Legal and Ethical Aspects of Nursing (The Nature of Nursing) Part 3

Legal Concerns of Emergencies

In some states, the law requires any person who witnesses an automobile or other accident to give aid to persons injured in that accident. In most states, a person who has medical or nursing education is required to assist, if needed. In areas other than those to which this law applies, no person is legally obligated to render aid during an emergency. Each person who gives assistance should act as a reasonably prudent person would, within the limits of education and experience. Thus, as a nurse, you will be expected to render a higher level of emergency care than an untrained person. A law called the Good Samaritan Act is in effect in most states. This law protects you from liability if you give emergency care within the limits of first aid and if you act in a “reasonable and prudent manner.”

Stay informed regarding legal issues surrounding all types of documentation.

Professional Boundaries

All healthcare personnel must maintain appropriate professional boundaries. Abstain from benefiting personally at the client’s expense. Be sure to refrain from inappropriate involvement in the client’s personal relationships. By doing so, you help to promote the client’s independence. Remember the following important considerations:

Power versus vulnerability: You, as a nurse, have power in your position and access to private client information. Do not exploit this power.


Boundary crossings: Any questionable behavior should be brief, unintentional, and not repeated. Evaluate any such incidents immediately if they occur.

Boundary violations: Excessive personal disclosures or asking clients to keep secrets are examples. Such actions can cause clients distress and are inappropriate.

Professional sexual misconduct: Seductive, sexually demeaning, or harassing behavior is illegal and is a breach of the trust placed in you. Such misconduct constitutes just cause for dismissal from a job.

Remain helpful to clients without taking advantage of them. Your duty is to practice in the area of therapeutic involvement. Overinvolvement includes boundary crossings and violations, and sexual misconduct. Underinvolvement causes disinterest and client neglect.

Danger signals of overinvolvement include excessive self-disclosure, defensiveness about the relationship, believing that only you can meet a particular client’s needs, spending excessive time with one client, flirting, or overt sexual acts. Evaluating each interaction you have with clients is vital to ensure that the relationship is helpful and that you are not over- or underinvolved. If you have questions, your nursing instructor or the facility’s nursing supervisor can assist you.

ADVANCE DIRECTIVES

To preserve a client’s rights, all healthcare workers need to be aware of the client’s wishes regarding continuing, withholding, or withdrawing treatment in the event the person cannot make these decisions for himself or herself. An advance directive is a legal document in which a person either states choices for medical treatment or names someone to make treatment choices if he or she loses decisionmaking ability.

Nursing Alert Competent adults must speak for themselves. Another person cannot decide to withhold treatment, as long as the client is able to make decisions. If the client cannot talk, other means of communication may be used. Such information must be carefully documented, witnessed, and signed. If the person is legally incompetent, the court may make decisions about care.

Key Concept If no documented evidence exists to the contrary, the healthcare team uses all means available to keep a person alive. Without a living will or other advance directive, a full "code” is called on all those who suffer a cardiac arrest, and full resuscitation efforts are made.

BOX 4-2. Advanced Directives and the Nurse’s Responsibility

Nursing responsibilities include:

Determining a client’s understanding of the concepts of advance directives and the Patient Self-Determination Act upon admission.

Providing pertinent literature/brochures that explain the functions and types of advance directives.

Providing appropriate (non nursing) assistance if client wishes to initiate or change an advance directive.

Knowing that specific advance directives may apply to certain areas e.g., in mental health units.

Informing clients that they have the right to refuse treatment or can refuse life-prolonging measures but can still receive palliative care and pain control.

Notifying healthcare providers of the existence of an advance directive.

Placing the information in the designated records for the healthcare facility or agency.

Maintaining copies according to protocols of the healthcare facility or agency.

Documenting actions appropriately in the nursing records.

The federal government passed the Patient SelfDetermination Act (PSDA) in 1991. This law requires all healthcare institutions to comply with the provisions of this act or to forfeit reimbursement from Medicare and other types of funding. This legislation mandates an individual’s right to some sort of advance directive. The law requires that all adults admitted to any healthcare facility must be asked if they have an advance directive and given assistance if they desire more information. Box 4-2 describes the nurse’s role in carrying out mandates of this legislation.

Three major types of advance directives exist:

•    Living will

•    Directives to physicians

•    Durable power of attorney for healthcare

Living Will

A living will is a written and legally witnessed document (but can be executed without an attorney) that requests no extraordinary measures to be taken to save a person’s life in the event of terminal illness. The living will goes into effect only if the person becomes unable to make his or her own decisions regarding care. The living will may indicate life-sustaining treatments that the person does or does not want used, and may specify comfort measures to be used or not used. Some form of living will legislation is in place throughout the United States. A great deal of controversy surrounds this issue. For example, in some states, living will legislation states that artificial nutrition and hydration must be maintained, even if the person has previously requested that no artificial means be used to sustain life. In addition, various states have slightly different formats for living wills and do not necessarily recognize documents written in another state. A living will does not automatically expire in a certain length of time. It is in effect until the individual changes or revokes it. If a person has a living will, a copy is kept on file in the healthcare facility. Physicians and nurses are bound by the person’s wishes.

