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Professional Nursing Concepts: Competenciess for Quality Leadership. 4th edition. Anita Finkelman
Ethics and Ethical Principles
All healthcare professionals consider ethics in their practice whether they recognize it or not. Nurses need to understand ethics and the ethical principles that drive healthcare decisions and the nursing profession as a whole.
Definitions
The first question that could be asked in this type of content is what is ethics? It is easy to confuse ethics with morals. Morals refer to an individual’s code of acceptable behavior, and they shape one’s values that are influenced by cultural factors and experiences. Ethics refers to a standardized code or guide to behaviors. Morals are learned through growth and development, whereas application of ethics typically is learned through a more organized system, such as a standardized ethics code developed by a professional group. Ethics deals with the rightness and wrongness of behavior. Bioethics relates to decisions and behavior related to life-and-death issues. The latter sometimes comes in conflict with a patient’s morals, values, and ethics and a nurse’s personal morals, values, and ethics. There may also be conflict between a nurse’s and an organization’s approach to morals, values, and ethics. Health policy also involves ethical decision making, particularly when cost–benefit analysis is used.
Ethical Principles
Four ethical principles are used in nursing and healthcare delivery; they are highlighted in Figure 6-1 . Ethics is a difficult area, and these principles help guide nurses when confronted with ethical issues. Throughout this chapter, the term patient will be used, but in the case of a minor or a person who is under legal guardianship or power of attorney, patient refers to the family or the guardian, who makes the decisions in such cases. The four principles are autonomy, beneficence, justice, and veracity:
Figure 6-1 Ethical Decision-Making Principles
· Autonomy focuses on the patient’s right to make decisions about matters that affect the patient. This means that if the patient wants to be involved in treatment decisions, the patient makes the final decisions about treatment. To do so, patients need complete and open information or informed consent. The nurse’s role is to provide information to better ensure that others, such as the physician, inform the patient, and then to support the patient’s decision. Supporting the patient’s decision is not always easy because the nurse may think that the patient is making the wrong decision. It is not the role of the nurse to argue with the patient, but rather to act as the patient’s advocate, respecting the patient’s choice. The nurse can discuss the decision with the patient and ensure that the patient recognizes the potential consequences of decisions. This principle is directly related to patient-centered care.
· Beneficence relates to doing something good and caring for the patient. This principle encompasses more than just physical care—it involves awareness of the patient’s situation and needs. In the case of nurses, this also means doing no harm and safeguarding the patient, or non-maleficence.
· Justice is about treating people fairly—for example, when deciding which patients receive treatment and which patients do not. There are more concerns about justice in health care today because of problems with disparity (for example, some people are not getting care when they need it). Lack of justice can lead to disparities in health care, and then it can also have an impact on quality care.
· Veracity means truth. For example, which information is the patient given during the informed consent process? Trust plays a major role in this principle. Veracity can be a difficult principle to apply because, sometimes, a family member may request that the patient not be fully informed. Such a request is in direct conflict with ethical practices and patient-centered care. Some believe that if another principle is involved, it might be considered first, before veracity comes into play. For example, if it is believed that the truth would cause more harm, does beneficence outweigh veracity? In any ethical dilemma, it is important to remember that no two situations are the same. Trust is also related to the requirements for informed consent and patient privacy and confidentiality.
Other principles have been suggested that are applicable in today’s healthcare delivery system—for instance, advocacy, caring, stewardship (management of finite resources), respect, honesty, and confidentiality (Koloroutis & Thorstenson, 1999).
Ethical Decision Making
Ethical decision making is about ethical dilemmas. An ethical dilemma occurs when a person is forced to choose between two or more alternatives, none of which is ideal. Typically, strong emotions are tied to the issue and the alternative solutions, and it is not possible to say that one is better than the other. If an ethical dilemma arises and the nurse is involved in the care, the nurse should participate in the decision making. If the nurse is not involved in the issue, then the nurse should not step in unless the situation is critical.
Once the ethical dilemma is recognized, the next step is assessment to get facts. What are the medical facts, including information about treatment? What are the psychosocial facts? What does the patient want? Which values are involved, and what is the conflict? Getting this information requires talking to others, including the patient and—if the patient approves—the family, significant others, and other healthcare providers. Neither the nurse nor the physician makes the decision about sharing information with family or significant others, nor do they make the final decision about treatment unless the patient is in an emergency situation and cannot speak for himself or herself. The treatment team provides recommendations to the patient. Sometimes it may be the nurse who thinks that the treatment team does not recognize the presence of an ethical dilemma; in this case, the nurse discusses this observation with the team. After the assessment is concluded, the information is used to develop a plan to address the dilemma. This requires looking at the choices, goals, and parties involved. Options need to be prioritized.
