THE NURSE AND CRIMINAL LAW
Introduction to Criminal Law Concepts
Criminal Law Terms
To best understand the issues
related to criminal charges for nursing errors, it is important for nurses to
become familiar with the terms that apply to issues of criminal law. Highlights
important concepts nurses need to know about crimes. A crime is a type of
behavior that has been defined by the state as deserving of punishment, which
usually includes imprisonment. Crimes and their punishments are defined by
Congress and state legislatures.
Headlines describing nurses being
prosecuted for crimes related to nursing errors raise numerous questions for
nurses and their managers. Nurse managers need to be
aware of situations in which nurses may be subject to criminal prosecution to
assist staff in educating themselves and acting to minimize risk. After reading
this article, the reader should be able to identify the legal basis for
criminal charges for nursing errors, errors likely to result in criminal
prosecution, and discuss licensure implications of criminal charges for nursing
errors.
Custody nurses provide health care services within police custody suites. Their work is
focused on conducting clinical assessments, identifying and implementing
appropriate interventions, collecting forensic samples, providing advice and
guidance, and maintaining detailed and accurate records to ensure the health,
safety and welfare of people held in police custody.
Prison nurses are employed in all UK prisons, which range from open prisons, high
secure estates, young offenders’ institutions and women’s prisons to local
establishments. Their roles are varied and include: general, mental health,
children’s and learning disability nurses. Prison nurses have a good
opportunity for career progression and the development of specialist/advanced
practice such as nurse prescribing. Many prison nurses are employed by the NHS,
but there are also a number of private providers and others employed by prison
services.
Immigration centre nurses provide health services to people detained under the Immigration Act by
the Borders and Immigration Agency. Their work can include all aspects of
primary care in general and mental health care, as well as occasionally some
dealing with tropical diseases. Immigration removal centres are run by both
public and private sector agencies and some have in-patient facilities.
Criminal law – is that branch of law which defines
crime and treats of their nature. Ignorance of the law excuses no one from
compliance therewith. Laws take effect after 15 days from the publication in
the official gazette or any newspaper of national circulation. It serves as a
constructive notice to all persons so that no one is exempted from complying
with the law or to claim that he or she is ignorant from the passage of that
law.
The power to define and punish an act is within the
powers of the Legislative Department (House of Congress) where the legislative
power is vested in the fundamental law and has the power to define and punish
an act or omissions as a crime. The Chief Executive has also the prerogative.
Limitations in enacting Penal Laws
1. Generality
2. Territoriality
3. Irretrospectivity or prospectivity
Theories of Criminal Law
Classical Theory – man is essentially a moral creature
with an absolutely free will to choose between good and evil and therefore more
stress is placed upon the result of the felonious act.
Basic criminal liability is human free will and the
purpose of penalty is retribution. Crime is a juridical entity and penalty is
an evil and a means of juridical tutelage.
Positivist Theory – Man is subdued occasionally by
strange and morbid phenomenon which conditions him to do wrong in spite of or
contrary to his volition. The basis of criminal responsibility of the criminal
is his dreadfulness or dangerous state.
The major source of our criminal law is Act otherwise
known as the Revised Penal Code of the Philippines that took effect.
Crime consists of internal and external acts. Internal
acts are not punished in our jurisdiction.
Voluntariness is an element of felony because if an
act is committed or performed with deliberate intent then it implies that the
act is voluntary or freely committed.
Felony is an act or omission punishable by the law.
Imprudence is deficiency in action
Negligence is deficiency of perception.
Negligent act must be voluntary- example ( an incidental dropping of pistol and fired and hit
someone, there is no liability )
Intelligence – is the moral capacity to determine what
is right from what is wrong and to realize the consequences of one’s acts.
Intent – is a mental state, the existence of which is
shown by the overt acts of a person.
A crime may be committed without criminal intent by
means of culpa and offences punishable by special laws.
Criminal liability shall be incurred by any person
committing a felony although the wrongful act done be
different from that which he intended. By any person performing an act which
would be an offence against persons or property, were
it not the inherent impossibility of its accomplishment or on account of the
employment or inadequate or ineffectual means.
STAGES OF FELONY
Consummated – all elements necessary for execution and
accomplishment are present.
