LEGAL ASPECTS OF NURSING

Nelia B. Perez RN, MSN

PCU – Mary Johnston College of Nursing

BSN 2013

LAW

• Etymology : lex• A set of rules established by a governing

power to guide actions, regulate conduct of the people and impose sanctions for violation or non-compliance thereof.

• Obligatory upon the people because it commands the people to do right and prohibits them to do wrong.

Sources of Law

• The Constitution• Statutes• Administrative Law

Kinds of Law

Major Groups of Law

• Criminal laws• Regulate public conduct and set out

duties owed to society• Civil laws

• Regulate relations between individuals or groups of individuals

Criminal Laws

• Legal action brought by the government against a defendant (person charged with committing a crime)

• …have penalties • Imprisonment, fines, probation (placed

under supervision)• Divided into felonies

and misdemeanors

Difference in criminal offenses

• FELONY• Penalty is a term of

more than one year in prison

• Murder, robbery, rape, possession with intent to distribute

• MISDEMEANOR• Penalty is a prison

term of one year or less

• Simple assault, minor theft, possession

Kinds of Laws - Criminal• Duties to society• Cases brought by gov.

• Types – •Felony • Summary•Misdemeanor

“beyond a reasonable doubt”

• the standard of proof required in most criminal cases within an adversarial system

• Means that if a jury (or a judge in a bench trial) has ANY reasonable doubts about the defendant’s guilt – then it MUST vote not to convict

“preponderance of evidence”

• standard of proof that must be met by a plaintiff if he or she is to win a civil action

• The jury (or judge) needs only to decide if it is more likely than not that the plaintiff’s complaint is true.

• Lower requirement for proof –Why?

Jurisprudence

• Etymology : juris (oral legal tradition and to functional applications of Law, to and in particular sets of facts ans circumstances); prudentia (one who behaves prudently or wisely because he has knowledge of the possible consequences of a particular action).

Jurisprudence (cont)

• Denotes or pertains to the judicial precedent or the course or established decisions of the Supreme Court.

Kinds of Law

Major Groups of Law

• Criminal laws• Regulate public conduct and set out

duties owed to society• Civil laws

• Regulate relations between individuals or groups of individuals

Criminal Laws

• Legal action brought by the government against a defendant (person charged with committing a crime)

• …have penalties • Imprisonment, fines, probation (placed

under supervision)• Divided into felonies

and misdemeanors

Difference in criminal offenses

• FELONY• Penalty is a term of

more than one year in prison

• Murder, robbery, rape, possession with intent to distribute

• MISDEMEANOR• Penalty is a prison

term of one year or less

• Simple assault, minor theft, possession

Kinds of Laws - Criminal• Duties to society• Cases brought by gov.

• Types – •Felony • Summary•Misdemeanor

“beyond a reasonable doubt”• the standard of proof

required in most criminal cases within an adversarial system

• Means that if a jury (or a judge in a bench trial) has ANY reasonable doubts about the defendant’s guilt – then it MUST vote not to convict

“preponderance of evidence”

• standard of proof that must be met by a plaintiff if he or she is to win a civil action

• The jury (or judge) needs only to decide if it is more likely than not that the plaintiff’s complaint is true.

• Lower requirement for proof –Why?

Civil Laws

• Civil action• Lawsuit that can be brought by a

plaintiff (person) who feels wronged or injured by another person

• Courts may award the injured person money for the loss or order the one who committed the wrong to make amends insome other way

• Automobile accident

Civil Laws

• Regulate many everyday situations• Marriage• Divorce• Contracts• Real estate• Insurance• Negligence

Kinds of Laws - Civil•Regulates relations b/w individuals or groups

•Brought by people for injury by another person

Which Is It?

Truancy

Civil

Warranty Law

General Divisions of Law• Natural Law – an integral part of

nature because it is immutable and inherent in the nature of man or every element or part of the universe.

• Positive Law – a precept made and imposed by someone in authority. * divisions

- divine law - human law

Applicable laws and jurisprudence in nursing practice 1. Constitutional Law is that

branch of the science of laws which treats of the nature of constitutions, their adoptions and amendments, their construction and interpretation and of the validity of legal enactments as tested by the criterion of their conformity to the law of the land.

Kinds of Constitution• Cumulative or evolved

constitution is one that originates in customs, common law principles, decisions or courts, etc.

• Conventional constitution is an enacted constitution because it is deliberately passed by a representative body or a ruler.

• Written constitution is one where the provisions are embodied in one document or sets of documents while an unwritten constitution is one where most of the provisions are not in a single document but scattered in various sources such as customs and traditions, statutory enactments of a fundamental character, judicial decisions and certain common law principles.

Kinds of Constitution (cont)

• Rigid constitution is one that can be amended only by a formal and usually difficult process, whereas a flexible constitution is one that can be changed by ordinary legislation.

Kinds of Constitution (cont)

2. Criminal Law – the branch of law which defines crimes, treats of their nature and provides for their punishment.

- Aptly described as the instrument of criminal policy for it is in criminal law that are found

- it covers offenses resulting to injuries or death of the patients.

