What are the Ethical and Legal Issues?

Ethical considerations in relationships with nursing students:

         The Canadian Nurses Association’s Code of Ethics for Registered Nurses is a statement which outlines specific nursing values and ethical responsibilities that are expected of nurses practising in Canada (CNA, 2008). It also highlights that “registered nurses in all roles share the responsibility of supporting nursing students in providing safe, competent, compassionate and ethical care” (Canadian Nurses Association, 2008, p. 49).  There are several statements in this code that refer to (a) accountability and, more specifically, (b) to nursing students and those who they must collaborate in order to provide nursing care:

  • “Nurses, as members of a self-regulating profession, practise according to the values and responsibilities in the Code of Ethics for Registered Nurses and in keeping with the professional standards, laws and regulations supporting ethical practice” (CNA, Code G1, p. 18).
  • “Nurses practice within the limits of their competence.  When aspects of care are beyond their level of competence, they seek additional information or knowledge; seek help from their supervisor or a competent practitioner and/or request a different work assignment” (CNA, Code G3, p. 18).
  • “Nurses are attentive to signs that a colleague is unable, for whatever reason, to perform his or her duties.  In such a case, nurses will take the necessary steps to protect the safety of persons receiving care” (CNA, Code G5, p. 18).
  • “Nurses clearly and accurately represent themselves with respect to their name, title and role” (CNA, Code G6, p. 18).
  • “Nurses treat each other, colleagues, students and other health-care workers in a respectful manner, recognizing the power differentials among those in formal leadership positions, staff and students.  They work with others to resolve differences in a constructive way” (CNA, Code D10, p. 14).
  • “Nurses share their knowledge and provide feedback, mentorship and guidance for the professional development of nursing students, novice nurses and other health-care team members” (CNA, Code G9, p. 18).

         Based on the above statements, the Canadian Nurses Association’s Code of Ethics for Registered Nurses (2008) has suggested the following guidelines with respect to scope of practice:

  • All teacher-student interactions should be within ethical nursing practice.
  • All nurses will strive to provide nursing students with appropriate guidance in order for them to develop nursing competence.
  • The primary nurse who was assigned the patient will hold primary responsibility for the care of that patient.
  • Nursing students are expected to provide competent patient care based on their level of learning.  They must advise their faculty, clinical instructor and their clinical unit nurse supervisors if they feel that they are unable to meet this expectation.
  • Nursing students must ensure that the patients to whom the will be providing care are aware of their student status.

         Nursing has been considered a practice discipline for over a century and therefore clinical instruction has always been a requirement (Cody, 2006; McPherson, 2006).   There is a dilemma here however, as clinical learning involves “direct observation of the patient” (Gaberson & Oermann, 2007, p. 75) while the priority of our health care system is to provide safe patient care.  Therefore, to adequately prepare students for clinical placements and eventual independent practice, nursing schools must ensure that all students are educated to full scope of practice while meeting the prospective college’s professional standards as well as the provincial/national legislation and regulations (Gaberson & Oermann, 2007).  The teacher (or faculty) must ensure that the students are prepared and ready to enter a clinical setting, and they must have sufficient clinical experience in the area to adequately teach and evaluate the students’ clinical competence (Gaberson & Oermann, 2007).  The clinical instructor is also accountable for his/her own clinical competency, however they are also responsible for selecting patient assignments that are reflective of the students’ learning objectives and scope of practice (Gaberson & Oermann, 2007). 

The figure below outlines stakeholder accountability for nurse competency:

Adapted from: Cowen, P., & Moorhead, S. (2011). Current Issues in Nursing (8th ed.). St. Louis, MO: Mosby Elsevier.

Legal considerations in relationships with nursing students:

         Teaching, like many other professions, requires a need to be aware of the laws and legal issues around working with nursing students.  In Canada, it is the Regulated Health Professions Statue Law Amendment Act (2009) and the Health Professions Act (1991) which guides the scope of practice outlined by each of the nursing associations and colleges and subsequently impacts the learning needs of nursing students.

         Due to the clinical component of nursing education and health care’s focus on patient safety, nursing students must be held to the same standard of care as Registered Nurses (Gaberson & Oermann, 2007).  Personal liability applies to professional negligence, and therefore each person or nurse is responsible for his/her own behaviour, decisions and actions (Gaberson & Oermann, 2007).  “Students are liable for their own actions as long as they are performing according to the usual standard of care for their education and experience, and they seek guidance when they are uncertain what to do” (Gaberson & Oermann, 2007, p. 85).  It is, therefore, not true that nursing students practice under the license of their instructor (Gaberson & Oermann, 2007).