Frustrated – the offender has performed all the acts
of execution to produce the felony as a consequence but the crime does not
result due to some cause independent of the will of the offender.
Attempted – the offender begins the commission of the
felony by direct overt acts but does not perform all the acts of execution
which should produce the felony as a consequence by reason of some cause or
accident other than his own spontaneous desistance.
Offenders present diverse health care issues and
needs. The CJS is therefore required to provide, or at least provide access to,
a comprehensive range of health care services.
Consequently, the role of nurses and health care
assistants in the CJS requires a range of highly developed skills and
competencies that often span a number of specialist areas, such as:
_ managing long term
conditions
_ mental health
_ learning disabilities
_ paediatrics
_ maternal and infant health.
CJS nurses can also require many of the public health
skills associated with primary care nursing, including health needs assessment,
screening and health promotion. Provision of therapeutic activities (such as
stress management, counselling and related psychological therapies) is also
required to assist in the broader agenda of reducing re-offending.
The challenges and opportunities
A particular challenge for anyone working in this area
of health care is that there is a requirement for offenders to be involved in
making decisions about their own care, to be treated as equal partners, be
listened to and to have informed access. Yet the custodial environment is often
seen as one of control and authority, and much has been written about the
competing priorities of health care and custody/security (Walsh, 2007).Nurses
have a responsibility to consider these important elements when providing care
and to work in collaboration with custodial colleagues.
The recent
changes to health care provision in the CJS have opened up exciting
opportunities for health care practitioners. Nurses and health care assistants
in particular have been able to develop and expand their role and
responsibilities. This has included, for example, the development of nurse-led
clinics, triage, counselling services and sexual health services. The scope of
practice offers an opportunity for nurses and health care assistants to really
make a difference to this extremely vulnerable group of people, tackling social
exclusion and contributing to reducing crime. This is a vital role if offenders
are to return to the community as active, productive and healthy citizens.
National
Service Frameworks www.dh.gov.uk/en/Healthcare/NationalServiceFram
eworks/index.htm
There are several types of crimes
for which nurses may be charged as a result of a nursing error. Criminal
negligence is more-than-ordinary carelessness, in other words, recklessness. In
general, carelessness can be a crime when a person recklessly disregards a
substantial and unjustifiable risk. It is up to judges and juries to evaluate a
person's conduct according to community standards and to decide whether the
carelessness is serious enough to demonstrate criminal conduct. Criminal
neglect is an act, omission, or course of conduct that because of the failure
to provide adequate medical care creates a significant danger to the physical
or mental health of a patient.
Negligent homicide is the
negligent killing of one human being by the act or omission of another.
Criminal homicide occurs when a person purposely, knowingly, recklessly, or
negligently causes the death of another. Murder and manslaughter are both
examples of criminal homicide. A felony is a serious crime (contrasted with
misdemeanors and infractions, less serious crimes), usually punishable by a
prison term of more than 1 year or, in some cases, by death. For example,
murder, extortion, and kidnapping are felonies; a minor fistfight is usually
charged as a misdemeanor, and a speeding ticket is generally an infraction. A
misdemeanor is a crime, less serious than a felony, punishable by no more than
1 year in jail. Petty theft (of articles worth less than a certain amount),
first-time drunk driving, and leaving the scene of an accident are all common
misdemeanors. Assault is a crime that occurs when one person tries to physically
harm another in a way that makes the person under attack feel immediately
threatened. Actual physical contact is not necessary; threatening gestures that
would alarm any reasonable person can constitute an assault. A battery is a
crime consisting of physical contact that is intended to harm someone.
Unintentional harmful contact is not battery, no matter how careless the
behavior or how severe the injury. A fistfight is a common battery; being hit
by a wild pitch in a baseball game is not. Other crimes for which nurses could
be charged include elder/dependent adult abuse, drug possession/use, and breach
of privacy that is, snooping in charts or revealing patient information.
In criminal cases, a grand jury
typically decides whether there is enough evidence to justify an indictment
(formal charges) and a trial. A grand jury indictment is the first step, after
arrest, in any formal prosecution of a felony. A charge is a formal accusation
of criminal activity. The prosecuting attorney decides on the charges, after
reviewing police reports, witness statements, and any other evidence of
wrongdoing. Formal charges are announced at an arrested person's arraignment.
