the philippine nursing law and jurisprudence handout number 2

8/13/2019 The Philippine Nursing Law and Jurisprudence Handout Number 2

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Competency Standards in Nursing Practice- prepared by the Committee on Core Competency

Standards Development for the Professional

Regulation Commission-Board of Nursing (PRC

-BON) and the Commission on Higher Education Technical Committee on Nursing Education (CHED TCNE)

- Aim:to improve further the quality standards of nursingpractice in the Philippines and to ensure the global

competitiveness of Philippine Registered Nurses

11 Core competency areas(pursuant to PRC-BON Resolution 112, s. 2005)

1) Safe and quality nursing care2) Management of resources and environment3) Health education

4) Legal responsibility5) Ethico-moral responsibility6) Personal and professional development7) Quality improvement8) Research9) Record management10) Communication

11) Collaboration and teamwork

Functions of the Competency Standards forNursing Practice


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a) guide in developing curriculum in nursingb) framework in developing test syllabus for entrants into

the nursing profession

c) tool for performance evaluation among nurses

d) basis for advanced nursing practice and specializatione) framework for developing a training curriculum for

nursesf) protection for the public from incompetent practitionersg) yardstick for unethical and unprofessional practice of

nursing

Bases of the competency standards

- sec. 9,art. 3 RA 9173 (function of the BON)

Development Model of Competency Standards-Naturalistic Model in Curriculum Development by

Decker Walker

4 phases:1) Identifying the competencies;2) Verifying the identified competencies;3) Pilot testing the competencies4) Benchmarking with existing standards

Career Pathway for Nurse Practitioners


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-developed by ANSAP

-Based on Patricia Benners theory; 5 stages of skillsacquisition

-Provides the basic infrastructure for nurses as to theirnursing career and to advance nursing practice

- As nurses move only from supporting roles intoleadership and management functions, they arerequired to have:

a) higher level of educationb) knowledge,

c) skills, andd) decision making competence-leads to expanded roles, accountability for actions and

more responsibilities in the health care system

Law and Jurisprudence in Nursing Practice

Three Basic liabilities in the Nursing Practice are:

Civil

Criminal Administrative

Civil Action

2 Types of Civil Liability :

Culpa Contractual

Culpa Aquiliana

Culpa Contractual


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Culpa contractual ( breach of contract) -when a nurse iscontractually obligated to perform a particular healthservice or intervention to a patient and caused death

or injury to the latter

Contract ( Art. 1305, Civil Code) -is a meeting of mindsbetween two persons whereby one binds himself, withrespect to the other, to give something or to dosome service.

Culpa Aquiliana(Tort/Quasi-delict)

Culpa-aquiliana -absence of contractual relationship, anurse may be liable for damages or injuries arisingfrom negligent conduct

The fault or negligence of a person, who by his act oromission, connected or unconnected with, butindependent from, any contractual relation, causesdamage to another person.

Criminal ActionArises when a person perpetrates a crime or violates a

special penal law or local government ordinance

Felony-violations of crimes listed under the RevisedPenal Code; crimes Mala-in se (deceit/dolo)

Offense violation of a Special law; crimes Malaprohibita


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Infraction violation of an OrdinanceCriminal Negligence-commission of a crime through

fault (culpa)

Criminal Negligence

-also called Imprudence-a kind of negligence suit which arises from the failureof the nurse or health care professional to apply to his

profession that degree of care and skill which isordinarily employed by his profession under similarconditions

-may also pertain to a criminal action for malpracticeagainst a nurse

Administrative(Salalima vs. Guingona [1996])

An administrative Offense means every act oromission which amounts to, or constitutes, any groundfor disciplinary action

-An administrative disciplinary action against a nursemay arise from an administrative offense or anyground for disciplinary action

-For purposes of determining the administrative liabilityof a nurse, it is

important to know whether he/she is employed ingovernment or private hospitals/ institutions


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Government complaints against nurses may be filed atthe Civil Service Commission, Ombudsman, Head ofGovernment Office

(Mayor/Governor)Private filed with the private employer/hospitals

Administrative cases against nurses working in theGovernment

The Three-fold Lawsuit Rule

-pertains to three

-fold liability

-the offended party can file civil, criminal, andadministrative cases against a nurse, for the samenegligent act or omission

