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3 Common Legal Concerns For Nurses



Confidential information is any information that the patient communicates to the nurse or practitioner for diagnosis or treatment with the expectation that it won’t be disclosed. Nurses have an ethical and legal duty to avoid disclosing such confidential information to unauthorized people who aren’t involved in the patient’s care and treatment. A nurse who discloses confidential information without the patient’s permission may be subject to a lawsuit or disciplinary action for unprofessional conduct. The nurse can be liable for invasion of privacy, defamation, intentional or negligent infliction of emotional distress, or breach of an implied contract of secrecy.


What are some of the circumstances where confidential information can be disclosed?

1. The nurse must disclose such information when authorized by a patient (but only to the extent authorized).

2. When a patient is a danger to himself or others.

3. When required by law for a reportable communicable disease or suspected abuse. In some cases, the court may order disclosure of confidential patient information.


The law presumes that adults are legally capable of consenting to treatment. To provide a valid consent, a patient must be mentally capable of understanding the nature and consequences of treatment. Expressed consent is obtained orally or in writing; implied consent is obtained by the patient’s voluntarily submitting to treatment. Medical treatment performed without a patient’s expressed or implied consent may result in legal claims of battery or negligence. Therefore, informed consent should be obtained before a patient undergoes an invasive procedure, receives anesthesia or blood, or undergoes procedures that carry a signifi cant risk of harm. Health care providers should provide adequate information.

If a patient receives appropriate information and refuses care or treatment against medical advice, the physician or health care provider is responsible for documenting that the informed consent conversation took place, the general facts discussed, and the patient’s decision.

Informed Consent

What are the exceptions to informed consent?

1. Informed consent isn’t required if a delay to obtain consent for emergency treatment would cause imminent harm that outweighs the risk of treatment.

2. If the patient would be substantially harmed by disclosing the risks of treatment.

3. If the patient waives the right to consent and asks not to be informed.

4. If compulsory treatment is mandated by law or a court order.


Adults are presumed to be legally capable of refusing treatment. In fact, mentally competent patients with terminal conditions can refuse life-sustaining treatment without creating legal liability for their health care providers. The Patient Self-Determination Act of 1990 encourages persons to express their wishes about life-sustaining treatment should they become legally incapacitated.

What are Advance Directives?

1. Living wills - A living will expresses a patient’s wishes about withholding or withdrawing life-sustaining treatment.

2. Durable powers of attorney - A durable power of attorney designates a person to make health care decisions, including termination of life support, for a patient who can no longer do so.

3. Do-not-resuscitate (DNR) orders. A DNR order authorizes health care personnel not to initiate resuscitative measures.

When a patient is no longer mentally capable of making health care decisions, a court order, statute, or law may authorize a surrogate decision maker to accept or refuse medical treatment for the patient based on the patient’s prior documentation or expressed wishes.

SOURCE: Lippincott's Review Medical Surgical Nursing Certification

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