Prosecution of a criminal offense resulting to injuries…

• Nature• Location• Size, shape and incursion

• Color• Number, and• Other appearances

Re: Death of a patient..

• Natural• Suicide• Homicide / murder / parricide• Accident• undetermined

Useful pieces of evidences for the criminal offenses

• Body• Objects on or with the body• Injuries sustained• Tissues and body fluids• Other medical evidence or

findings

R.A. 3815 – otherwise known as Revised Penal Code (RPC) which

was approved on December 8, 1930 which defines crimes, treats of their nature and provides for

their punishment.

3. Civil Law - the branch of Law that pertains to the organization of the family and the regulation of property. It has been defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among the members of a family, and those which exist among members of a society for the protection of private interests.

R.A. 386, popularly known as the New Civil Code (NCC) or the Civil Code of the Philippines took effect on August 30, 1950 and covers the following aspects of human life; persons and family relations, property rights and ownership, the modes of acquiring ownership, obligations and contracts and special contracts.

One important amendment to this code is EO 209, the Family Code, amending its provisions on marriage and family relations.

4. Labor Law is that branch of Law that governs and regulates the relationship of employers and employees. Broadly called “labor legislation” , it consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain employment standards and legal framework for negotiating, adjusting and administering those standards and other incidents of employment.

Labor Law (CONT)• Labor Standards Law – “that which

sets out the minimum terms, conditions and benefits of employment must provide or comply with and to which employees are entitled as a matter of right.

• Labor Relations Law – defines the status, rights and duties and the institutional mechanisms, that govern the individual and collective interactions of employers, employees or their representatives.

Labor Code

• Promulgated as P.D. No 442 on May 1 1974 and took effect on November 1, 1974 except portions on Book IV whose effectivity was deferred to January 1, 1976 by P.D. No. 608.

5. Administrative Law is that branch of law which deals with the activities or functions of executive or administrative agencies such as the “departments”, bureaus, boards or commission or all other offices under the administrative supervision of the office of the President, which are created and vested by Law with qusi-judicial, quasi-legislative and executive powers.

Administrative Law (cont)

• Executive Order No. 292 is the principal law in the study of administrative laws in the Philippines and was promulgated by then President Corazon Aquino dated July 25, 1987, otherwise known as the “Administrative Code of 1987”, which incorporated in a single document the major structural, functional and procedural guidelines of governance.

Administrative Law (cont)

• Professional Regulation Commission (PRC)

• Three main functions• Executive• Quasi-judicial• Quasi-legislative

Functions of the PRC

• To investigate and decide cases against erring examinees and professionals;

• To formulate and promulgate policies and guidelines on administrative investigation and professional regulations.

• To implement the laws, regulatory policies and standards; and

• To maintain and promote professional and occupational standards and ethics.

6. Civil Service Law is that branch of law which deals with the civil service in all branches, subdivisions, instrumentalities and agencies of the government including government-owned or controlled corporations with an original charter.

Civil Service Law (cont)• Primary purpose is to establish and

maintain a merit system in the selection of public officers and employees without regard to sex, color, social status or political affiliation.

• General purpose is to ensure and promote the constitutional mandate regarding appointments, particularly according to the merit and progressive system of personnel administration to ensure the maintenance of an honest, efficient, progressive and courteous civil service in the Philippines.

Civil Service Commission• P.D. No. 110 dated January 26, 1973,

created the Civil Service Commission (CSC), replacing the CSC established under R.A. no 2260.

• repealed by PD No. 807 otherwise known as the Civil Service Decree of the Philippines, which was superceded by Subtitle A, Title I, Book V of E.O. No 292, the Administrative Code of 1987, E.O. No 292, which codified the major structural, functional and procedural principles of governance, is the basic legal document in the study of civil service law.

7. Case is that body of the prevailing jurisprudence or decisions of the Supreme Court interpreting the laws or the Constitution or applying them to certain sets of facts or actual cases and controversies.

TORT

Definition

• A tort is a legal wrong, committed against a person or property independent of a contract which renders the person who commits it liable for damages in a civil action.

• A tort in common law is defined as a civil wrong that involves a breach of civil duty owed to someone else. This is in exception to contractual duty.

• A tort is similar to crime but crimes involve breach of duties toward the society in general.

• The aggrieved party who has been injured due to a tort may bring a lawsuit.

• One who commits a tort is called tortfeasor. A person who suffers a tortuous act is entitled to receive damages, usually monetary compensation, from the person or people responsible or liable for those injuries.

• Tort law defines what a legal injury is and therefore, a person may be held for an injury that was caused.

• Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, liability.

• For defective consumer products, copyright infringement and environmental pollution among many others.

• In the law world, the most prominent tort liability is negligence.

• If the injured party can prove that the person believed to have caused the injury acted negligently.

• That is without taking a reasonable care to avoid injuring others- tort law will allow compensation.

• Negligence torts: The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, to belief, in each case designed to protect legal rights, including those of personal safety, property and in some cases, intangible economic interests.

Torts are categorized into negligence torts, intentional torts and standard torts.

• Intentional torts: include those torts arising from the occupation or use of land. The torts of nuisance, trespass, etc come under this category. Intentional torts also include false imprisonment.