Key to all of this is patient involvement, if the patient is able and willing to participate in the decision-making process. The decision must be one that the patient accepts. During implementation, the nurse must be the patient’s advocate, even if the nurse does not agree with the patient’s final decision.
Professional Ethics and Nursing Practice
Ethics is a part of any profession, and in nursing, professional ethics is part of daily practice. Benner, Sutphen, Leonard, and Day ( 2010 ) emphasize that nursing education needs to focus more on ethical conduct. Students need to develop skills to respond ethically when making ethical decisions, which may involve responding to situations in which errors occurred. “Nurses need the skill of ethical reflection to discern moral dilemmas and injustices created by inept or incompetent health care, by an inequitable healthcare delivery system, or by the competing claims of family members or other members of the healthcare team” ( Benner et al., 2010 , p. 28). It is not easy to find the “right” perspective on ethics in professional roles and in the care provided. Each nurse works to find this perspective and determine how it meshes with the nurse’s personal views. This is the potential dilemma between the nurse’s view of ethical behavior and the patient’s.
With the increased emphasis on quality improvement it is important to recognize that ethical and legal issues are related to quality care, particularly when errors occur. There is discussion in other chapters about staff stress and how this impacts care. Involvement in an error can cause stress or stress may have been a factor in causing the error. Moral disengagement is “the process that involves justifying one’s unethical actions by altering one’s moral perception of those actions” ( Hyatt, 2016 , p. 15, as cited from Bandura, 1999 ). A common response is displacement of responsibility or shifting of blame—it was not my responsibility; it was someone else’s. Why does this happen to staff? One reason may be the work environment is not healthy and staff members withdraw from taking responsibility. Another reason may be the staff wants to do what is expected (an ethical action), but there are barriers in the organization to achieving this, such as rules, time issues, and so on. This leads to moral distress, which can lead to anger, hopelessness, depression, and compassion fatigue. This works in a cyclic fashion in that moral distress may result in more moral distress for the organization, resulting in a hostile work environment, staff and management passive-aggressive behavior, increased problems with errors, working around the system (discussed in more detail in content about quality improvement), and retention of staff ( Hyatt, 2016 ). It is important that nurses and healthcare organizations support a healthy work environment to prevent or reduce these problems that negatively affect care improvement.
American Nurses Association Code of Ethics
Professional organizations such as the American Nurses Association (ANA) developed a code of ethics with interpretative statements to help nurses understand the intent of the guiding principles. The Guide to the code of ethics for nurses: Interpretation and application (ANA, 2015) is the primary source or guide for nurses when ethical issues are encountered. A nursing code of ethics was first discussed in the United States in 1896. Several editions of this code have been issued to ensure that the content and expectations stay current with practice and healthcare issues and analysis of the code ( Fowler, 2015 ). The Code of Ethics may change over time, but it also has consistent elements that have been retained.
Obtaining a registered nurse (RN) license and entering the profession requires that nurses meet the professional roles and responsibilities identified by nursing. Ethics is a part of professionalism. Self-reflection, or the ability to look at a variety of possibilities and consider pros and cons, is also important. It is part of critical thinking and is particularly important when there does not seem to be one right answer, which is the case when an ethical dilemma is experienced. The ANA Code of Ethics provisions are described in Exhibit 6-1 .
Exhibit 6-1 American Nurses Association Code of Ethics for Nurses |
Provision 1 |
The nurse practices compassion and respect for the inherent dignity, worth, and unique attributes of every person. |
Provision 2 |
The nurse’s primary commitment is to the patient, whether an individual, family, group, community, or population. |
Provision 3 |
The nurse promotes, advocates for, and protects and rights, health, and safety of the patient. |
Provision 4 |
The nurse has authority, accountability, and responsibility for nursing practice; makes decisions; and takes action consistent with the obligation to promote health and to provide optimal care. |
Provision 5 |
The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence, and continue personal and professional growth. |
Provision 6 |
The nurse, through individual and collective effort, establishes, maintains, and improves the ethical environment of the work setting and conditions of employment that are conducive to safe, quality health care. |
Provision 7 |
The nurse, in all roles and settings, advances the profession through research and scholarly inquiry, professional standards development, and the generation of both nursing and health policy. |
Provision 8 |
The nurse collaborates with other health professionals and the public to protect human rights, promote health diplomacy, and reduce health disparities. |
Provision 9 |
The profession of nursing, collectively through its professional organizations, must articulate nursing values, maintain the integrity of the profession, and integrate principles of social justice into nursing and health policy. |
Reproduced from American Nurses Association. ( 2015 ). Code of Ethics for Nurses with Interpretive Statements. Silver Spring, MD: Author. © 2015 by American Nurses Association. Reprinted with permission. All rights reserved. |
Reporting Incompetent, Unethical, or Illegal Practices
Every nurse, regardless of degree preparation or position, has a responsibility to report incompetent, unethical, or illegal practices to the nurse’s state board of nursing (ANA, 2015; Burman & Dunphy, 2011 ; National Council of State Boards of Nursing [NCSBN], 2011 ), there is, however, variation from state to state as to requirements for reporting. Others can also report nurses, such as employers, consumers, and family members. Each state’s nurse practice act (law) serves as the guide for the nurses in the state. This law should be familiar to all licensed nurses. Nurse practice acts vary from state to state because each act is considered part of a state’s laws and is not administered at the federal level.