The information is the name of the document, sometimes called a criminal
complaint or petition, in which a prosecutor charges a criminal defendant with
a crime, either a felony or a misdemeanor. The information tells the defendant
what crime he/she is charged with, against whom, and when the offense allegedly
occurred, but the prosecutor is not obliged to go into great detail. If the
defendant wants more specifics, he must ask for it by way of a discovery
request. An arraignment is a court appearance in which the defendant is
formally charged with a crime and asked to respond by pleading guilty, not guilty.
Other matters often handled at the arraignment are arranging for the
appointment of a lawyer to represent the defendant and the setting of bail.
Bail is the money paid to the
court, usually at arraignment or shortly thereafter, to ensure that an arrested
person who is released from jail will show up at all required court
appearances. The amount of bail is determined by the local bail schedule, which
is based on the seriousness of the offense. The judge can increase the bail if
the prosecutor convinces him that the defendant is likely to flee (for example,
if he has failed to show up in court in the past), or he can decrease it if the
defense attorney shows that the defendant is unlikely to run (for example, he
has strong ties to the community by way of a steady job and a family). A bail
bond is the money posted by a "bondsman" for a defendant who cannot
afford his bail. The defendant pays a certain portion, usually 10%. If the
defendant fails to appear for a court hearing, the judge can issue a warrant
for his arrest and threaten to forfeit, or keep, the money if the defendant
does not appear soon. Usually, the bondsman will look for the defendant and
bring him back, forcefully if necessary, to avoid losing the bail money.
A plea bargain is a negotiation between
the defense and prosecution (and sometimes the judge) that settles a criminal
case. The defendant typically pleads guilty to a lesser crime (or fewer
charges) than originally charged, in exchange for a guaranteed sentence that is
shorter than what the defendant could face if convicted at trial. The
prosecution gets the certainty of a conviction and a known sentence; the
defendant avoids the risk of a higher sentence; and the judge gets to move on
to other cases. Sentencing is the imposition of the sentence by the judge. A
sentence is the punishment in a criminal case. A sentence can range from a fine
and community service to life imprisonment or death. For most crimes, the
sentence is chosen by the trial judge; the jury chooses the sentence only in a
capital case, when it must choose between life in prison without parole and
death.
Criminal Law Process
When an
incident with patient care occurs, the first step in the criminal process is an
investigation. The authorities may become involved because of a mandatory
reporting obligation on the part of the hospital when a patient is injured, or
because of reports made by the patient or family. In most jurisdictions, either
a judge in a preliminary hearing or a grand jury must indict the defendant
before charges can be brought.
On some occasions, after the
indictment, a warrant is issued for the arrest of the defendant. Arrest is a
situation in which the police detain a person in a manner that, to any
reasonable person, makes it clear he/she is not free to leave.
A person can be "under
arrest," even though the police have not announced it; nor are handcuffs
or physical restraint necessary. Questioning an arrested person about his/her
involvement in or knowledge of a crime must be preceded by the Miranda warnings
if the police intend to use the answers against the person in a criminal case.
If the arrested person chooses to remain silent, the questioning must stop.
In many cases involving nurses,
the nurse is allowed to surrender to authorities at the district attorney's
office or the police station instead of being arrested. This saves the
defendant nurse from public embarrassment of the police showing up at his/her
home or place of employment to make the arrest. After a defendant is arrested,
a judge will conduct an arraignment, in which the defendant is informed of the
charges against him and imposition of bail, which would allow the defendant to
remain free pending trial. After the arraignment, the defendant's attorney will
have the opportunity to conduct discovery to gather facts related to the
incident. The prosecuting attorney will have to share with the defense attorney
certain evidence gathered during the prosecution's investigation.
Many times after discovery is
conducted, the defendant will reach a plea bargain with the prosecutor. This
means that the defendant will plead guilty to a limited charge in exchange for
a lighter punishment than would result if the defendant were found guilty at
trial of all the charges. Should a plea deal not be reached, the case will go
to trial. Box 2 lists the steps in the trial process. It is important for the
nurse to remember that the criminal law system provides certain protections for
defendants. These include the higher burden of proof which applies in a
criminal case. In a criminal case, the prosecutor must prove the defendant's
guilt beyond a reasonable doubt. Reasonable doubt is sometimes explained as
being convinced to a moral certainty. The jury must be convinced that the
defendant committed each element of the crime before returning a guilty
verdict. Another protection is the requirement that the jury must be unanimous
in finding the defendant guilty in a criminal matter. Thus, if only 10 of 12
jurors find the defendant guilty, then the verdict must be entered as not
guilty. Box 3 lists some important differences between the civil and criminal
law systems.