• The tort of illegally arresting or detaining someone and defamation, broadcasting false information damaging the plaintiff’s reputation.

• Statutory torts: Statutory torts are like any other, expect for the fact that these have been enacted by the legislature and not by courts.

• Examples include consumer protection laws, labor laws governing safety and health of workers, etc.

• The burden to prove a tort vests with the plaintiff. It is his duty to prove the defendant’s negligent tort or intentional tort.

• The plaintiff owns a duty of care. A duty of care is a relationship which exists between a plaintiff and the defendant.

• There must be a breach of that duty and the plaintiff suffered damages as a result of that breach.

• The defendant has to take proper care not to damage or cause injury to the property, emotion, reputation and to the person himself. And lastly, the damage must be significant and not remote.

• Nuisance: Legally, the term nuisance is used in three ways, to describe an activity or condition that is harmful or annoying to others.

• To describe the harm caused by the before mentioned activity or condition and to describe a legal liability that arises from the combination of the two.

• Defamation: Defamation is tarnishing the reputation of someone. They are of two types. One is slander and the other is libel.

• Slander is spoken defamation and libel is printed or broadcast defamation.

Examples• Assault and Battery.

• Assault is the imminent threat of a harmful or offensive bodily contact.

• Battery is an intentional, unconsented touching of another person.

• False Imprisonment or Illegal Detention.• It means that the unjustifiable

detention of a person without legal warrant within boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement.

• Defamation.• Slander is oral defamation of a

person by speaking unprivileged or false words by which his reputation is damaged.

• Libel is defamation by written words, cartoons or such representations that cause a person to be avoided, ridiculed, or held in contempt or to tend to injure him in his work

LAWS RELEVANT TO NURSING PRACTICE

1. PD 48 – four (4) children with paid maternity leave privilege

2. PD 69 – four (4) children for personal tax exemption

3. PD 79 – Revised the Population Act; Defines the objectives, duties and functions of POPCOM

4. PD 223 – Creation of Professional Regulation Commission (PRC) in 1973

5. PD 442 – New Labor code

6. PD 491 – Nutrition program

7. PD 541 – Former Filipino professionals allowed to practice their respective professions in the Philippines

8. PD 568 – Role of Public health midwives expanded under the RHCDS; Restructuring of the Philippine Health Care Delivery System; Deployment of midwives to improve rural situation (1 PHMid = 5,000 pop.; 1 PHNurse = 10,000 pop;1 RHPhysician = 20,000 pop)

• 9. PD 603 – Child and Youth Welfare Code• 10. PD 628 – Employee Compensation &

State Insurance Fund• 11. PD 651 – Birth registration following

delivery (all health workers shall identify and encourage the registration of all births within 30 days following delivery)

• 12. PD 825 – Anti- improper garbage disposal (provides penalty for improper disposal of garbage)

• 13. PD 851 – 13th month pay• 14. PD 856 – Code of Sanitation – provides

for the control of all factors in man’s environment that affect health including thequality of water, food, milk, control of insects, animal carriers, transmitters of diseases, sanitary and recreation facilities, noise,pollution, unpleasant odors and control of nuisance.

• 15. PD 965 – Family Planning and responsible parenthood instructions prior to issuance of marriage license

• 16. PD 996 September 16, 1976 – Compulsory immunization for all children below eight (8) years old against six (6)immunizable diseases

17. PD 1063 – Muslim Holidays

18. PD 1204 – Amends PD # 79B. ADMINISTRATIVE ORDERS1. A.O. No. 114 s. 1991 – Revised/updated the roles and functions of the Municipal Health Officers, Public Health Nurses and Rural Health Midwives

19. Dept. Circular Order No. 75 – Reinstitution of Tetanus Toxoid among Pregnant Women

20. Min. Circ. No. 2 s. 1986 – Includes AIDS as a notifiable disease

D. EXECUTIVE ORDERS

• EO 51 – Milk Code• 2. EO 85 – Integration of Public Health

and Hospital Services

• 21. EO 119 – Reorganization of Department of Health

• 22. EO 180 – Guidelines on the right to organize of government employees

• 5. EO 203 – List of regular holidays & special days

• 6. EO 209 – Family Code of the Philippines (amended by RA 6609)

• 7. EO 226 - Command Responsibility• 8. EO 503 – Provides for the Rule and

Regulation Implementing the Transfer of Personnel Assets, Liabilities and Records of National Government

E. HOUSE BILLS

• 1. HB # 16 – Two-Child Policy• 2. HB # 3773 – Responsible

Parenthood and Population Movement Act

F. PRESIDENTIAL PROCLAMATIONS / PRONOUNCEMENTS

1. Proc. # 4 – Philippine Measles Elimination Campaign – Declaring the period of September 16 – October 14, 1998 as the“Ligtas Tigdas Month”

2. Proc. # 6 April 3, 1986 – United Nations - Universal Goal on Child Immunization by 1990

3. Proc. # 46 September 16, 1992 – Reaffirming the commitment of the Philippines to the Universal Child and Mother Immunization Goal of the World Health Assembly

