‘Nursing is to put the patient in the best condition for nature to act upon him’
American Nurses’ Association Social Policy Statement (National Certification Body)
Nursing is
Protection, promotion and optimization of health & abilities, prevention of illness and injury,
Alleviation of suffering through the diagnosis & treatment of human response, and
Advocacy in the care of individuals, families, communities & populations
Registered Nursing Practice (RCW 18.79.040(1)) (Washington State Licensure Body)
Nursing is
the performance of acts requiring substantial specialized knowledge, judgment and skill based on the principles of the biological, behavioral, and sociological sciences in either….
Registered Nursing Practice (RCW 18.79.040(1) (con’t)
The observation, assessment, diagnosis, care or counsel, and health teaching of the ill, injured, or infirm, or in the maintenance of health or prevention of illness of others;
The performance of additional acts…proper…to be performed by a registered nurse…;
The administration, supervision, delegation and evaluation of nursing practice.
Advanced Registered Nursing Practice RCW 18.79.050
"Advanced registered nursing practice" means the performance of the acts of a registered nurse and the performance of an expanded role in providing health care services as recognized by the medical and nursing professions, the scope of which is defined by rule by the commission...Perform specialized and advanced levels of nursing … Upon approval by the commission, an advanced registered nurse practitioner may prescribe legend drugs and controlled substances contained in Schedule V of the Uniform Controlled Substances Act, chapter 69.50 RCW, and Schedules II through IV subject to RCW 18.79.240(1) (r) or (s).
‘Advanced Nursing Practice’ WAC 246-840-299
The delivery of expert nursing care by registered nurses who have acquired experience and formal education in specialized areas. A nurse with this preparation may qualify as ARNP as delineated in WAC 2460840-300
Determine Differences in Scopes of Practice Standards of Nursing Conduct or Practice WAC 246-840-700
Each individual upon entering the practice of nursing, assumes a measure of responsibility and public trust and the corresponding obligation to adhere to the professional and ethical standards of nursing practice.
The nurse shall be responsible and accountable for the quality of nursing care given to clients.
This responsibility cannot be avoided by accepting the order or directions of another person. Refer to the map!
Uniform Disciplinary Act RCW 18.130
Failure to adhere to standards
Failing to assess, evaluate or institute action
Willful or repeated failure to report or document
Willful or repeated failure to make entries
Willfully causing or contributing to physical or emotional abuse
Sexual misconduct
Failure to protect from unsafe practices or conditions, abusive acts, and neglect
Failure to supervise delegated persons
Violating confidentiality
Willfully abandoning clients
Violations of standards of practice
The nurse shall have knowledge of the statutes and rules governing nursing practice and shall function within the legal scope of nursing practice
Nursing Law in a Nutshell!
Nursing is defined by the ANA & state approved certifying bodies
States define nursing in statute & regulation based on nursing’s definition, and, geographically agreed upon scope of practice
In so doing, the legal obligation of ‘duty’ is established
As determined by what a reasonably prudent RN or APN would do under similar circumstances, a breach of the statutory duty may occur
If the breach of duty is the proximate and legal cause of harm, damages may be awarded
Legal standard of evidence may be: preponderance of evidence
clear and convincing evidence
beyond a reasonable doubt
So you think you might sue or be sued?
Lexis-Nexis search – nursing w/1 student or faculty (34 appellate cases in 10 years)
Chapter 18.79 RCW Nursing Care – Accrediting Bodies
Nursing Commission
Nursing Programs / Faculty Quals
American Colleges of Nursing Education
CCNE
Shared Governance
Primary responsibility for the teaching & research missions of the university rest with the academic faculty
Academic planning (faculty/program development and evaluation)
Curriculum development (quality assurance / professional accountability)
Institutional and college governance (mission, values, policies and procedures-manuals, outcomes, benchmarks)
Peer review for tenure and promotion
Faculty has a voice in governance through the College Faculty Organization and Faculty Senate
Matters of public concern test
Official duties test
Washington State University
University
Faculty Manual
Code of Professional Ethics
Duties and Availability
Educational policies and procedures manual
Business policies and procedures manual
College of Nursing Faculty Manual
Appointment, Promotion and Tenure
Faculty and student codes of conduct
Academic Freedom
Statement of Principles on Academic Freedom (1940, 1970 rev)
Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
Academic Freedom
Legal origins
1800s: professions forming
1915 AAUP formed
1940 Principles disseminated
Adler v. Board of Education in 1952
Academic custom and usage
Faculty : Student legal relationship
Faculty : Student Legal Relationship
The rights of students and faculty!
Historical Denial of Student Rights
Beneficiary theory
Students are the beneficiaries of faculty knowledge and should not question what they are being told
Privilege theory
Students are privileged to be in academic setting and should not be able to legally challenge faculty actions re: student performance
In loco parentis doctrine
In the academic setting, faculty act ‘as parents’ in disciplining students and therefore, their actions should not be challenged
Nancy Nervous admitted with advanced academic standing; completed her J1 classes at another university; withdrew in good standing due to ‘illness’
At end of J2 semester, informed by dean in writing that she was being placed on academic probation due to ‘poor performance’
Poor relationships with others
Erratic attendance during clinical
Poor personal hygiene
Needed to improve but with UAP’s approval, could advance to S1; continued on probation through S2.
