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LEGAL ASPECT OF MENTAL HEALTH NURSING

LEGAL TERMINOLOGIES
Law: Rules established by authority or custom for regulating the behavior of the members of
community or country.
The law can be divided into two branches
-

Criminal law: It defines certain acts as offences against the state and doing so makes
them punishable. The criminal law is enforced by, on behalf of the state.
Offence: breaking of a rule or law; crime
Civil law: It defines the rights and duties of individuals in relation to each other. In this
branch of law, actions are brought by individual to establish their rights against another
person, and not by the state.

Civil Rights
Persons with mental illness are guaranteed the same rights under federal and state laws as
any other citizen. The psychiatric clients rights include the right to vote, humane care and
treatment, right to religious freedom, right to social interaction etc. The medical, dental and
psychiatric needs of the client must be met in accordance with the prevailing standards
accepted in these professions. The mentally ill in the prisons are afforded the same
protections. The right to religious freedom and practice, the right to social interaction, and the
right to exercise and recreational opportunities are also protected.
Right: A right is defined as a valid legally recognized claim or entitlement, encompassing both
freedom from government interference or discriminatory treatment and an entitlement to a
benefit or service (Levy and Rubenstein, 1996). A legal right is one on which the society has
agreed and formalized into law.
Act :- written document which has been formally passed by government e.g. Nepal nursing
council act at the national level, health act.
Bill:- draft or temporary outline of what the act will be.
Legal Document:

Certain written forms used regularly by nurse and doctor on the process of treatment.
These forms can be used as evidence in court if any difficulty arises. These document
should contain factual statement and signed by concerned personnel and dated.
E.g. treatment chart and consent papers.

Torts

Violation of civil law against a person or a persons property.


Commission: inappropriate action
Omission: Lack of appropriate action

Unintentional torts

Negligence: involves exposure of person or property of another to unreasonable risk for


injury by acts of commision or omission.
Malpractice: Any unreasonable lack of skill in professional duties or illegal or immoral
conduct that results in injury or to death of the client.

Intentional torts:
Occur when a person does damage to another person in a willful, intentional way and without
just cause and/or excuse.
A. Assault: mental or physical threat. Knowingly threatening or attempting to do violence to
another person without actually touching the person; forcing the medication or treatment on a
person who does not want it but without touching the person.
b. Battery: actually touching or wounding the person in an offensive manner with or without the
intent to do harm.
C. Fraud: purposeful false presentation of facts to create deception; includes presenting false
credentials for licensing or employment.
D. Invasion of privacy
i. Encroachment or trespass on anothers body: includes any unwarranted operation,
unauthorized touching, and unnecessary exposure or discussion of the clients case unless
authorized.
ii. False imprisonment: includes intentional confinement without authorization, as well as the
threat of force or confining structures and/or clothing; the charge is not false imprisonment if it is
necessary to protect an emotionally disturbed person from harming self or others.
iii. Defamation: involves communication, even if true, that cause a lowering of opinion of the
person, includes slander (oral) and libel (written, pictured, telecast), both of which are dependent
on communication to a third party.
iv. Good Samaritan Laws: protect the health care professionals who administer first aid as
volunteers in an emergency unless there is gross negligence or willful misconduct.