FINDING AND PAYING FOR
AN ATTORNEY
It is imperative for the nurse who
believes he/she is facing possible criminal charges to hire a competent
criminal defense attorney. There are several sources the nurse can use to help
find an attorney: the state bar referral service, the county bar referral
service, the public defender's office and the American Association of Nurse
Attorneys can all provide referrals to criminal defense attorneys.
Nurses should note that the law
requires that if a defendant in a criminal case cannot afford to hire an
attorney, one must be provided for the defendant by the state. These attorneys
usually work for the public defender's office in the jurisdiction. Many legal
aid societies also have attorneys who are willing to provide services for free
to those who cannot afford to hire an attorney. With any attorney, it is important
for the nurse to determine that the attorney has experience with criminal
defense work and that the attorney can consult with other attorneys experienced
in issues related to healthcare providers.
The nurses involved in
this case were the following:
Neonatal nurse practitioner (NNP)
with 7 years' experience
Level II nursery nurse with 6
years' experience
Mother-baby nurse with 20 years'
experience
The mother was a G4P3003, who was
found to have positive RPR prenatally with positive fluorescent treponemal antibody (syphilis). The mother reported having
contracted syphilis in 1981 and that it had been treated at that time. She had
given birth to 3 healthy babies since 1981. The Colorado State Health
department attempted to verify the 1981 treatment but was unable to confirm it
had been provided. Centers for Disease Control and Prevention guidelines
recommended retreatment; the obstetrician elected to defer treatment, although
RPR titers repeated at 18 and 29 weeks remained mildly positive. The obstetrician's
rationale for this decision was not documented on the prenatal American College
of Obstetricians and Gynecologists (ACOG) record. At 36 weeks, the ACOG record
was sent to the hospital. At 38 weeks, a fourth RPR titer was negative; this
result was not communicated to the hospital, nor was the updated ACOG record
sent to the hospital. The mother had an uncomplicated vaginal birth at 40
weeks. The neonatologist read the ACOG record and consulted with the State
Health Department about the lack of treatment of the mother for a positive RPR
during pregnancy; the State told the neonatologist what the recommended
treatment was for the infant. The neonatologist did not consult with the
obstetrician. The neonatologist ordered antibiotic treatment for the infant with 150,000 U benzathine penicillin G
intramuscularly administered (IM) as well as bone radiographs and a lumbar
puncture. The neonatologist decided not to wait for the test results before
administration of antibiotics. The neonatologist ordered the antibiotic
treatment to be given immediately. The neonatologist testified at trial that
because the family spoke Spanish, she feared they would be lost to follow-up if
she delayed the treatment or if treatment was deferred to the family
pediatrician. A translator was sought to discuss the lumbar puncture with the
parents, who questioned the necessity of this test because their other children
were healthy.1
The NNP and nursery nurse became
involved because of a change in the infant's risk status as a result of the
"positive" RPR. The mother-baby nurse was assigned to this couplet.
The pharmacist filled the physician order with 10 times the ordered dose
(1,500,000 vs 150,000 U). The drug arrived in
prefilled syringes. The nurses observed that it was a very large volume (2.5
mL) of medication for an IM injection for an infant. Administering this volume
by IM injection would have required 5 separate injections because infants can
only get a maximum of 0.5 mL per injection. The nurses did not call the
pharmacy to verify the volume sent. The nurses did not notice that the dose
sent was 10 times the ordered dose. The NNP and nursery nurse decided to
investigate whether a different route of administration (intravenous [IV])
could be used. The NNP knew that national standards for NNPs allow them to plan
and change drug therapy. The NNP and nursery nurse consulted for administration
of this medication.
