Nurs Clin N Am 38 (2003) 9–19

Legal aspects of psychiatric nursing

Linda Funk Barloon, MS, RN, APRN, CS, CPNP, BC
Child and Adolescent Services, Harris County Psychiatric Center,
2800 South MacGregor Way, Houston, TX 77021

The practice of psychiatric nursing has changed immensely in recent

decades. Advances in understanding of mental illness and innovations in
treatment, societal forces, economic restrictions, and informed patients and
families have promoted the changes. With the clinical evolution of psy-
chiatric care, the definition of legal practice also has evolved over time. Psy-
chiatric nurses are held accountable to practice according to current laws
and standards. This article briefly reviews the major legal issues that affect
psychiatric nursing practice today.

Standards for legal psychiatric nursing practice

Legal parameters for practice are established through a variety of
sources. Many measures exist against which a nurse’s practice can be
judged. State boards of nursing govern the scope of practice, defining the
requirements and limitations for nursing practice within a given state.
Federal and state statutes direct practice; for example, virtually all states
have laws outlining the reporting of child and elder abuse. Case law (ie, legal
findings related to particular court cases) also set precedence for legal
practice; for example, the Tarasoff case of the mid-1970s set a standard
for the duty to protect third parties against harm that has become the
benchmark in subsequent cases in other states. The Centers for Medicare
and Medicaid Services, formerly known as the Health Care Financing
Administration (HCFA), set stringent regulations for organizations that
receive such federal funding; for example, regulations define acceptable
inpatient staff-to-patient ratios and proper training and use of seclusion
and restraint. The Joint Commission on the Accreditation of Healthcare
Organizations is another body that sets rigorous standards for institutions
that seek accreditation [1].

E-mail address: lbarloon@mind.hcpc.uth.tmc.edu

0029-6465/03/$ - see front matter Ó 2003, Elsevier Science (USA). All rights reserved.
doi:10.1016/S0029-6465(02)00060-9
10 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19

Psychiatric nurses look to professional nursing organizations to define safe

and acceptable practice through published standards. The American Nurses
Association published Scope and Standards of Psychiatric-Mental Health
Nursing Practice [2] in 2000. This comprehensive document outlines levels
of psychiatric nursing practice and identifies specific standards of practice
for nursing activities and criteria for measuring the standards. Similarly the
American Psychiatric Nurses Association (APNA) and the International
Society of Psychiatric Nurses (ISPN) have published standards that guide
practice. Involvement in professional organizations can help nurses keep
informed of current published standards as well as other issues [1].
Finally, developments in clinical practice guide legal practice. In addition
to the foundation of knowledge and skills attained through basic nur-
sing preparation, psychiatric nurses should remain current in clinical areas
through participating in educational programs and reviewing the literature.

Patient rights and nursing responsibilities

Least restrictive alternative: seclusion and restraint
By law, psychiatric treatment must be provided in a manner that allows
the most freedom and the least restriction to meet the particular needs
of a patient [3]. Consequently a variety of treatment settings exist, and in-
patient treatment is reserved for patients who are mentally ill and require
a high degree of monitoring for personal safety or the safety of others.
Likewise, seclusion and restraint must be used only when other less re-
strictive means have been considered and ruled out.
There has been a major movement to decrease if not eliminate the use of
seclusion and restraint in psychiatric settings in the United States. Concerns
about the immorality of the use of such measures, including the potential
for physical and psychological injury to patients, and concerns about the
violation of civil rights have fueled this movement. Today hospital policies
and governmental agencies and psychiatric organizations provide stringent
guidelines that dictate the use of these treatment options. In 1999, the
HCFA issued new guidelines for the use of seclusion and restraint, which
include the requirements of a face-to-face assessment within 1 hour of the
initiation of seclusion or restraint and limit the amount of time before
a renewal order for seclusion or restraint is required [4].
Seclusion and restraint may be used legally only in emergent situations
for the least amount of time necessary to protect the patient or others from
imminent harm. Objective documentation must support the emergent need
for such measures and that alternatives were considered. Nurses are respon-
sible to uphold these standards and to ensure that seclusion and restraint
are not used as threats, as punishment, or for staff convenience. Seclusion
and restraint may not be used as part of a behavioral management pro-
gram or as a unit policy (eg, a unit policy indicating that any patient found
 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19 11

