Legal and Ethical Issues in Pediatrics

Nataliya Lishchenko

Legal Consideration

• The same legal problem may be solved different in different states

• Different Sources of Law

Sources of Law & Nursing Practice

• Statutory law• From the federal and state legislatures• Violations are criminal offenses and punishable by

fines or imprisonment

• Common law• From judicial decisions (“res judicata”- the thing is

decided, “stare decisis” – let the decision stand)

• Administrative law• Prescribed by administrative agencies

Federal Statutes Related to Nursing & Health Care• Mandate a minimum standard of care in all settings that

receive federal funds (Medicare, Medicaid)• Emergency Medical Treatment & Active Labor Law

(EMTALA) • Prohibits refusal of care for indigent & uninsured patients seeking

medical assistance in emergency departments

• Applicable to nonemergency facilities such as urgent care clinics•Americans With Disabilities Act

–Prohibits discrimination against persons with disabilities

•Patient Self-Determination Act of 1990

–Requires federally funded hospitals to inform adult patients in writing about their right to make treatment choices

Federal Statutes Related to Nursing & Health Care

• Health Insurance Portability & Accountability Act of 1996 (HIPAA)• Intent of this law is to ensure confidentiality of

the patient’s medical records; the statute sets guidelines for maintaining the privacy of health data

Statutory Law: State Statutes

• State Nursing Practice Act and Board of Nursing Rules & Regulations• Define the scope and limitations of professional

nursing practice• Vary from state to state but have common elements• Penalties for violations

• Formal reprimand• Period of probation• Fines• Limiting, suspending, or revoking license

Statutory Law: Reporting Statutes

• Child Abuse Prevention and Treatment Act and Reporting Statutes• Mandate reporting specific health problems and

suspected or confirmed abuse• Health professionals must report under penalty of fine or

imprisonment for failing to do so:• Infant and child abuse

• Dependent elder abuse

• Specified communicable diseases

Civil Law

• Negligence: Failure to act in a reasonable and prudent manner

• Malpractice: Failure of a person with specialized education and training to act in a reasonable and prudent manner

What is Informed Consent?

In 1914, Justice Benjamin Cardozo stated, “ Every human being of adult years and sound mind has a right to determine what shell be done with his own body…” (Schloendorff v. Society of N.Y. Hospital)

More about IC:http://www.ama-assn.org/ama/pub/category/4608.html

Definition

• Informed Consent (IC) is the duty of a health care provider to discuss the risks and benefits of a treatment or procedure with a client prior to giving care

IC must include the following:

1.The nature of the procedure

2.The risks and hazards of the procedure

3.The alternatives to the procedure

4.The benefits of the procedure

When IC is Not Required

• In case of emergency situation (for minor or adult) A MINOR is defined as a person who has not yet obtained the age at which she or he is considered to have the rights and responsibilities of an adult (Alabama , Nebraska and Wyoming – 19 y.o., all other states – 18 y.o.).

• It is prudent to obtain the IC from the adolescent in case if health care providers have made a reasonable attempt to contact the child parent

When IC is Not Required

• Many states allow the evaluation and treatment of a child for suspected physical or sexual abuse without the informed consent of a parent or guardian.

• Photographing and taking an X-Ray (Utah)

• In case of forensic examination (do not force or restrain the child to perform genital or rectal examination)

When a minor can consent for care?

• Care involving pregnancy, contraception, or treatment of STD

• Drug and alcohol treatment

• In some states – emancipated children can make their health care decisions by themselves

Emancipation

Emancipation is the legal recognition that the minor lives independently and is legally responsible for his or her own support and decision making.

• Can occur through an official court proceeding• In some states, a minor can automatically become

emancipated by marrying, joining the military, or becoming a parent before the age of majority

• Some states do not officially recognized any form of emancipation

When a minor can consent for care?

• Mature Minor Doctrine (in case if the minor has not achieved emancipation) – “a minor can consent to care as long as the individual demonstrates the maturity to understand the risks and benefits of the treatment”

Parental Consent after Divorce

• After divorce, the ability to consent for medical care rests with the parent who has been granted legal custody by the divorce decree ( the legal document approved by the court that grant divorce, divides marital property, and specifies child custody)

• Legal custody v. physical custody

Refusal of Medical Care by Parent or Child

• Religious beliefs - state can make legal decision for the child

• PARENS PATRIE is a legal rule that allows the state to make decision in place of parents when they are unable or unwilling to provide for the best interest of the child.

Refusal of Medical Care by Parent or Child

• Some states use child abuse statutes that make medical neglect a form of abuse as legal justification to take custody of a child who needs medical care.

• The religious exemption clause only prevent the parents from being prosecuted for medical neglect.

Obtaining IC under Special Circumstances

• Consent for donation of tissues or organs

• Consent for genetic testing

• Consent for medical experimentation with children

Consent for Donation of Tissues or Organs

• If a child is too young, the parent or legal guardian may consent for the child

• Three requirement for the minor to be a donor:

1. The parent who is consenting must be aware of the risks and benefits

2. The child primary caregiver must be able to provide emotional support for the child

3. There must be a close relationship between the donor and the recipient

Consent for Genetic Testing

• Dilemma created by new technology

• The benefits and the risks should be discussed with a child if appropriate

• Parents or guardian can consent for the testing

• Genetic testing should not be performed on a child unless the results of the test will serve the best interests of the child

Consent for Medical Experimentation on Children

• All research facilities that receive federal funds must comply with federal regulations that require review of all experimental protocols by an Institutional Review Board (IRB) (Code of Federal Regulations, 1983).

• Federal regulations require the consent of one or both parents and the assent of the child, depending on the amount of the potential risk and benefit associated with the treatment or procedure.

Confidentiality

• The right to confidential health care is protected by the US Constitution, federal and state laws, and the ethical codes of health care professionals.

• Confidentiality is an essential part of the relationship between client and health care provider

• Nurse has a duty of confidentiality (disciplined by both employer and state board of nursing)

When a Minor can Receive Confidential Care

• Contraception, treatment of

STD

• Drug and alcohol treatment

• Mental health care

• HIV testing

DEPENDS ON

STATELAWSAND

REGULATIONS

When a Health Care Provider Can Breach Confidentiality

There are 4 exceptions:

1. Mandatory reporting laws for child abuse

2. Mandatory injury reporting laws that apply to all clients who are injured by a weapon or criminal act

3. Public health law that require reporting infectious diseases to the local health department

4. A duty to warn third parties

The End