Legal and Ethical Terms

In depth

The one-page summary above is what the PDF prints. These sections go further.

Why the law shapes the right answer

Three systems can judge a nurse’s actions. Civil court decides lawsuits for money (negligence, malpractice and the intentional torts). Criminal court handles crimes such as drug diversion, a felony. The state board of nursing enforces the Nurse Practice Act, a state statute, and is the only body that can reprimand, limit, suspend or revoke a license; a civil court cannot (Open RN). One event, such as a medication error hidden in the chart, can reach all three.

Every negligence case turns on the standard of care: what a reasonably prudent nurse would have done in the same circumstances, measured against the Nurse Practice Act, professional standards and the employer’s policies (Open RN). That is why answers that follow policy, document objectively and escalate through the chain of command are so often keyed correct.

The 2026 NCLEX-RN test plan places most of this content in Management of Care (15–21% of items), and restraints and reporting unsafe staff practice in Safety and Infection Prevention and Control.

Negligence, malpractice and the intentional torts

Negligence is failing to use the care a reasonable person would use; malpractice is negligence by a licensed professional. The client (plaintiff) must prove all four elements: duty (a nurse–client relationship existed), breach (the standard of care was not met and harm was foreseeable), causation (the breach caused the injury) and damages (Open RN). Missing any one element defeats the claim, which is why a near miss, however sloppy, is not malpractice.

Intentional torts need no proof of a professional standard, only that the nurse knew or should have known the act would cause the result. Assault is the threat: placing someone in reasonable fear of imminent harmful or offensive contact, with no touch required. Battery is the touch itself without consent. False imprisonment is confining a person to a bounded area, whether by physical restraint, a chemical restraint such as an unneeded benzodiazepine, or threats used to keep a client from leaving. Defamation is a false statement that damages reputation: slander when spoken, libel when written (Open RN).

Good Samaritan laws exist in every state and DC, but the details are state law. California’s nursing statute, for example, protects good-faith emergency care given outside both the place and the course of the nurse’s employment and gives no immunity for gross negligence; Texas excludes care given for or in expectation of pay and wilfully or wantonly negligent acts.

Worked example: a client refuses an oral antipsychotic and the nurse says, “If you won’t swallow it, I’ll give you an injection.” Which tort? Assault: the threat creates fear of contact. If the nurse then gives the injection over the refusal without an emergency order, that is battery. The correct action is to explore the reason, document the refusal and notify the provider; in most states a calm client on an involuntary hold keeps the right to refuse except in an emergency or under a court order.

Worked example: a competent adult with pneumonia wants to leave against medical advice. The nurse who hides the client’s clothes or calls security to block the door risks false imprisonment. The keyed answer is to notify the provider, explain the risks, ask the client to sign the against-medical-advice form and still give discharge instructions. Refusing to sign the form does not make the client stay.

Informed consent, capacity and minors

Consent is a conversation, not a form. The practitioner who will perform the procedure assesses capacity and discloses the diagnosis, the nature and purpose of the intervention, and the burdens, risks and expected benefits of all options, including forgoing treatment (AMA Opinion 2.1.1). Physicians obtain consent for medical procedures; the nurse verifies that a valid signed consent exists, may reinforce what was taught, and asks the provider to return when the client does not understand (Open RN).

CMS requires a properly executed consent form in the chart before surgery except in emergencies (42 CFR 482.51). Its minimum elements are the hospital, the procedure, the responsible practitioner, a statement that benefits, material risks and alternatives were explained, and the signature with date and time; a witness signature is listed only as something a well-designed form might add (CMS Appendix A, A-0466). When a nurse witnesses, the nurse attests that the right person signed freely, not that the nurse explained the surgery.

• Capacity is a clinical judgment about one decision; competence is a legal finding made by a judge (Open RN).
• Get consent before sedatives or opioids; if one was given, tell the provider and wait unless it is an emergency.
• Consent can be withdrawn at any time, even after signing; tell the provider and document the client’s words.
• Emergency exception: when the decision is urgent, the client cannot take part and no surrogate is available, treatment may start, and the client or surrogate is told at the earliest opportunity (AMA).

Minors usually need a parent or legal guardian. Emancipation, through marriage, military service or a court decree, gives some or all adult rights, and rules vary by state (Cornell LII). Every state and Washington, DC also lets minors consent to STI testing and treatment, 8 with an age limit (12 or 14; 13 for HIV in New Jersey), and 23 states and DC let all minors consent to contraception (Guttmacher, 2026).

Worked example: after the surgeon leaves, a client scheduled for cardiac catheterization says, “I still don’t understand what could go wrong.” The form is signed. Best action? Notify the provider and hold preparation until the provider explains again. Explaining the risks yourself, proceeding because the form is signed, or asking a family member to explain are all wrong.