with contraband will be secluded for 1 hour). The APNA published its
Position Paper on the Use of Seclusion and Restraints in 2000 [5]. Excerpts
from this paper follow:
 Training programs focused on the prevention and use of seclusion and
restraint must be provided during a staff member’s orientation and at
least annually thereafter.
 The decision to initiate seclusion or restraint is made only after it is
determined that the benefits associated with the use of restraint or
seclusion outweigh the risks of their use.
 Within 1 hour of the initiation of seclusion or restraint, a face-to-face
evaluation by a physician or Licensed Independent Practitioner is
conducted to determine the patient’s current status, including mental
status, physical status, and any risks associated with the initiation or
continuation of seclusion or restraint [5].

Right to refuse treatment

The right to refuse treatment often is regarded as a patient’s right to
refuse medication. Today patients have the right to refuse medications
unless court ordered to take the medication or in emergent situations and
then with limited use. This is a change from previously when it was accepted
that a patient who was involuntarily committed did not have decision-
making capacity and was not able to refuse medication.
Even patients who are under civil commitment and prisoners who are
mentally ill do not forfeit all of their civil liberties and have the right to
refuse medication. Involuntary medications can be administered to patients
with a physician’s order to prevent immediate danger to the patient or
others. Nurses are responsible to assess and document objectively in such
cases. There is also a judicial process by which a patient can be determined
to be incompetent to refuse medication, in which case medication may be
court ordered [6].
With the advent of newer psychotropic medications, clinicians may
believe that the benefits far outweigh the risks of medication; however, the
patient retains the right to make this decision. In addition to concerns about
side effects, there are a multitude of reasons why patients might refuse med-
ications, including denial about having a mental illness and the stigma of
taking a psychotropic medication. Although psychiatric nurses can inform
patients about benefits, risks, and alternatives to medication, forcing a pa-
tient to take medication, without the aforementioned exceptions, exposes
the nurse to possible liability.

Confidentiality
Psychiatric nurses are responsible for maintaining the confidentiality of
information shared by patients with the treatment team and within the
12 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19

medical record. The American Nurses Association Code of Ethics for Nurses
[7], many state nursing practice acts, and most mental health facilities have
statements regarding confidentiality. Because of the nature of psychiatric
care, patients must be able to trust that what is shared is used for treatment
purposes only and is not released to parties who have no need to know and
no legal right to know.
Nurses must safeguard confidentiality by discussing patient care matters
in private areas and protecting the medical record by not leaving documents
within the view of others outside the treatment team, properly disposing of
discarded documents with patient information such as report sheets, and
closing computer screens displaying patient information when not in use.
In groups and in family situations, nurses also must be mindful of what
information is shared without the patient’s consent and instead encourage
self-disclosure by the patient when indicated. When patients wish to have
information shared with other people or organizations, such as an insurance
agency or other health care provider, proper consent for release of infor-
mation should be obtained.
Privileged communication is a right of patients that protects informa-
tion from being shared in a court of law. Although lawyer-patient and
psychiatrist-patient privileged communication rules have been established,
not all states clearly define privileged communication between nurse and pa-
tient [8]. There may be cases in which a nurse could be compelled to share in
court information that would be considered confidential. In some circum-
stances, breach of confidentiality is legal, including the duty to protect third
parties and mandated reporting of abuse, which are discussed subsequently.

