Legal and Ethical Issues in Healthcare

Abstract

Healthcare providers are subject to many legal and ethical issues in their profession. In general, the legal and ethical issues relate to the patient’s autonomy, respect of the patient’s confidentiality, and the recognition of the physician’s duty of care. In practice, health practitioners constantly face challenges and situations where they are forced to make difficult decisions on different issues regarding patient care. The nursing code of ethics outlines the ethical commitments and ethical standards for nurses with respect to patient care (Australian Nursing Federation (ANF) 2007). The code of ethics specifically identifies the fundamental moral commitments of the nursing practice.

The legal and ethical factors have a significant impact on nursing practice; therefore, a clear understanding of the nursing ethics and laws is essential in making appropriate decisions especially in circumstances of ethical dilemmas. In both scenario 1 and 2, professional negligence, which has legal and ethical implications, is evident.

Scenario 1: Ethical and Legal Issues

In scenario 1, the ethical principles of autonomy and non malfeasance are evident. Ethical issues in nursing relate to the practitioner-patient relationship with respect to patient rights. In this context, the principle of patient autonomy is among the ethical issues in medical practice. Under this principle, the patient has the freedom to make individual decisions about themselves (Parsons 2003, p.12). The practitioners have to respect the patients’ rights to make choices regarding the healthcare they desire. The autonomy rationale is the cardinal constituent of the ethical model of most of health practices especially in the Western world. The principle gives the patient the right to determine what happens to his/her body.

In scenario 1, although peter has previously threatened to commit suicide, even after admission to a mental facility, he still retains the right to make a decision on the medical treatment. The autonomy principle aims at preventing the imposition of a medical treatment against the patient’s will. In practice, the practitioner should, whenever possible, seek the informed consent from the patient for any treatment administered to him. Peter’s non-compliance with the medications could be as a result of lack of informed consent on the part of the patient. Imposing medications to patients can often be counterproductive.

Trust underscores any productive doctor-patient relationship. Moreover, in order to build the trust, the practitioner “must respect patients’ autonomy; that is, the patient right to make a decision whether or not to undergo a medical treatment even when their refusal may be harmful to their health or result to their death” (ANF 2005). In recognition of this principle, I would not force Peter to go to hospital despite his doctor’s recommendations. Rather, I would take a different approach; I would inform Peter sufficiently, to know his rights and make sound decisions concerning his care. Additionally, this would help him understand the importance of the medical intervention and the need to comply with the prescriptive medications.

Indeed, the principle of autonomy specifies that, “any adult person, who is mentally competent, possesses the right, legally, to consent to any touching” (ANF 2007). Although Peter has a bipolar depressive disorder, he nevertheless is of sound mind and therefore, cannot be touched or forcefully taken to hospital without his consent. If Peter is attended to without his consent or any legal vindication, he can launch a lawsuit in the civil courts for intrusion. Therefore, by informing Peter of the importance of visiting the doctor due to his present condition, I would get an informed consent, which would prevent future claims of assault or trespass. Additionally, such move would preclude any disciplinary action attached to carelessness on basis that I infracted my duties as a nurse or failure to give the necessary info to the patient.

The ‘informed consent’ is thus an essential ethical and legal duty for medical practitioners. According to ANF (2007), issues such as “the patient’s capacity to consent and without undue pressure are the key aspects of the ‘informed consent’ principle for both ethical and legal purposes” (Para. 14). From a healthcare perspective, consent provides the means of avoiding moral criticism or legal liability. Thus, by allowing Peter to consent to visiting the hospital, I would avoid disciplinary proceedings for negligence and at the same time improve the patient outcomes by allowing him to make his own decision.

However, nurses, under some classified situations, may handle patients even without the patients’ informed decision. In this context is the principle of necessity, which is extremely limited in scope. Legally, the practitioner must establish the necessity to undertake a particular action when there direct communication with the patient was not possible. Further, action taken must be reasonable and in the best interest of the assisted person (Dimond 2005, p. 110). In Peter’s case, the doctor recommended that he is admitted immediately, which is in the best interest of the patient after constantly threatening to commit suicide. However, in my opinion, since communication is still possible with the patient and it is not an emergency, getting the consent of the patient should be the first thing. In case of an emergency, consent is not necessary and thus, medical treatment can be given. However, the treatment must only aim at saving lives or preventing a significant deterioration of the patient’s health (Hiroux 2000, p. 114). Nevertheless, clinicians should respect the patient’s valid refusal to any medical intervention.