The hospital conducted an
investigation. As a result of the hospital's investigation, the NNP was
terminated; the nursery nurse was assigned nonnursing
duties while on suspension from the Board of Nursing; the mother-baby nurse was
cleared; and the pharmacist was allowed to resign.1
The death was reported by the
hospital to the State Board of Nursing, as a sentinel event. The Board of
Nursing suspended the NNP's license and nursery nurse's license. The
mother-baby nurse's license was left intact. The pharmacist was reported to the
State Board of Pharmacy, which investigated but did not discipline the
pharmacist.
This case was reported on in the
media and became a front-page story; the public wanted an explanation. Legal
authorities became interested. A criminal investigation was opened by the
district attorney. Several months later, all 3 nurses were indicted on charges
of negligent homicide. All defendants faced a possible 5-year jail term if
convicted. The NNP and nursery nurse accepted a plea bargain; both pled guilty
with a deferred sentence. Their records would be expunged of the conviction
(this means the record will be wiped clear as if it never happened), provided
they had no further criminal convictions for a period of 2 years; the plea
removed the possibility of a prison sentence or fines. The mother-baby nurse
went to trial and was acquitted by a jury on January 30, 1998, after a
45-minute deliberation.1 Acquittal means a decision by a judge or jury that a
defendant in a criminal case is not guilty of a crime. An acquittal is not a
finding of innocence; it is simply a conclusion that the prosecution has not
proved its case beyond a reasonable doubt.
Lessons Learned-What Could Have
Been Done Differently?
Systems Errors in
Denver Case
The Institute for Safe Medication
Practices found more than 50 deficiencies in the medication use system that
contributed to this error. There were a string of steps that led to this error,
including an unsuccessful effort to document previous treatment of syphilis;
the obstetrician elected to defer treatment despite Centers for Disease Control
and Prevention recommendations of retreatment when clear documentation was not
available; the obstetrician did not document why the mother was not retreated;
the obstetrician did not communicate a clinical update after 36 weeks; the
neonatologist did not communicate with the obstetrician regarding the treatment
plan; decisions were made regarding the need for immediate treatment of the
infant based on a language barrier; the parents concerns seem to have been
overlooked; the pharmacist made a serious error in interpreting the order and
sent 10 times the ordered dose; the nurses did not check with the pharmacist
when a large volume of medication was sent to the nursery; writing on syringes
was hard to read; the nurses did not follow the 5 rights (patient, time,
medication, route, and dose) for medication administration; the hospital had no
written protocols for NNPs; the NNP and nursery nurse lacked experience in
administering this drug but did not check with the pharmacist or neonatologist;
and information in Neofax was incomplete and did not
clearly indicate the drug could only be given.
Case Study: Wisconsin Nurse
The nurse in this case was an
obstetrics nurse with 15 years' experience. She volunteered to work two 8-hour
shifts on July 4, 2006. She then slept at the hospital and began her next shift
at 7 am on July 5. The nurse had 2 patients assigned to her on the date of the
error: one was a 19-week pregnant patient with rupture of membranes; the other
was a patient in labor. The patient in labor was a 16-year-old girl who was
postdates and had been admitted for induction of labor. The patient wanted
"natural" childbirth, indicating that she would accept pain
medication but that she did not want an epidural. The patient had a culture
positive for group B streptococcus on June 1, 2006. An obstetrics resident wrote
an order for penicillin G, 5 million U IV at 11 am. At
11:15 am, the obstetrician ruptured the patient's membranes. At 11:36 am, the
nurse went to the Pyxis machine and removed a number
of medications that had been ordered for the patient. At the same time, she
removed a bag containing bupivacaine and fentanyl for use as an epidural. No
order had been written for an epidural; the nurse removed the epidural
medication because she believed one would be ordered. At the same time the
nurse removed the medications from the Pyxis, another
nurse brought a bag containing the penicillin to be given to this patient IV.
The facility had a Bridge Medical System for ensuring that the right patients
got the right medications, but the nurse did not use it. The nurse started an
IV around noon and mistakenly piggybacked the bag of epidural medication rather
than the penicillin to the IV and infused it at faster than the standard rate.