At end of S2, faculty ‘still dissatisfied’, failed practicum and recommended Nancy ‘sit out a year’ and retake S2 coursework
Nancy sues and alleges!
1983 claim – violation of civil rights
Property interest in education
Liberty interest in reputation
No due process
Moment for reflection!
What should the evidence reflect?
What will you do?
What will the court decide?
University of Missouri v. Horowitz (1978) Supremes held:
Faculty student relationship is based on expert evaluation by faculty about the student’s progress and is cumulative in nature (progression through program)
So long as action not arbitrary or capricious, courts are ‘ill-equipped’ to evaluate academic performance and will not intrude into academic decision making
University’s decision was academic and not disciplinary; therefore, notice but no hearing is required
University of Missouri v. Horowitz (1978) Supremes guidance:
Notice is required regarding
Academic performance
What must be improved upon
Under what time frames
Consequences and impact on progression if unmet
No hearing required but can be afforded
Dismissal must not be disseminated publicly
So long as not arbitrary or capricious, courts will support faculty progression decisions
The rest of the story!
Stella Sneaky allegedly cheated on an exam by obtaining answers to two of the questions from a faculty member teaching the course and changing her paper prior to turning it in.
Five days later, she was informed by the dean that she had been accused of cheating and could either take an F for the course or appear before the university student court.
She appeared before the court; she was found not guilty and the chancellor’s office was notified per procedure of this determination.
Legal counsel for the university filed an objection
Chancellor requested assistant chancellor to review both determinations
Chancellor subsequently found student guilty and student received an F
Stella was unable to register for classes the next semester .
Stella sues and alleges!
1983 claim for violation of constitutional and civil rights
Violation of due procedural due process rights
What now????
Jones v. Board of Governors of University of North Carolina
Courts will allow for ‘great deference’ so long as ‘rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school does not occur’
In this instance, student would suffer ‘irreparable injury’ as compared to university’s potential harm with reinstatement under appeal
Arguably irregular proceedings occurred; ‘stark divergence from procedures’…procedural due process violated.
Your next case!
Marcia Murphy, who had a serious hearing disability, sought to be trained as a registered nurse and enrolled at a college.
Marcia was denied admission to the nursing program because the college determined that she could not safely participate in a normal clinical training program due to her disability, and that ultimately it would be unsafe for her to practice as a nurse.
The college also determined that any modification in the training program to enable the individual to safely participate would prevent her from realizing the benefits of the program.
Marcia sues and alleges!
The college, which received federal funds, violated § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.S. § 794.
The college violated her 14th Amendment rights to due process and equal protection under the law
Southeast Community College v. Davis (1979) Supremes held:
Although Rehab Act prohibits discrimination when school receives federal funding if student is ‘otherwise qualified’ and can be ‘reasonably accommodated’, student here was not ‘otherwise qualified’ (essential functions) and required accommodation would be too expensive, especially given the clinical component of the program.
504 imposes no requirement upon an educational institution to lower or effect substantial modifications of its standards in order to accommodate handicapped persons; the institution's unwillingness to make major adjustments in its nursing program to accommodate the individual did not constitute unlawful discrimination.
Americans with Disabilities Act Section 504 of the Rehabilitation Act Americans with Disabilities Act Amendments Act 2008
A student with a disability is a person who has, or is regarded as having:
First, the student must demonstrate a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the … body systems.
Second, the student must establish that this impairment substantially limits the student’s capacity to provide self-care, or, to perform manual tasks such as the ability to walk, see, hear, speak, breathe, learn or work.
Students with Disabilities
Although a student may meet this definition the law does not assume that a student with a disability is able to meet the requirements of an educational program
The law requires only that an ‘otherwise qualified individual’ not be excluded because of the disability.
To determine whether a student is ‘otherwise qualified’, faculty must clearly define the essential competencies of nursing which include: abilities required to observe and communicate, physical capacity and motor skills, intellectual capacity and cognitive skills, behavioral, social, and professional attributes, and decision-making skills.
The essential functions provide the basis for admission and progression decisions. Must be clearly stated and accessible to students.
Nursing students today
Currently, law clearly protects students under the Rehab Act, the ADA, and the ADAAA, so long as the student has a physical or mental impairment that substantially limits a life activity and the student can perform the essential functions required of a nurse with or without reasonable accommodation.
An accommodation is an adjustment or modification to an activity, course, program, service, or facility that enables a qualified student with a disability to have an equal opportunity to demonstrate the capacity to successfully complete the educational program in which they are enrolled
Faculty Strategies for Success!
Prospective students are not required to disclose their disability and need for accommodation prior to admission but they need to do so immediately upon admission if they desire an accommodation.