Advance directives, code status and conflicts

The Patient Self-Determination Act (1990) applies through 42 CFR 489.102: at inpatient admission the hospital gives written information on the right to accept or refuse treatment and make advance directives, documents in a prominent part of the record whether the client has one, does not condition care on having one, and educates staff.

A living will states which treatments, such as CPR, ventilation or tube feeding, the client wants or refuses if incapacitated. A durable power of attorney for health care names an agent, usually with an alternate, who decides as the client would, only once the client lacks capacity; it gives no financial authority. No lawyer is needed; state witness rules vary (Open RN).

A DNR (DNAR) order is a provider’s order that applies only to resuscitation; antibiotics, dialysis and symptom relief continue or stop according to the client’s other wishes, and the order is revisited before surgery (AMA Opinion 5.4). POLST is a medical order for seriously ill or frail people, signed by a clinician, that EMS can act on; an advance directive cannot be followed by EMS as an order (National POLST).

Worked example: a client with end-stage COPD has a living will refusing ventilation and a DNR order. He becomes unresponsive and his daughter demands intubation. Action? Inform the provider of the documents, support the daughter and give comfort-focused care. The client’s own documented decision governs; the agent or family speaks only for what the client would want, not against it. If conflict persists, request an ethics consultation.

Privacy, social media and records

HIPAA’s minimum-necessary rule limits each worker to the information their role needs (45 CFR 164.514(d)), and electronic records log every access. Looking up a neighbor, coworker, celebrity or your own relative is a violation even if nothing is shared. Clients may see and copy their own records; the facility must act within 30 days, with one 30-day extension, and psychotherapy notes are excepted (45 CFR 164.524).

Family and friends involved in care may get relevant information when the client agrees or does not object; when the client is absent or incapacitated, the nurse uses professional judgment about what is in the client’s interest (45 CFR 164.510). A password or one designated spokesperson is the usual practical answer to many callers. Disclosures required by law, public health reports, child abuse reports and referrals to the organ procurement organization need no authorization (45 CFR 164.512).

NCSBN lists the beliefs behind most social media breaches: that a post or private message stays private, that deleting a post erases it (it remains discoverable in court), and that leaving out the name is enough when a room number, diagnosis or nickname still identifies the client. Nurses must not photograph or record clients on personal devices, must not refer to clients disparagingly even unnamed, and privacy settings do not make a post safe.

Worked example: a coworker posts a selfie taken in a client’s room with the whiteboard visible. Action? Tell the coworker to remove it and report it to the manager per policy. Cropping and reposting, commenting on the post, or sharing a screenshot as a warning all spread the breach.

Mandatory reporting and incident reports

Federal law (CAPTA) requires every state to have mandated child-abuse reporting. Physicians, nurses and other health care workers are named reporters in 46 states, DC and four territories, and the other four states (Indiana, New Jersey, North Carolina, Wyoming) require every person to report. The usual trigger is that the reporter suspects or has reason to believe a child has been abused or neglected; proof is not required (Child Welfare Information Gateway, 2023). Some states (12 to 17) also forbid an employer from blocking a report or retaliating against the reporter.

Most states also require reporting of suspected abuse, neglect or exploitation of older or dependent adults, usually to Adult Protective Services; know your state. For an adult victim of abuse or intimate partner violence outside those laws, HIPAA permits a report when law requires it or the client agrees, and the client is told that a report was made unless that would put them at risk (45 CFR 164.512).

An incident (occurrence, variance) report is a quality and risk-management tool. It is written promptly by the person who found the event, with times, objective facts, actions, notifications and witnesses, and near misses count. The chart records only the clinical facts: what was found, assessed and done, and who was notified. By common risk-management practice the report is not copied into the chart or mentioned in it, and the note never assigns blame.

Restraints and seclusion in detail

Under 42 CFR 482.13(e), a restraint is any manual method, device or material that limits free movement, or a drug used to control behavior that is not standard treatment or dosage for the condition. Seclusion, confining a client alone in a room they cannot leave, is allowed only for violent or self-destructive behavior. Neither may be used for coercion, discipline, convenience or retaliation, and both require that less restrictive measures have failed.

CMS lets hospitals set the monitoring interval and warns that checks every 15 minutes or vital signs every 2 hours may be too little for some clients and excessive for others. Typical policies and NCLEX items check circulation, skin, breathing and behavior often (commonly every 15 minutes) and release for range of motion, fluids and toileting about every 2 hours; a supervised release for care is not a discontinuation.

