5.6 Other Legal Issues
In addition to being aware of the legal and regulatory frameworks in which one practices nurses, it is also important for nurses to understand the legal concepts of informed consent and advance directives.
Informed Consent
Informed consent is the fundamental right of a client to accept or reject health care. Nurses have a legal responsibility to provide verbal and/or written information and obtain verbal or written consent for performing nursing care such as bathing, medication administration, and urinary or intravenous catheter insertion. While physicians have the responsibility to provide information and obtain informed consent related to medical procedures, nurses are typically required to verify the presence of a valid, signed informed consent before the procedure is performed. Additionally, if nurses do not believe the patient has adequate understanding of a procedure, its risks, benefits, or alternatives to treatment, they should request the provider return to clarify unclear information with the client. Nurses must remain within their scope of practice related to informed consent beyond nursing acts.
Two legal concepts related to informed consent are competence and capacity. Competence is a legal term defined as the ability of an individual to participate in legal proceedings. A judge decides if an individual is “competent” or “incompetent.” In contrast, capacity is “a functional determination that an individual is or is not capable of making a medical decision within a given situation.”[1] It is outside the scope of practice for nurses to formally assess capacity, but nurses may initiate the evaluation of client capacity and contribute assessment information. States typically require two health care providers to identify an individual as “incapacitated” and unable to make their own health care decisions. Capacity may be a temporary or permanent state.
The following box outlines situations where the nurse may question a client’s decision-making capacity.
| Triggers for Questioning Capacity and Decision-Making[2] |
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If an individual has an advance directive in place, their designated power of attorney for health care may step in and make medical decisions when the client is deemed incapacitated. In the absence of advance directives, the legal system may take over and appoint a guardian to make medical decisions for an individual. The guardian is often a family member or friend, but may be completely unrelated to the incapaciated individual. Nurses are instrumental in encouraging a client to complete an advance directive while they have capacity to do so.
Advance Directives
The Patient Self-Determination Act (PSDA) is a federal law passed by Congress in 1990 following highly publicized cases involving the withdrawal of life-supporting care for incompetent individuals. (Read more about the Karen Quinlan, Nancy Cruzan, and Terri Shaivo cases in the boxes at the end of this section.) The PSDA requires health care institutions, such as hospitals and long-term care facilities, to offer adults written information that advises them “to make decisions concerning their medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate, at the individual’s option, advance directives.”[3] Advanced directives are defined as written instruction, such as a living will or durable power of attorney for health care, recognized under state law, relating to the provision of health care when the individual is incapacitated. The PSDA allows clients to record their preferences about do-not-resuscitate (DNR) orders and withdrawing life-sustaining treatment. In the absence of a client’s advance directives, the court may assert an “unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.”[4] For this reason, nurses must educate and support the communities they serve on the creation of advanced directives.
Advanced directives documents vary by state. For example, some allow lay witness signatures whereas some require a notary signature. Some place restrictions on family members, doctors, or nurses serving as witnesses. It is important for individuals creating advance directives to follow instructions for state-specific documents to ensure they are legally binding and honored.
Advance directives do not require an attorney to complete. In many organizations, social workers or chaplains assist individuals to complete advance directives following referral from physicians or nurses. Clients should review and update their documents every 10-15 years, as well as with changes in relationship status or if new medical conditions are diagnosed.
Although advanced directive documents vary by state, they generally fall into two categories, referred to as a living will or durable power of attorney for healthcare.
Living Will
A living will is a type of advance directive in which an individual identifies what treatments they would like to receive or refuse if they become incapacitated and unable to make decisions. In most states, a living wIll only goes into effect if an individual meets specific medical criteria.[5] The living will often includes instructions regarding life-sustaining measures, such as cardiopulmonary resuscitation (CPR), mechanical ventilation, and tube feeding.
