One last but equally important area of patient rights to be discussed is the right of a competent adult to be free of restraint. Even patients with mental illness can- not be incarcerated or restrained without due process, and the institution must have the treatment and reha- bilitation services necessary to reintegrate the individual into society (Iyer and Levin, 2007). Restraint of any kind is a form of imprisonment, and the reasonable and prudent nurse will closely adhere to all laws, rules, and policies pertaining to the use of restraints. The goal when restraints are clinically indicated is to use the least restrictive restraint and only when all other strategies to ensure patient safety have been exhausted. Patients may never be restrained physically or chemically because there is not enough staff to properly monitor them.
Nurses have a legal and ethical duty to report institu- tions or individuals who violate patient rights through unlawful restraint.
As noted, one of the most common allegations lev- eled against nurses is a failure to ensure patient safety.
Nurses in many practice settings must balance the right of patients to unrestricted control of their bod- ies and movements against the need to keep vulnerable patients safe from harm. The use of seclusion, chemical restraints, and physical restraints, including vests, mit- tens, belts, and wrist restraints, is governed by federal and state statutes and accrediting bodies, such as TJC.
Many nurses do not realize that even bedrails and chair trays fall under the category of physical restraints; these articles may not be used indiscriminately.
Violation of restraint statutes and the administrative rules and regulations promulgated to enact these laws can result in stiff penalties. The institution can lose its Medicare contract (decertification) and TJC accredita- tion, effectively putting it out of business. Patients and family members may initiate civil suits for unlawful restraints, resulting in monetary damages if the plaintiff succeeds in the suit. Charges of assault, battery, and/or false imprisonment may be leveled against nurses who use restraints improperly. Claims of negligence may arise from improper monitoring of the patient who has been appropriately placed in restraints in compliance with applicable laws and hospital policy.
Careful nursing documentation is essential when restraints are applied. The patient’s mental and physical status must be assessed at regular and frequent inter- vals as prescribed by law and the agency’s policies. The chart must reflect these assessments and the frequency with which restraints are removed. Neurovascular and skin assessments of limbs or other body parts covered by the restraints also must be entered in the medical record. Written physician orders for restraints must be timed and dated, and renewal of orders must be accom- panied by evidence of medical evaluations and nursing reassessments.
Based on the aforementioned information, some nurses are under the misconception that current law prohibits restraining patients until a written order is obtained. Nurses may lawfully apply restraints in an emergency, when in their independent judgment no other strategies are effective in protecting the patient from harm. The physician must be contacted promptly to discuss the patient’s condition and the need to restrain and to obtain an order for temporary con- tinuance of restraints. The nurse is guided in the deci- sion to restrain by knowledge of the laws, the agency’s
160 UNIT 2 Current Issues in Health Care
policies and procedures, qualifications of the staff, and conditions on the unit or in the department. In Estate of Hendrickson v. Genesis Health Ventures, Inc. (2002), the jury awarded a family more than $1 million when it decided that the nursing home staff had failed to appro- priately restrain a family member who had suffered a stroke. The patient had been admitted to a nursing home following a severe stroke and was paralyzed on her right side. Despite the hemiplegia, the patient was
able to slide from one side of the bed to the other and had been found trapped between the mattress and side rail on previous occasions. Subsequently the patient was found dead, with her head wedged between the side of the mattress and the bed side rail. The jury noted that the patient’s death had been foreseeable, based on the staff previously finding the patient precariously trapped between the mattress and side rail but had taken no pro- tective action to prevent harm.
S U M M A R Y
Professional nursing practice is governed by an ever- widening circle of federal and state statutes and is con- stantly evolving in great part because of an accumulating body of nursing case law. The law provides guidance for every aspect of practice and can assist the nurse in man- aging the complexities of practice in a rapidly changing health care system. Knowledge is power, and the nurse who possesses a sound understanding of the law as it pertains to professional practice is empowered. Box 8-7 provides a list of Internet resources that can be accessed to learn more about legal issues in nursing.
This chapter has reviewed the major sources and cat- egories of law influencing nursing practice. The reader
has been introduced to the doctrines of civil and criminal law that affect all nurses. The chapter has explored issues related to the legal rights of patients who are served by pro- fessional nurses. As patient advocates, all nurses should keep these fundamental rights uppermost in their minds as they attempt to provide safe, effective, quality care in all settings.
Additional resources are available online at:
http://evolve.elsevier.com/Cherry/
BOX 8-7 HELPFUL ONLINE RESOURCES
American Association of Legal Nurse Consultants www.aalnc.org.
Provides information about legal nurse consultants, such as the credentialing process, standards of practice, publications, networking opportunities, and continuing education
American Society for Healthcare Risk Management www.ashrm.org
Provides information to consumers and members about risk management and risk control in health care settings and provides publications and news regarding health care laws and regulations
U.S. Food and Drug Administration www.fda.gov
Provides information about adverse events related to medication administration and the use of durable medical equipment
The Joint Commission www.jointcommission.org
Provides information about health care standards, sen- tinel event alerts, and related health care law National Council of State Boards of Nursing
www.ncsbn.org
Provides general information about nursing practice and position statements regarding nursing con- duct, such as delegation of nursing tasks
The American Association of Nurse Attorneys www.taana.org
Provides information about select laws and provides guidance for nurses interested in becoming attorneys Centers for Medicare & Medicaid Services
www.cms.hhs.gov
Provides information about a wide range of health care law and the Medicare program; offers access to other websites in health care law
161 CHAPTER 8 Legal Issues in Nursing and Health Care
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