State boards of nursing have specific processes and procedures that must be followed regarding making and handling complaints. The source of a complaint remains private. This confidentiality is intended to protect the person who reports the complaint as well as to eliminate fear of reprisal that would limit reporting of complaints. Among the common complaints brought to a state board of nursing are using illicit drugs or alcohol while practicing, stealing drugs from a healthcare organization, committing a serious error that might demonstrate incompetence, and falsifying records. It is important to remember that a complaint or an initiative by the board to investigate a nurse does not mean that the nurse is guilty. The legal process that must be followed by the state board provides rights for the nurse, rights that can be used to defend one self.
Any nurse who is informed of a board of nursing complaint or recognizes that such a complaint might be filed should consult with an attorney. This legal advisor should not be the same attorney who represents the nurse’s employer; rather, the nurse should retain the services of a personal attorney.
Dealing with disciplinary actions is a major responsibility of boards of nursing. The media, legislators, and policy makers are interested in disciplinary actions that the boards take. A board of nursing has to find a balance between protecting the public and protecting the individual nurse’s right to practice and the nurse’s right to due process.
In some situations, such as when a nurse is accused of drug abuse, the state board of nursing may offer the option of entering an alternative program. These programs are not treatment programs, but rather monitoring programs. However, they do give nurses who meet specified criteria the opportunity to maintain their licensure and to practice. The nurse must agree to enter a nondisciplinary program that provides identification and treatment support; agree to monitoring upon return to practice; and often agree to submit to regular drug testing. The risk of public knowledge about a drug problem may compel a nurse to accept the alternative program. Compliance with treatment and aftercare recommendations is also required. Return to practice or continuation of practice is not guaranteed, and the nurse is carefully monitored to ensure public safety.
Legal Issues: An Overview
Legal issues are a part of each nurse’s practice. Each state board of nursing identifies situations for which licensure could be denied. You can search your state board of nursing’s website for this information. Licensure itself is a legal issue that is implemented through the legal system. The nurse practice act in each state is a state law. Legal concerns are also directly related to practice. The following are some examples of nursing-related legal issues:
· When the nurse administers a narcotic medication, specific procedures must be followed to ensure that patients receive medications per healthcare provider orders and that the narcotic drug supply is monitored (counted) to make sure the amounts are correct. If there are errors, it could mean that a criminal act occurred—someone took a narcotic or controlled drug with no right to do so.
· Restraining a patient without a physician’s order or not in accordance with the requirements in the order or healthcare organization policy can be considered assault and battery.
· Falsifying medical records can have adverse legal consequences.
· Accessing an electronic medical record for a patient who is not in a specific nurse’s care can be questioned.
· Inadequate supervision of patients that leads to serious patient outcomes such as falls with injury or a suicide may have legal consequences.
Critical Terminology
The nurse may encounter the following legal terms as part of his or her practice:
· Assault: The threat or use of force on another individual that causes the person to feel reasonable apprehension about imminent harmful or offensive contact. An example is threatening to medicate a patient if the patient does not comply with treatment. This type of threat is not uncommon in behavioral or psychiatric care but should not be made.
· Battery: The actual intentional striking of someone, with intent to harm, or in a rude and insolent manner even if the injury is slight. An example of battery is conducting a procedure, such as starting an intravenous line, without asking the patient. If this is an emergency situation and the patient’s life is at risk, or if there is risk of serious damage and the patient is not able to provide consent, the event would not be considered battery.
· Civil law: This type of statute (law) focuses on private rights.
