In today’s society, the legal system has become the center piece of a highly decorated health care system. Just as every civilian is liable to legislative laws set by the federal or state government, more so nurses are placed at an increased risk for a lawsuit in comparison to the average civilian. The laws that govern the profession of nursing are Common and statutory laws. Statutory laws are written on a state level, since licensure is granted by individual states, while common laws can go beyond what is covered by statutory law. Common law often generate from the decisions of past legal proceeding. Civil laws can branch from either statutory or common law. In regards to this, nurses tend to be involved in civil law suit which involves one person violating the rights of another. Tort is a branch of this civil law which can be further broken down into intentional, unintentional and quasi intentional tort. The health care system has evolved to a state where preventing law suit and liabilities has been deemed of more importance that ensuring adequate patient care.
Nurses spend tedious amount of time documenting every steps taken in the care of patient than they do implementing it. Stressed by having to look over their shoulder about every step taken, the mere mention of a law suit can send any nurse into a stated of shock and awe. An aspect of tort where nurses tend to be liable is in respect to obtaining consent from a client before performing care and in witnessing an informed consent before a procedure. The type of torts involved can be classified as negligence (unintentional), Assault or Battery (intentional).
“Negligence can be defined as an omission of an act that a reasonable and prudent person would perform in a similar situation”. (Catalano, 2006, p.173.) Assault can be defined as an attempt to touch another person or the threat of doing so; if actual physical contact which causes harm to a person that has not consented to it occurs, it is then called battery. Over years, there has been an increase in nurse’s involvement with law suits, hence one needs to protect their interest by attaining an understanding of what informed consent is, what it entails and how nurse can become liable with charges of negligence and assault?
According to Catalano (2006), informed consent is a legal and ethical issue “that can be defined as the voluntary permission by a client or the client’s proxy to carry out a procedure on the client” (p. 173.) The nurse needs to be aware of this definition and its key points that is, it should be voluntary. She should also confirm that the client is knowledgeable about the procedure to be performed before she witnesses the signing.
The nurse need to know that adequate information about the procedure such as “the purpose of the treatment, potential complications, acceptable alternatives treatments, outcomes hoped for and consequences of not having treatment” are provided to the client. (Catalano, 2006, p.173.) This will help accomplish her duties as a patient advocate and ensures that the patient makes a knowledge based decision about his care. The nurse also needs to be aware of the exceptions to informed consent such as:
emergency situations when the client is unconscious, incompetent or otherwise unable to give consent and in situations where the health care provider feels that it may be medically contraindicated to disclose the risk and hazards because of illness, sever emotional distress, serious psychological damage, or failure on the part of the client to receive life saving treatment. (Catalano, 2006, p. 174.)
Failure to follow the guideline or execute knowledge based practice in obtaining informed consent makes the nurse liable to law suit of negligence or assault/battery. Negligence, with respect to the nurse’s failing to satisfactorily and thoroughly ensuring that the client understands the risks involved in the procedure he consented to. Assault, in reference to the nurse witnessing or performing a procedure different for what the client was informed which in turn causes or could cause harm to the patient.
Negligence and Assault are both torts that could have been avoided by properly executing the informed consent process, thus reducing liability. Nurses should understand that the purpose of attaining an informed consent from the client is aimed at “ impressing upon the patient the importance of the document the patient is signing” while getting the “patient’s agreement to undergo the procedure.” (“Frequent Questions on Informed Consent,” 2009.) The signing of a document notifies and affirms to the client that the document and his decision is on record and can be used in legal proceedings. This makes an informed consent form a legal document.
The role of nurse in this process is to witness that the patient or their assigned proxy, as applicable, is the one who signs the consent. The nurse should also verify and assess that whoever is signing is competent, taking note of the previously discussed criteria in judge the client’s competence. The nurse should also be aware that the physician is responsible for explaining the procedure; the discussion and acquisition is not in the nurse’s role, neither should it be delegated to other staffs. Catalano (2006) supports this statement in saying that “Nurses can reinforce the physician teaching and even supplement the information but should not be the primary or only source of information for informed consent…” (p. 174.)
Tabak & Zvi (2008) presented a case study exemplifying the nurse’s role as an advocate or coordinator for the client in reference to informed consent. They presented a scenario involving a 15 years old patient from a strictly Jewish family, diagnosed with acute myeloblastic leukemia, whose parents denied him any knowledge of his condition. The parents requested that the child not be told of his diagnosis and decided to use chemotherapy for treatment as advised by their rabbi. They refused consent to Port A cath transplant and freezing his sperm. They also refused to sign a consent form for the procedure they already agreed to until consultations were finished. Even though according to the Jewish tradition the client is referred to as a man since his 13th birthday (bar-mitzvah), he was not allowed some degree of decision making in his care.
A nurse as a client advocate, knows the implication of the parent’s decision on the client not just in reference to him being uninformed but also the effects of the method of treatment chosen by the parents and their refusal to sign a consent form. The parents refused to save the patient’s sperms even though they are aware that their treatment choice could render him sterile. This creates an ethical dilemma, in which the nurse whose duty to the client is one of nonmaleficence, benevolence, veracity and promoting his autonomy would now have to make a decision while assessing her own belief, the parent’s wishes and societal views. To resolve this ethical dilemma, Tabak & Zvi (2008) suggest that:
the nurse can help the parents understand the situation; ensure they appreciated the consequences – positive and negative, short term and long term- of their decisions and actions; and show them what parental obligations is and is not and how to give the child the information he ought to have. (p. 106.)
In doing this, the nurse should present to the parents detailed information about the consequences of their choices and provide alternative choices. Information can be provided in the form of pamphlet, internet based researches, videos and brochures. Tabak & Zvi (2008) also summits that the nurse should assess the “patient’s maturity and competence to understand and cope with hard decisions and then defend their autonomy against the authority of physicians and parents.” (p. 106.) By doing this, the nurse assumes her role as the client’s advocate and reduces her risk of any future liabilities along with helping the client to make an informed decision about his plan of care and future implications.
Although a nurse’s role in procuring an informed consent is that of a witness, the nurse still needs to be aware of his or her liability and protect against lawsuits. To do this nurse needs to be confident that proper steps and judgment were made in reference to the client understanding and making an informed decision about care. Since a nurse’s role in the informed consent process almost seem to melt into the role of a physician, nurses need to take proper precaution and practice only within their scope of practice. Nurses need to acquire and practice skills needed to properly execute the process of informed consent and incorporate evidence based practice in their day to day activities. Since most nurses become entwined with the legal system through tort, nurses need to take steps to prevent all forms of it. The nurse also needs to have the skills needed to work through conflicts and obstacles such as with the 15 years old client whose nurse needed to advocate on behalf of. This case study exemplifies the crucial roles nurses play in the informed consent process and in fulfilling their duties to their patients.
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