Employment versus Licensure
A nurse's duty to his or her patient(s) is a frequent topic of e-mails and phone calls to Board of Nursing (BON) staff. A nurse's duty is not defined by any single event such as clocking in, or taking report. From a BON standpoint, the focus is on the relationship and responsibility of the nurse to the patient(s), not to the nurse's employer or employment.
One example is a nurse who notifies his or her employer that he or she is quitting a job at the end of an assigned shift. Some nurses in this position have relayed to BON staff that the employer "said they would report me to the Board for patient abandonment." Board Position Statement 15.6 Board Rules Associated with Alleged Patient Abandonment explains that typically this is an employment, not a licensure issue when a nurse decides to quit his or her job, with or without notice, provided the nurse does not have responsibility for patients at the time. If the employer has a policy that "requires a two-week notice", this is an employment issue, but not a violation of the Nursing Practice Act (NPA) or Board Rules. In other words, the BON would not take action on a nurse's license just because the nurse quit his or her job without notice at the end of a shift. It should also be noted that Rule 217.12(12) regarding leaving a nursing assignment does not apply to the situation where the nurse completes his or her scheduled shift, and then turns in notification of job resignation.
Frequently Asked Questions (FAQs) on the BON web page that also address the nurse's duty to the patient with respect to employment issues include:
A Nurse's Duty: Not Limited to Assignment
All nurses, regardless of practice setting, position, title or role, are required to adhere to the NPA and other statutes, as well as the Board Rules. Two of the main rules that relate to nursing practice are Rules 217.11 Standards of Nursing Practice, and 217.12 Unprofessional Conduct. The standard that serves as the foundation for all other standards is rule 217.11(1) (B)"...maintain a safe environment for clients and others." This standard supersedes any physician order, facility policy, or administrative directive. The concept of the nurse's duty to maintain client safety also serves as the basis for behavior that could be considered unprofessional conduct by a nurse.
Position Statement 15.14, Duty of a Nurse in Any Setting, explains the nurse's duty that was established by a landmark case, Lunsford v. Board of Nurse Examiners, 648 S.W. 2d 391 (Tex. App. -- Austin 1983). As the case of Lunsford points out, when a nurse knows, or should have known that a situation potentially places a patient at risk of harm, the nurse has a duty to intervene. The nurse's knowledge based on educational preparation, experience, and licensure as a nurse establishes that the nurse understands the minimum standards of care and has the ability and duty to recognize potentially harmful situations for the patient.
This is why the nurse's duty does not incur solely based on a nurse being "assigned" to provide nursing care to a patient. A nurse who has knowledge that a situation places a patient at risk of harm has a duty to the patient or potential patient, as in Lunsford.
Rule 217.11(1)(S) relates to nurses who supervise other staff. This standard requires nurses in supervisory positions to "make assignments to others that take into consideration client safety and which are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the persons to whom the assignments are made." Likewise, staff nurses are required to accept assignments within the nurse's educational preparation, experience, knowledge, and physical and emotional ability Rule 217.11(1) (T). The standards do not exist or apply in isolation, but complement each other; thus, all applicable standards should be considered by a nurse in determining the most appropriate course of action.
Safe Harbor Peer Review
Request for Peer Review Committee Determination or Safe Harbor applies to all nurses when the nurse believes an assignment may place patients at risk of harm, thus violating the nurse's duty to the patient. Safe Harbor provides a means by which a nurse protects his or her nursing license from board action as well as has nursing peers in the same practice setting review the requested assignment. The Nursing Peer Review section of the Board’s website contains safe harbor forms, a Frequently Asked Question (FAQ), and the peer review rules. Nursing associations that represent LVNs, RNs and APRNs (advanced practice registered nurses) may also have information about Safe Harbor Peer Review for their members and other nurses.
The BON has no authority over employment issues, but a nurse does have civil recourse in matters where the nurse’s decision to invoke Safe Harbor was made in good faith, but negative employment action occurred as a result of the nurse's request. A nurse also has whistleblower protections when the nurse reports a facility, physician, or other entity for violations of laws relating to patient care and or illegal acts, such as fraud, NPA Section 301.4025, NPR 303.005 and Rule 217.20(i). You may wish to also seek your own legal counsel for advice. The BON cannot provide legal advice, and has no authority in civil matters.
In summary, BON staff have heard a number of nurses disciplined by the board proclaim "if I had only known and understood about my "duty to the patient" under the NPA and Board Rules, I would not have gotten into trouble with the Board of Nursing." Please do not wait to become familiar with the laws that govern your nursing practice. A sound knowledge base regarding the laws and rules will help you protect your patients as well as your nursing license.
Revised October 2009