation of care, performance or observance
imposed on a person who is in a position to safeguard the
rights of others
Reasonable Care (Standard of Degree of skill, care, and knowledge ordinarily possessed
Care)
and exercised by one who has a duty to care
Breach of Duty
Failure to conform to or the departure from a required duty

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Instructor's Manual

5-4

of care owed to a person

Proximate Cause or Causation A reasonable, close, and causal connection or relationship
exists between the negligent conduct and the resulting
damages.
Malpractice
Negligence by a professional
Patient can bring civil suit against a nurse.
Malpractice measured against the standard of care of nurses
in the community
Master-servant rule: employer responsible for acts of
employee as long as employee is acting within scope and
authority of employment
Nursing Implications
Implications of delegating to UAPs: nurse remains
accountable for delegated acts and for providing adequate
supervision.
Duty to Warn Others
Nursing Implications
Nurses who are aware of specific patient threats to harm an
identifiable third party have a legal duty to warn.
Documentation that effective communication has occurred
is a safeguard against lawsuits.
Intentional Torts: Assault,
Battery, and False
Imprisonment
Assault
Battery
False Imprisonment

Commitment Issues
Voluntary Patients

Involuntary Patients
(Commitment)

Deliberate threat coupled with apparent present ability to do

physical harm to another
Intentional touching of another in a manner that violates
physical security of other
Unlawful restraint of individuals personal liberty or
unlawful restraint or confinement of an individual
Examples: excessive force used to restrain a patient,
preventing a patient from leaving a health-care facility,
wrongfully committing a patient to a psychiatric facility
Patient, conservator, or therapist requests admission for
patient.
Patient signs request and a consent for treatment.
Patient can sign self out of treatment after 48 to 72 hours
unless involuntary commitment is pursued.
Mental illness is not equivalent to incompetence.
Commitment is used when patient who has legal
competence to request treatment refuses to do so.
State can detain and treat a person who is mentally ill and
dangerous (or gravely disabled by mental illness) without
that persons consent.
Three categories of involuntary treatment: emergency care,
short-term observation and treatment, long-term

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commitment
Emergency Care
Usually 48 to 72 hours duration for individuals who are
dangerous to self or others or gravely disabled
Nursing Implications
Staff must scrupulously adhere to legal time constraints.
Short-term Observation and Time varies by state; up to 14 days not unusual.
Treatment
Patient must be seen by a qualified expert within 24 hours
to determine if person has a treatable mental disorder.
A probable cause statement is required by the Fourth
Amendment if further hospitalization is needed and a
hearing is held to determine whether probable cause exists
to keep person for treatment against his or her will.
Nursing Implications
Patient must be released if there is no legal basis for
continued commitment.
Long-Term Commitment
Used for persons who need prolonged psychiatric care, but
refuse to seek help voluntarily
Typically 90 days; might be longer
Most states require court hearing.
Commitment of Incapacitated Legal term frequently used to describe legal incompetence
Persons
is gravely disabled; person is unable to provide food,
clothing, and shelter for self.
Conservators and Guardians Appointed by legal proceeding in which individual is
represented by an attorney
Legally obligated to act in patients best interest
Can consent to psychiatric treatment for patient
Nursing Implications
Nurse must gain conservator consent for decisions
previously decided by patient.
Patient Rights
Right to Treatment with the People have the right to be treated in the least restrictive
Least Restrictive Alternative environment, using the least restrictive meansfor
example, in a community instead of a state hospital and
without unnecessary restraint or seclusion.
Nursing Implications
Psychiatric nursing care must be competent within the
setting.
Right to Confidentiality of
Patient information is privileged; applied to both voluntary
Records
and involuntary patients, but is not absolute, viz duty to
warn.
Health Insurance Portability Gives patients the right to:
and Accountability Act
Be educated about privacy regulations.
(HIPAA)
Access their medical records.
Correct or add to their medical records.
Demand their authorization before medical records are
disclosed to others.
Nursing Implications
Document release of confidential information.
Have consent form signed before information released.
Group therapy is vulnerable to breaches in confidentiality.

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Instructor's Manual
Right to Freedom from
Restraints and Seclusion

5-6

Patients cannot be indiscriminately restrained or secluded.

Restraint refers to any form of limiting a persons
movement or access to his or her own body. Seclusion is the
process of isolating a person in a room in he or she is
physically prevented from leaving.
Nursing Implications
Attention to nurse-patient relationship, therapeutic milieu,
and pharmacologic management can prevent escalation,
loss of control, and need for restraint.
Guidelines for use:
Staff involved in decisions to restrain or seclude;
whoever applies or removes restraints must have special
training and demonstrate competency.
Alternatives to restraint or seclusion must be considered
before use.
A physicians (PA or APN) order is required within 1
hour following implementation of seclusion or restraints.
Least restrictive method must be used.
Nursing documentation of events leading up to
interventions is necessary to justify use.
Orders must contain type of restraint and rationale for
use and be time limited.
Prn orders are not permitted. Each episode must be based
on eminent risk.
It must be used for shortest possible time; the nurse must
tell patient what behaviors are expected before release
and reevaluate q2h for continued necessity.
Constant observation is required when restraint or
seclusion is used, with documentation of safety and
comfort interventions at least q15 min.
Patient must be debriefed after restrictive intervention.
Patient has right to request notification of family member
or other person if restraint or seclusion is implemented.
Death of a patient in restraint is reportable to the FDA.
Right to Give or Refuse
Patients, both voluntary and involuntary, have the right to
Consent to Treatment
refuse treatment.
The key issue is whether patients have capacity to give
informed consent to administration of drugs.
Psychiatric emergencies, including violent behavior, are
exceptions to the right.
Nursing Implications
Nurses should be careful not to exert force when coaxing
patients to take medications and not to resort to subterfuge.
Suspension of Patient Rights Patients rights can be suspended on occasion for protection
of patient or others or for therapeutic purposes.
Nursing Implications
Examplesuicide precautions suspend right to personal
belongings.
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Instructor's Manual

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Documentation is required.
Advance Directives for Health Patient Self-Determination Act requires health care
Care
facilities serving Medicare and Medicaid to provide each
adult patient with written information about rights to make
decisions about their medical care, including right to
execute a durable power of attorney and living will.
Competent individuals can issue advance directives for
psychiatric care regarding use of specific medications,
treatment options such as ECT, and behavior management,
for those permitted to visit, for consent to obtain records,
and for willingness to participate in research studies.
Nursing Implications
Nurse must:
Be aware of patients right to establish advance
directives.
Follow employer procedure and laws.
Document properly executed forms and waivers.
Consult the attorney in fact before making decisions in
specified areas.
Ensure that all members of the health care team are
aware of advance directives that should be considered in
treatment planning.

Copyright 2007 by Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.