Crimes
An intentional wrong that violates societal law punishable by the state; the state is the
complainant.
a. Felony: serious crime, such as murder, punishable by a prison term
b. Misdemeanor: less serious crime that is punishable by a fine and/or short-term
imprisonment.
Ethics: Ethics is a branch of philosophy that deals with systematic approaches to distinguish
right from wrong behavior. (Butts and Rich, 2008). Bioethics is the term applied to these
principles when they refer to concepts within the scope of medicine, nursing and allied health.
Moral Behavior: Moral behavior is defined as conduct that results from serious critical thinking
about how individuals ought to treat others. Moral behavior reflects the way person interprets the
way a person interprets basic respect for other persons, such as the respect for autonomy,
freedom, justice, honesty and confidentiality (Pappas, 2006).
Ethical Dilemmas: An ethical dilemma is a situation that requires an individual to make a
choice between two equally unfavorable alternatives.
Forensic Psychiatry: The part of psychiatry that deals with patients and problems at the
interface of the legal and psychiatric systems.
Forensic Nursing: Application of forensic science combined with the bio-psychological
education of the registered nurse, in the investigation, evidence collection, preservation, analysis,
prevention and treatment of trauma and/or death related to medico-legal issues.
ETHICAL PRINCIPLES
Ethical principles are fundamental guidelines that influence decision making. The ethical
principles of autonomy, beneficence, non-maleficence, veracity, and justice are helpful and used
frequently by health-care workers to assist with ethical decision making.
1. Autonomy
Right to determine persons destinies should always be respected.
This presumes that individuals are always capable of making independent choices for
themselves. Children, comatose individuals and the seriously mentally ill are examples of clients
who are incapable of making informed choices.
2. Beneficence
Beneficence refers to ones duty to benefit or promote the good of others. Health-care workers
who act in their clients interests are beneficent, provided their actions really do serve the clients
best interest. In fact, some duties do seem to take preference over other duties.
3. Nonmaleficence

Nonmaleficence is the requirement that health-care providers do no harm to their clients, either
intentionally or unintentionally (Aiken, 2004). Some philosophers suggest that this principle is
more important than beneficence; that is, they support the notion that it is more important to
avoid doing harm than it is to do good.
4. Justice
The principle of justice has been referred to as the justice as fairness principle. It is sometimes
referred to as distributive justice, and its basic premise lies with the right of individuals to be
treated equally regardless of race, sex, marital status, medical diagnosis, social standing,
economic level, or religious belief. The concept of justice reflects a duty to treat all individuals
equally and fairly.
5. Veracity
The principle of veracity refers to ones duty to always be truthful. Aiken (2004) states,
Veracity requires that the health-care provider tell the truth and not intentionally deceive or
mislead clients. There are times when limitations must be placed on this principle, such as when
the truth would knowingly produce harm or interfere with the recovery process.
ETHICAL DILEMMAS
An ethical dilemma is a situation that requires an individual to make a choice between two
equally unfavorable alternatives (Catalano, 2009). Evidence exists to support both moral
rightness and moral wrongness related to a certain action. The individual who must make the
choice experiences conscious conflict regarding the decision. An ethical dilemma arise when
there is no clear reason to choose one action over another.
Many dilemmas in mental health involve the clients right to self-determination and
independence (autonomy) and concern for the public good (utilitarianism).
Examples include the following:
Once a client is stabilized on psychotropic medication, should the client be forced to remain on
medication through the use of enforced depot injections or through outpatient commitment ?
Are clients who are psychotic necessarily incompetent, or do they still have the right to refuse
hospitalization and medication ?
Model for Making Ethical Decisions
The following is a set of steps that may be used in making an ethical decision. These steps
closely resemble the steps of the nursing process.
1. Assessment: Gather the subjective and objective data about a situation. Consider personal
values as well as values of others involved in the ethical dilemma.
2. Problem identification: Identify the conflict between two or more alternative actions.
3. Plan:
a. Explore the benefits and consequences of each alternative.
b. Consider principles of ethical theories.

c. Select an alternative.
4. Implementation: Act on the decision made and communicate the decision to others.
5. Evaluation: Evaluate outcomes.
RIGHTS OF MENTALLY ILL PATIENTS
In 1973, the American Hospital Association (AHA) issued a Patients Bill of Rights that many
hospitals have adopted.
1.
2.
3.
4.
5.
6.
7.
8.
9.