Duty to protect third parties

In the mid-1970s, what has come to be known as the Tarasoff decision [9]
established a therapist’s duty to protect third parties from foreseeable harm.
In this case, a college student, Tatiana Tarasoff, was killed by a fellow
student who had told his therapist of his plan to kill her. Although the
psychologist notified campus police of the threat and sought unsuccessfully
to have the patient committed to a mental hospital, the therapist failed to
inform the intended victim or her family. This widely held principle states
that when specific threats are made to a therapist about a specific victim, the
therapist has a duty to warn the intended victim. There have been many
variations among jurisdictions of this position since the original findings,
not all in agreement with the Tarasoff decision, that weigh the patient’s
right to confidentiality against the duty to protect the third party, and some
rulings argue against a therapist’s ability to predict violence accurately. In
general, the duty to warn exists in cases when a patient makes a specific
threat about a specific intended victim and in cases when a patient has a
prior history of violence. Clinicians are protected against breach of con-
fidentiality when making a warning in good faith [10].
 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19 13

Mandated reporting
As mentioned earlier, virtually all states have mandated reporting laws
for health care workers regarding suspected child and elder abuse and
neglect. Some states have mandatory domestic violence reporting laws. State
departments of social or human services oversee this reporting mechanism.
There must be clear evidence of harm except in cases in which serious harm
may result from neglect. Careful assessment and clinical judgment are in-
valuable in such cases [11]. When reports are made in good faith, health
care workers are protected from breach of confidentiality and civil action.
Failure to follow reporting regulations is subject to legal action.
Psychiatric home health nurses may find evidence of abuse or situations
of imminent danger in patient’s homes. In emergent situations, local law
enforcement may be contacted. It may be helpful for home health nurses
and other psychiatric nurses to inform patients of the duty to report during
the initial assessment [12].

Informed consent
Informed consent is not simply the signing of a form. Informed consent is
the process by which information is shared about treatment options, risks, and
alternatives [13]. Nurses often are involved in this process, and it may involve
written information and the patient being asked to sign a form. The patient
must have the capacity to understand the proposed treatment, have adequate
information to make a decision, and have the option to make a choice [14].

Treatment of minors
Minors are considered legally incompetent to make treatment decisions
for themselves, and parents or legal guardians have the right to make such
decisions. The age of majority varies by state but is most often 18 years old.
In general, persons younger than age 18 who are married or are in the
military are considered emancipated minors. Some states also consider
minors with children to be emancipated. Some jurisdictions make exceptions
for minors to consent for certain types of treatment, such as substance
abuse, prescribing of contraceptives, treatment for sexually transmitted dis-
eases, and suicide prevention [15].
The Association of Child and Adolescent Psychiatric Nurses (ACAPN),
a division of the ISPN, published a position paper regarding the rights of
children in treatment settings [16]. Some statements selected from the paper
follow:
 ACAPN opposes the abduction and involuntary transport of children
to facilities for confinement unless such measures have been clinically
justified in specific, operational terms by a licensed mental health pro-
fessional with the legal authority to do so.
14 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19

 Before the child’s admission, a copy of his or her rights (written in clear
and understandable language) should be given to the child and ex-
plained verbally by a licensed staff member.
 ACAPN opposes any prohibition or barriers to communication
imposed by any facility, including rigid and restrictive visiting policies,
policies that restrict parents from visiting their children, limited access
to telephones, and barriers to mail service.
 ACAPN opposes any and all punitive measures. Children should not
be physically restrained (restriction of body parts by device or by
placement in an isolated, locked room) unless every avenue of pre-
vention of harm to themselves or others has been exhausted [16].

Documentation
Documentation is the primary method by which the record of treatment,
progress and response, and patient care is communicated. Additionally, for
purposes of internal and external auditing, the medical record is typically
the sole informant. In a court of law, the medical record defines what oc-
curred in treatment. Documentation is an important nursing responsibility
that must be thoughtful and complete.
In a study that examined the documentation of registered nurses on the
medical records of hospitalized psychiatric patients, 20% of the entries were
found to be pejorative and filled with jargon, words and phrases such as
manipulative, visible on the unit, and limit testing. Documentation must be more
than simply a ‘‘ritual.’’ Documentation must be based on solid assessment and
provide evidence to support the observations and interpretations [17].
Many medical records today are computerized or have checklists that
limit the possible responses. Although these methods often make nurses’
work easier, they may be too restrictive to allow for complete and individ-
ualized documentation, and additional entries may be necessary. In any com-
plex case in which liability may be increased, the nurse should document as
though describing the situation to a colleague or ‘‘thinking aloud for the
record,’’ thoroughly describing the nurse’s assessment and thought process
for decision making [6].

