10.2 Legal Issues Relating to Mental Health Nursing

Assault and Battery

Assault and battery are intentional torts (not to be confused with the separate crimes of assault and battery). In a civil context, assault means intentionally putting another person in reasonable apprehension, that is fear, of imminent harmful or offensive contact. The intentional causation of harmful or offensive contact with another person without that person’s consent is called battery. Physical harm does not need to occur in order to be charged with assault or battery. In fact, assault does not even involve a physical touch, although battery does. Assault and battery often arise in health care in relation to a client’s right to refuse treatment. For example, a hospitalized client can refuse to take prescribed medication. If a nurse forcibly administers medication without that client’s consent, it could be ruled battery in a court of law. Keep in mind, however, that it may be justified to force administration of a medication based on a provider’s order in an emergency situation to prevent imminent harm.

False Imprisonment

Another intentional tort is false imprisonment, defined as an act of restraining another person and causing that person to be confined in a bounded area. This tort often comes up in the use of restraints or seclusion, which is one reason why nurses must be vigilant in following agency policy related to the use of physical restraints and seclusion and must carefully monitor clients who are restrained or secluded.

Restraints are devices used in health-care settings, when alternative, less restrictive interventions are not effective, to prevent clients from causing harm to themselves or others. A restraint restricts a client’s freedom of movement without the permission of the person. Seclusion, by contrast, is defined as the confinement of a client in a locked room or an area from which they cannot exit on their own. Seclusion should only be used to manage violent or destructive behavior. The chapter will revisit restraints and seclusion in more detail later.

Slander and Libel

Slander and libel are also intentional torts. Spoken defamation is called slander, and written defamation is called libel. Defamation of character occurs when an individual makes negative, malicious, and untrue remarks about another person to damage their reputation. Nurses must take care in their oral communication and documentation to avoid defaming clients or coworkers, or they risk a civil suit for damages. For example, if one nurse talked about a client to another nurse out loud saying, “Did you hear that this client did . . .” while knowing that it was untrue, it could be an example of slander. An example of libel is a nurse making an untrue social media post disparaging a client.

Fraud

When one individual deceives another for personal gain, it is called fraud. It is an intentional tort and can be charged as a crime. A nurse may be charged with fraud for documenting interventions not performed (in order to secure payment for them) or for altering documentation to cover up an error. Fraud can result in civil and criminal charges, as well as suspension or revocation of a nurse’s license.

Negligence and Malpractice

Negligence and malpractice are unintentional torts and may be the area with which nurses are most familiar. The failure to exercise the ordinary care a reasonable person would use in similar circumstances is called negligence. For instance, a Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property” (Wisconsin Civil Jury Instructions Committee of the Wisconsin Judicial Conference, 2023). Negligence committed by a health professional with a license is called malpractice. When a nurse provides negligent care, it is an example of malpractice. The guidelines that create a baseline of appropriate (reasonable) professional conduct for nurses are the standards of care. For instance, a court will measure a nurse’s behavior against the standard of care to determine if the behavior was negligent. The standard of care is generally defined by what a reasonable nurse in a comparable situation, with similar circumstances, education, and training would do.

Medical errors, a potential type of negligence, are a problem in nursing often highlighted in the media. Nurses are humans and make mistakes. How nurses and administration handle those mistakes is often the difference between being negligent or not. Potential for error is one reason why a system of checks and balances is built into medicine administration, with EMR systems with scanning systems, pharmacy systems and pharmacists, and two nurse verification for dangerous drugs.

But errors do not stop with medication administration. All areas of nursing practice can lead to errors, from documentation to equipment injuries, client falls, infections, and others. Even with all of the protections put into place by law and policy, the human factor has its part and mistakes happen. For example, a nurse may grab the wrong antibiotic and skip steps due to being behind with their work and cause a reaction. A responsible nurse will then self-report the mistake as per facility policy and notify the client’s provider as soon as the error is noted so that any possible adverse effect can be mitigated as soon as possible. Taking responsibility for an error may be the one thing that prevents the revocation of a nurse’s license, though this is not guaranteed depending on the degree of the error and the level of adverse effect. If the error were to result in a client’s death, there may be consequences no matter how responsible the nurse has been to self-report.