Right to considerate and respectful care


Right to Information
Right to make decisions
Right to have advanced directive
Right to privacy
Right to confidential
Right to review records
Right to proper treatment and referral
Right to ask and be informed of the existing of business relationships among hospital,
educational institutions, other health care providers or payers
10. Right to consent to participate in research
11. Right to reasonable continuity of care.
12. Right to be informed of hospital policies.
Clients do not lose their constitutional or legal rights when they are admitted to a facility for
treatment for a mental disorder.
RIGHTS OF MENTALLY ILL PATIENTS
1. Right to communicate with people outside the hospital
This right allows patients to visit and hold telephone conversations in privacy and send
unopened letters to anyone of their choice, including judges, lawyers, families and staff.
However, the hospital can limit the times when telephone calls are made and received and
when visitors can enter the facility.
2. Right to treatment
All people who are hospitalized for mental illness have the right to treatment. Mental
health professionals should be aware of their legal responsibilities to clients. Three
criteria for adequate treatment of mentally ill patients are defined. They are:
a. A humane psychological and physical environment.
b. A qualified staff with a sufficient number of members to administer adequate
treatment.
c. Individualized treatment plans.
3. Right to Refuse Treatment

Patients have right to refuse treatment and should not be forcibly medicated except in
situations when the patient is actively violent to self or others. The behavior of the patient
should be clearly documented and all interventions required. A therapeutic nurse-patient
relationship can play a vital role in reversing treatment refusal of a patient.
4. Right to Privacy (confidentiality)
The nurse cannot reveal clients information publicly without the clients informed
consent. Confidentiality is non disclosure of specific information to someone else unless
authorized by client. However, the duty to disclose is the health care professionals
obligation to warn identified individuals if a client has made a credible threat to kill them.
The duty to disclose is more than the clients right to confidentiality in these cases.
5. Right to Keep Personal Items
Client has right to his personal property. He may bring clothing, wear own clothes and
personal items to the hospital. When storage of items becomes difficult, the client can be
asked to leave such items at home. However, if the client has items of value, the nurse is
obligated to document the items and store them in the safe or other secure place.
Removing items from a client may be considered theft if the nurse takes them away and
either loses them or refuses to return them. In situations where the nursing staffs have
professional justification to remove potentially harmful objects such as knives, scissors,
the nurse must recognize that the objects are still owned by the client and can be removed
only during the time of hospitalization or treatment.
6. Right to enter into Legal Contracts
A client maintains his legal rights as a citizen. Thus, if the client is an adult, he has a
right to vote, get married, sign for a mortgage, write a personal last will, manage
personal financial affair or control personal funds.
7. Right to education
All mentally ill or mentally retarded children have right to education.
8. Right to informed consent
Informed consent should be obtained for all psychiatric treatments, including medication,
particularly antipsychotics, therapy such as electroconvulsive therapy. For patients not
able to consent, minors, informed consent should be taken from the informants.
9. Right to treatment in least restrictive setting
Restraints cannot be done unnecessarily. There should be adequate rationale for the use of
restraints and seclusion, patients behavior while restrained or secluded. Client should be
released from the restraints as soon as any dangerous behavior has subsided.
10. Right to Habeas Corpus
If a person is being held in a hospital against his or her will, s/he may apply for a writ of
Habeas Corpus for being mentally healthy and eligible for release.
Patients are discharged if the court judges them to be healthy.

Nurses Role

Advocate for the protection of patients rights


Discuss rights in the treatment teams.
To protect patients rights, nurses should be made aware of them
Ensure that ward procedure and policy does not violate patients rights.
Legal and ethical issues have to be kept in mind while working with psychiatric patients.

ADMISSION AND DISCHARGE OF MENTALLY ILL PATIENTS


Mentally ill patients are admitted in hospitals when their behaviors are difficult to manage in
home or they have acute illness or having relapse of symptoms.
Purpose

To provide care to the psychiatric conditions which are unmanageable at home.


To observe and evaluate the patients condition.
To provide treatment and care and meet the needs of the patients.