From a legal perspective, the Australian Nursing and Midwifery Council (ANMC) competency standards, which have been integrated into most nursing legislations, ensure that the practice meets the professional standards. Cardinal to AMNC’s modulatory function is the Register of Medical Practitioners (RMP). This professional body achieves its regulatory function in two main ways; firstly, by registering only qualified practitioners, it ensures that the practitioners have meet the required competency standards for registered medical practitioners (RMPs). Secondly, it enforces standard practice by suspending or deregistering medical practitioners guilty of professional misconduct. It serves a pivotal role in disciplinary proceedings, where it issues guidelines on the duties and responsibilities of a practitioner especially with regard to confidentiality, consent and medical research. In this context, in Peter’s case, consent is essential. In sum, the RMPs ensure that patient treatment is consensual or, if the patient is not able to consent, then necessary therapeutically steps should be taken (Tschudin 2002, p. 111)

The other principle of nursing practice, non malfeasance, protects the patient from harm. It provides for the nurse’s duty to ensure the safety of the patient under his/her care. The principle dictates that nurses ensure that patients under their care remain safe. One way harm can happen is through intentional or technical communication failures. The failure to provide relevant information or convey accurate information to the patient can result to harm. In Peter’s case, the failure to comply with the medications could be as a result of inaccurate prescriptive information given to the patient under homecare treatment or failure by the doctor to monitor the patient, who has a depressive disorder, closely.

In healthcare, the nursing and medical professions have specified code of ethics for practitioners. In addition, the codes of ethics also provide for particular disciplinary measures in case of breach of professional ethics. Legally, the Nursing Practice Act ensures that, the nursing practice meets the professional standards (Parsons 2003, p.13). However, more often, the professional governing body has the immediate and most influence on the professional conduct of its members compared to federal or state laws.

In conclusion, in scenario 1, the doctor failed to monitor his patient closely and take the duty of ensuring compliance with the medications. According to the professional standards of the AMNC, which provides the benchmarks for determining the threshold for professional conduct, the doctor’s failure to monitor the Peter closely amounts to negligence (Wicks 2001, p. 243).

Scenario 2: Legal and Ethical Issues

In scenario 2, the professional and legal aspects of nursing practice are most evident. Professionally, a practitioner should have a sound knowledge of the healthcare system and comply with the guidelines or policies with regard to the duty of care. Additionally, the practitioner should be able to identify unsafe practice and respond appropriately (Dickenson 2002, p. 99). In scenario 2, the manager’s delegation of duty to Roger, who lacked the necessary competency to handle the responsibilities and tasks assigned, resulted to the problems experienced. According to ANMC competency standards, delegation should, when necessary, match the practitioner’s scope of practice, his abilities and should be under appropriate supervision. Further, the manager is responsible for ensuring that the delegation does not compromise the patient safety (ANMC 2005) by sue of a range of strategies to supervise the healthcare workers.

In contrast, in scenario 2, the manager allocated Roger to the surgical ward, where, in his own submission, he is not competent to handle some of the responsibilities and tasks. On the part of the manager, this contravenes the principle of delegation as stipulated in the AMCN competency standards. Accordingly, the breach of competency one, which provides for a practice that is in accordance with the common law or legislation, has legal and professional implications (McHale, & Tingle 2000, p. 117). The same competency provides for a timely consultation or referral in a case where a condition falls outside one’s level of competence or scope of practice.

The ANMC guidelines require that the practitioner establishes networks with colleagues in order to optimize the patient outcomes. In light of the ANMC provisions, Roger did not meet the professional and legal standards. From a professional perspective, he did not consult with colleagues to ensure timely preparation of the two patients. He never sought the assistance of senior staff in preparing the two patients in time for theatre as expected in professional practice, which is professional negligence on the part of Roger.

Professional Negligence

In medical practice, both the nurse and the doctor owe the patient a high duty of care (Dickenson 2002, p. 89). In particular, a nurse, by virtue of his/her close patient-nurse relationship bears the most responsibility or duty of care to his/her patient. Normally, the decision as to whether a duty of care exists is determined by legal principles. Legally, the proof of medical negligence or breach of duty by the practitioner is determined by proceedings from the respective professional bodies. According to the Code of Professional Conduct for a Nurse (Johnstone 2001, p. 112), the nurse should be able to practice particular competence and skills expected”. In addition, according to the Code of Conduct for nurses in Australia, a situation that involves the use of a certain distinctive competence or skill, in a professional opinion, can be used to test whether there was negligence or not. In this regard, in the scenario, Roger failed in his duty of care, in a professional opinion or otherwise, in failing to recognize that patients have not been prepared for theatre and take the necessary steps on the same.

