This article provides a framework for consideration of two questions: who should decide the scope of professional nursing? and what criteria should be employed in determining the scope of professional nursing? It is my view that professional as well as practical considerations must be reconciled in determining the answers to these questions.

In an extraordinary and highly controversial 5-4 decision, the United States Supreme Court decided on June 30, 1980, that the United States Constitution does not require either the federal government or the individual states to fund medically necessary abortions for poor women who qualify for Medicaid.

At issue in this case is the constitutionality of the Hyde Amendment. The applicable 1980 version provides:

The regulation of the use and distribution of drugs in the United States is governed by a complex set of state and federal laws and regulations. These laws and regulations are designed to accomplish a variety of purposes. First, the federal government hopes to exclude from interstate commerce drugs that are not both “safe and effective.” This function is performed by the United States Food and Drug Administration, exercising its authority under the Food Drug and Cosmetic Act and involves, for the most part, regulating the manufacturers of drugs. Second, both state and federal laws and regulations exist to keep “controlled substances” out of the hands of individuals who would use (or abuse) such substances for recreational as opposed to therapeutic purposes. The regulation of the use of such substances is primarily accomplished by the federal Controlled Substances Act (CSA) and similar laws that exist at the state level. Third, some drugs, because of their toxicity or habit-forming qualities, are prohibited from public consumption without the guidance of a health care professional. Unlike over-the-counter drugs which may be purchased by anyone, these drugs may only be purchased by a consumer who presents a valid prescription to a pharmacist.

There is a considerable literature on the phenomenon of “transfer trauma” — the suffering a person experiences from being involuntarily transferred from one nursing home to another. While the explication of transfer trauma remains the domain of researchers and those caring for nursing home patients, the issue has recently surfaced in a number of court opinions, and judges have been asked to assess the significance of transfer trauma in deciding whether or not nursing home patients have a right to a hearing before the facility is closed or decertified as a Medicare provider. Two such cases will be discussed in this column.

I felt honored when I was invited to contribute to this first issue of Nursing Law & Ethics. Thinking about what I might say, I noted that it is only about two years less than twenty since I began a series entitled, "The Law and The Nurse" in the American Journal of Nursing. It appeared for more than ten years before the AJN and I came to a parting of the ways. The end of my relationship with AJN was not due to what I said in its pages. Rather it was the result of adverse reactions to my views regarding licensure of health personnel.

The practice of medicine, nursing and other health care professions may be conducted only after lawful acquisition of a license to do so. In most states, the licensing board is made up primarily of members of the specific profession and is generally charged with all matters with regard to regulating the profession, including promulgation of standards of practice, conducting disciplinary procedures, and imposing sanctions.

Proponents of the death penalty have shifted gears. In the past, gruesome public executions were extolled as a deterrent to others, and even in modern times death has been inflicted on convicted criminals by hanging, firing squads, electrocution and poisonous gas. All of these methods cause significant pain to the victim, and all have the potential for failure and added suffering — both physical and mental. Many have argued that all of these methods of execution are potentially or actually “cruel and unusual” means of punishment, and recent United States Supreme Court decisions have suggested that they could be declared unconstitutional on this basis.

Nurses are concerned with doing what is “right” when faced with the complexities of today's medical care system. Doing what is “right” is what ethics is all about. Ethics is a system of moral principles or the recognized rules of conduct. While an ethical system is a general one, specific activities can raise unique issues. Thus, we can talk about nursing ethics, medical ethics, legal ethics, etc. One often finds oneself in dilemmas for which there is no legal solution — that is, there is no clear, legally enforceable duty to do or refrain from doing something, and not everyone agrees or feels that there is a right and wrong solution.

The purpose of this column is not to teach you how to use the law library to perform legal research (something very few lawyers know how to do efficiently), but to give you enough information so that you can locate the legal materials cited in Nursing Law & Ethics. To locate most references cited in this newsletter, you will have to use a law library. The first rule of research in any unfamiliar library is, of course, to ask the reference librarian for assistance.

All law schools have substantial libraries, as do many local bar associations. To obtain admission to the law library of your local law school, you may need special permission from the school or the assistance of a law student. Once inside, you will discover the principal problem with writing about “the law” in the United States: each of the 50 states has its own court system and legislature, and therefore, each has its own set of statutes and case reporters. Superimposed on this structure is a system of federal district courts and federal appeals courts.

Increasing numbers of nurses are being sued for malpractice. Confirmation of this statement may be found by surveying the case law of the various jurisdictions (which reveals that lawsuits against nurses, while still not common, are more frequent) and the nursing literature (which recently evidences a marked increase in the percentage of articles dealing with professional liability and related issues).

Nurses and nurses' aides probably administer almost all the medications in most large mental institutions. Until recently it was generally assumed that whatever drug the physician ordered, the nurse had to administer and the patient had to accept. Two recent cases, however, have challenged these assumptions and may lead to major changes in the way mental patients are treated.

There are two basic justifications for confining the mentally ill: (1) to protect them or other members of society — the so-called “police power” justification; and (2) to care for those unable to care for themselves — the parens patriae justification. Both generally require use of the “least restrictive alternative.” Mentally ill patients may or may not be competent to make any number of decisions, including the decision to accept or reject medications; but when can they be forcibly treated?

There is little argument against the principle that the health care consumer has the right to all pertinent information regarding his condition and treatment. Nevertheless, there is resistance and patients frequently have difficulty obtaining important information.

Generally, it is the responsibility of the physician to inform the patient of his diagnosis and condition, the recommended treatment, its risks and its side effects, and any alternative treatments. This is the essence of obtaining the patient's informed consent, without which treatment is illegal and unethical. An important aspect of the nurse's role is to safeguard the patient's right to receive this information, and, when necessary, to assist the patient in obtaining it. Since she is in frequent close contact with the patient, the nurse should evaluate the patient's understanding and should inform the physician when further information or clarification is needed. Furthermore, when the nurse realizes that the patient has not received or understood the necessary information, the nurse should advise the patient of his right to receive it before consenting to any treatment or procedure.