The best way to avoid malpractice is to be vigilant and follow protocol. There are some areas of negligence or malpractice that are specific to mental health. For example, a client may express thoughts of suicidal ideation. If the nurse does not act on those expressions and place the safeguards as per policy and the client acts on those thoughts, the nurse is responsible for the negligent action of not acting and therefore causing harm when it could have been avoided. Not performing timely and appropriate assessment and evaluation can also be malpractice. For example, not assessing the client who is restrained or not assessing for possibility of self-harm are forms of malpractice.

In order to determine the amount of money owed a victim of malpractice, courts examine economic damages, which are actual and measurable costs, disability or disfigurement, physical impairment, loss of life, and others. Courts also take “pain and suffering” into consideration, which is a more nebulous concept that is more difficult to quantify. For that reason, currently twenty-nine states have implemented tort reform, placing a cap on “pain and suffering” dollar amounts. The damages awarded vary greatly based on many factors, including severity of injury, the state that the case is brought in, the severity of the negligence, and the named plaintiffs.

Client Right to Treatment

The right to mental health treatment includes two components: the right to appropriate treatment and the right to an individualized, written treatment or service plan. The right to appropriate treatment and related services means that treatment occurs in a setting and under conditions that support personal liberty and restrict such liberty only when necessary to comply with treatment needs, laws, and judicial orders. The right to an individualized, written treatment plan means that the provider develops it promptly after admission, that treatment is based on the plan, that the health-care team periodically reviews and reassesses the treatment plan, and that the team appropriately revises the plan (Pirotte, 2022). The health-care team will include the professionals involved with the care for the client, including doctors, nurses, and therapists, and generally includes the client and family being involved in decision-making with the nurse maintaining the role of client advocate at such meetings.

All clients have the right to participate in the planning of mental health services provided, including the development and periodic revision of the plan of care. They also have the right to be provided with a reasonable explanation for the treatment plan, in terms and language appropriate to their mental condition and general physical condition and ability to understand. The treatment plan should also outline the goals of treatment, the nature and significant possible adverse effects of recommended treatments, the rationale for why a particular treatment is considered appropriate, reasons why access to certain visitors may be restricted, and any appropriate and suitable substitute treatments, services, and types of providers of mental health services (Figure 10.3).

Figure 10.3 This sample mental health treatment plan clearly states the treatment goals and measurable objectives. (attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

Emergency Treatment

Emergency treatment is the client right to receive care in the event they are in a life-or-death situation that requires medical attention before providers can obtain consent. There are circumstances where a client is not able to knowingly understand and intelligently make a decision. There are many reasons that a person may not have capacity to make their own decisions, from trauma and medical reasons to mental health reasons, including dementia, psychosis, substance misuse and acute intoxication or overdose, mania, among others. In these cases, providers need to assess capacity, and if that person is deemed to lack capacity, the decisions for care usually can be made by a surrogate decision-maker, such as a spouse or an adult child. There are certain circumstances when emergency exceptions apply:

• a life- or limb-threatening situation
• the client is without capacity to make decisions
• there is no surrogate decision-maker available
• time is of the essence, for example imminent risk of harm
• under the circumstances, a reasonable person would consent

Once the emergency has passed, providers can reassess capacity and if the client remains without capacity, the health-care team can connect with a surrogate decision-maker.

The client right to treatment also includes continuity of care. An example of continuity of care is following up with clients after discharge. Haggerty et al. (2003) identified three types of continuity: informational continuity, management continuity, and relational continuity. Informational continuity involves tailoring a client’s care based on their past events and personal circumstances. Management continuity involves reassessing the approach to ensure consistency in care as the client’s needs change. Relational continuity involves maintaining the therapeutic relationship between a client and their providers (Haggerty et al., 2003).

The Right to Be Treated Fairly and with Respect

Every individual has the right to be treated fairly and with dignity and respect, meaning that a client has the right to be free from any threats and violence, the right to treatment without discrimination, and the right to be treated equally, regardless of age, gender, race, ethnicity, color, or disability. For example, when a nurse requests permission to enter a client’s room or asks a client how they would like to be addressed, this communicates respect for the client as an individual. Respect also involves nurses introducing themselves to clients, specifying what they plan to do, and showing gratitude to clients who entrust them with their care (World Health Organization [WHO], 2023).