Supervision of patients
One of the key responsibilities of psychiatric nurses is to maintain safety
within the patient setting. The safety of patients with mental illness also
must be maintained in settings such as the emergency department. Often, in
inpatient and other settings, nonlicensed personnel provide and document
monitoring of patients, yet the responsibility ultimately lies with the nurse to
ensure that proper supervision occurs. The nurse is responsible to carry out
procedures and physician’s orders regarding patient safety and supervision.
An institution may have policies regarding opposite-sex staff supervising
 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19 15

patients in certain situations and specific procedures for monitoring patients

at risk for self-harm, such as constant observation. Claims of inadequate
staffing do not justify failure to follow procedure [18]. In addition, nurses
must assess potentially dangerous situations and vulnerable patients (eg,
a patient who is disoriented and agitating peers) and make reasonable
plans to control the risk. Patient supervision, removal of unsafe objects,
documentation, communication among staff members, and treatment plan-
ning are some methods of addressing these concerns. Institutions are respon-
sible for ensuring that employees have adequate competence, skills, and
training to maintain safety [19]. Institutions have been found liable for
failing to supervise patients properly in situations that have resulted in self-
inflicted injury to the patient [18,20]. Nursing staff also may be charged
with failure to provide adequate supervision in cases in which patients are
assaulted by other patients or staff members.

Forensic psychiatric issues (pertaining to the court system)

Civil commitment process
Civil commitment laws allow the state to hospitalize a person in-
voluntarily. A century ago, it was possible to have a family member hos-
pitalized with little or no justification as long as a physician authorized it,
and not until the 1960s and 1970s were specific legal criteria for such hos-
pitalization established [21]. Today’s commitment laws are based on the
‘‘dangerousness standard,’’ under which someone who is mentally ill can be
involuntarily hospitalized when he or she is unable to care for himself or
herself or when he or she is a danger to self or others. This process allows
for family members or the police to seek commitment for persons with
mental illness who are imminently dangerous yet refuse hospitalization.
Civil commitment laws have changed dramatically, and current trends
toward supporting the civil liberties of the mentally ill resulting in deinsti-
tutionalization have been blamed for increased homelessness, morbidity,
and criminalization of the mentally ill [22].
Civil commitment laws, including the specific criteria for commitment,
vary from one state to another and include common criteria, such as the
person must have a mental illness, must lack the judgment to make decisions
regarding hospitalization, and must be an immediate risk to harming self
or others. Treatment is usually inpatient, although some jurisdictions allow
outpatient civil commitment. Courts have ruled that nurses should not be
found liable for holding a hospitalized patient who is later found to be
wrongfully committed [20].

Competency
Within the criminal justice system, legal competency to stand trial is
based on a defendant’s ability to understand legal charges being made and
16 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19

to aid an attorney in his or her defense. These criteria are referred to as the
Dusky Standard based on a 1960 Supreme Court case [23]. A person who
lacks such capacity because of a severe mental illness or because of a severe
developmental disability is considered legally incompetent. Defendants are
considered competent unless there is some question about this presumption,
usually raised by the person’s behavior (eg, if the person exhibits bizarre
behavior). Incompetence is not regarded as a static condition, and if and
when competence is reestablished, the person resumes the criminal process
[24,25].
Other than competency to stand trial, there are many acts for which
a patient might be considered competent within and outside of the criminal
justice system. For example, a patient agreeing to take medication must be
able to understand the treatment and alternatives and be able to commu-
nicate a choice to be considered competent [14].