4. Proc. # 118 – Professional regulation Week – June 16-22

5. Proc. # 539 - Nurse week – every last week of October

6. Proc. # 1275 - Midwifery week – every third week of October

7. Proc. # 147 March 3, 1993 – Declares April 21 and May 19, 1993 and every 3rd Wednesday of January and February and thereafter for 2 years as National Immunization Days

8. Proc. # 773 March 28, 1996 – Every 3rd Wednesday of April and May as the “Knock-out Polio Day”

9. Proc. # 1064 August 27, 1997 – Enjoining all sectors of society to participate in the Acute Flaccid Paralysis (AFP)surveillance component of polio eradication campaign

10. Proc. # 1066 – Declaring a National Neonatal Tetanus Elimination Campaign starting 1997

LETTERS OF INSTRUCTIONS• 1. LOI # 149 October 19, 1979 -

Adoption of Primary Health Care; Legal basis of primary health care

• 2. LOI #1000 – Members of accredited professional organizations given preference in hiring or attendance to seminars

• 3. ILO convention #149- Improvement of life and work conditions of nursing personnel (ILO Recommendation # 157)

H. REPUBLIC ACTS

1. RA 491 - Nutrition Law (July month)

2. RA 611 – MediCare – an employee becomes automatically a member; “Public office is a public trust”

3. RA. 1054 – Free emergency medical & dental attendance to employees/laborers of any commercial; industrial or agricultural establishments

• 4. RA. 1080 – Civil Service eligibility for all degrees with licensure examinations

• 5. RA. 1082 – Creation of 1st Rural Health Act in 1953 - The employment of more physicians, dentists, nurses, midwives and sanitary inspectors who will live in the rural areas where they are assigned to help raise the health condition of the barrio people and thus help abate the still high incidence of preventable diseases in the country. It created the first 81 Rural HealthUnits.

• 6. RA. 1136 – Tuberculosis Law (August Month)

• 7. RA. 1612 – Privilege Tax / Professional Tax

• 8. RA. 1891 – Strengthening Health and Dental services in the rural areas and providing funds thereto; amended RA 1082

• 9. RA. 2382 – Philippine Medical Act• 10. RA. 3573 – Reporting

communicable Disease (all communicable diseases should be reported to the nearest health stationand that any person maybe inoculated, administered or injected)

• 11. RA. 4073 – Liberalized the treatment of Leprosy - Except where the patient requires institutional treatment, no persons afflicted with leprosy shall be confined in a leprosarium. The shall be treated in a government skin clinic, rural health unit or by a duly licensed physician (February – as Leprosy Month).

• 12. RA. 4226 – Hospital licensure• 13. RA. 5181 – Permanent

residence & reciprocity qualifications for examinations/ registration

• 14. RA. 5901 – Working hours & compensation in agencies with 100 bed capacity

• 15. RA. 6365 – Established a National Policy on Population and Created the Commission of Population

16. RA. 6425 – Dangerous Drug Act – the sale, administration, delivery, distribution and transportation of prohibited drugs is punished by law.

17. RA. 6675 – Generics Act of 1988 – this promotes, requires and ensures the production of an adequate supply, distribution, use an acceptance of drugs and medicines identified by their generic names.

• 18. RA. 6713 – Code of Conduct and Ethical Standards for Public Officials and Employees. This Code upholds a time-honored principle that public office is a public trust. It the policy of the state to promote high standards of ethics in public office of public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence and loyalty, act with patriotism and justice, lead model lives and modest living and uphold public interest over personal interest.

• 19. RA. 6715 – Senior Citizen Center for every Barangay

• 20. RA. 6725 – Prohibition on discrimination vs. women

• 21. RA. 6727 – Wage Rationalization• 22. RA. 6758 – Salary Standardization

of Government employees that includes nurses

• 23. RA. 6972 – Day Care Center in every BarangaY

• 24. RA. 7160 – Local Government/Autonomy Code (the devolution of powers, functions and responsibility to the local government units)

• 25. RA. 7170 – Legacy of donation of all or part of a human body after death

• 26. RA. 7192 – Women in development & Nation Building

• 27. RA. 7277 – Magna Carta for Disabled persons

• 28. RA. 7305 – Magna Carta for Public Health workers – this Act aims to promote and improve the socio-economic well-being of health workers, their living and working conditions and terms of employment; to developed their skills and capabilities in order that they will be more responsive and better equipped to deliver health project and programs; and to encourage those with proper qualifications and excellent abilities to join and remain in government service.

• 29. RA. 7432 – Senior Citizen Benefits & Privileges

• 30. RA. 7600 – Rooming –In and Breast feeding Act of 1992

• 31. RA. 7610 – Anti-Child Abuse Law (Special Protection of Children against Child abuse, Exploitation & Discrimination)

• 32. RA. 7641 – New Retirement Law of employees in the Private Sector

• 33. RA. 7719 – National Blood Service Act of 1994

• 34. RA. 7846 – Requires compulsory immunization against Hepatitis B among infants and below 8 years old

• 35. RA. 7875 – National Health Insurance Act of 1995

• 36. RA. 7876 – Senior Citizen Center for Every Barangay

• 37. RA. 7877 – Anti- sexual harassment Act of 199538. RA. 7883 – Barangay Health workers Benefits & Incentives Act of 1992