Hospitalizing the Patient


2 types of admission:
Voluntary and Involuntary
a. Voluntary Admission
Any citizen of lawful age can apply for admission to a public or private psychiatric
hospital.
Person seek help based on their personal decision or the advice of family or a health
professional.
If someone is too ill to apply but voluntarily seeks help, a parent or a legal guardian may
request admission.
b. Involuntary Admission (commitment)
Voluntary admission is not always possible.
When a patient is acutely disturbed, suicidal or dangerous to self or others, indecisive, yet
rejects any therapeutic intervention, is unwilling to be hospitalized.
Petition is filed by the family member, health care provider or local government agency,
such as the police.

Examination of MSE done. A psychiatrist must provide documentation validating the


necessity of this commitment.

HOSPITALIZATION OF MINORS
Children under the age of 18.
A person under age 18 is viewed by the law as incompetent to make personal health care
decisions.
Parents are responsible for making treatment decisions, especially the decision to petition
for involuntary commitment to a psychiatric facility.
Parents or guardian must request the discharge.
Some states allow adolescents/minors to obtain treatment for substance abuse,
contraception, and psychiatric help without the consent of parents or guardians.
Nurses Role in Admission Procedure

Provide orientation to patient and their family regarding the rules of the hospital ward;
timing of medication, timing of meals, and timing of different activities in ward.
Informed written consent for admission should be taken according to the rules of the
hospital.
Provide safety to the patients and other by preventing violent behavior of patients.
Keep all the harmful items such as knife, rope, nail cutters, glass ware, belt etc of the
patients in custody because it may cause harm to self and others.
Provide information about the disease process to visitors and take detail history during
admission.
Assess the patients mental status examination while admitting the patient in ward.
Check vital signs and the weight of the patient.
Document all the information of admission in the nurses record and report as needed.

DISCHARGE
Patient who is voluntarily admitted to the hospital can leave at any time, when maximum
benefit has been received from the treatment or when they request discharge.
All discharges require a doctors written order.
Patients can be released immediately or in some state they can be detained 24 to 72 hrs
after submitting a discharge request.
An involuntary admitted client: has no right to leave hospital as per their wish.

Two key factors in deciding to release a voluntary psychiatric patient are:


Assessment of the patients competency
Assessment of the patients potential danger to self or others.
LAMA (Leave Against Medical Advice)
If a voluntarily committed client requests discharge when a doctor's order is not present,
the client signs a statement indicating that the discharge is leaving against medical advice
(LAMA).
Documentation of LAMA requests should include:
Mental status of the patient requesting to leave.
Patients own description of why she or he wants to leave
Content of discussion in which possible risks of leaving were described to the patient.
Instructions on medications and follow up care
Conversation with significant others who may have been present
Destination of the patient and means of transportation
ABSCOND
Sometimes a client who is voluntarily committed may leave the facility without following
discharge procedures.
Clients who elope usually are returned to the facility by relatives or law enforcement
officials, but some return of their own accord. Staff has the legal obligation to notify the
police.
LEAVE OF ABSENCE (PAROLE)

Parole is the permission given to the patients to perform certain rituals or attend certain
family functions. Leave of absence may be granted for a period of maximum 60 days.

Types of Leave:
a. Day Leave: In this leave, the patients are allowed to leave for a day. The patients should
return to the hospital before evening meal and medicines.
b. Night leave: In this leave, the patients are allowed to leave for a night.

c. Week end leave: In this leave, the patients are released during weekend.
Nurses Role during Discharge

Psychoeducation

Medications

Home care

Educate family members to observe the behavior of client at home.

d. Follow up
Legal Responsibilities of a Mentally Ill Person
Responsibility in the legal sense means the liability of a person for his acts and if contrary to law,
the liability to be punished for them. Liability is a legal doctrine that makes a person responsible
for the damages and loss caused by his/her acts.
i.

