Legal & Ethical Issues in Nursing, 6th edition
BY Ginny Wacker Guido
Email: Richard@qwconsultancy.com
Chapter 1 Legal Concepts and the Judicial Process Objectives 1.
Define the term law and describe four sources from which law is derived, including constitutional, statutory, administrative, and judicial (decisional) law.
2.
Compare and contrast the doctrines of precedent (stare decisis) and res judicata.
3.
Define and give an application of both jurisdiction and landmark decision.
4.
List four ways in which laws can be changed.
5.
Define classifications of law, including common, civil, criminal, public, and private law.
6.
Distinguish between substantive and procedural law, and state why each is important to professional nursing practice.
7.
Discuss due process and equal protection law.
8.
Differentiate between questions of law and questions of fact in trial settings, and give an example of both.
9.
List two types of jurisdictions, giving the definition and an example of each.
10.
Explain the functions of the trial courts, appellate courts, and supreme courts at both the state and federal levels.
11.
Describe statutes of limitation, their significance, and their purpose.
Introduction: The disciplines of law and professional nursing have been officially integrated since the first mandatory nurse practice act was passed by the New York legislature in 1938. The nursing profession has continuously relied on statutory law for its right to exist on a licensure basis and on court decisions for interpretation of these statutes. Professional practitioners must know, understand, and apply legal decisions and doctrines in their everyday nursing practice. This chapter presents an overview of the legal system, sources and types of laws, and the role of the American court system. I.
Definition of Law A. The word law is from Anglo-Saxon term lagu: fixed or laid down B. A set of rules or principles governing society and subdivided into: constitutional, judicial, and legislative law 1. Dynamic and fluid, reflecting the ever-changing needs and expectations of society, created by people and existing to regulate all persons 2. All three branches of government have the authority and right to create laws
PowerPoint Lecture Slides •
II.
Definition of Law
Sources of Law A. Constitutional law 1. System of fundamental laws or principles for the governance of a nation, society, corporation, or other aggregate of individuals; basis of a governing system
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2. Highest form of statutory law: statutory laws govern existing conditions, constitutional law protects the law from frequent fluctuations in public opinion, therefore governing for future as well as present 3. First three articles enumerate the powers of the three branches of the federal government: Congress, executive branch, judicial branch 4. U.S. Constitution places limits on the federal government through the Bill of Rights (the first 10 amendments of the Constitution) 5. Federal constitutional law is the supreme law of the land and prevails over state and local law 6. The federal government derives positive grants of power from the U.S. Constitution 7. State governments possess plenary powers subject only to limitations by their individual state constitutions, the U.S Constitution, and limitations necessary for operation of the federal system
B. Statutory laws 1. Made by the legislative branch of government (Congress, state legislative bodies, city councils); designed to declare, command, or prohibit, and referred to as statutes 2. Compiled into codes, collections of statutes, or city ordinances 3. Police power is a term often used to describe states’ inherent power to legislate and govern to maintain public order, health, safety, and welfare 4. Statutory laws affecting nursing: nursing licensure laws (also known as nurse practice acts or nursing practice acts), statutes of limitations, protective and reporting laws, natural death acts, and informed consent laws
C. Administrative laws 1. Enacted by administrative agencies: specific governing bodies composed of persons with qualifications and experience and charged by the legislature with implementing particular legislation (e.g., state boards of nursing are predominantly composed of registered nurses) 2. Administrative agencies create rules and regulations that enforce statutory laws, and conduct investigations and hearings to enforce the law 3. Procedural acts: may also govern administrative bodies delineating how the agency promulgates rules and regulations; provide for comments from the public before the rules and regulations are enforceable 4. Agency has authority to determine how rules and regulations are enforced; decisions may be appealed through the state court system 5. Courts then review agencies’ actions:
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a) Was the delegation of power to the specific administrative agency constitutional and proper? b) Did the specific administrative agency follow proper procedures in enforcing the statutory law? c) Is there a substantial basis for the decision? d) Did the administrative agency act in a nondiscriminatory and nonarbitrary manner? e) Was the issue under review included in the delegation to the agency?
D. Attorney general’s opinions 1. When national or state attorney generals are requested to give an interpretation of the law; binding until a subsequent statute, regulation, or court order amends the attorney general’s opinion; type of administrative law 2. Attorney general’s opinion provides guidelines based on both statutory and common law principles when statutes are written in vague terms 3. A board of nursing may request a state attorney general’s opinion to ensure compliance of the nurse practice act 4. Opinions may be formal or informal; the greater the liability risk, the more likely it is a formal opinion
E. Judicial laws 1. Made by the courts, interpret legal issues that are in dispute 2. Judicial law may be made by a single justice—with or without a jury—or by a panel of justices 3. In deciding cases the court interprets statutes and regulations or decides which of two conflicting statutes or regulations apply to a given fact situation 4. Courts decide whether the statute violates a constitution (state or federal) 5. Two constitutional doctrines guide decision-making role of courts: doctrine of precedent (stare decisis) and res judicata a) Stare decisis means “to let the decision stand,” applied in cases with similar fact patterns previously decided by court system, and court arrives at similar decision in current case b) Previous case must be within the jurisdiction of the court hearing current case c) Court may depart from previous decision and set a landmark decision when societal needs have changed, technology has advanced, or adhering to precedent will further harm already injured person .