· Criminal law: This type of statute deals with crimes against the public and members of the public, with penalties and all the procedures connected with charging, trying, sentencing, and imprisoning defendants convicted of crimes.
· Doctrine of res ipsa loquitur: A doctrine of law in which a person is presumed to be negligent if he, she, or an organization/employer had exclusive control of whatever caused the injury, even though there is no specific evidence of an act of negligence, and without negligence, the accident would not have happened.
· Emancipation: A child is a minor, and therefore under the control of his or her parent(s)/guardian(s), until the child attains the age of majority (18 years), at which point he or she is considered to be an adult. In special circumstances, a minor can be freed from control by the minor’s parent/guardian and given the rights of an adult before turning 18. In most states, the three circumstances under which a minor becomes emancipated are (1) enlisting in the military (requires parent/guardian consent), (2) marrying (requires parent/guardian consent), and (3) obtaining a court order from a judge (parent/guardian consent not required). A minor can also petition the court for this status if financial independence can be proven and the parents or guardian agree. An emancipated minor is legally able to do everything an adult can do, with the exception of actions that are specifically prohibited if one has not reached the age of 18 (such as buying tobacco). From a healthcare perspective, emancipated minors can sue and be sued in their own name, enter into contracts, and seek or decline medical care.
· Expert witness: This is person with specific expertise and knowledge who can provide testimony to prove or disprove the standard of care that is used to support a case. A nurse may serve as an expert witness for nursing care but not for medical care issues. Typically, the nurse is also a specialist in the specific area of care addressed in the legal case. For example, for a case involving the death of a newborn in a neonatal intensive care unit, the expert witness should be a neonatal nurse.
· False imprisonment: Confinement of a person against his or her will is against the law. This can happen in health care—for example, when a patient wants to leave the hospital and is retained (an exception is when a patient is legally committed for medical reasons or held for legal reasons by law enforcement or courts); when a patient is threatened or his or her clothes are taken away to prevent the patient from leaving; or when restraints are used without written consent, appropriate physician order, or a sufficient emergency reason.
· Good Samaritan laws: Laws that protect a healthcare professional from being sued when providing emergency care outside a healthcare setting. The provider must provide the care in the same manner that an ordinary, reasonable, and prudent professional would do in similar circumstances, including following practice standards. An example is a nurse stopping on the highway to assist an accident victim and following the expected standard for providing care to a victim with a severe burn to maintain respiratory status under emergency conditions.
· Respondent superior: A principal (employer) responsible for the actions of his, her, or its agent (employee) in the course of employment. This doctrine allows someone—for example, a patient—to sue the employee who is accused of making an error that resulted in harm. The patient also may sue the employer, the hospital, because the employer is responsible for supervising the staff member. For example, if a nurse administers the wrong medication, and the patient experiences complications, the nurse may be sued for the action, and the hospital also may be sued for not providing the appropriate education regarding medications and medication administration, for not ensuring that the nurse received the education, and/or for not providing proper supervision. Typically, in such legal actions, multiple persons and organizations may be sued.
· Standards of practice: Minimum guidelines identified by the profession (local, state, national) and healthcare organization policies and procedures. Expert opinion, literature, and research may also be used as standards. Standards are used in legal situations to assess negligence malpractice actions. (See other chapters in this text that include additional information on standards.)
· Tort: A civil wrong for which a remedy may be obtained in the form of damages. An example of a tort that is most relevant to nurses and other healthcare providers is negligence, an unintentional tort.
Malpractice: Why Should This Concern You?
Negligence does occur in nursing—for example, medication errors, not adequately providing for patient access to a call light when the patient needs help, a lack of assessment of risk for falls and failure to prevent falls, and failure to implement appropriate interventions when required. Another example of negligence would be failure to communicate information that affects care, which encompasses situations such as not documenting care provided or response to care; not contacting the physician with information that would inform the physician of the need for a change in treatment; and failing to document, such as monitoring data, changes in status, assessment of wound sites or skin status, or malfunctioning intravenous equipment. Negligence may also include inadequate patient teaching, inadequate monitoring and maintenance of medical equipment, lack of identification of an allergy or not following known information about allergies, failure to obtain informed consent, and failure to report another staff member to supervisory staff for negligence or problems with practice. All these examples can lead to malpractice suits.
Malpractice is an act or continuing conduct of a professional that does not meet the standard of professional competence and results in provable damages to the patient. Anyone can sue if an attorney can be found to support the suit; however, winning a lawsuit is not so easy. Often, lawsuits are settled outside of court to reduce costs and prevent negative publicity; in such a case, even if the patient would not have been able to win the lawsuit, the patient may still receive payment of damages.