The Right to Obtain One’s Medical Record

The federal Health Insurance Portability and Accountability Act (HIPAA) of 1996, discussed earlier in the chapter, provides clients with a legal, enforceable right to see and receive copies upon request of their medical and other health records, including bills maintained by their health-care providers and health plans. A client can also request someone else’s medical records if given permission in writing to act as their representative in accessing records. Health-care providers are required to provide copies of medical records within thirty days of the written request (HHS.gov, n.d.).

The Right to Refuse Treatment

Clients have the right to refuse treatment in the absence of informed, voluntary, written consent, except during an emergency documented by written order of a responsible mental health professional or in the case of a client committed by a court to a treatment program or facility. Clients also have the right to refuse to participate in research without an informed, voluntary, or written consent, and the right to appropriate protections in connection with participation. There are certain circumstances where the client cannot consent (or refuse) for themselves, such as clients with advanced dementia or intellectual disability. In these cases, a surrogate decision-maker is put in place to consent or refuse treatment.

The Right to the Least Restrictive Treatment

As a corollary to the idea that all clients have the right to be treated humanely in an environment that offers privacy and protection from harm (CorpusLegalis.com, n.d.), all clients also have the right to the least restrictive treatment. As mentioned earlier, nurses play a crucial role in the implementation of restrictive practices, such as seclusion and restraint. Guidelines vary by state and facility, but all agree that seclusion and restraints should only be used as a last resort after the providers have exhausted all attempts and techniques to de-escalate a situation. De-escalation techniques that nurses may use include using simple, nonthreatening language, setting clear boundaries, decreasing environmental stimuli, and providing diversions. Another option could be to offer the client an antianxiety medication. If no less restrictive measures work to de-escalate a situation, individuals who are at risk for behaviors that may result in harm to self or others may require the use of restraints (physical, chemical, environmental).

In the event a client needs restraints, the nurse must follow the facility’s policies and procedures and secure a medical order. In an extreme emergency, such as when a serious threat of harm to the client or others exists and only after all alternative interventions were unsuccessful, a nurse can apply the restraints without a medical order for nonviolent restraints. The provider must put in place an order for the restraints as soon as possible after their application, however, and the provider or trained RN must complete an in-person assessment within one hour of initiation of restraints or seclusion and every twenty-four hours to renew the order. For violent or self-destructive restraints, which are used for an imminent physical risk of harm to self or others, the provider must evaluate the client in person prior to, during, and immediately after initiation of the restraint as well as place the order.

Federal regulations regarding seclusion and restraints require the client to be evaluated by an RN or provider within four hours for adults, two hours for children and adolescents between the ages of nine and seventeen, and one hour for children under nine years old (called the “4/2/1 rule”). A new order and a face-to-face evaluation are required every twenty-four hours by the provider if restraints are still required (Electronic Code of Federal Regulations, 2023). Federal regulations also prevent the health-care provider from writing PRN (as necessary) orders for restraints. This means that if a client is in restraints and then has them removed, and then later needs restraints reapplied, this requires a new order. The procedure must be followed each time restraints are applied.

Another consideration when using restraints involves required nursing care and documentation. A nurse must understand and follow agency policy, which should meet or exceed guidelines set by federal and state laws and regulations. For example, when a client is in restraints, the nurse must assess the client every fifteen minutes and check vital signs, provide range-of-motion exercises, check skin integrity under the restraints, and provide fluids and toileting every two hours. When documenting, the nurse must document the type of restraints, the reason for the restraints, how long the client is in restraints, the care offered and provided during restraint use, and times care is offered or provided. Documentation is part of the client record and is considered a legal document.