-However, the nurse cannot be compelled to paydamages twice for the same negligent act because the

law prohibits double recovery, it being an unjustenrichment at the expense of another

Administrative Cases against Nurses working in PrivateHospitals

- The private employer has an in-house mechanism forthe disciplinary action of its employees

- An employer employee relationship must first beestablished


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FOUR-WAY Test:1) Selection and engagement of the employee

2) Payment of wages

3) Power of dismissal4) Power to control the employees conduct

Contracts

-A meeting of minds between two persons whereby onebinds himself, with respect to the other, to give

something or to render some service

ContractsStatutory Requisites of a Contract

Object certain -which is the subject matter of thecontractCause of the obligation -which is established (Art1318 Civil Code )

Consent

Consent-Manifested by the meeting of the offer andthe acceptance upon the thing and the cause whichconstitute the contract

Approval of what is proposed by anotherMay be express or impliedShould not be given through mistake, violence,

intimidation, undue influence or fraud

ObjectMust be within the commerce of man


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Must be licit, or not contrary to law, morals, goodcustoms, public policy or public orderMust be possible

Must be determinate as to its kind

Cause

- the why of the contract

- The immediate and most proximate purpose of thecontract

-The essential reason which impels the contractingparties to enter into the agreement

- Explains and justifies the creation of the obligationthrough suchconsent

Breach of ContractUnjustified failure to perform all or part of the contractualduty

If the breach is substantial, the entire agreement maybe broken anddamages may result

If only part of the contract is breached, the remainingpart of the contract maybe in effect

Employment ContractNeed not be in writingOral contracts though can cause problems since

memories fail


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Criminal action

Criminal negligence-committed by means of fault orculpa

Mala in se committed by means of dolo or deceit

Mala prohibita those which are punished by speciallaws

Kinds of Criminal NegligenceReckless imprudence-doing or failing to do an act

resulting to injuries or death due to an inexcusable lackof precaution

Simple imprudence is a mere lack of precaution in asituation where the threatened harm is notimmediate or the impending danger is not openlyvisible or manifest

NegligenceThe omission of that degree of diligence which isrequired by the nature of the obligationFailure to exercise the care that a prudent personusually exercises

Negligence Test

- would a prudent man, in the position of the person to

whom negligence is attributed, foresee harm to the


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person injured as a reasonable consequence of thecourse about to be pursued?;- if so, the law imposes a duty on the actor to refrain

from that course or to take precaution against itsmischievous results.

Other form of the Negligence Test

- Did the defendant in doing the alleged negligent actuse the reasonable care and caution which an ordinary

prudent person would have used in the samesituation?if not, then he is guilty of negligence

Malpractice

-

Defined as any professional misconduct or anyunreasonable lack of skill or fidelity in the performanceof professional duties

- Improper or unethical conduct by a professional,resulting in harm, injury, or death of another

- Practice contrary to established rules and standards

Elements of Malpractice

1. Duty duty of a nurse to employ her training, care,and skill in the care of the patient commences at thetime her employment is engaged by the patient

2. Breach breach of professional duties, skill, and care,or their improper performance by the nurse


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-Grave felonies-those which the law attaches the capitalpunishment (death) or penalties which in any of theirperiods are effective

( imprisonment from 6 years and 1 day to lifeimprisonment, or a fine exceeding 6,000.00)

-Less Grave -those which the law punishespenalties that are correctional; imprisonment of 1

month and 1 day to 6 years or fine not exceeding

Php 6,000.00 but not less than Php 200.00

-Light -1 day to 30 days or fine of not exceeding Php200.00 or both

Justifying Circumstances-the act/crime of the person is in accordance with thelaw; person is free from both criminal and civil liability

1. Self-Defense2. Defense of Relatives3. Defense of Stranger4. Avoidance of Greater Evil or Injury5. Fulfillment of Duty or Lawful Exercise of Office

Exempting Circumstances-grounds for exemption from punishment becausethere is lacking in the offender any of the conditions


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which makes the act voluntary (lack of intelligence,freedom of action or intent)

1. Insanity

2. Person under 9 years of age

3. Person over 9 years and under 15 years withoutdiscernment

(mental capacity to appreciate the consequences of anact)