For a patient or family to be successful with a malpractice lawsuit, all of the following criteria must be met:
1. The nurse (as person being sued) must have a duty to the patient or a patient–nurse professional relationship. The nurse must have provided care to the patient or been involved in the patient’s care.
2. The duty must have been breached. This is called negligence, or the failure to exercise the care toward others that a reasonable or prudent person would under similar circumstances. Any of the following could be used as proof: a nurse practice act, professional standards, healthcare organization policies and procedures, expert witnesses (RNs, preferably in same specialty as the nurse sued), accreditation and licensure standards, professional literature, and research.
3. The breach of duty must be the proximate (foreseeable) cause or the cause that is legally sufficient to result in liability harm to the patient. There must be evidence that the breach of duty (what the nurse is accused of having done or not done, based on what a reasonable or prudent person would do given the circumstances, such as what other nurses would have done in a similar situation) led directly to the harm that the patient is claiming. There might be other causes of the harm to the patient that have nothing do with the breach of duty.
4. Damages or injury to the patient must have occurred. What were the damages or injury? Are they temporary or permanent? What impact do they have on the patient’s life? These questions and many more will be asked about the damages and injury. If the lawsuit is won, this information is also used to assist in determining the amount of damages that will be awarded, although the plaintiff (person suing) will identify an amount when the suit is brought.
These four malpractice elements are illustrated in Figure 6-2 .
Figure 6-2 Elements of Malpractice
The plaintiff’s attorney must prove that each of these elements exists for the judge or the jury to agree to the plaintiff’s case, and the plaintiff should be awarded damages. The nurse’s attorney will defend the nurse by proving that one or more elements do not exist. If even one element is lacking, malpractice cannot be proved.
Medical malpractice lawsuits have affected healthcare practice and costs. The cases are very expensive to defend, and when the case is won by the plaintiff, awards are often very high. As mentioned earlier, even if the healthcare provider does not win the case in a court decision by judge or jury, a settlement may still be made, though typically settlements occur earlier. Collectively, these issues have prompted many healthcare providers to practice “defensive medicine,” in which physicians prescribe excessive diagnostic testing and other procedures to protect themselves. This approach increases the costs of care, and if testing or procedures are invasive, it can increase patient risk. Malpractice concerns also increase medical costs because physicians, other healthcare providers, and healthcare organizations must carry malpractice insurance to help cover potential legal costs for malpractice suits; these costs are then passed on to consumers through patient service charges, increasing overall healthcare costs.
Nurses do get sued. A review of closed 516 claims from 2006 to 2010 identified the average total incurred claim was $204,594, with 11 different nursing specialties represented in the cases ( Benton, Arm, & Flynn, 2013 ). The largest number of claims was found in adult medical-surgical care (40.1%), gerontology (18.0%), and obstetrics (10.3%). The cases included 84.5% RNs and 15.5% licensed practical or vocational nurses. The following problems were the focus of these cases: treatment/care (59.6%); medication administration (14.7%); assessment (12.6%); monitoring (6.8%); patient rights, abuse, and professional conduct (5.4%); and scope of practice (1.7%). These examples of categories of lawsuit focus areas provide an overview of the high-risk concerns that require special attention by nurses in their practice.
There are pros and cons to nurses carrying professional liability insurance. Such policies are not expensive for nurses, but the nurse needs to be clear about what the policy offers. A question that could be asked is why nurses would be sued when, typically, they do not have high levels of personal funds. Nurses, however, are sued. Often, the nurse is included in a group that is being sued—for example, the physician(s), the hospital, specific staff in the hospital (or other type of healthcare organization), and others. When a nurse is sued, the nurse should not rely on the nurse’s employer’s attorneys to provide a defense; instead, the nurse needs an attorney who represents only the interests of the nurse. Professional liability insurance covers these fees. There are also differences in the types of malpractice insurance that can be obtained. Two of the most common types are (1) claims-made coverage, which covers only those incidents that occur and reported during the policy’s effective period, and (2) occurrence coverage, which provides protection for an incident that took place while the policy was in effect even if the claim was not filed until after the policy terminated. When accepting a job, the nurse should explore the pros and cons of carrying personal professional malpractice/liability insurance.