Criminal Responsibility
McNaghten Rule: Persons are not guilty by reason of insanity if they labored under a
mental disease such that they were unaware of the nature, quality and the
consequences of their acts or if they were incapable of realising that their acts were
wrong.
Durham Rule: Adopted in 1922. According to this rule, "An accused person is not
criminally responsible, if his/her unlawful act is the product of mental disease or
mental defect.

ii.

Civil Responsibility
A person has no responsibility if he is proved to be mentally ill. Eg: Management of
Property, Marriage etc.

NATIONAL MENTAL HEALTH POLICY, 1996


Adopted by Meeting of Psychiatrists, Psychologists, Representatives of National Planning
Commission and Ministry of Health, held on Aswin 5, 2052 (September 21, 1995) at Director
General of Health's Office at Teku. Approved by Nepal Government on Falgun, 2053 BS( 1996
AD)
Four broad objectives:

Policy I: To ensure the availability and accessibility of minimum mental health services
for all the population of Nepal.
Policy II: To prepare human resources in mental health.

Policy III: To protect the fundamental human rights of the mentally ill in Nepal.
Policy IV: To improve awareness about mental health, mental disorders and healthy
lifestyles.

Strategies for Policy I: Minimum mental health service to all.

Integration of mental health services into general health service system of the country.

Mental health service will be made available at regional, district and peripheral level.

Adequate supply of essential mental health drugs will be maintained.

Research will be done to develop more efficient and effective mental health care
structure.
Strategies for Policy II: Human resources.
Mental health components in all health workers curricula.
Mental health component in the in-service training structures at regional and national training
centers.
Post-graduate training in psychiatry, psychology and Mental Health nursing within the
country.
Strategies for Policy III: Legislation

A mental health act suitable for the rights of the mentally ill will be developed and
implemented.
Strategies for Policy IV: Awareness in mental health, mental disorders and mentally healthy
lifestyles.

Interaction with community structures (schools, NGOs, traditional healers etc).


A Division of Mental Health in the Ministry of Health and a Mental Health Unit in each
Regional Directorates of the country.

In India
In 1912, Indian Lunacy act of 1912. Later after independence, mental health act was drafted by
parliament in 1987 but it came into effect in all the states and union territories of India in April
1993. MHA-1987 has not been able to adequately protect the rights of persons with mental
illness and promote access to the mental health care in the country. So mental health care bill
2013 came into force with objective that mentally ill are to be treated like other persons with
health problems. The outdated terms like, nursing home/ asylum was replaced by psychiatric
hospital, lunatic was replaced by mentally ill person and criminal lunatic was replaced by
mentally ill prisoner.
MENTAL HEALTH TREATMENT AND PROTECTION ACT OF NEPAL [2063 B.S,
(2006 A.D)]

Mental health act of Nepal has been prepared as a draft and on the process of finalization as an
act from 2007.
It has six chapters:
1. Chapter I Preliminary
2. Chapter II Establishment and Operation of the Center
3. Chapter III Mental Health Examination and Treatment
4. Chapter IV Benefits and Protection of a mentally ill person.
5. Chapter V Penal Codes and Penalties
6. Chapter VI Miscellaneous
NARCOTICS LAW AND PSYCHOACTIVE SUBSTANCE USE
In Nepal, the Narcotics Drugs (Control) Act, 2033 (1976) is the legal framework for drug control
issues. Section 3(a) stipulates narcotic drugs as: cannabis, medicinal cannabis, opium, processed
opium, plants and leaves of coca, any substance prepared with mixing opium, coca extract which
include mixtures or salts, any natural or synthetic narcotic drug or psychotropic substance and
their salts and other substance as may be specified by the Nepal Gazette notification.
No person shall:
(a) Cultivate, produce, prepare, purchase, sell, distribute, export or import, conduct any
trafficking, store, or consume cannabis/ marijuana,
(b) Cultivate opium or coca or produce opium or coca leaves or other narcotic drugs,
(c) Manufacture or prepare narcotic drugs,
(d) Sell or distribute narcotic drugs,
(e) Export or import narcotic drugs,
(f) Purchase, store, possess, or conduct any trafficking narcotic drugs,
(g) Consume narcotic drugs other than cannabis/ marijuana.
Chemical substance to be used for preparation of narcotic drugs from among the medicines
defined in the Single Convention on Narcotic Drugs, 1961 may be exported, imported, stored,
conducted trafficking, sold, distributed and used only in the quantity as prescribed by the Chief
Narcotic Drugs Control Officer.
Any person violating this act shall be punished by up to 20 years of imprisonment and a fine.
While the nonphysician prescribed consumption of narcotics drugs is a criminal offence.
LAW REGARDING ALCOHOL