4. Person who acts under the compulsion of anirresistible force

5. Accident without fault or intention of causing it

Mitigating Circumstances-circumstances which does not entirely free theoffender from criminal liability but only reduces thepenalty

1. Under 18 or over 70 years old

2. No intention to commit so grave a wrong

3. Provocation or threat4. Passion (acted upon impulse)5. Surrender and confession of guilt

Aggravating Circumstances

-increase the penalty of the offense

1. Taking advantage of public position2. Crime is committed in the presence of public

authorities


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3. Crime is committed in the palace of the ChiefExecutive

4. Crime is committed in the nighttime or in an

uninhabited place

5. Crime is committed on the occasion of an earthquake,epidemic, shipwreck or calamity

6. Crime is committed with the aid of armed men

7. Crime be committed in consideration of a price,reward, or promise8. The act be committed with evident premeditation9. Superior strength10. Means are employed to weaken the defense11. That as a means to the commission of a crime, a wall,

roof, door, or window is broken12. Crime is committed by means of motor vehicles,

airships, or other similar means

Other criminal actions and offenses

Parricide-the highest form of destruction of humanlife; committed when one kills his father, mother orchild, whether legitimate or illegitimate, or any of his

ascendants or descendants, or his spouse

Murder-committed when a person kills another, otherthan his father, mother, or child, whether legitimate or


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illegitimate, or any of his ascendants or descendants,or his spouse, which killing is attended by treachery,abuse of superiority, employment of means to

weaken defense, evident premeditation, cruelty,price, reward or promise and other qualifyingcircumstances

Homicide-the killing of a human being which is neitherparricide nor murder.

Infanticide-the killing of any child less than threedays old, whether the killer is the parent orgrandparent, or any relative of the child, or even a

stranger

Abortion-intentional-if the intent is present because the offender

acted purposely to expulse the fetus to bring aboutthe abortion;unintentional-not intended but the violence inflicted

upon the pregnant woman is intended; if the violence

is due to negligence, imprudence, lack of foresight orlack of skill---unintentional abortion throughreckless imprudence

Giving Assistance to Suicide-Assists another to commit suicide to the extent of

doing the killing himself

Illegal Detention-May arise in the enforcement of quarantine

regulations; isolation of patients


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-Not allowing patients to leave the hospital if notcleared with payable account

Simulation of Birth

Crime against the civil status of personspunishable acts:1) substitute one child for another or who shall conceal

or abandon any legitimate child with intent to causesuch child to lose its civil status

2) Any physician or surgeon or public officer who inviolation of the duties of his profession or office shallcooperate in the commission of the

crime

Rape-traditional: carnal knowledge of a woman against her will

andsexual assault: committed when (1) penis inserted into

the anal orifice of a male or female; (2) an instrumentor object is inserted into the genital or anal orifice

Sexual harassment

is committed in the work place,school, or training environment, by someone who hasauthority, influence, or moral ascendancy over thevictim. Committed by the former who demands,requests or otherwise requires any sexual favor from

the latter, regardless of whether such demand, requestor requirement for submission is accepted

Mutilation-is the lopping or clipping off of some parts ofthe body resulting to the deprivation, whether totally orpartially of some essential organs for reproduction

Physical Injury-committed when a person wounds,beats, or assaults another resulting to serious, lessserious or slight injuries


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Physical InjuriesSerious-ill or incapacitated for labor for more than 30

days, or lost any part of the body

Less serious-incapacity lasted 10 days or more/required medical attention during said period

Slight-incapacitated from 1 9 daysEvidence Required:1. Preponderance of evidence Civil actions

-means evidence which is of greater weight, or moreconvincing, that that which is offered by the

opposing party

2. Proof beyond reasonable doubt Criminal actions-proof which produces conviction in an unprejudiced

mind or produces absolute certainty,without any possibility of error

3. Substantial evidence Administrative actions-such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion

illsAn act whereby a person is permitted, with the

formalities prescribed by law, to control to a certaindegree the disposition of his/her estates or properties,to take effect after his/her death (Art. 783, New Civil

Code)

Successiona mode of acquisition by virtue of which the property,rights, and obligations to the extent of the value of the


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inheritance, of a person are transmitted through hisdeath to another either by will or by operation of law.