Within 5 minutes, the patient was seizing and gasping for air. She was declared
dead several hours later as a result of cardiac arrest, convulsions, and
central nervous system complications as a result of poisoning by IV
administration of the epidural anesthetic.2
On November 2, 2006, the nurse was
charged with neglect of a patient causing great bodily harm: it was claimed
that she failed to provide adequate medical care, creating a significant danger
to the patient's physical health under circumstances that caused great bodily
harm to the patient. The criminal complaint alleged that the nurse did not
follow the 5 rights of medication administration and did not use an available
bedside bar-coding system.2 This nurse faced up to 6
years in jail, a fine up to US $25,000, or both.3
On December 16, 2007, the nurse
was placed on 3 years' probation for 2 misdemeanors. As part of a plea
agreement, the nurse pleaded no contest to 2 misdemeanors (dispensing of a drug
by someone other than a pharmacist and possession of a drug by a person to whom
it had not been prescribed). The charges were amended from the single felony
(negligence causing great bodily harm). While on probation, the nurse was
prohibited from practicing critical care nursing including obstetrics,
emergency room, and recovery room nursing.3
The Board of Nursing suspended
this nurse's license for 9 months and imposed 2 years of practice limitations
of no more than 12 hours per 24 hours and 60 hours per 7 days. The Board also
required continuing education of 54 hours in 1 year, required her to make 3
presentations to the nursing community, and imposed a US $2,500 fee. The Board
found that the nurse failed to place the identification wristband on the
patient's wrist, failed to scan the barcodes and use the Bridge Medical System
for administering medication, and failed to read the label on the minibag containing the epidural medication, which had a
bright pink large label.
The public response to this case
was one of shock. The Institute for Safe Medication Practices released a
statement opposing criminal prosecution of healthcare professionals for
unintentional errors. The Wisconsin Hospital Association released a statement
opposing criminal charges. The Wisconsin Nurses Association opposed the
Department of Justice decision to pursue criminal prosecution.5 In a press
release, the Wisconsin Hospital Association declared "The association
believes that existing regulatory agencies can appropriately address and apply
necessary sanctions and monitoring systems to promote quality of care and
patient safety" and that action by the Department of Justice is not
warranted for an unintentional medical error.
The American Nurses Association
also released a statement opposing criminal charges and the bypassing of the
usual administrative process.
Case Study: New York Nurses
Indicted for Quitting Their Jobs
In March 2007, the Suffolk County
Grand Jury indicted 11 persons for endangering the welfare of pediatric
patients at a nursing home. The defendants were charged with misdemeanor
endangering the welfare of children and physically disabled persons; 1 defendant
(an attorney representing the other defendants) was charged with instructing
the others, all of whom were nurses at the facility, to resign without giving
notice. The indictment claimed that the sudden, en masse resignation of this
group of nurses endangered the lives of pediatric patients.
The parent company of the nursing
home recruited the defendant nurses from the Philippines and brought them to
the United States. If the nurses did not honor the 3-year commitment in their
contract, they would owe the company US $25,000. The indictment claimed that
the nurses and their attorney tried to get out of the contract without paying
the penalty. The defendants were charged with agreeing to resign en masse
without notice, knowing that doing so would make it hard for the facility to
find skilled replacement nurses in a timely manner. The defendants face up to 6
years in prison. The nurses contended that they were recruited under false
pretenses. The Nursing Board cleared the nurses of administrative charges. The
facility filed a civil suit against the nurses and worked with the district
attorney's office to file criminal charges. NY Education Law defines
unprofessional conduct as abandoning employment at a facility without giving
reasonable notice and under circumstances that seriously impair the delivery of
professional care to patients.
LICENSURE IMPLICATIONS
OF CRIMINAL CHARGES AGAINST NURSES
It is important for nurses to be
aware that conviction of a crime is a basis for nursing license discipline;
pleading guilty may also be a basis for licensure discipline. The nurse needs
to consult both criminal and administrative attorneys if involved in a criminal
case to be sure that the actions taken by the criminal defense attorney do not
adversely impact the nurse's chances for retaining his or her license.
A plea may impact licensure, and
the nurse may not be able to function as nurse while the plea agreement is in
effect. Most Board of Nursing statutes indicate that the board can suspend,
revoke, or limit the license if the holder has been convicted of a felony;
conviction is usually defined to include the entry of a plea of guilty or nolo
contendere, or the imposition of a deferred sentence. It is also important to
note that the Board's failure to discipline a nurse is not a bar to criminal
charges; the standards for licensure discipline differ from those governing
criminal charges.