Insanity defense
The defense of insanity is used in the criminal process when a person is
considered so severely mentally ill as to lack free choice or rationality at the
time of committing an illegal act. In other words, the person did not know
right from wrong and did not make a conscious decision to commit the
crime. Not all persons who are mentally ill meet the criteria for the insanity
defense, and the criteria have some variation among jurisdictions. Persons
found to be legally insane do not receive prison terms but typically are
remanded to treatment in forensic hospitals. State laws vary regarding the
criteria, disposition, and release from treatment regarding the insanity
defense [22].
The insanity defense has received a great deal of recent attention because
of the 2002 trial of Andrea Yates. Yates was found guilty in the drowning
deaths of her children despite unsuccessful arguments by her attorneys for
a finding of innocence by reason of insanity. Yates had a long-standing
history of depression and psychosis and was under the care of a psychiatrist.
The prosecution did not dispute that Yates was mentally ill but argued that
she knew it was wrong to drown her children yet made a decision to do
so anyway [26]. The Yates conviction prompted the American Psychiatric
Association to release a statement regarding concerns about how society
and the legal system deal with severely mentally ill persons [27].

Legal issues in advanced practice

Advanced practice psychiatric nursing involves additional legal concerns,
discussion of which is beyond the range of this article. The scope of practice
for the advanced practice registered nurse and requirements for the use of
protocols, supervision, and other limitations vary widely from state to state
 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19 17

and are outlined in each state’s nursing practice act. The journal Nurse
Practitioner publishes a legislative update on the status of advanced practice
registered nurses across the United States each January [28].
Advanced practice registered nurses are exposed to additional liability
through prescriptive authority, billing practice, and the unique nurse-patient
relationship of therapy [29]. Many state nurse associations have resources
dedicated to advanced practice registered nurses. The Association of
Advanced Practice Psychiatric Nurses, based in the Pacific Northwest, may
be another source of information for advanced practice registered nurses.

Legal trends
Courts and regulations tend to favor the individual rights of patients over
the rights of society as a whole, and this trend most likely will continue.
Treatment must reflect the individual needs of patients as well. In a case in
New Jersey, a jury found unanimously for a patient against a health care
provider on the charge that the patient had received substandard care
because of a language barrier. The jury also found for the patient that
his health and well-being had been damaged. The patient could speak but
not read English, and he was asked to complete some forms in English.
A receptionist helped him complete the forms, and information provided
was inaccurate, which later led to patient injury. This case did not involve
a psychiatric patient; however, the circumstances might be applied easily to
the mental health setting, in which communication is so crucial to all aspects
of treatment [30].
To improve communication when nurses do not speak the patient’s
language, translators may be available to assist staff, and forms may be
available in multiple languages. Relatives may be asked to translate for
patients (or vice versa), although this raises concerns about confidentiality
and accuracy of translation. For hospitalized patients, there may be times
when none of the staff present are proficient in the patient’s language. It
is difficult, at best, to meet the standards of acceptable psychiatric care
with such substantial barriers to communication. With many patients in the
mental health system who speak English as a second language or not at all,
the potential for similar language barriers and cultural barriers exists for
psychiatric nurses, and this is an area in which further litigation may occur.

Minimizing the risk of litigation in psychiatric nursing

The following are suggestions to minimize the risk of litigation in
psychiatric nursing:
 Be familiar with the nursing practice act for your state
 Be familiar with laws governing your practice
 Know the policies and procedures of your institution
18 L.F. Barloon / Nurs Clin N Am 38 (2003) 9–19

 Be involved in professional nursing organizations and other informal

nursing groups that can help keep you informed
 Be acquainted with published standards that affect your practice
 Participate in continuing education programs in your field of practice
 Keep abreast of the current literature
 Use the support and advice of colleagues
 Use legal assistance when needed
 In complex situations, document thoroughly your assessment and
decision-making process

Summary
In attempting to practice within legal limits, psychiatric nurses must
demonstrate safe and acceptable clinical practice. Clinical standards and
legal standards change over time, and it can be difficult to be aware of all the
changes that occur. Ways exist to minimize the risk of litigation, however.
Keeping focused on the patient and attempting to provide the best clinical
care possible should guide practice, not fear of litigation. It is wise to be
familiar with the law, institutional policies, and professional standards, but
nothing can replace sound clinical judgment.

Acknowledgments
The author thanks Bobby Greenwood, MS, RN, who assisted in the
review of the manuscript.

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