Legal Issues for CNAs

March 16, 2012

Legal Standards
These are guidelines to lawful behavior. When laws are not obeyed you can be prosecuted and found liable (responsible) for injury and damages. Legal guilt can result in fines and imprisonment, as well as loss of certification/license to work as a CNA.

Laws are passed by local, state and federal governments. All citizens are expected to obey these laws…when you disobey a law you are liable for fines and/or imprisonment. CNA’s can avoid this by:
• Knowing and staying within their state’s scope of practice rules.
• Do only those tasks and skills you have been taught; if you’re asked to do tasks you have not been trained to do ask for guidance (and if necessary seek the advice of your supervisor).
• Carry out your tasks and procedures carefully and only as you were taught.
• Keep up to date with your skills and education and in-service requirements.
• In questionable situations, seek the advice of your supervisor.
• Make sure you fully understand your assignment and what is expected of you
• Know your facility policies and procedures and follow them.
• Do no harm to your patients.
• Respect the personal property of your patients

Legal Definitions and Examples
As a CNA the legal issues you might encounter and witness would be negligence, theft, defamation, false imprisonment, assault, battery and abuse. You need to understand what these are.

The failure to provide a degree of care that others would consider reasonable under the circumstances; when injury results to your patient. Negligence is often caused by rushing around to get your work done and by not thinking FIRST.
• YOU give a patient a bath…and don’t check the water temp first. The patient is burned.
• YOU place a tray of food in front of a patient and don’t check the menu; the tray belonged to another patient. The patient who got the tray eats the wrong consistency food and chokes.
• YOU transfer a patient by yourself even though the care plans states two staff should be present for the transfer. You drop the patient.

One would think this is pretty simple. It should be but often isn’t. Taking ANYTHING that doesn’t belong to you is considered theft. It doesn’t matter how cheap or expensive the item is. When you see another person take something that isn’t their’s, and you fail to report this, you are guilty of aiding and abetting the crime. Keep your standards high. We need all the honest people we can get in this work- don’t be scared or indifferent to report theft you witness. I’ve seen aides take wash clothes, briefs, deodorants, soaps ect from their facility (for their own personal use at home). I’ve also seen aides steal jewelry and clothing from patients. It’s NEVER acceptable to do this. EVER.

This means making statements about another person, either verbally (slander) or in writing (libel)
when the character of that person is injured. Examples would be you telling a co-worker wrongful and inaccurate information about patients. I’ve seen this happen: We had an admission coming and the chart was available to all of us. The patient had Crohn’s Disease. One of the aides I worked with at that time went around and told everyone this patient had C-Diff. Not a good thing to do. Unless you know something to be actual fact, (and even then make sure you hear it from a reliable source), keep your mouth SHUT. And never put anything like this in writing.

False Imprisonment
This is an area many nursing staff have trouble understanding. It’s not just about restraints. It’s about a mindset. It is defined as restraining a person’s movements or actions without the proper authorization. Patients have rights and we must respect these rights. In the hospital setting, a patient CAN leave the hospital without a doctor’s permission. They can also leave a nursing home/assisted living home. Under very few circumstances can we interfere with this right. If you do, it’s called false imprisonment.

Physical Restraints
Using them requires a doctor’s order. Threatening to use them is considered false imprisonment.

Physical restraints are defined as any manual or physical device, material, or equipment attached to or near to the patients body, that:
• A patient cannot easily remove
• Restricts movement of ANY and ALL body parts
• Restricts the patient from accessing their own body or parts of their body
Examples of physical restraints:
• Wrist, Arm, Leg and Ankle restraints
• Vests
• Jackets
• Hand Mitts
• Geri chairs, recliners
• Seatbelts, safety belts
• Bed rails and the pads sometimes used on them
• In some populations the use of certain clothing would be considered a restraint: For example, donning a one piece undershirt on a child to prevent him from having access to his body. Or, a long sleeved shirt to prevent access to an IV site.

Also, many practices are considered a restraint. When a patient doesn’t have the physical strength to remove a device it is a restraint.
• When a patient doesn’t have the strength to sit up from a low rise sofa, for example, this practice is considered a restraint.
• Tucking in blankets and sheets so tightly the resident cannot move is considered a restraint. Using Velcro and tape to secure sheets is also a restraint.
• A lap tray being used with a wheelchair is a restraint if the patient cannot remove it.
• Using recliners and Geri chairs, tilted back, is a restraint.
• Moving chairs and beds so close to a wall that it prevents a patient from rising is a restraint.
• Placing a patient up into a table so close they cannot move their chair is a restraint.

In short, any action or device (designed for the sole purpose or something put together by you) that prevents the free movement of body parts is a physical restraint.
Some patients require splints and other appliances to maintain alignment and posture. These are restraints as well, but are often referred to as enablers because they assist the patient with ADL’s.
The patient may not be able to remove the splints, but it’s not an overt restraint. An MD order is always in place for these items.

Many medications are considered restraints. This is called chemical restraining and it is a very different thing than physical restraints. Nurses and doctors must understand the ramifications of using meds to induce sleep, states of relaxation, pain control that could be considered restraining activity.

Assault and Battery
There is some confusion about the meanings of these terms. Assault means purposely attempting to touch the body of another person without their permission, and threatening to do so. Battery is when you actually doing this. These terms are not all about hitting and hurting patients like so many of us have been taught.
Every task we perform is done so with the patient’s informed consent. This means the patient needs to know what it is we want to do, why, the benefits of the task-and they have to agree to it.
Informed consent can be withdrawn at any time and we must honor this. More and more patients are taking their healthcare into their own hands these days, and many will question the value of treatments. In spite of our best efforts to explain the need for treatments, the patient always retain the right to refuse. If you continue with the treatment you are guilty of battery. And threatening to get the nurse or others to assist you with said treatments is battery as well. You must report to the nurse any and all refusals of care by your patients, but do so quietly and not within hearing distance of the patient. Let the nurse handle the situation from this point forward.

