Law means that which is laid down or fixed. There are two types of law: public and civil. Public law deals with an individual’s relationship to the state and is embodied in constitutional, administrative, and criminal law. A constitution is a set of basic laws defining and limiting powers of a government. Legislative bodies enact statutory laws, such as state nurse practice acts. Administrative law includes rules and regulations developed by governmental administrative agencies, such as state boards of nursing. Criminal law deals with acts or offenses against the welfare or safety of the public. Those acts or offenses are classified as either a felony (serious crime, generally punishable by incarceration for more than one year) or a misdemeanor (less serious offense, generally punishable by incarceration for less than one year).

Civil law deals with crimes against a person or persons in such legal matters as contracts, torts, and protective/reporting law. A legal contract has three elements: a promise between two or more individuals outlining what each person must do or not do, mutual understanding of the terms and obligations imposed upon each individual, and compensation for the lawful actions performed. Contract law is the enforcement of agreements among private individuals, either formal (written or expressed) or implied. A tort is a civil wrong committed on a person or property stemming from a direct invasion of some legal right of the person, the infraction of some public duty, or the violation of some private obligation by which damages accrue to the person. Tort liability can be unintentional (negligence and malpractice) or intentional (assault and battery, false imprisonment, invasion of privacy, defamation, and fraud). Protective/reporting law includes requirements for health professionals to report child abuse, age of consent statutes, privileged communication statutes, living will legislation, and so on.

Judicial law involves the court’s interpretation of a state’s laws. Once a court interprets a law in a certain way, other courts typically follow that interpretation. The opinions of lower courts adhere to the opinions of higher courts. All courts in the United States follow the rules established by the United States Supreme Court.

Nurses are liable for the care they provide. Liability is an obligation one has incurred or might incur through any act or failure to act. Malpractice is the behavior of a professional person’s wrongful conduct, improper discharge of professional duties, or failure to meet the standards of acceptable care that results in harm to another person. Negligence (breach of duty) is the failure of an individual to provide care that a reasonable person would ordinarily use in a similar circumstance. Negligence resulting in injury is malpractice. Liability is contingent upon whether there are (1) a duty to act (an obligation created either by law or contract or by any voluntary action), (2) a breach of duty (failure to act in accord with the current standard of care), (3) injury (physical, financial, or emotional harm), and (4) causation (a cause-and-effect relationship). Expert witnesses are used to describe establish normal standards of care.

Clients have the right to give informed consent for their treatment. Consent is a voluntary act by which a person agrees to allow someone else to do something. Informed consent means that the client understands the reason for a proposed intervention and its benefits and risks, and agrees to the treatment by signing a consent form. Parental or guardian consent should be obtained before treatment is initiated on a minor, except in emergencies, in situations in which the consent of the minor is sufficient, and in situations in which there is a court order. The nurse should be cautious when obtaining informed consent from elderly people to assure they have time to process information and understand the care they will receive.

Nurses need to be aware of other behaviors for which they are legally accountable. For example, they should take care that clients do not interpret their touching actions as assault and battery. Assault is a stated intent to touch a person in an offensive, insulting, or physically intimidating manner. Battery is the touching of another person without the person’s consent. False imprisonment occurs when clients are wrongfully made to believe they cannot leave a place. Restraints should be used only if necessary to protect the client or others from harm and only with a physician’s order. Otherwise, restraints might be construed as battery or false imprisonment.

Nurses are also accountable to protect a client’s right to privacy and to protect confidentiality of client information. The right to privacy means that people have the right to be left alone (to be free from intrusion), to determine bodily integrity (to consent to or refuse treatment), and to control how personal information is shared. Nurses are prohibited from revealing confidential information, going through a client’s belongings, or photographing a client without permission. Nurses can be charged with defamation if they communicate information to a third party that causes damage to someone else’s reputation. Defamation can be either in writing (libel) or verbal (slander). Nurses can be accused of fraud when they deliberately practice deception, for example when charting, to produce unlawful gain. Nurses are also responsible for proper use of controlled substances, such as narcotics, depressants, stimulants, and hallucinogens, and for reporting colleagues who are impaired to nursing administration in a confidential manner.

Nurses are legally responsible for client safety, particularly for failure to monitor client status, medication errors, falls, and the use of restraints. Staffing often affects these safety issues. Health care providers must provide a sufficient number of professional staff members to meet client needs. Nurses who are reassigned to unfamiliar areas should prioritize the care that is needed, receive orientation to those areas, and document any information pertinent to safety issues. Institutions have responded to a shortage of nurses by requiring mandatory overtime, a safety issue addressed by many state legislatures. Nurses are responsible for their errors, even when working mandatory overtime. The American Nurses Association (ANA) Code of Ethics suggests that nurses who feel that safety is compromised in the clinical area should express their concerns to the appropriate nursing manager.

Several nursing roles are related to legal responsibility: provider of service; expert witness; forensic specialist; and reporter of abuse, rape, and sexual assault. Nursing students are responsible for acting as reasonably prudent persons when performing nursing duties, equivalent with their education and experience.

Nurses can protect themselves from litigation by following institutional policies, procedures, and protocols; filing incident reports; and educating clients on their care. Nurses should purchase their own liability insurance and participate in risk management programs at their place of work. Risk management is a method of identifying, evaluating, and decreasing an agency’s risk of financial loss. The American Nurses Association supports whistle-blowing by nurses faced with a choice between keeping quiet to keep their jobs or speaking out to improve client care. Whistle-blowing is a warning issued by a member or former member of an organization to the public about a serious wrongdoing or danger created or concealed within the organization. Whistle-blowing has broad ramifications and should be used only as a last resort.

Nurses who practice across state lines and in multiple states (interstate nursing practice) have presented a challenge to the profession. Regulation of nursing practice is the responsibility of the states. Nurses who have a license in one state can obtain a reciprocal license from another state. Obtaining multiple reciprocal licenses requires time and effort. The National Council of State Boards of Nursing has proposed the Nurse Licensure Compact, an agreement between party states for nurses to practice in remote states, to address this challenge.

Legislation affecting nursing practice includes advance directives, abortion law and court decisions, the Americans with Disabilities Act, Good Samaritan Acts, the National Practitioner Data Bank, and the Occupational Safety and Health Act. Advance directives consist of the living will, designed to provide direction regarding medical care in the event the person becomes unable to make decisions personally; the durable power of attorney (health care proxy), the designation of a person to exercise decision-making authority for health care; and the advance care medical directive, a document in which an individual provides instructions for care he or she wants or does not want in a number of scenarios.

The Americans with Disabilities Act prohibits discrimination on the basis of disability in employment, public services, and public accommodations. Good Samaritan Acts are laws that provide protection to health care providers by ensuring immunity from civil liability when assistance is provided at the scene of an emergency when the caregiver does not intentionally or recklessly cause client injury. The National Practitioner Data Bank is a clearinghouse for information on unsafe practitioners. The purpose of the Occupational Safety and Health Act is to ensure safe work environments and decrease work-related injuries.

Nurses face several legal issues related to death. For example, health professionals administer cardiopulmonary resuscitation, unless do not resuscitate (DNR) orders have been written by the physician. Nurses are often asked to witness a client’s will but should consult with the physician and nurse supervisor first. One of society’s most difficult issues is euthanasia, an intentional action or lack of action causing the merciful death of someone suffering from a terminal illness or incurable condition. The pronouncement of death generally requires evidence of irreversible cessation of all functioning of the brain. Nurses should be mindful of the possible need for organ donations or an autopsy when a client dies.