39. RA. 8042 – Migrant workers & Overseas Filipinos Act of 1992

40. RA. 8172 – Asin Law / Iodize Salt Law

41. RA. 8187 – Maternity Leave Act of 1995

42. RA. 8282 – Social Security Law of 1997 (amended RA 1101)

43. RA. 8291 – Government Service Insurance System Act of 1997 (amended PD 1146)

44. RA. 8344 – Hospitals/ doctors to treat emergency cases referred for treatment

45. RA. 8353 – Anti-Rape Law

46. RA. 8423 – Traditional and Alternative Medicine Act of 1997 (“Gamot na Mabisa sa Abot Kayang Halaga”)

47. RA. 8424 – Personal Tax Exemptions

48. RA. 8479 – Clean Air Act

49. RA. 8504 – Philippine AIDS Prevention and Control Act of 1998

50. RA. 8972 – Nationwide Iodination Law

51. RA. 8976 – Food Fortification Act

52. RA. 8981 – PRC Modernization Act of 2000

53. RA. 9173 – The Nursing Act of 2002

54. RA. 9211 – No Smoking Act

55. RA. 9257 – Expanded Senior Citizen Act of 2003

56. RA. 9262 - Domestic Violence Act

BOARD OF NURSING RESOLUTIONS

• 1. BON # 557 Series 1988 – Code of Ethics

• 2. BON # 100 Series 1993 – Implementing Rules & Regulations of RA 7392

• 3. BON # 633 Series 1964 – ICN Code of ethics

• 4. BON # 1955 Series 1989 – PNA Code of Ethics

• 5. BON # 08 Series 1994 – Special Training on intravenous injections for the R.N.

• 6. BON # 20 Series 1994 – Implementing Rules & Regulations of RA 7164

• 7. BON # 110 Series 1994 – Guide to Evaluate Compliance with Standards for Safe Nursing Practice

J. SALIENT ASPECTS IN THE 1987 CONSITUTION OF THE PHILIPPINES

1. Article II – Declaration of Principles & State Policies

Sector 11 – Human Dignity and right

12 – Sanctity of family, equal protection of the life of the mother and the unborn from conception

13 – Role of the youth in nation building

15 – Right to health

16 – Right to a balanced & healthy ecology

2. Article III – Bill of Rights

Section 1 – Equal protection of laws & the due Process of Law

3 – Privacy of Communication and Correspondence

8 – Formation of unions, associations or societies

12 – To remain silent

6 have counsel when under investigation

14 – The accused person is presumed innocent until the contrary is proved

3. Article IV – Citizenship• Sector 3 – Philippine

citizenship may be lost or re-acquired in the manner provide by law.

4. Article XIII – Social Justice & Human Rights Sector

3 – Right of all workers to self- organization, collective bargaining and negotiations and peaceful concerted activities.

11 – Priority for the needs of the under- privileged, sick, elderly, disabled, woman and children.

13 – Special agency for disabled persons

14 – Protection of working women

5. Article XV – The Family

• Sector 1 – Filipino family as the foundation of the nation

• 2 – Marriage, as an inviolable social institution, is the foundation of the family

• 4 – The family has the duty to care for its elderly members

LEGAL PROTECTIONS IN NURSING

• Labor Law • Magna Carta (R.A. 7305)• Nursing Education• Drug Education Law• The Good Samaritan Law

LEGAL BASES OF NURSING EDUCATORS, NURSING REGULATION

AND NURSING PRACTICE

R.A. 9173

• AN ACT PROVIDING FOR A MORE RESPONSIVE NURSING PROFESSION, REPEALING FOR THE PURPOSE REPUBLIC ACT NO. 7164, OTHERWISE KNOWN AS "THE PHILIPPINE NURSING ACT OF 1991" AND FOR OTHER PURPOSES

R.A. No. 9173 – Nursing Law• Aims to provide a sound general

and professional foundation for the practice of nursing through quality nursing education.

• The first policy encourages nursing schools and colleges to implement some standards for admission, qualifying exams for 3rd year level promotion and quality part indices for the continuance of nursing student in their respective nursing degree programs to ensure the quality of their nursing graduates.

• The 2nd policy – total quality education can only be achieved when the government makes it accessible to all who are fit and prepared for it.

• Uplift standard of nursing education for this country to produce quality nursing graduates and ultimately globally competitive Filipino Nurses.

• Not to discriminate against student where spirits are willing but in intellectual, they are wanting.

• Every Filipino has the right to education however; every Filipino has the responsibility to know his limitation and to change the course for which he is suited.

R.A. No, 9173 – Nursing Law (cont)

• Nursing Education and nursing practice are constantly interacting while in the process of rapid change to adopt to the existing demands and condition of the health care delivery system.

• They are complimenting each other.

• The success of nursing practice rest upon a sound educational foundation of the nurse.

• The goal of nursing education is to prepare the nursing student for nursing practice.

• Goal of nursing practice is to provide quality nursing service and improve nursing care.

• This is when nursing regulation comes into play.

• Everyone has a right to nursing education as a constitutionally guaranteed right.

