Nurse Practice Acts

Licensed professional nurses are accountable to the public for their nursing judgment and the consequences of that judgment. Nurse Practice Acts (NPAs) are statutory laws created by legislative bodies that oversee the practice of nursing. State Boards of Nursing (known as Boards of Nurse Examiners in some jurisdictions) are the administrative bodies charged with enforcing the NPA of a state through rules, regulations, hearings, and investigations. NPAs were originated to do the following:

Every state has its own NPA that determines qualifications for entry into professional nursing, defines educational responsibilities, and regulates advanced practice nurses. Each licensed practitioner should be aware of the scope of practice delineated in the NPA of the state in which he or she practices. While there is variability in the language and definitions contained in each state’s NPA, some major themes have been identified, including care in the context of nursing, definition of the nursing process, supervision or delegation as well as executing the medical treatment plan and health maintenance and prevention.¹

Some NPAs specify situations where the basic practice of nursing might overlap into either advanced nursing practice or the practice of medicine, as in the case of some nurse-driven protocols that would involve either ordering diagnostic procedures or administering medications. These protocols may be referred to as “standardized procedures” and must conform to regulations as outlined in the specific NPA. Many involve a collaboration between the medical staff and include advanced training, ongoing documentation of education and competency. It is crucial for the emergency nurse to understand the difference between nursing policies and these advanced protocols or procedures.^2,3

Unlicensed Assistive Personnel

Supervision of unlicensed personnel is a growing responsibility of the licensed practitioner. Many hospitals use unlicensed assistive personnel (UAP); depending on the state this may include emergency medical technicians, paramedics, or certified nursing assistants. Delegation of nursing functions to these individuals can create legal problems for the licensed practitioner. A registered nurse may not delegate any task to UAPs that rightfully only a licensed practitioner should perform. These activities include tasks that involve professional clinical judgment related to the diagnosis and treatment of patients. This may include such nursing functions as assessment, planning, and evaluation, depending on the specific state NPA.⁴

Confidentiality and HIPAA Regulations

Confidentiality is essential to the relationship between emergency nurses and their patients, and patients have an expectation of privacy regarding personal health information. In a world of computer technology, opportunities for violation of patient privacy related to easy access to medical data are increased. Federal and state laws exist to protect medical information. Emergency nurses have a legal and ethical duty to ensure patient privacy.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), enacted in part to simplify administration of health insurance, provides for protection of personal health information by directing ways it may be stored, shared, or released.^5,6 Under the regulations of the act, individuals are entitled to do the following:

Some states have enacted privacy legislation that might be stricter than that of the federal HIPAA laws. It is important to understand state laws as well as hospital policies regarding the release of information.

Patient confidentiality is everyone’s concern. Hospitals are required to devise policies and procedures that address privacy issues, and all health care providers must be diligent in their efforts to protect personal medical data. Vigilance and sensitivity to patient privacy concerns are required whenever discussing or disclosing personal health information. Practitioners should limit conversations about patients to those persons who need to know and should discuss patient issues only in suitable areas. Severe civil and criminal penalties exist for wrongful disclosure of individually identifiable health information.

Privacy statutes do not limit authorized public health or required state regulatory reporting. In fact, federal and state laws exist that mandate reporting of certain illnesses, injuries, and suspicions, including the duty to warn third parties if a patient has made threats toward a specific individual.

EMTALA and Interfacility Transfers

All personnel working in the emergency department must have a working knowledge of the Emergency Medical Treatment and Active Labor Act (EMTALA). It is also important to understand state and local regulations that might apply to medical screening examinations as well as to interfacility transfers. The law applies to all institutions with Medicare provider agreements in effect. The act defines an emergency medical condition as “any condition manifesting itself by acute symptoms of sufficient severity (including pain) that if medical treatment is not rendered, the individual or the unborn child would be subject to serious injury or death.”⁷ The act provides that a hospital with an emergency department must do the following⁷:

Under the stipulations of EMTALA, stabilizing treatment must be provided for medical conditions (including active labor) that within reasonable medical certainty likely would deteriorate if not treated. Unstable patients transferred to other hospitals must have physician certification that the benefits of transfer outweigh the risk associated with the move.

Although triage is an important tool for establishing treatment priorities, it is not equivalent to a medical screening examination as defined by EMTALA. Hospital bylaws must delineate clearly which providers can perform the medical screening examination.

Consent

Consent is the patient’s acknowledgment and acceptance of medical treatment. Treatment of a patient without consent can constitute battery, which is defined as intentional, unwanted touching. Consent may be implied or express. In health care, express consent often goes beyond a simple “yes” or “no,” through a process known as informed consent. Table 1-1 summarizes types of consent.

TABLE 1-1 TYPES OF CONSENT

Express consent, written or oral, is the patient’s agreement to treatment. By law, consent is implied when a patient is unable or incapable of giving or denying permission for treatment, as in cases of unconsciousness, where immediate decisions must be made to prevent loss of life or limb. Additionally, emergent procedures may be performed on minors, without parental consent, to protect life or limb when a legal guardian is unavailable. In these cases the law assumes that a reasonable person, in the same or similar circumstances, would provide consent. Therefore the law implies consent on the patient’s behalf.

Most health care laws concerning consent involve informed consent. Informed consent requires the capacity to consent. Sometimes the terms “capacity” and “competency” are used interchangeably; however, there is a difference. Capacity is the individual’s ability to make informed decisions. Competency is a legal term and is usually only determined through the court system.⁹ The age at which an individual may provide informed consent (or refusal) varies among states and according to the patient’s condition. Importantly, the age of consent may differ from the age of majority. Many state regulations define situations where a minor may legally give consent, such as in the case of emancipated minors, active duty military, and married or pregnant minors. Informed consent occurs after full disclosure to the patient of the medical procedure. Essential components of informed consent include⁸:

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