Worked example: a confused older adult keeps trying to climb out of bed. First action? Lower the bed, move the client near the station, and look for pain, a full bladder or hypoxia. Wrist restraints, four side rails or a sedative to keep the client in bed come only after alternatives fail, and then only with an order and monitoring.

Scope, assignments, abandonment and reporting colleagues

Each nurse must practice within the state Nurse Practice Act and personal competence; working outside scope, such as changing a prescribed treatment or giving an unprescribed drug, breaches the duty of care (Open RN). Delegation follows the five rights in the test plan (right task, circumstance, person, direction and communication, supervision and evaluation); clinical reasoning and nursing judgment are not delegated. The Prioritization and Delegation page covers who does what.

ANA (2009) holds that RNs may accept, reject or object in writing to an assignment that puts clients or themselves at serious risk, and must raise concerns about it. Abandonment requires that the nurse first accepted the assignment and then left without notifying appropriate personnel and handing off care. Not reporting for work, refusing an assignment to a unit without orientation or preparation, refusing to work past the shift, or leaving after a proper handoff are typically not patient abandonment, though they may be employment issues (Vermont Board of Nursing).

Worked example: a medical-surgical nurse is floated to pediatrics. Best action? Go, tell the charge nurse exactly which pediatric skills are outside her competence, and ask for clients whose care she can safely give, with a unit nurse as resource. Refusing to float and going home, or silently taking a full pediatric load, are both wrong.

ANA Code interpretive statement 3.5 makes identifying and reporting impaired practice a duty, with protection for the reporter from retaliation and compassion and support for the colleague’s recovery and return when possible; statement 3.4 sets the path for questionable or illegal practice: raise it with the person when possible, then the responsible manager, then licensing, regulatory or accreditation bodies if it is not corrected, with factual documentation and support for whistleblowers. Drug diversion or substance misuse was the most common professional-conduct allegation in board investigations in 2020 (Open RN).

Ethical principles, the ANA Code and organ donation

Ethical dilemmas arise when principles collide. Autonomy (self-determination) often meets beneficence (doing good) when a capable client refuses a helpful treatment; the nurse explores understanding and values without coercion, and paternalism is used with great caution. Nonmaleficence is the duty to do no harm, justice is fair allocation by need rather than status or ability to pay, fidelity is keeping promises and veracity is telling the truth (Open RN).

Worked example: adult children ask the nurse not to tell their father he has cancer, and he asks, “Is it cancer?” Response showing veracity? Acknowledge the question and arrange for the provider to discuss the results with him promptly. Denying it is a lie; telling him to ask his family withholds his own information; blurting the diagnosis and prognosis skips the provider’s role.

The 2025 ANA Code of Ethics has ten provisions, up from nine in 2015: compassion and respect for the dignity of every person (1), primary commitment to the recipient of care (2), trust and advocacy for rights, health and safety (3), authority and accountability for nursing practice (4), duties to self (5), the ethical work environment (6), advancing the profession (7), collaboration (8), social justice (9) and global and environmental health (10). Older textbooks and question banks still cite nine.

Ethics committees are interdisciplinary groups (physicians, nurses, administrators, social workers, clergy) that help resolve dilemmas, such as a family disputing a client’s documented wish to stop dialysis; The Joint Commission expects a formal process (Open RN).

Organ donation: hospitals must notify the organ procurement organization (OPO) of every death or imminent death, by telephone as soon as possible and ideally within 1 hour, and while a ventilated, brain-injured client is still on the ventilator (CMS, 42 CFR 482.45). Only an OPO representative or a trained designated requester approaches the family. Under the Uniform Anatomical Gift Act a registered donor’s decision is legally binding and family cannot change it; when there is no decision, the law lets certain relatives decide (Donate Life America). The nurse keeps the potential donor physiologically stable and supports the family.

Exam pearls

• Malpractice: duty, breach, causation, damages, all four.
• Assault is the threat, battery the touch, false imprisonment the confinement (including restraint without an order and blocking an AMA exit).
• The provider explains and obtains consent; the nurse witnesses, confirms understanding and stops the process when it is lacking.
• Emancipated minors consent for themselves; every state lets minors consent to STI care, some only above an age limit.
• Living will says what; durable power of attorney says who, and only after capacity is lost; DNR means no CPR, not no care.
• HIPAA: access only what your role needs; no photos on personal phones; no name is not enough.
• Report child abuse on suspicion; proof is not your job.
• Incident report: facts, prompt, separate from the chart.
• Restraint: alternatives first, an order per episode, never PRN; violent orders 4/2/1 h by age, face-to-face within 1 h.
• Float: go, state your limits. Refusing before accepting is not abandonment; leaving without handoff is.
• Impaired colleague: report to the supervisor; patient safety first.
• Organ donation: call the OPO for every death or imminent death; do not ask the family yourself.