5.6 Other Legal Issues
In addition to being aware of the legal and regulatory frameworks in which one practices nursing, it is also important for nurses to understand the legal concepts of informed consent and advance directives.
Informed Consent
Informed consent is the fundamental right of a client to accept or reject health care. Nurses have a legal responsibility to provide verbal and/or written information and obtain verbal or written consent for performing nursing care such as bathing, medication administration, and urinary or intravenous catheter insertion. While physicians have the responsibility to provide information and obtain informed consent related to medical procedures, nurses are typically required to verify the presence of a valid, signed informed consent before the procedure is performed. Additionally, if nurses do not believe the client has adequate understanding of a procedure, its risks, benefits, or alternatives to treatment, they should request the provider return to clarify unclear information with the client. Nurses must remain within their scope of practice related to informed consent beyond nursing acts.
Two legal concepts related to informed consent are competence and capacity. Competence is a legal term defined as the ability of an individual to participate in legal proceedings. A judge decides if an individual is “competent” or “incompetent.” In contrast, capacity is “a functional determination that an individual is or is not capable of making a medical decision within a given situation.”[1] It is outside the scope of practice for nurses to formally assess capacity, but nurses may initiate the evaluation of client capacity and contribute assessment information. States typically require two health care providers to identify an individual as “incapacitated” and unable to make their own health care decisions. Capacity may be a temporary or permanent state.
The following box outlines situations where the nurse may question a client’s decision-making capacity.
| Triggers for Questioning Capacity and Decision-Making[2] |
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If an individual has an advance directive in place, their designated power of attorney for health care may step in and make medical decisions when the client is deemed incapacitated. In the absence of advance directives, the legal system may take over and appoint a guardian to make medical decisions for an individual. The guardian is often a family member or friend but may be completely unrelated to the incapacitated individual. Nurses are instrumental in encouraging a client to complete an advance directive while they have capacity to do so.
Advance Directives
The Patient Self-Determination Act (PSDA) is a federal law passed by Congress in 1990 following highly publicized cases involving the withdrawal of life-supporting care for incompetent individuals. (Read more about the Karen Quinlan, Nancy Cruzan, and Terri Shaivo cases in the boxes at the end of this section.) The PSDA requires health care i