3 Elements of Succession:1.) Death of the decedent2.) Inheritance3.) Successors

Testamentary Capacity the capacity to make orexecute a will

Requirements:

At least 18 years of age

Sound mind

Two kinds of wills1) Notarial wills signed by the testator himself or by

the testators name written by another person in hispresence and by his express direction

-requires an attestation clause and an

acknowlegement before a notary public

-needs at least 3 credible witnesses to testify thatthe testator signed the will

Attestation Clause a record of facts wherein the

witnesses certify that the will has been executedbefore them, and that it has been executed inaccordance with the formalities required by law

Requirements for Witnesses to Notarial Wills


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1) Of sound mind2) Able to read and write3) Not blind, deaf or dumb

4) At least 18 years old

5) Domiciled in the Philippines6) Has not been convicted of falsification of document or

perjury

2) Holographic will a will which is entirely written,dated, and signed by the testator-does not need an attestation or acknowledgement

-does not need 3 witnesses, as long as one witness

can prove that the signature belongs to the testator

JURISPRUDENTIAL DOCTRINES1)Accountabilitythe nurse is responsible for herown acts as well as those that affect her patients in

relation to the care that is given to the latter2) Respondeat superiorlet the master answer for

the acts of his subordinates-the negligence of the employee is presumed tobe the negligence of the employer

3) Bonus pater familiasgood father of a family -the employer becomes liable on his own upon a

finding that he has been negligent in theselection and supervision of his employees

4) Res ipsa loquitor -the thing or transactionspeaks for itself-the injury itself is a proof of negligence


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5) Damnum absque injuriaalthough therewasphysical damage, there was no legal injury

6) Force majeurean act of God-an event which is unforeseen or inevitablewhich causes damage or injury to a patient mayexempt a nurse from any criminal liability

7) Nolo Contendere-a plea of guilty or a plea of nocontest-considered as an admission of guilt for a crime

charged

8) Malfeasance, misfeasance, nonfeasanceMalfeasance the performance of some act which

ought not to be doneMisfeasancethe improper performance of some

act which might lawfully be doneNonfeasancethe omission of some act which

ought to be performed9)Doctrine of Informed Consent

two parts of the consent:a) informationb) consent

10) Doctors order rule-may be made verbally or in writing-it is legally safe to follow a written order

because the physician cannot deny whathe has written or signed11) Nurse as a witness rule

-as a witness, a nurse can only testify on mattershe/she has direct or personal knowledge of


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2) RA 2383 Philippine Medical Act; defined the

practice of medicine in the Philippines

3) RA 6425 Dangerous Drugs Act; prohibited thesale, administration, delivery, distribution, and

transportation of

prohibited drugs

4) Act No. 3573 (1929) declared that all

communicable diseases shall be reported to the

nearest health station, and that any

person may be inoculated or injected with

prophylactic preparations

5) RA 1891 provides creation of rural health units

6) PD 996- requires compulsory immunization for

all children below 8 years old7) RA 4073 liberalizes the treatment of leprosy

8) PD 856 Code of Sanitation; provides for control

of all factors in the environment that affect the

health of persons

9) RA 6365 established a National Policy on

Population; creation of the POPCOM

10) Letter of Instruction 47 integration of family

planning in the curriculum of schools of nursing,

medicine, midwifery, and allied health sciences


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11) PD 965 requires couples intending to get

married to undergo family planning counseling12) RA 4226 Hospital Licensure Act; requires all

hospitals in the Phils to be licensed

13) PD 442 Labor Code of the Phils

14) PD 626 Employee Compensation and State

Insurance Fund; SSS or GSIS

15) RA 6675 Generics Act of 1988

16) RA 6758 standardizes the salaries of

government employees, including nursing

personnel

17) RA 7160 Local Government Code; transfers

responsibilities for delivery of basic services fromthe national government to the local government

units

18) RA 7600 Rooming-in and Breastfeeding Act of

1992

19) RA 9262 Violence against women and their

Children Act

Matthew 17:20 : It was because you do not haveenough faith, answered Jesus, I assure you that if


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you have faith as big as a mustard seed, you can sayto this hill, Go from here to there!and it will go. Youcould do anything!

the philippine nursing law and jurisprudence handout number 2

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