Art. XIV, Sec. 1 of the 1987 Constitution

• To protect and promote the right of all citizen to quality education at all level and to take all appropriate steps to make such education accessible to all.

NURSING EDUCATION

NURSING EDUCATION• R.A. 7164

Required a certification by the school that the applicant belong to the upper 40% of the graduating class, as a general requirement to the nursing degree course.

• R.A. 9173> deletion of said admission requirement> one high school performance is not an accurate basis for college admission and students’ mental competence and psychological preparedness for college education.> More nursing students because more graduating students will be eligible to enroll in nursing degree program and more nursing schools will be opened and offer the degree of BSN.

• R.A. 7722 – CHED

Provide standard or minimum requirement for the operation and regulation of educational institution offering tertiary courses such as BSN.

NURSING EDUCATION (Cont)

CHED Memo Circular No. 30, s. 2001

• Updated policies and standards for nursing education.

• New policy directing the CHED to regulate the establishment and operation of review center.

• Duly authorized government agency that approves the opening and regulates the operation of nursing schools all over the country.

• Created through R.A. 7722, May 18, 1994

CHED Policy on Nursing schools and colleges

• Nurses are needed in every part of the world, with the tremendous global demand, nursing schools and colleges are sprouting everywhere like mushrooms.

• Authority to open and close nursing schools / colleges

CMO No. 30• The authorization to open a nursing school

shall be based upon:

1. written recommendation of BON, PRC and NSA (National Student Affiliation), DOH

2. approval of CHED• The power of BON as to authorization of

opening or closing nursing schools is recommendatory pursuant to COM No. 30 and RA 9173.

B. ADMINISTRATION AND FACULTY• Fulltime Dean and Faculty

Qualification of Dean• Perform vital role and function in nursing

school, required to work fulltime because she is in charge to administer and manage the nursing school, faculty and staff, the nursing student and degree program.

• Filipino Citizen• Currently registered nurse in the

Philippines• Holder of Master’s Degree in Nursing• 5 years of competent teaching and

supervisory experience in college or institute of nursing.

• Member of good standing (ADPCN) and accredited national nursing organization (PNA)

Qualification and Rank of Faculty Members

• A Filipino Citizen• Currently RN in the Philippines• Holder of Master’s degree• At least 3 years of Clinical

experience• Member of good standing

accredited national nursing organization.

NURSING REGULATION

NURSING REGULATION• Professional Regulatory Board of Nursing

* created under new nursing law (RA 9173)

* Primary agency responsible for the regulation of the admission, registration and practice of nursing profession in the Philippines.

* Composition of BON

* one Chairperson

* Six Members

* Appointed by the President of

the Philippines

Qualification of Chairperson and Members of BON

• Representative of 3 areas of nursing (education, service and community health nursing)

• Natural born citizen and resident of the Philippines.

• Member of good standing accredited professional organization of nurses.

• Registered nurses and holder of Master’s Degree

• 10 years of continuous practice of the profession prior to appointment

• No conviction of any offense involving sound turpitude.

Powers, Duties and Responsibilities of the BON

• Conduct licensure examination for nurses (R.A. 8981)

• Prepare adopt and issue the syllabi or tables of specification of the subject for examination in consultation with the academe.

• Determine and prepare the questions for the licensure examinations which shall strictly be within the scope of syllabi or table of specification of the subject for examination.

• To score and rate the examination papers with the name and signature of the board members concerned appearing thereon and sublit the result in all subjects duly signed by the members of the board to the commission within 10 days from the last day of examination unless extended by the commission for justifiable cause and subject to the approval of the commission.

• Determine the appropriate passing general average rating in an examination if not provided for in the law regulatory thru profession.

Conduct licensure examination for nurses (R.A. 8981)-Cont

STANDARDS OF NURSING PRACTICE

Negligence

Definition

• It refers to the commission or omission of an act, pursuant to a duty, that a reasonably prudent person in the same or similar circumstances would or would not do, and acting or the non-acting of which is the proximate cause of injury to another person or his property.

Civil Code, Article 19

• One shall act with justice, give every man his due, observe honesty and good faith.

Civil Code, Article 20

• Those who, in the performance of their obligations through negligence cause any injury to another, are liable for damages.

Common Acts of Negligence

• Burns• Objects left inside the patient’s

body• Falls of elderly• Falls of children• Failure to observe and take

appropriate action as needed

Specific Examples• Failure to report observations to

attending physicians• Failure to exercise the degree

of diligence which the circumstances of the particular case demands

• Mistaken identity• Wrong medicine, wrong

concentration, wrong route, wrong dose

Conditions for Res ipsa loquitor

• That the injury was of such nature that it would normally occur unless there was a negligent act on the part of someone

• That the injury was caused by an agency within control of the defendant

• That the plaintiff himself did not engage in any manner that would tend to bring about the injury

Malpractice

Definition• Implies the idea of improper or

unskillful care of a patient by a nurse

• Denotes stepping beyond one’s authority with serious consequences

• Is a term for negligence or carelessness of professional personnel

• Refers to a negligent act committed in the course of professional performance (1962)

MEDICAL ORDERS, DRUGS, and medications.

RA 6675• Only validly registered

medical, dental and veterinary practitioners, whether in private institution, corporation or in the government, are authorized to prescribed drugs.