As soon as a nurse learns of a possible lawsuit, the nurse should contact an attorney for advice. If the nurse has liability insurance, the nurse would contact the insurer for legal advice, and the insurer may assign an attorney to the case. In addition, the nurse should recognize that at the conclusion of a lawsuit in which the nurse and the nurse’s employer are sued, the employer might then sue the nurse to reclaim damages to cover the nurse’s employer’s expenses for the lawsuit. Nurses must make informed decisions about whether they would rather have their employer’s attorney defend them or seek out the services of an attorney who is covered under their own policy, which is required for some malpractice policies, or a personal attorney. In some instances, if the nurse has a personal attorney or an attorney from the nurse’s malpractice policy, the institutional legal team will not assist the nurse.
Nursing students are responsible for their own actions and can be held liable for them. Students are not practicing under the license of their faculty ( Guido, 2001 ). Because of this, students must never accept assignments or do procedures for which they are not prepared. It is also critical that students discuss these situations with faculty or staff if faculty if family are not available rather than acting without guidance.
Ethics and legal issues are often interrelated. The following section highlights some of these issues such as privacy, confidentiality, informed consent, rationing care, various patient legal decisions and documents, organ transplants, assisted suicide, and use of social media. All of them relate to nurses and nursing care.
Privacy, Confidentiality, and Informed Consent
Patients have the right to privacy, and this affects multiple situations that might occur during the care process. The obvious is during assessment and examinations. When patients are told about their condition, this should be done in a private area. Rounds are discussed in this text, and privacy is difficult to maintain, particularly when the patient shares a patient room with another patient(s), but we need do what we can to maintain it, such as using curtains to separate the patient area and speaking in lower tones. Privacy is associated with confidentiality and informed consent.
Confidentiality is an issue that is relevant to practice every day; we need to ensure, when possible, that patient information is shared only with those the patient approves or as required for treatment such as the treatment team. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) has had a major impact on information technology and patient information ( HHS, 2017 ). Nurses are required to follow this law to protect patient privacy and confidentiality. Patients are informed about HIPAA when they enter a hospital, visit another type of healthcare facility for care, or receive outpatient care.
Nurses have the responsibility to keep patient information confidential except as required to communicate in the care process and with team members. Patient-centered care also implies that patients have the right to determine who sees their information, and this decision must be honored. It is important to remember that patient information should not be discussed in public areas (for example, elevators, cafeteria, hallways) or any place where the information might be overheard by persons who have no right to hear the information. You will encounter patients and family members who are part of your personal life; however, you must remember that what is known about the patient is private. Nurses who work in the community and make phone calls to and about patients using mobile phones in public places can easily forget that their conversations may be overheard.
It is important to remember that patients drive patient privacy. For example, nurses should not assume that patients want family members to have access to the patient’s health information. Instead, patients have to be explicitly asked who can be told about any health information. As a student and as a nurse, you will have access to patient information for only those patients to whom you are directly providing care. You must have a reason related to healthcare provision to access patient information. If you do not adhere to these rules, then you are in violation of HIPAA. Be aware that patients may and do make HIPAA-related complaints to state boards and to educational institutions, in the case of students, about staff or students who do not uphold privacy rules/HIPAA.
Another ethical and legal concern related to confidentiality is consent. Patient care consent occurs when the patient agrees to treatment, and it may be given either orally or in written form. Whenever possible, consent should be informed consent and documented in writing. The patient’s physician or other independent healthcare practitioner is required by law to explain or disclose information about the medical problem and treatment or procedure so that the patient can have informed choice. The patient has the right to refuse the treatment. Failure to obtain informed consent puts the practitioner at risk for negligence.
The requirement to obtain informed consent applies to many nurses. An advanced practice registered nurse (APRN), for instance, needs to get informed consent from his or her patients or ensure prior to performing treatments and procedures following required policy. By comparison, the nurse who is not an APRN does not have to get informed consent for every nursing intervention, such as administering a medication. Moreover, this nurse would not be the staff member who obtains patient consent for treatment or procedures. In some cases, the nurse may ask a patient to sign a written consent form, but in doing so, it is assumed that the patient’s physician or other healthcare provider has explained the information to the patient. If the patient indicates that this conversation has not occurred, the nurse must talk with the physician or other healthcare provider involved and cannot have the patient sign the form until the patient and the physician have discussed the specific treatment or procedure. If a nurse is required to get informed consent and fails to do so, the nurse is at risk for negligence.
A second type of consent is consent implied by law. This consent is applicable only in emergency situations, when a patient may not be able to give informed consent. If the patient’s life is at risk or if major damage or injury to the patient is likely, healthcare providers can provide care. In this case, the assumption is that the patient would most likely give consent if the patient could, based on what a reasonable person would do. Nurses who work in the emergency department encounter this type of consent situation.