The Right to Informed Consent

The communication between a client and a health-care provider that results in agreement and permission by the client for treatment or services is called informed consent. Every client has a right to understand and ask questions prior to consenting to treatment. Informed consent, generally governed by state law and regulation, is the fundamental right of an individual to fully understand their health-care decisions before making those decisions. Most states allow a client to sue for battery if providers do not obtain consent before providing medical treatment. Informed consent requires that the client must voluntarily provide consent, must be mentally capable to consent and of legal age (eighteen or older), and must be properly informed. Proper information generally includes the client understanding the provider’s explanation of the diagnosis, the reason for the treatment or procedure, chances of success, and available alternative treatments and their risks. The client also has the right to change their mind at any time.

More specifically, the five elements required for documentation of informed consent include (1) disclosure of the nature of the procedure, (2) competency and comprehension of risks and benefits, (3) reasonable alternatives and voluntariness, (4) competence and understanding of risks or benefits of alternatives, and (5) the client’s understanding of elements one through four as evidenced by the written consent (Shah et al., 2022). Disclosure is when a health-care provider offers information to clients about treatments or tests regarding the process, risks, and benefits, and allows a client to make informed decisions whether to undergo such treatments or tests. Client competency and comprehension mean that the client is able to and understands the risks and benefits. It includes having the knowledge and skills needed to understand risks and benefits and decide effectively. Reasonable alternatives refer to the provider fully explaining available alternatives so that the client knows the options. Voluntariness refers to clients giving their agreement free of any coercion or pressure. A written form that includes all of this information is the actual informed consent.

There are several exceptions to the requirements of informed consent. One exception is when a client is incapacitated, in which case the surrogate decision-maker provides the informed consent. Another exception is a life-threatening emergency where there is not enough time to obtain consent. The law assumes that an unconscious person would consent to emergency care if the client were conscious and able to consent. Likewise, “there is no duty to disclose if the patient is so upset or mentally unstable that the provider reasonably believes that disclosure would be detrimental to the patient’s well-being. The burden of proof is on the provider to prove this.” (Lawshelf.com, 2023, para 30). Another exception is when a client voluntarily waives or gives up the right to consent. In addition, a legally emancipated child may provide their own informed consent, although legislation regarding minors and informed consent may vary by state (Shah et al., 2022).

One point to keep in mind is that in order to give legitimate informed consent, a client must have capacity and be legally competent to do so. Legal competency is a determination made by a judge about a person’s legal ability or inability to make medical decisions, stand trial, or sign a contract, among other legal decisions. Capacity, by contrast, is assessed by a health-care provider and is a clinical opinion regarding a client’s ability to make health-care decisions. Capacity can be determined by a provider by performing a few structured assessments, including cognitive testing and a competency assessment. For those deemed not competent to give informed consent, a legal guardian or person with medical power of attorney can be authorized to offer the consent.

The Right to Privacy and Confidentiality

Another client right, client confidentiality is the expectation that information shared with the health-care providers or organization will not be divulged. Closely connected, so discussed together here, the right to privacy refers to the belief that one’s personal information is protected from public access. As a client advocate, a nurse is responsible for protecting client confidentiality and privacy.

All clients have the right to confidentiality and privacy. This includes respecting someone’s privacy and abstaining from sharing personal or potentially sensitive information about an individual, especially if that information was shared in confidence or during a professional relationship. In the psychiatric-mental health setting, there may be additional exceptions to disclosure of information. For example, if the client is a risk to self or others, or in situations to protect the client or others from harm, it may be necessary to disclose confidential information with the duty to inform.

On a residential or inpatient care basis, the right to privacy and confidentiality includes the right to speak with others in private, to view visitors during regularly planned hours, and to have fair and easy access to the phone and mail, except when a mental health professional determines that denial of access to a particular visitor is necessary for treatment purposes. The mental health professional may, for a specific, limited, and reasonable period, deny such access in writing and incorporate the order in the treatment plan. An order denying such access should include the reasons for such denial.

