Legal Issues
Overview
Of course, effective nursing is about much more than minimal competencies. The National Council of State Boards of Nursing (NCSBN), an organization that works to develop policy and consistent standards throughout the state licensing boards, defines nursing as: 1) a scientific process founded on a professional body of knowledge; 2) a learned profession based on an understanding of the human condition across the lifespan and the relationship of a client with others and within the environment; and 3) an art dedicated to caring for others.1 The NCSBN further describes nursing as a “dynamic discipline that increasingly involves more sophisticated knowledge, technologies and client care activities.” As nurses practice in this increasingly complex and rapidly evolving health care system, it is critical to understand some basic principles of law, the differences between legal thresholds and quality and scope of practice, and the ways in which practice is impacted by law and the ability of nurses to impact health law and policy.
Administrative Law: Professional Regulation
Functions of Boards of Nursing
Scope of Practice
Yet, the absolute outside limits of the scope of practice are sometimes a bit difficult to define. As such, the scope and limits of nursing practice have often been the subject of disciplinary action and legal challenges through the court system. In some cases, these challenges arise from other professional licensing boards, such as state medical boards, in response to circumstances within their state. The importance of the scope of practice has been demonstrated by several important legal cases. In Sermchief v Gonzales,2 the Supreme Court of Missouri heard a case involving two nurses who worked with several physicians in rural Missouri to provide women’s health care services. The nurses engaged in health counseling, routine pelvic exams and testing such as pap smears, as well as community education under standing orders from physicians. All of the parties were in agreement that the nurses had provided excellent care and that the patients were satisfied. The issue was strictly whether they were practicing within the scope of nursing practice or if they were infringing upon the scope of medical practice (practicing medicine without a license). The court held in favor of the nurses because their work was within the boundaries of the then-existing NPA and within the limits of the physicians’ orders.
The field of obstetrics has commonly served as an example for scope of practice issues. A case in Ohio, Marion Ob/Gyn v State Med. Bd.,3 established that delivering infants was beyond the scope of physician assistant practice in Ohio. At the same time, nurses could deliver infants as the scope of nursing practice allowed licensed nurses to practice midwifery. In Kansas, lay midwives can deliver infants without infringing on the scope of nursing or medical practice. In State Board of Nursing v Ruebke,4 the Kansas Supreme Court held lay midwifery was a common and longstanding exception to the prohibition against the unauthorized practice of medicine if the midwife is working under the supervision of a physician.
Standards of Practice
In addition to standards developed by BONs, many specialty nursing organizations have developed standards of practice. While the BON standards establish broad expectations of safety and efficacy, specialty standards are more targeted and aimed at fostering excellence in the specialized field. An example of specialty standards are those developed by the American Association of Critical-Care Nurses (AACN).5
The Model Nursing Act (Model Act) and Model Administrative Rules (Model Rules) developed by the NCSBN serve as example NPAs and standards of practice for individual states in regulating nursing practice.6 Actual state laws governing professional nursing practice vary from state to state in the degree to which they have adopted all or part of the current or previous model acts and rules. Nonetheless, the Model Act scope of practice provisions (Box 3-1) and the Model Rules for standards of practice (Box 3-2) are useful in illustrating the differences between scope and standards. For example, the seventh activity listed within the scope of practice is “advocating the best interest of clients.” Within the standards of practice in Box 3-2, standard 3 lists eight specific obligations or expectations of nurses in advocating for clients.
In addition, nursing standards developed by professional and specialty nursing organizations complement BON standards, provide detail and specificity, and are typically drafted to promote excellence in clinical practice. Foundational organizations such as the American Nurses Association (ANA) and the AACN publish standards of practice and standards of care.7 The AACN standards appear in Box 3-3. These specialty standards are helpful in establishing and measuring quality care and often reflect a consensus opinion of experts in the particular specialty of appropriate nursing care.