Nevertheless, it does not usually follow that the failure to uphold the accepted standards of practice is, in itself, an indication of professional negligence. In essence, there could as well be other reasons why the accepted practice was not followed. Indeed, in scenario 2, Roger, who works with outpatients was not competent with preoperative procedures and therefore, could not competently administer the procedure. In this case, the professional judgment and ethical issues come into play. Roger could have sought the help of the other staff in time to avoid the delays experienced. The phone conversation between Joan and Roger, which was audible to the patient, Casey, and his parents, was also unprofessional conduct. In addition, the ANMC provisions imply that, in case of an unexpected event or a misadventure (ANMC 2005), the nurse should act promptly to rectify the situation; an action neither Joan nor Roger took.

Respecting the Patient’s Right to Confidentiality

The ANMC sets out legislation on the confidentiality of patient information or records. Specifically, it stipulates that the “patients have the right to have their information held in confidence” by the healthcare providers (ANMC 2005). Indeed, confidentiality is paramount in establishing trust that is pertinent in convincing patient/doctor relationships. In contrast, in scenario 2, both Joan and Roger, out of stress and frustrations, held a loud conversation regarding the patient, Casey, medical condition. In practice, confidentiality is crucial in ensuring that patients give relevant and accurate information to the doctors in order to receive appropriate care (Canning, Yates, & Rosenberg 2005, p. 181). As Canning et al. puts it, the doctor or nurse, should not disclose his/her patient information without the patient’s consent except in a few exceptional situations (2005, p. 180).

With respect to disclosure of the patient information, the General Medical Council offers protection to a practitioner who breaches this principle due to overwhelming public interest (Canning et al. 2005, p. 184). However, the practitioner must notify the relevant authority or persons in such situations. Failure to notify the relevant body or persons amounts to the beach of the confidentiality principle that raises ethical, legal as well as professional issues. Still, the practitioner has the authority to use professional judgment to determine whether to disclose the information or not as he/she is held professionally and personally accountable for such decisions. In light of this, the loud conversation about Casey’s health status by both Joan and Roger raises many legal, professional and ethical questions.

Patient Documentation

In healthcare practice, the midwives and nurses have the responsibility to maintain and produce the patient’s health care records, which are essential in maintaining of effective patient care. The healthcare records help the healthcare practitioners to communicate effectively in delivering care. Usually, the health record cannot serve as a legal document, but, in exceptional circumstances, they can serve as evidence in legal proceedings (Brookes, Davidson, Daly, & Hancock 2004, p. 131). Additionally, the health records allow the practitioners to account for their professional actions.

According to the ANMC (2005), professionally, practitioners should document factual information regarding to what he or she did in relation to the patient care provided. Moreover, the nurses should be objective in their documentation involving all medical occurrences. However, in scenario 2, Roger recorded nonfactual information; that all procedures took place as per instructions. The records do not reflect the professional principle of providing factual information. In addition, the documentation, especially involving patient condition, should involve relevant information. In particular, the nurses should record any change in his/her patient’s condition without omission. The integrity of the documentation should be maintained (Brookes et al. 2004, p, 138). Even in case of errors or mistakes, providing nonfactual information could be misleading to other practitioners and thus has legal implications.

In conclusion, Roger’s records can only be interpreted as a cover up of the event, which is unprofessional and has potential medical as well as legal implications. In addition, his failure to take appropriate steps on time regarding the preoperative procedures amounts to professional negligence.

References

Australian Nursing and Midwifery Council, (ANMC). 2005. National competency Standards for the registered nurse and the enrolled nurse.

Australian Nursing Federation, (ANF), 2007. Competency standards for the Advanced nurse and Advanced enrolled nurse.

Brookes, K., Davidson, P., Daly, J., & Hancock, K., 2004. Community Health Nursing in Australia: A critical literature review and implications for Professional development. Contemporary Nurse, 16(3), pp. 131-138.

Canning, D., Yates, P., & Rosenberg, J., 2005.Competency Standards for Specialist Palliative Care Nursing Practice. Brisbane: Queensland University of Technology.

Dickenson, D., 2002. Ethical Issues in Maternal-Fetal Medicine. London: Cambridge University Press.

Dimond, B., 2005. Legal Aspects of Nursing. London: Longman Press.

Hiroux, J., 2000.Basic principles: Individual freedom, & their justification in ethics: Theory & Practice. London: Routledge.

Johnstone, M., 2001. Moral Principles & moral rules, in bioethics: A nursing Perspective. London: Routledge.

McHale, J., & Tingle, J., 2000. Law and Nursing. New York: Butterworth-Heinemann.

Parsons, R., 2003. Competency based training. The Australian Nurses Journal, 21 (5), pp. 12-13.

Tschudin, V., 2002. Making Ethical Decisions in ethics in nursing: The caring Relationship. London: Butterworth Heinemann.

Wicks, E., (2001). The Right to Refuse Medical Treatment under the European Convention on Human Rights. Medical Law Review, 9(17), pp. 244-46.

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