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Specific Ethical and Legal Issues

As mentioned previously, if you perform duties outside your job description or perform appropriate duties incorrectly that result in harm to a resident, you can be held liable. Liable acts may include the following:

  • Abuse: A threat of physical or mental harm to a resident (including physical, mental, or sexual abuse).
  • Aiding and abetting: Participating in an unlawful act or observing it and not reporting it. For example, observing sexual harassment of a resident and not reporting it.
  • Assault: Threat of touching a resident without permission.
  • Battery: Unlawful personal violence toward a resident (for example, forcing residents to take medications despite their refusal).
  • False imprisonment: Preventing a resident from moving freely about, with or without force, against the resident’s wishes (for example, restraining a resident’s hands while giving medications).
  • Invasion of privacy: Failing to keep a resident’s affairs confidential or exposing the resident’s body when performing care.
  • Involuntary seclusion: Keeping a resident isolated from others as a form of punishment.
  • Negligence: Neglecting to act in the manner in which you were taught, either omitting care or performing care incorrectly, with resultant harm to a resident.
  • Theft: Taking something that does not belong to you. This can include taking medications intended for use by the resident, known in legal terms as diversion.

Diversion most often applies to diverting a drug categorized in the Controlled Substance Act (1970) as a Schedule II drug; all scheduled (leveled according to category) drugs must be carefully regulated according to agency policy and state and federal laws. Diversion of a Schedule II drug is a federal crime, punishable by immediate termination of employment, prosecution by the court system, as well as discipline from the state accrediting agency.

Residents’ Rights

In 1973, the American Hospital Association (AHA) issued a policy for all patients called “A Patient’s Bill of Rights.” A similar document, the “Resident’s Bill of Rights,” contains additional considerations for residents in long-term-care settings. By law, all nursing homes must have written policies describing residents’ rights and must make them available to all residents. The following list outlines the issues addressed in theses bills of rights; namely, that every resident has the right to

  • Be informed about the facility’s services and charges: The services of the nursing home and all charges involved with the services should be made available and fully explained to every resident. Likewise, charges that are not covered by Medicare or Medicaid should also be included in the notice of services; this includes those services not covered by the basic charges for facility rates.
  • Be informed about one’s medical condition: Unless the physician notes in the medical record that to be informed of his or her medical condition is not in the resident’s best interest, every resident deserves to be apprised of his or her medical condition. Be truthful with you answer residents’ questions about their condition, being careful to inform them of what you observe only (for instance, answering a resident’s questions about vital signs or output).

  • Participate in the plan of care: Every resident must have the opportunity to participate in his or her plan of care or to refuse care/treatment. Despite your belief that a procedure or care activity will help residents, be careful that you do not force them to participate against their wishes. This includes assisting other staff to do the same. Failure to observe this resident right is an example of assault, battery, and/or invasion of privacy. Giving medications to residents despite their refusal is an example of assault and battery.
  • Choose one’s own physician: Every resident has the right to determine his/her own physician and pharmacy.

  • Manage one’s own personal finances: Residents can manage their own finances or appoint someone else (power of attorney) to manage them. If authorized by the resident to manage funds, the manager must report the resident’s financial status as directed and provide all receipts for business transactions. Avoid handling any money or valuables of the resident (for example, inventory of personal items upon resident admission to the facility) without a witness.
  • Privacy, confidentiality, dignity, and respect: Privacy, confidentiality, dignity, and respect for each resident are of utmost importance. Privacy includes visitation for married couples (for example, closing the door to ensure couples are alone and are not interrupted and knocking before entering the room).

  • Use one’s own clothing and possessions: Unless hazardous, or potentially infringing on other residents’ rights, each resident has the right to wear his or her own clothing and use his or her own possessions.
  • Grievance without retaliation: Residents should be able to express concerns, make recommendations about facility services or care, and consult with outside sources to resolve conflicts involved in their care without fear of criticism, discrimination, or other acts of vengeance by the facility or its staff.
  • Be discharged or transferred only for specific reasons: Residents may be transferred or discharged from a facility only for medical reasons, for their welfare or the welfare of other residents, or for nonpayment (excluding becoming Medicaid eligible). If transfer or discharge is planned, the resident or representative must be notified in writing within 30 days of the change.
  • Access to:
    • Receive or refuse any visitor (includes family members)
    • Visiting hours, posted in public places
    • Confidential communication with visitors, including help with personal, social, or legal services
    • Claim own rights and benefits through consultation with others for the purpose of legal action, organizational activity, or other forms of representation
  • Be free from abuse and restraints: Residents must be protected from mental and physical abuse, which can include unauthorized use of restraints. Except as authorized in writing by a physician for a specified and limited time or when necessary to protect the individual from hurting himself or others, residents must be free from chemical or physical restraints that cause them to be unable to move about freely.