It is described under the liquor act in Nepal, 2031. This Act came into force on 15 Jestha
2065(28-5-2008).
By using the right of Nepal government Alcohol law, 2031 clause 16, one should take
license for producing , selling or exporting/importing alcohol.
In following conditions license should not be taken
a. For importing alcohol
b. For passengers of international travel, they can carry 3 bottles of alcohol and 12
bottles of beers.
c. For sample testing and research, upto amount fixed by department.

One can make 5 liters of raksi and 10 liters of jaad for their personal use but
a. They can't make more than 6 times a year
b. They have to notify tax officer.
The licensed person can sell alcohol from 10 am to 10pm, government of Nepal can
change the time according to place and need.
One can't sell alcohol in that shop or place where the tax officer prohibited it.
Alcohol advertisement in Nepal is legally forbidden on national and cable television,
national local radio and cinema but there are no restrictions on advertising in newspapers,
magazines, billboards and points of sale.
Selling of alcohol to children and drunk driving is also prohibited.

LAWS RELATED TO TOBACCO

It is described uinder tobacco Product (Control and Regulatory) Act, 2010


Ban on advertisement
Advertisement should cover 75 % of the outer cover on tobacco related products.
Detail report of quantity of nicotine, hazardous constituents should be written in tobacco
products.
No person shall be allowed to smoke or consume tobacco in public places.
Prohibition to smoke in private home or vehicle in a way that may affect other person.
No person shall be allowed to sell and distribute the tobacco products for free to a person
below the age of 18 and to the pregnant woman.
Punishment- Rs. 100 for violation of law to smoke in public places and Rs. 50000 for law
violation during manufacture.

Legal Role of Nurses

Nurses must understand the basic legal aspects of caring for psychiatric patients.
Understanding basic legal concepts helps the nurses establish a structure to effectively
address complex client issues.
Each nurse is responsible for making sure that his or her educational background and
clinical experience are adequate to fulfill the responsibilities described in the job
description
Obtaining consent is the responsibility of the person who performs the procedure.
Refused to perform procedure which you are not prepared. Ignorance is not a legal
defense.
Maintain circle of confidentiality
Neither will lack of sleep or overwork be accepted as a legal reason for carelessness
about safety measures and mistakes.
Nurse advocacy: includes educating people about mental health, the mental health
system, and their personal rights in the managed care setting.

References

Sharma C, Choulagain PS. Essentials of Psychiatric and Mental Health Nursing. 2015.
First Edition. Saurav and Awish Publishers.
Stuart GW, Laraia MT. Principles and Practice of Psychiatric Nursing. 2005. Elsevier
Publication.
Bhaskararaj DE. Textbook of Mental Health Nursing. First Edition. 2011. Jaypee
Brothers Medical Publishers.
Lalith K. Mental Health and Psychiatric Nursing, an Indian Perspective. First edition.
2007. VMG Book House.
Townsend MC. Psychiatric Mental Health Nursing. 2012. 7 th Edition. Jaypee Brothers
Medical Publishers (P) Ltd.
Sadock BJ, Sadock VA. Synopsis of psychiatry. 10th edition. New Delhi, Lippincott
Wiliam & Wikins;2007.