Only members of the health-care team who are involved in a client’s care have the right to access client information. The client must provide written consent for the information to be shared with anyone outside the treatment team. The Privacy Act of 1974 prohibits the disclosure of a client’s medical record without written consent of the individual unless the disclosure is based on one of twelve exceptions. Transfer of information must be done carefully and by facility procedure; inappropriate disclosure of information may constitute a breach of client confidentiality (Conlon et al., 2019). Client confidentiality is protected under the law and if that is breached without authorization, and causes harm to the client, then the client may have cause to take legal action against the responsible party or group. For example, suppose a parent of a minor client calls for information and the parent is not the legal guardian, if the parent is still given the information requested, this is a breach of confidentiality. Another breach of confidentiality takes place when a parent of an adult calls for an update on a client in a residential treatment facility and is given information without there being client authorization on file to provide that parent with that information.

Caring for the Client in a Hospital Setting

Acute care psychiatric units in general hospitals are typically locked units on a separate floor of the hospital with the purpose of maintaining environmental safety for clients. State-operated psychiatric hospitals serve clients who have chronic serious mental illness. They also provide court-related care for criminal cases where the client was found “not guilty by reason of insanity.” This judgment means the client was deemed to be so mentally ill when they committed a crime that they cannot be held responsible for the act, but instead require treatment.

Commitment

There are two types of commitment for care and treatment in inpatient or outpatient mental health facilities. Voluntary admission happens when a person agrees to treatment in a mental health facility and is not an immediate threat to themselves or others. They are admitted and are free to leave at any time. Involuntary commitment can also be either inpatient or outpatient, but the person is confined against their will. In an involuntary hold, a person may be held for up to seventy-two hours (may vary by state), but the client must be a danger to themselves or others. After the seventy-two hours, the case/situation must go to the court system to determine if the hold should continue.

The specifics of the laws as far as how long and the reasons for a person to be committed vary by state. In general, a person must be a danger to the public or themselves. There are several types of involuntary commitment. In an emergency hospitalization, the client is held for a limited time in response to a crisis situation. In an inpatient civil commitment, there is a longer-term hold while the courts determine if the client meets the criteria for continued commitment. The last option is outpatient civil commitment (available in all states except Maryland and Massachusetts) where the person may be required to participate in outpatient treatment.

With an involuntary commitment, the client is not permitted to check out of their own accord from a health-care facility. When a client leaves an inpatient facility without permission, including if they fail to return from an authorized leave, it is called absconding. This is a significant health and safety issue to the client, the facility, client families, and, potentially, the public. Good therapeutic communication between clients and clinical teams helps reduce the occurrence of absconding events. Absconding has been linked to an increased risk of self-harm and suicide (Verma et al., 2020).

Caring for the Client in a Punitive Setting

The United States has the largest number of people incarcerated in the world. Almost 870 out of every 100,000 people in the United States are in jail or prisons (Davis et al., 2018). This population has very high rates of psychiatric conditions, substance use disorders, as well as many other acute and chronic health conditions. These individuals require care by nurses. One of the largest roles of nurses in corrections facilities is advocacy. It can be a challenge for nurses in this setting to provide the care that is needed on limited budgets. Some of these people have very serious psychological issues or psychiatric illnesses that require monitored medication regimens. Others have substance misuse issues that are high risk for serious complications of withdrawal. The nurse must be prepared to screen and handle these clients as well as advocate for the care that is needed and may be lacking.

The Role of Health Insurance

Nurses should be aware of the critical role health insurance plays in treatment and in treatment decisions. Here is a brief summary of insurance options; veterans also may qualify for their own insurance arrangements.

• Medicaid and Medicare cover mental health care for those who qualify.
• Medicaid coverage is based on multiple factors, including income.
• Medicare covers those over the age of sixty-five and those who are disabled and have received Social Security for at least two years.
• Private insurance covered, at least in part, by an employer.
• Insurance purchased through the private market, paid monthly. Private market plans may have high deductibles and high out-of-pocket visit costs.

Disability Benefits for Mental Health Clients

Mental and psychological disabilities are conditions that can qualify individuals for benefits from the Social Security Administration (SSA). To qualify for benefits, a client must have a formal diagnosis of a potentially disabling condition, one that will cause a disability for twelve months or longer. The SSA performs a detailed review to evaluate each disability application. Each illness that is eligible has a severity level requirement and the specific medical information needed to support the claim. For most mental illnesses, the client needs to demonstrate that they have been on medication for two years without their condition improving.