Why Should I Care About Nursing Law and Where Does It Come from?
One of the purposes for the posts on this site is to give you important information that can impact, protect or enhance your practice. Over the last 200 years, nursing has grown from an untrained job to a highly educated and respected profession. Law and ethics are core elements of daily nursing practice. While you may not realize it, much of what you do and who you are as a professional are grounded in legal developments of the past 100-plus years. Let’s start with some basics.
There are four key sources of law that affect nursing practice – Constitutional, statutory, administrative and case law. Most of the time, these types of law operate indirectly, behind the scenes, and many nurses are unaware of them until something brings one or more of them to the surface.
Constitutional law is the primary source; everything else derives from this. The United States Constitution’s Tenth Amendment (one of the Bill of Rights) leaves to the states the right to adopt and implement laws that not only prevent and punish crimes but protect “the public safety, health, and morals… [and promote] the public convenience and general prosperity.” (Black’s Law Dictionary) In legalese, this is called the “police power,” with the word ‘police’ used much more broadly than the sense of law enforcement.
Statutory law comes directly from constitutional law. For nurses, there are two broad types of statutes impacting practice. First, state and territorial legislatures enact laws that direct the executive branch to set up boards or agencies to oversee specific areas that need regulating. These are called “enabling statutes” and a state nurse practice act is a good example of an enabling statute. These laws spell out a framework for the board or agency and grant them the authority to do what they do. These statutes also provide a way for the legislature, courts or executive branch to review actions the board/agency makes, part of the checks and balances system of the national and state government. [Historical note: North Carolina enacted the first nurse licensure law in 1903. It was substantially weaker than today’s laws; you could, according to one source, pay $13 for a “ten-week home nursing course” and present yourself as a “trained nurse” to the public and you didn’t need a license until after 1903.]
Second, legislatures at both the state and federal level enact statutes that regulate aspects of healthcare. Federal laws such as the Patient Self-Determination Act, the Americans with Disabilities Act and HIPAA (the Health Insurance Portability and Accountability Act), to name a few, are laws that have affected how nurses practice in the last twenty or more years. State laws reinforce or set stricter controls over healthcare services, the scope of nursing practice (e.g., nurse practitioners’ ability to prescribe) and who is required to report abuse, among others.
Administrative law refers to the rules and regulations that state or federal agencies develop and issue as part of their oversight or regulatory authority in a specific area of expertise (e.g., accounting, law, architecture, pharmacy.) There is a well-established process for rules and regulations. The board or agency writes them, publishes them as proposed rules, allows public feedback and comment for a set period (typically 60 days or more), makes any necessary changes, publishes the final rules with an effective date (usually at least 30 days after publication unless an emergency requires immediate implementation) and then enforces the rules by whatever means allowed by the legislature.
Administrative rules and regulations are not statutes per se but they do have the force of statutes and they can be challenged through the state’s Attorney General or in court. Anyone subject to disciplinary action under the board or agency’s authority has the right to due process, meaning the right to a hearing, advance notice, representation and appeal, among others. Practitioners can appeal the results of a disciplinary hearing to the first level of courts in that jurisdiction and from there to the mid-level and highest level appeals courts.
Case law has a less direct day-to-day impact on nursing practice but has shaped and advanced the profession. Courts issue rulings on challenges to board or agency rules, disciplinary actions, the constitutionality of statutes and in civil and criminal cases. These rulings set precedents for lower courts and legislatures to follow and consequently can impact a profession. For example, nursing was still a physician-dominated profession into the 1980s but courts increasingly recognized it as a distinct profession, separate from medicine, and acknowledged that there is a nurse-patient relationship apart from a doctor-patient relationship. (See, for example, Lunsford v. Board of Nurse Examiners, 648 S.W.2d 391, a Texas Court of Appeals case from 1983.)
This is a very brief summary of the sources of law that inform and impact your professional nursing practice. In future posts, I will show you more practical aspects of nursing law and how you can use the information to protect your practice, enhance patient safety and spot trends developing in the profession.