         A general rule of thumb for nursing students is: no theory - no practice.  Teachers and/or instructors are not liable for their students’ negligent acts provided the teacher has: (a) selected appropriate patient assignments based on clinical objectives, (b) determined that the students possess the appropriate knowledge and skills necessary to carry out their patient assignments, and (c) provided competent supervision and mentoring (Gaberson & Oermann, 2007).  However, educators must teach students to full scope of practice and they will be held liable if they have made assignments which require more knowledge and skill than the student has developed, or if they fail to supervise the students’ activities appropriately (Gaberson & Oermann, 2007).  If a student exhibits unsafe behaviour during a clinical experience, the student and teacher/instructor who made the assignment may be held liable if the patient becomes injured as patient safety and the right to competent care is a much higher priority than the learning experience itself (Gaberson & Oermann, 2007).  And, if the teacher/instructor fails to take action in this situation they could be placing themselves and the academic program/institution at risk for liability (Gaberson & Oermann, 2007).

What is due process?

         A clear responsibility of faculty in nursing programs is that of evaluation.  In order to move through the education program nursing students must be evaluated on both their classroom and clinical performance (Billings & Halstead, 2009).  The legal issue of due process arises as students have the right “to be informed of the standards by which their performance will be judged, that they will receive timely feedback about their performance, and that they will have an opportunity to correct behaviour that does not meet standards” (Gaberson & Oermann, 2007, pp. 82-83).  In other words, students have the right to know how they are doing, what the impact might be, and what they can do to improve/rectify the problem.  Due process “involves assurances that procedures are fair under the circumstances” (Billings & Halstead, 2009, p. 35).

There are two types of due process:
1.      Procedural due process
·    Students will be provided, with adequate written notice, with regards to the specific  details of their misconduct (Gaberson & Oermann, 2007).
·    Students will be provided with an opportunity to be heard at a fair and impartial hearing (Billings & Halstead, 2009; Gaberson & Oermann, 2007)
2.      Substantive due process (also known as Academic due process)
·    Students are made aware of, in advance, the academic standards for which their performance will be judged and about the appeal process (Gaberson & Oermann, 2007)
·    Students will be informed of their potential for failure prior to the grade being made final (Gaberson & Oermann, 2007)

Guidelines for providing due process to students:

         The potential for litigation in academic settings always exists.  It is therefore important for faculty and clinical instructors to follow procedures and take necessary actions that will decrease the likelihood of litigation based on academic or clinical failure (Billings & Halstead, 2009).  The following practices will help to keep students informed of their progress and expectations, as well as provide evidence during an appeal:
1.   Formally provide a copy of student and faculty rights and responsibilities.
2.   Review and update policies in the program handbook or course catalogue periodically.
3.   All requirements and expectations should be clearly established at the beginning of the course/clinical placement.
4.   Retain all tests, written work, and any documentation in a file until the student has either successfully completed the requirements for the course and/or the program.
5.   Students have the right to look at all evaluation data which is placed in their file.
6.   When students are not moving satisfactorily toward course objectives and have the potential for failure, students must be informed of their academic and clinical deficiencies.
              (Billings & Halstead, 2009)

         It is extremely important to remember that nursing faculty, nursing instructors, and even the academic institution itself “are responsible for preparing safe and competent practitioners and can be held accountable if they relinquish their responsibility to do so” (Billings & Halstead, 2009, p. 38).

What is an affiliation agreement?

         When nursing students enter clinical learning experiences, they are not only under the supervision of their clinical instructor but also the RN in the facility (Billings & Halstead, 2009).  Therefore, the responsibility of quality patient care not only lies with the clinical instructor but also with the RN responsible for the patient(s).  When a clinical institution accepts students into their facility an affiliation agreement (or a legal contract) must be signed with the academic institution.  This agreement allows nursing students and faculty/instructors to use the facility for learning experiences, but it also highlights:
·    obligations and responsibilities of both agencies;
·    the expected level of competence for which the students must practice (this includes an up to date scope of practice);
·    insurance requirements for third party liability and personal accidents; and,
·    circumstances in which the students or faculty may be removed from the practice experience.
      (Billings & Halstead, 2009; Health Authority Working Group, 2009)