Directive to Physicians

A directive to physicians is another type of written document that can be useful for terminally ill adults who have no other person to name as their agent for making healthcare decisions. In this case, the person directs the physician to be his or her decision-maker. The physician must also agree, in writing, to accept this responsibility.

Durable Power of Attorney for Healthcare

In this written document, a client names another person to make healthcare decisions for him or her should the client become unable to do so. This designated person does not need to be a relative. Individuals should discuss durable power of attorney in advance with those they wish to designate as their decision-makers.

Mental Health Advance Declaration

In addition to the general advance declaration available to all persons, the mental health advance declaration establishes specific guidelines for psychiatric care. In this case, the mental health declaration specifies an individual’s wishes concerning intrusive mental health treatment (e.g., electroconvulsive therapy and special types of medications called neuroleptics). Even if the person who refuses these treatments is committed as mentally ill or mentally ill and dangerous, these treatments may not be given without a specific court order.

VULNERABLE PERSONS

Children and some adults are considered vulnerable to deficient or harmful care. Reporting suspected child abuse or vulnerable adult abuse is mandatory in the United States and Canada. In addition, most states have laws protecting persons considered to be vulnerable, which includes almost any hospitalized individual. Laws protecting the vulnerable are particularly important for those who work with mentally ill, mentally retarded, or confused persons. Older people are often considered vulnerable adults. The law protects vulnerable persons from injury, abuse, or neglect while receiving care in a healthcare facility, nursing home, school, or their own home. Often, a person’s isolation in his or her own home can increase the person’s vulnerability. Families can also be charged with abuse under the vulnerable adult laws.

LEGAL DEFINITIONS OF DEATH

The Uniform Determination of Death Act of 1980 is the accepted legal standard of death. The legal definition of death states that:

An individual who is dead is one who has sustained either

1.    an irreversible cessation of circulation and respiratory functions

or

2.    the irreversible cessation of all functions of the entire brain, including the brain stem.

In brain death, the brain has a lack of response to stimuli, lack of cephalic reflexes (see below), and absent stimulation to breathe. Criteria for the diagnosis of brain death include the following:

•    Cessation of breathing after artificial ventilation is discontinued (usually requires cessation for at least 3 minutes)

•    Cessation of heartbeat without external stimuli

•    Unresponsiveness to external stimuli

•    Complete absence of cephalic reflexes (the lowest form of brain stem reflexes). Some states accept the absence of some cephalic reflexes.

•    Pupils fixed and dilated. Some states accept pupils unresponsive to light, but not necessarily dilated.

•    Irreversible cessation of all functions of the brain. In some states, this includes all functions of the brain stem as well. This brain and brain stem function can be assessed by evaluation of reflexes. In some cases, one or more electroencephalograms (EEG) are done to confirm the diagnosis of clinical death.

Brain death is also termed an irreversible coma. Many individuals have a condition called a vegetative state or a permanent vegetative state and these individuals may also be considered to be brain dead even though some types of brainwave functions are seen on an EEG. When a client is in a vegetative state, he or she can seem to be awake because their eyes might be open. They can have spontaneous movement owing to muscle reflexes; however, these movements are not related to cognitive function or senescence. The person can be pronounced legally dead and be designated the “right to die” if nutrition or artificial physical methods are not used to sustain the organ systems.

Key Concept Owing to technological interventions, death is defined more as a process of irreversible brain functioning than a specific condition of clinical demise. When defined by a qualified professional, a client, who has no brain activity, but who has functioning respiratory and circulatory systems, can be declared legally dead. Determination of clinical death is complex and controversial. Check the laws in your state.

A client with the diagnosis of brain death may be considered a donor candidate for organ transplantation. The diagnosis of death is a legal and ethical concern to healthcare providers. Before removal of organs or tissues for donation, especially when a person’s vital processes are being maintained artificially, the wishes of the client and the family need to be in harmony with legal regulations.

Clinical death or biological death is death due to the absence of respirations and the absence of a heartbeat. With today’s advanced life support systems, the traditional definition of death needs criteria—other than the absence of breathing and heartbeat—to determine legal death. In some cases, the physical body may be kept functioning for long periods of time by artificial means.