RA 5921 (PHARMACY ACT)

• All prescriptions must contain the following information:• Name of the prescriber• Office address• professional registration number• Professional tax receipt number• Patient’s/client’s name, age , sex• Date of prescription.

RA 6675

• Requires that the drug be written in their generic names.

• Only when these orders are legal writing and bear the doctor’s signature thus the nurse have the legal right to follow them

• The nurse must not execute an order if she is reasonably certain it will result in harm to the patient.

INTRAVENOUS THERAPY AND LEGAL IMPLICATIONS

• Philippine nursing act of 1991 section 28 • “ in the administration of intravenous

injections, special training shall be required according to protocol established”.

• Basis of nurses legal right to give IV injection.

Board of nursing resolution no. 8 states that any registered nurse without such training and who administers IV injections to patients should be held liable, either criminally or administratively or both.

TELEPHONE ORDERS

• Only in an extreme emergency and when no other resident or intern is available should a nurse receive telephone orders.

• The nurse should read back such order to the physician to make certain the order has been correctly written.

• Such order should be sign by the physician on his next visit within 24 hours.

MEDICAL RECORDS

• Supplies rich material for medical and nursing research

• Serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or condition of the patient and his management.

• “if it was not charted, it was not observed or done”.

CONTINUATION..

• Nurses are expected to record fully, accurately, legibly and promptly their observations from admission to the time of the patient’s discharge.

• Nurses are legally and ethically bound to protect the patient’s chart from unauthorized person.

CHARTING DONE BY STUDENT NURSES

• When a nurse or clinical instructor counter signs the charting of the nursing student, he/she has personal knowledge of information and that such is accurate and authentic.

• Anyone who countersigns without verification commits herself to possible legal risks.

Liabilities of nurses for the work of nursing aides

• Nurses should not delegate their functions to nursing aides since the Philippine nursing act specifies the scope of nursing practice of professional nurses.

• Nurses are enjoined to supervise their subordinates and see to it that they perform only those which they been taught to do and those which they are capable of doing.

• Nursing aids are responsible for their actions.

• Nurses should not delegate their functions to nursing aides.

• Nursing aides perform selected nursing activities under the direct supervision of nurses.

LIABILITY FOR THE WORK OF NURSING STUDENTS

• RA 9173 – nursing students do not perform professional nursing duties.

• Nursing students should be under supervision of their clinical instructors.

• In order that the errors committed by nursing students will be avoided or minimized, the following measures should be taken:• Nursing students should always be

under supervision of their clinical instructors.

• They should be given assignments that are their level of training experience and competency.

• They should be advised to seek guidance if they are performing a procedure for the first time.

• They should be oriented to the policies where they are assigned.

• Their performance should be assessed frequently to determine their strength and weaknesses.

CRIMES

Crime defined

• It is an act committed or omitted in violation of the law. It is composed of two elements: (1) criminal act and (2) evil/criminal intent

Conspiracy to commit a crime

• A conspiracy to commit a crime exists when two or more persons agree to commit a felony and decide to do it.

Criminal Liability

• nurse may incur criminal liability or subject herself to criminal prosecution either by committing a felony or by performing an act which would be an offense against person or property.

• Ignorance of the law is not an excuse for failure to comply therewith.

• Violators of the criminal law cannot escape punishment on the ground of ignorance of the law

Circumstances affecting criminal liability

• Justifying circumstances• Exempting circumstances

- an imbecile or insane person, unless the latter has acted during a lucid interval.

-below 9 years old

-over 9 years of age and under fifteen unless he/she acted with discernment

- causes an injury which is merely an accident without fault or intention or causing it

-acts under the compulsion of an irresistible force

-acts under the impulse of an uncontrollable fear of an equal or greater injury

• Mitigating circumstances

Are those which do not constitute justification or excuse of the offense in question, but which in fairness and mercy, may be considered as extenuating degree of moral culpability.

• Aggravating circumstances

• Are those attending the commission of crime and which increase the criminal liability of the offender or make his guilt or more severe.

• Some of the ff circumstances:• When the offender takes advantages of

his public position.• When the crime is commited in place of

worship• When the act is committed with evident

premeditation or after an unlawful entry.

• Alternative circumstances

-are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending in commission.

Should be taken consideration when the offended party is the spouse, ascendant or descendant, legitimate, natural or adopted or relatives.

Points in order to avoid criminal liability:

1. Be very familiar with the Philippine nursing law.

2. Beware of laws that affecting nursing practice

3. At the start of employment, get a copy of your job description, the agency’s rules, regulations and policies.

4. Upgrade you skills and competence

5. Accept only such responsibility that is within the scope of your employment and your job description.

6. Do not delegate your responsibilities to others.

7. Determine whether your subordinates are competent in the work you are assigning them.

8. Develop good interpersonal relationships with your co-workers, whether they be your supervisors, peers or subordinates.