Rationing Care: Who Can Access Care when Needed
The United States rations care, albeit not formally. Rationing is the systematic allocation of resources, typically limited resources. In this case, the limited resources are funds to pay for care. Some people receive care, and others do not. Insurers do not cover all care; instead, they determine which care will be provided based on criteria that they identify.
Other forms of healthcare rationing also exist. For example, organ transplantation is a form of rationing—in both the allocation of funds to perform transplants and the allocation of limited organs. Patients are put into a database to receive organ donations, and the order in which patients receive a transplant depends on specified criteria.
Oregon developed a rationing system for Medicaid by identifying the types of treatment that the state would cover, but this approach was not successful. This is an example of a situation in which the ethical principle of justice might be applied because rationing, or allocation of resources, is related to equity. It appears to be more acceptable to say “resource allocation” than “rationing,” but in the end, resource allocation and rationing are similar.
Advance Directives, Living Wills, Medical Powers of Attorney, and Do-Not-Resuscitate Orders
Advance directives are now part of the healthcare system. This type of legal document allows a person to describe personal medical care preferences. Often, these documents describe the person’s wishes related to end-of-life needs ahead of time, in which case the document is called a living will . Patients have the right to develop this plan, and healthcare providers must follow it. Because state requirements vary, it is advised that patients ask physicians if they will uphold the patient’s decisions about health care. Any advance directives should be part of the patient’s medical record and easily accessible to the healthcare provider. Be aware that end-of-life issues are never simple but should be a critical part of care for these patients.
A medical power of attorney document, a type of advance directive, designates an individual who has the right to speak for another person if that person cannot do so in matters related to health care. Another name for this document is durable power of attorney for health care or a healthcare agent or proxy. If a person does not designate a medical power of attorney and the person is married, the spouse can make the decisions if the sick spouse is unable to do so. If there were no spouse, the decision would be made by adult children or parents. People should determine the types of care they prefer and how aggressive that care should be with those who will be their medical powers of attorney. The proxy or agent is not forced to follow the patient’s instructions if they are not written in a legal document; if there is no written document, a sick person should trust that the proxy or agent would follow the guide discussed.
Interventions that are typically covered in advance directives include (1) use of life-sustaining equipment, such as a ventilator, respirator, or dialysis; (2) artificial hydration and nutrition (tube feeding); (3) do-not-resuscitate (DNR) or allow-a-natural-death (AND) orders; (4) withholding of food and fluids; (5) palliative care; and (6) organ or tissue donation. The DNR and the AND directives either are forms of advance directives or may be part of an extensive advance directive. Such an order means that there should be no resuscitation if the patient’s condition indicates need for resuscitation. A physician may write a DNR/AND order without an advance directive, but the physician must follow hospital policy and procedures regarding this type of decision. It is highly advisable that this situation be discussed with the patient, if the patient is able to comprehend, and with the family. The nurse may be present for this discussion but would not make this type of decision. If there are concerns about how it should be handled, the nurse needs to consult the nursing supervisor/manager. If the organization has an ethics committee, the nurse may consult with the committee, which is typically an interprofessional committee that is prepared to discuss ethical issues staff and patients encounter and may make recommendations but not final decisions.
Palliative care is now an important healthcare issue, and nurses are involved in this care. Ensuring that patients receive the type of care they want requires nurses to understand the patient’s needs and goals and then advocate for them. The decision not to receive “aggressive medical treatment” is not the same as withholding all medical care. A patient may still receive antibiotics, nutrition, pain medication, radiation therapy, and other interventions when the goal of treatment becomes comfort rather than cure. This is called palliative care, and its primary focus is helping the patient remain as comfortable as possible. Patients can change their minds and ask to resume more aggressive treatment. If the type of treatment a patient would like to receive changes, however, it is important to be aware that such a decision may raise insurance issues that will need to be explored with the patient’s healthcare plan. Any changes in the type of treatment a patient wants to receive should be reflected in the patient’s living will ( National Cancer Institute, 2000 ).
Organ Transplantation
As mentioned earlier, organ transplantation is a form of resource allocation. Specific criteria are developed for each type of organ donation, and potential recipients are categorized according to the criteria to determine who might receive a donation and in what order. Organ transplantation registries are a critical component of this process. Nevertheless, it is not always so clear as to who should get a transplant. Many patient factors are considered—such as age, other medical or psychological illnesses, what the person might be able to contribute to society, whether the person is single or married, whether the person has children, comorbidities (other illnesses) such as substance abuse, and ability to comply with follow-up treatment—and some of these factors complicate the decision-making process. Organ transplantation is expensive and may not be covered, or only partially covered, by health insurance. The patient will need lifetime specialized care, which is also costly.