Notice of this requirement should be included in admission letters sent to all students with directions for accessing information regarding the process required by the university and the college to provide timely determination of the disability and subsequent accommodations to facilitate the student’s successful completion of the program.
A statement for students requiring accommodations while completing required coursework should be included in each course syllabus.
Faculty Strategies for Success!
Academic adjustments may include priority registration, a reduced credit load, substitution of one course for another and extended time for testing.
Following admission to the nursing program and approval of a student’s request for an accommodation, the student must voluntarily inform the faculty of record for each class in which they are enrolling of their need for an accommodation.
Strategies are typically integrated into academic admission and progression procedures, theoretical course content delivery, or clinical placement assignments. They include note takers, interpreters, videotext displays, Braille calculators, assistive listening devices, telephone handset amplifiers, institutional computers with screen reading, voice recognition and other hardware or software.
Faculty should know
The college is not required to fundamentally alter the nature of the nursing program or incur undue administrative or financial burdens.
A nursing program is not legally required to substantially modify essential requirements such as excusing students from core classes required of all students.
Extended time may be given a student to complete a test; however, faculty are not required to change the content of the test to accommodate the student’s needs. Testing must measure the student’s knowledge rather than the extent of the student’s disability.
Assistive devices must effectively meet the needs of the student; however, colleges are not obligated to provide the most sophisticated aid available.
Clinical faculty should know
a nursing program is not required to provide a personal attendant for clinical supervision, tutoring or typing
a student with a disability may not require a program to provide individually prescribed devices or services of a personal nature
although the student is not required to discuss the disability and adaptations prior to the clinical rotation, it may be prudent to meet with faculty and, when appropriate, with agency staff in advance of the placement.
plans for clinical assignment and accommodation should be made jointly, considering both the student and agency needs
Best practice - carry telephones with text messaging capabilities to provide immediate communication. Text messaging allows the student with a hearing disability, as well as faculty and agency staff, to feel more at ease by facilitating immediate access to clinical faculty
Another case!
Ellen Energetic, a 51 year old former lab tech and president of the hospital’s volunteer organization, was admitted to a pre-licensure nursing program
J1 and J2 went well; however, there seemed to be a clash between her alleged attitude of ‘thinking she knows more than she does’ and her instructor’s alleged ‘resenting (her) from the beginning because of her knowledge and health care experience.’
During her S1 rotation, Ellen contaminated the newborn nursery; several weeks later, she was allowed to withdraw rather than receive an F because ‘she didn’t ‘maintain cleanliness.’ She was given an opportunity to retake the course; she successfully passed
During S2, she failed to maintain sterile procedure during a dressing change and received an F. The faculty member refused Ellen’s appeal to convert this to a W
After the UAP committee could not unanimously agree re Ellen, the dean terminated her enrollment from the program
Civil rights act (1871) – ‘personal animus and ill will’
Breach of contract
Unfair grading
Inaccurate anecdotal faculty notes
What will you do!
Clements v. County of Nassau
Dean’s decision was academic and not disciplinary in nature; ample notice over time was given – no due process violation
Court’s will not overturn academic decisions unless there is a ‘clear departure from accepted academic norms so as to demonstrate that the person or committee responsible did not actually exercise professional judgment’
College grievance process was adequate
Academic standards were ‘similarly situated’ for all students – no equal protection violation
Faculty notes were not used for grading and not disseminated to public – no liberty violation
Southwell v. U of Incarnate Word
‘failure to pass course based on the faculty member’s daily assessments of student performance and were therefore entitled to be relied upon when deciding that the student would not pass the course and would be dropped from the program’
Courts continue to support faculty rights to make judgments and assign grades for academic progression and termination from program
BUT – Contract Law Applies!
Offer – consideration – acceptance
Verbal v. written
Modification of offer – consideration - acceptance
Your next case!
Susan Senior who had a 3.5 GPA was absent for several days to care for a terminally ill friend. The course syllabus and the student manual indicated that clinical absences would result in failure of the course. She was verbally assured that she would receive an ‘I’ rather than an ‘F’ for the course; alas, her instructor entered an F on her grade report.
Susan appealed and received a letter from the Dean stating she could continue to progress through the program while the appeal was pending.
Subsequently, the UAP committee did not recommend conversion of her grade and the Dean subsequently dismissed her from the program.
Susan then appealed the grade & dismissal based on breach of contract
Now what the heck should you do???
Lots of law on this one!
University and college p/p manuals and syllabus form the basis for contract; dean’s letters do not.
Modifications of manuals and syllabi after publication to students will likely not be upheld when student is ‘harmed’
Syllabi should provide for ‘notice’ and ‘hearing’:
Name and credit hours of course
Instructor contact info and hours of availability
Objectives/competencies that form basis for evaluation
Method for evaluation and scale for grading
Required preparation for topics to be covered
A fun case – student sued because faculty failed to round up from 69.713 to a passing score of 70%; since faculty had not ‘acted’ – no court action required