9. Consult your superior for problems that maybe too big for you to handle.

10. Verify orders that are not clear to you or those that seem to be erroneous.

11. The doctors should be informed about the patients conditions

12. Keep in mind the values and necessity of keeping accurate and adequate records

13. Patients are entitled to an informed consent.

Examples liabilities of Nursing:• Liability for injury to patient• Liability for sponge left in the patient’s abdomen• Liability for a safety pin left in patient’s abdomen• Liability for defective equipment• Liability for death for patient who jump from window

of his room

• Liability for negligence of surgical nurse• Liability for rapture of surgical wound.• Liability for burns for suffered by

patient• Liability for burns from hot water bags• Liability for negligence of nurse

employees• Liability fro death of infant resulting

from injection of digitalis• Liability of nurse performing

administrative work

Conspiracy

• an agreement between two or more persons to break the law at some time in the future.

Principals

• Are those who take a direct part in the execution of the act; who directly force or induce others to commit; or who cooperate in the commission of the offense by another act without which it would not have been accomplished.

Accomplices

• Are those persons who, not being principals, cooperate in the execution in the offense by previous or simultaneous act.

Accessories

• Are those who, having knowledge of the commission of the crime, either as principals or accomplices, take part in the subsequent to its commission by profiting themselves or assisting the offender to profit from the effects of the crime.

Criminal Actions

• Deal with acts or offenses against public welfare.

Misdemeanor

• Is a general name for a criminal offense which does not in law amount to felony.

Felony

• Is a public offense for which a convicted person is liable to be sentenced to death or to be imprisoned in a penitentiary or prison.

• Is committed with deceit and fault.

Criminal negligence

• Reckless imprudence – when a person does an act or fails to do it voluntarily but without malice, from which material damage results immediately.

• Simple imprudence means that the person or nurse did not use precaution and damage was not immediate or the impending danger was not evident or manifest.

Criminal intent

• Is the state of mind of a person at the time the criminal act is committed.

• Two elements of deliberate intent: freedom and intelligence

Lawsuits • Actions brought to the court or tribunal.

• Any action, complaint, charge, case or legal proceeding brought before the court of law, tribunal or quasi-judicial body, in which the party commencing the case seeks a legal remedy.

• It is initiated by any person who is called the plaintiff in civil action or the complainant in other lawsuits, against another who is called the defendant in civil actions or the respondent in administrative case or the accused in criminal case.

Lawsuits (cont)

• Three (3) basic lawsuits are civil, criminal and administrative.

• The parties in a lawsuit:a. Civil actions, the plaintiff against the defendant.b. Criminal Actions , the people against the accused.c. Administrative cases, the complainant against respondent.

Liability

• An obligation or duty which is owed by one person to another to refrain from some course or conduct injurious to the latter or to perform some act or to do something for the benefit of the latter and for breach of which the law gives the remedy to the latter as damages, restitution, specific performance, and / or injunction.

Liability (cont)• Simply the legal responsibility for acts or failure to act

according to standards, protocols or policies of the hospital, resulting in another person’s injury or death.

• It means legal accountability or obligation to pay money, do or refrain to do something, and / or serve penalty as adjudged by the court or administrative body.

Legal Doctrine

• A framework, set of rules, procedural steps, or test, often established through precedent in the common law through which judgments can be determined in a given legal case or lawsuit.

• Generally accepted principle of law which is being used or applied in the resolution of cases, be it administrative, civil or criminal.

Kinds of Civil Liability• Actual or compensatory damages

pertain to losses that are actually sustained by the plaintiff. These are “such compensation or damages for an injury and will put the injured party in the position in which he was before he was injured.

• Moral Damages are awarded by reason of physical suffering, mental anguish, fright, serious anxiety, besmirched, reputation, wounded feelings, moral shock, social humiliation and similar injury.

• Nominal damages are awarded for vindication or recognition of a legal right.

• Temperate or moderate damages are those damages which are more than nominal but less than compensatory damages which may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.

• Liquidated damages are those damages agreed upon by the parties to a contract, to be paid in case of breach thereof.

• Exemplary or corrective damages are those imposed by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

Lawsuits in Nursing Practice

• Felony - RPC• Offense - special law • Infraction - ordinance

Criminal Negligence, mala in se and mala prohibita• Criminal Negligence – committed by

means of faulty (culpa); deceit (dolo) (mala in se) and those which are punished by special law (mala prohibita).

Kinds of criminal negligence

• Reckless imprudence – doing or failing to do an act resulting to injuries or death due to an inexcusable lack of precaution.

• Simple imprudence - mere lack of precaution in a situation where threatened harm is not immediate or the impending danger is not openly visible or manifest.

• Culpa Contractual (breach of Contract) – when a nurse is contractually obligated to perform a particular health service or intervention to a patient and he/she causes death or injuries to the latter.

• Culpa aquiliana a tortous liability which arises from the breach of a professional duty to any person fixed by the laws and such breach constitutes violation of a private legal right, not created by any contract.

Nurses And Crimes

• Parricide• Murder• Homicide• Infanticide• Abortion• Illegal Detention• Simulation of Births

End of Life Decisions and the Law

• Do Not Resuscitate Orders• Advance Directives• Contracts/ wills/ testaments• Durable Power of Attorney• Incident Report

Our duty is to be useful, not according to our

desires but according to our powers.

ONWARD, CHRISTIAN NURSES!!!