Of course, organ donation must occur first so that organ transplantation is possible. Some people designate their willingness to be organ donors while they are healthy—for example, on their driver’s license. However, when the time comes to actually honor this request, family members may be reluctant to consent to it at an emotional time when a loved one has died. Other people may not have identified themselves as organ donors when healthy, but then something happens that makes them eligible to be organ donors, such as an accident. This situation is even more complex, ethically and procedurally. Healthcare providers do ask for organ donations, and hospitals have policies and procedures that describe what needs to be done. It is difficult to approach family members and say that loved ones are no longer able to sustain themselves and then to ask for an organ donation at the same time. With organ donations and transplants, time is a critical element to maintain organ viability, and this complicates the decisions and procedures, occurring when people (patient, donor, family) are stressed and emotional, but also staff are stressed trying to ensure the timelines are met to allow for a healthy transplantation. Nurses do not ask for the donation but may assist the physician in this most difficult discussion with all involved. Later, family members or the patient (if responsive) may want to discuss it further with the nurse.
Assisted Suicide
Assisted suicide is a complex ethical and legal issue, but the nurse’s role is very clear: The nurse cannot participate in helping a person end his or her life. In 1997, Oregon passed the first state law pertaining to assisted suicide, the Death with Dignity Act, which allowed terminally ill citizens of Oregon to end their lives through voluntary self-administration of lethal medications prescribed by a physician for this purpose. The law describes who can be involved and the procedure or steps that must be taken. Two physicians must be involved in the decision. As of 2016, five states (Oregon, California, Vermont, Colorado, and Washington) have legalized physician-assisted suicide by passing legislation, and one state (Montana) has legalized physician-assisted suicide based on a court ruling ( ProCon.org, 2016 ). In other states, this act is considered to be illegal. There has also been an increase in countries that now allow assisted suicides.
The ANA believes that the nurse should not participate in assisted suicide. The organization bases this position on its Code of Ethics for Nurses with Interpretive Statements (2015). Nurses, individually and collectively, have an obligation to provide comprehensive and compassionate end-of-life care, which includes the promotion of comfort and the relief of pain, and at times, forgoing life-sustaining treatments ( ANA, 2013 ). In a related topic, the ANA also issued a position statement on the withdrawal of nutrition and hydration ( ANA, 2011 ). This statement indicates that the patient or the patient’s surrogate should make this decision, and the nurse should provide expert end-of-life nursing care.
Social Media and Ethical and Legal Issues: A New Concern
Social media or the use of networking web-based instruments or sites such as Facebook, LinkedIn, Instagram, Google+, Flickr, and Twitter has presented nurses with new ethical and legal issues. A critical issue is that social media may lead to problems associated with our professional obligations to protect patient privacy and confidentiality. Nurses should not share information about patients or families, including images. It is not sufficient to limit access using privacy settings. The basic rule is simple: Share no information or image. An example is provided in a recent article on social media and nurses, which offers comments that nurses should be very careful about what they post ( Barry, 2017 ). This can be a slippery slope when we are attached to a patient and then share personal information and thoughts about the patient.
This topic has become very important and organizations such as the NCSBN (2014) have published information on the topic with guidelines for nurses. Many healthcare organizations have also established their own policies on the use of social media that must be followed by students and staff. NCSBN social media guidelines, which support the ANA’s principles for using social media, are provided on the organization’s website ( NCSBN, 2014 ; Spector, 2012 ).
The ANA Code of Ethics emphasizes the protection of confidentiality of patient information by nurses. HIPAA also protects patient information, and educational and healthcare institutional policies outline the legal issues related to discussion or sharing of protected information. With expansion in use of online courses, it is important to remember that when patients are discussed in online forums, the same guidelines apply—no specific identifiers should be shared. This should also apply to staff and healthcare organizations—sharing information that can identify a staff person may not be something that staff person would want done—for example, critiquing a staff member or even a healthcare organization.
This chapter presented introductory information about ethical and legal issues in nursing. Nurses must deal with ethical concerns about their patients and encounter numerous issues that could lead to potential legal concerns on a daily basis. A healthcare professional cannot avoid either ethics or legal issues. A nurse cares for patients, families, and communities, and in doing so, must consider how that care affects the feelings and rights of others. From the time a nurse achieves licensure, he or she operates under a legal system through the nurse practice act and other laws and regulations.
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