Durable Power of Attorney for Healthcare
It is impossible for an individual to document their preferences in a living will for every conceivable medical scenario that may occur. For this reason, it is essential for individuals to complete a durable power of attorney for healthcare. A durable power of attorney for healthcare (DPOAHC) is a person chosen to speak on one’s behalf if one becomes incapacitated. Typically, a primary health care power of attorney (POA) is identified with an alternative individual designated if the primary POA is unable or unwilling to do so. The health care POA is expected to make health care decisions for an individual they believe the person would make for themselves, based on wishes expressed in a living will or during previous conversations.[6]
It is essential for nurses to encourage clients to complete advance directives and have conversations with their designated POA about health care preferences, especially related to possible traumatic or end-of-life events that could require medical treatment decisions. Nurses can also dispel common misconceptions, such as these documents give the health care POA power to manage an individual’s finances. (A financial POA performs different functions than a health care POA and should be discussed with an attorney.)
After the advance directives are completed and included in the client’s medical record, the nurse has the responsibility to ensure they are appropriately incorporated into their care if they should become incapacitated.
View state-specific advance directives at the American Association of Retired Persons website.
- Choose or refuse any medical or surgical intervention, including artificial nutrition and hydration.
- Make advance directives and name a surrogate to make decisions on their behalf.
- Surrogates can decide on treatment options even when all concerned are aware that such measures will hasten death, as long as causing death is not their intent.
Nancy died nine days after removal of her feeding tube in December 1990. As a result of the Cruzan decision, the Patient Self-Determination Act (PSDA) was passed and took effect December 1, 1991. The act requires facilities to inform clients about their right to refuse treatment and to ask if they would like to prepare an advance directive.
- Darby, R. R., & Dickerson, B. C. (2017). Dementia, decision making, and capacity. Harvard Review of Psychiatry, 25(6), 270–278. https://doi.org/10.1097/HRP.0000000000000163 ↵
- American Nursing Association. (2010). Position statement: Just culture. https://www.nursingworld.org/~4afe07/globalassets/practiceandpolicy/health-and-safety/just_culture.pdf ↵
- Centers for Medicare & Medicaid Services, Department of Health and Human Services. (2012). Part 489-Provider agreements and supplier approval, Subpart A-General provisions. https://www.govinfo.gov/content/pkg/CFR-2012-title42-vol5/pdf/CFR-2012-title42-vol5-chapIV.pdf ↵
- Nurses Service Organization and CAN Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www.nso.com/Learning/Artifacts/Claim-Reports/Minimizing-Risk-Achieving-Excellence ↵
- AARP. (2020, February 25). Advance directive forms. https://www.aarp.org/caregiving/financial-legal/free-printable-advance-directives/#more-advancedirectives ↵
- AARP. (2020, February 25). Advance directive forms. https://www.aarp.org/caregiving/financial-legal/free-printable-advance-directives/#more-advancedirectives ↵
- Hale, S. W. (n.d.). The matter of Karen Quinlan. https://www.ou.edu/englhale/quinlan.html ↵
- Arthur J. Morris Law Library. (n.d.). Karen Ann Quinlan and the right to die. https://archives.law.virginia.edu/dengrove/writeup/karen-ann-quinlan-and-right-die ↵
- Centers for Disease Control and Prevention. (n.d.). The Nancy Cruzan case. [Case study]. https://www.cdc.gov/training/ACP/page42985.html ↵
- Taub, S. (2001). Art of medicine “Departed, Jan 11, 1983; At Peace, Dec 26, 1990.” Virtual Mentor, American Medical Association Journal of Ethics, 3(7), 231-233. https://journalofethics.ama-assn.org/sites/journalofethics.ama-assn.org/files/2021-05/artm1-0107.pdf ↵
- Weijer, C. (2005). A death in the family: Reflections on the Terri Schiavo case. Canadian Medical Association Journal = journal de l'Association medicale canadienne, 172(9), 1197–1198. https://doi.org/10.1503/cmaj.050348 ↵
The fundamental right of a client to accept or reject health care.
Written instruction, such as a living will or durable power of attorney for health care, recognized under state law, relating to the provision of health care when the individual is incapacitated.
The ability of an individual to participate in legal proceedings.
A functional determination that an individual is or is not capable of making a medical decision within a given situation.
Person chosen to speak on one’s behalf if one becomes incapacitated.
A type of advance directive in which an individual identifies what treatments they would like to receive or refuse if they become incapacitated and unable to make decisions.