Failure of any healthcare team member to honor residents’ rights can be grounds for termination from employment, discipline by the state accrediting agency, or, where a crime has occurred, prosecution by the court.

Abuse may occur in several forms:

  • Mental abuse refers to any threat to the psychological well-being of the resident that results in psychological or emotional distress. This can include financial exploitation or verbal assault; depriving residents of any of their rights is also considered mental abuse.
  • Slander, or sharing information with others about the resident that could damage the resident’s reputation, is a form of abuse and potential grounds for a civil lawsuit, called a tort. Accomplishing the same result by writing or recording this kind of negative reference to a client is called libel.

  • Physical abuse includes hitting or rough handling of a resident. Withholding food or fluids and failure to change a wet bed are forms of physical abuse.
  • Sexual abuse is a form of physical abuse and involves threats or physical contact for sexual favor or control. Fondling (or inappropriately touching a resident), rape, sexual assault, or sexual molestation are examples of sexual abuse.
  • Sexual harassment (or making unwelcomed sexually explicit or implied statements to residents) is abusive and could become grounds for resident grievance.

Be watchful for any signs or other clues of resident abuse, including the following:

  • Skin tears or bruises, especially in the genital area
  • Increased elimination difficulties
  • Frequent crying or periods of sadness or withdrawal
  • Personality changes
  • Refusal to carry out activities of daily living (ADLs)
  • Fear of touch
  • Anxiety or nervousness
  • Refusal of certain visitors, including spouse or family members

Ethics

Ethics is often linked with legalities when determining right and lawful behavior in health care. Ethics is a branch of philosophy dealing with the good, bad, right, and wrong thing to do in human interactions and the principles that help guide professionals in terms of what ought to be done in certain situations. Ethical principles, or standards, help guide you in your work. Examples cited include beneficence (doing good for others), nonmaleficence (“do no harm,” which underscores the need to not cause undo harm to a resident and instead provide safe and effective care), and veracity (or truthfulness, which means speaking the truth consistently and dependably).

Nurses adhere to a published code of ethics, or code of conduct, which admonishes them to practice in an ethical manner at all times. Such guiding principles help form a practice framework on which nurses can build. A description of ethical behavior is to “do the right thing when nobody else is looking.” This could be evidenced by refusing to accept money, gifts, or favors from residents or their families, avoiding shortcuts in job performance, maintaining a positive attitude about the facility, and treating residents’ belongings with care.

Values are your personal beliefs about what is most important; they serve as guiding ethical principles for you throughout your life. Ethical problems occur when your “inner ethical voice” conflicts with a situation that causes you to struggle with the right course of action to maintain your values. Ethical dilemmas abound in today’s world, especially in health care. Specific examples of ethical dilemmas regarding residents in long-term care mirror those of clients in other healthcare settings, such as quality-of-life issues, death and dying, access to health care, and euthanasia (commonly referred to as mercy killing).

An important ethical consideration for all health team members is that of maintaining professional boundaries. Although it is essential to form a caring, empathic relationship with residents, certain limits or boundaries must be set to ensure that your actions are helpful to residents and are not centered on meeting your own needs. Meeting the residents’ needs must be your primary goal. Situations involving residents may place you in an ethical dilemma. One example is the resident who wants to give you gifts, money, or personal items. Another example is a resident requesting something (a favor) that is not permitted by the agency (for example, a ride in your personal vehicle or you buying the resident cigarettes or other items not permitted by their physician). Giving gifts or money to residents or providing personal advice or financial assistance in any form or conducting business with residents is also unethical and outside professional boundaries of conduct. It is ethical to befriend residents; however, it is unethical to form personal friendships that could result in poor judgment on your part or interfere with safe and efficient care of the resident. This includes becoming overly involved with the resident’s family or friends. Sharing personal information about yourself and spending time with the resident outside your work schedule are other examples of unethical behavior that cross professional boundaries.

Another rule of ethical behavior it to respect residents by not using profanity or other offensive language and by not referring to them as “honey,” “sweetheart,” or other euphemisms or using suggestive or romantic language when talking to them. The golden rule applies here as in all aspects of care. If you find yourself in any potential unethical situation instigated or suggested by a resident, report the incident to your supervisor immediately. In extreme circumstances, you may request a reassignment to resolve the issue.

Exposure to Medical Malpractice/Negligence Claims/Lawsuits

It is your legal and ethical responsibility to respect residents’ rights, perform your duties according to your position description, maintain professional boundaries, and communicate effectively and efficiently to avoid exposure to a lawsuit. Despite your careful performance and personal conduct, lawsuits can occur. However, following agency policies and procedures, seeking guidance from the nurse where needed, and maintaining a positive attitude can all serve you well as you work with clients.

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