To avoid being charged with battery:

• Tell the patient what you plan to do
• Make sure the patient understands what you’re saying
• Asking the patient if they have any questions or concerns
• Allowing the patient some time to think about this
• If the patient refuses, don’t push the issue. Quietly report the refusal to the nurse and document facts only.
• NEVER carry out the refused treatment

In our work we will come across a lot of coercion- which is forcing a patient to do something against their will. Unfortunately, it’s a problem within nursing in general. We always think we know what is best. This happens more with patients who are confused, mentally incapacitated or those with dementia. Almost always, these patients are not their own legal guardian, their family is. This makes it difficult for us to do our job at times because the patient is still refusing the care but we have to do it anyway- because the family has consented on behalf of the patient. It’s ALWAYS best to try to get the patient to cooperate with us vs. a full struggle. It really helps to wait and come back later when a confused patient refuses care. They tell us to always assume the patient would want our care if they were not confused so we have to think of things differently. It’s a hard spot to be in.

Abuse: Doing harm to a patient. Abusing a patient is ethically wrong as well as legally wrong. Ethical standards require us to do no harm and legal standards enforce this through laws. There are severe penalties if you’re found guilty.

Abuse is defined as the act (or failure to act) that is non accidental and causes or could cause harm or death to a patient. It’s not just about hitting here. It’s also about mental abuse, verbal abuse and other more subtle forms. Abuse comes in many shapes:
• Physical
• Verbal
• Emotional
• Sexual
• Involuntary seclusion

Physical Abuse:
• Handling the patient roughly
• Hitting, slapping, punching, kicking, pinching a patient
• Performing the wrong treatment on the patient

Verbal Abuse:
• Swearing when you’re dealing with the patient
• Raising your voice, yelling
• Calling the patient unpleasant names
• Teasing the patient
• Embarrassing the patient at anytime
• Using gestures
• Making threats
• Use of inappropriate words/terms to describe a patient’s race or nationality

Sexual Abuse:
Using physical means and verbal threats to force patients to perform sexual acts.
In most states sexual abuse is ANY behavior that is seductive, sexually demeaning, harassing. As with Sexual Harassment policies, this harassment need only be considered as such by the patient without regard to your intentions. Be careful. THINK before your interactions with patients (and everyone else for that matter). Be considerate of your patient’s values and morals.

Emotional/Psychological Abuse:
THIS can be the worst kind of abuse because it’s typically ongoing and subtle.
• Causing a patient to be afraid of you (through threats, actions, attitude, and body language)
• Threatening the patient
• Threatening to withhold treatment
• Threatening to tell others about the patient’s condition
• Making fun of the patient
• Belittling the patient (and this would include all those cute little nicknames we tend to have)
• Calling the attention of others to the patient’s behavior.

Involuntary Seclusion
I see this happen a lot in nursing homes. A resident is being noisy and disruptive so we remove them to another area. This is another one of those hard spots to be in- trying to balance the needs of the larger group of residents without violating the rights of one. A good care plan, communication with everyone, documentation and other interventions should really be in place to prevent the resident from having outbursts in the first place. The nurse should always be the one who directs you to remove a resident. Don’t ever make this decision on your own.

Other forms of involuntary seclusion:
• Closing the door to the patient’s room when they want it kept open
• Placing a patient in a wheelchair away from others
• Leaving a patient without a means to communicate- removing the call bell for example

Abuse by Others
There are times when we will witness another CNA or nurse do harm to a patient, as described above in all the various forms. Often the CNA/nurse will not realize they are doing these things. It doesn’t matter whether she knows better or not. The abuse MUST be reported. As soon as it occurs, not at the end of the shift, the next day or next week. All healthcare workers are required by law to report actual or suspected abuse. When you don’t report, you’re just as guilty.

Sometimes it is a member of the patient’s family who abuses them. This is difficult to see happen, to suspect is happening. Again if you suspect this you are required to report it to the nurse. I’ve seen nursing home residents go out on a day trip with a family member and return to the facility with bruises and cuts; or with complaints of hunger and thirst. These things caused me to suspect some sort of abuse or neglect and I reported the findings to the nurses. I made sure they came down and looked at the bruises and cuts firsthand as well.

Neglect is failing to provide the services, care and treatments necessary to avoid physical harm, mental anguish or mental illness. Neglect can be intentional or unintentional. Neglect is against the law no matter what. CNA’s are not expected to decide if neglect has occurred- that is the nurses job. However, you must report signs of neglect. Some examples of neglect we might see on the job:

• Routine hygiene and care not being provided. Patients not being repositioned, bathed, toileted, ROM exercises not being performed according to the care plan.
• Patients not being given enough time to eat
• Patients not being offered water and snacks

Invasion of Privacy
This is an area where every CNA should put themselves in the patients’ shoes. Would you like it if someone went around talking about your medical condition to anyone? How would you feel if you were in a hospital room and the nurse came in, started to do a treatment without closing the privacy curtain? You wouldn’t like these things at all. Most people don’t. Every patient has a right to expect their medical information will be kept confidential and that only those who NEED to know will have access to this information.


NEXT, please read the following posts about other important information you will need in order to effectively work as a CNA. This info will provide you with details about aspects of this work you must take seriously.

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