Exceptions

In all cases that may involve the determination of death, the following exceptions are identified:

• Marked hypothermia (core body temperature below 90°F [32.2°C], such as might follow a near-drowning episode)

• Severe depression of the central nervous system (CNS) after drug overdose with a CNS depressant, such as a barbiturate

ETHICAL STANDARDS OF HEALTHCARE

Ethics is defined as conduct appropriate for all members of a group.A code of ethics builds on these standards. Today, healthcare workers confront many ethical issues that have arisen as a result of increased knowledge and technology, changing demographic patterns, and consumer demands.

Prejudice, Personal Values, and Nursing

Each individual brings personal values to the healthcare system. These values include beliefs about such concepts as life and death, a higher power, who should receive healthcare and what kind of care, and complex issues, such as abortion and euthanasia. Values are the culmination of heritage, culture, and one’s family of origin, combined with life experiences. Values evolve as life situations change. A person’s values may change when faced with illness, injury, and possible death. To be of optimal support to each client, you must undergo your own personal values clarification process.

Key Concept Be aware of your feelings and behavior Always act in the client’s best interests.

Consciously examining your own values, beliefs, and feelings about life and healthcare issues is helpful because it provides you with a frame of reference. Your beliefs may be different from those of your peers and clients. Prejudice in nursing is imposing your beliefs and value system onto others. When practicing nursing, your personal beliefs and those of your clients may be radically different. Remember, however, that you must also allow clients the freedom to formulate and to express their own values. Do not impose your values on clients.

Quality of Life

Quality of life is a complicated ethical issue. At what point does the healthcare team decide that a person should receive treatment or not? For example, not enough donated organs or specialized facilities are available to serve everyone who needs them. How then is the decision made as to who receives lifesaving treatment and who does not? Healthcare ethics comes into play in such decisions.

Part of the discussion as to who receives treatment centers around the quality of life expected following treatment. Can treatment measurably improve the quality of a person’s life or life expectancy? Would others benefit more? Who decides on the quality of another person’s life? Who makes the decision as to who lives and who dies? What determines quality of life? Some suggested criteria include ability to work, ability to function physically, chronological age, contributions to society, happiness or satisfaction with life, ability to care for oneself, and the person and family’s opinions.

BOX 4-3.

Right to Confidentiality

As delegated by The Health Insurance Portability and Accountability Act of 1996 (HIPAA), the client has the right to expect that his or her privacy will be protected. Privacy means that information is available to the client but not to the public. Information collected may be used to provide effective care, develop treatment guidelines, determine ability to pay for care, bill third-party payers, and anonymously conduct research studies. The client may refuse to give information, but in this case, the quality of care may be limited by lack of information.

For detailed information regarding confidentiality rules, regulations, and issues, go to the Health and Human Services Website (see Web Resources on Point;·,).

Key Concept The client’s right to confidentiality is always important (Box 4-3).

Nurses’ Role Regarding Ethics

You are expected to practice ethically. Because of the intimate nature of nursing, you are often the first person to recognize that an ethical problem exists. You are responsible for bringing forth these issues and for participating in decision making. Whether nursing practice occurs in the United States, Canada, or the international community, basic ideas remain the same.

Ethical Issues in Treatment

Examples of some major issues in healthcare ethics are presented below. Some issues that were mentioned in the legal section of this topic are also issues for ethical debate.

Organ Transplantation. Many organs are successfully transplanted from person to person. In some cases, as in heart transplant, the donor must be pronounced legally dead before the organ can be removed. To keep the organ at its healthiest, however, it must be recovered at the moment the donor is pronounced clinically dead. In most cases, circulation and ventilation are artificially maintained until the organ is removed.

These situations involve such issues as defining clinical death and informed consent. Organ donation is a difficult decision for a family to make at such a traumatic time. A person can simplify matters in advance by designating that he or she wishes to be an organ donor on an organ donor card or a driver’s license.

The United Network of Organ Sharing (UNOS) was established to ensure fairness in the receipt of donated organs. This computerized network links all procurement organizations and maintains a list of potential organ recipients. UNOS has established specific criteria to determine which recipient will be eligible to receive a donated organ.

Key Concept Even if a person designates himself or herself as a "donor" on a driver’s license, the next of kin usually must give permission after death. If you wish to be an organ donor, discuss your feelings with your family now.

Criteria and Questions. Criteria of UNOS attempt to answer questions such as who should receive treatment (i.e., donated organs)? Why should this client receive an organ and not another client? Who will pay for the treatment? Many questions and factors influence decisions to give or to withhold treatment; legal and ethical considerations may be part of the criteria. Organ donations can cost hundreds of thousands of dollars and who should have the responsibility of paying for the surgery as well as the long-term care of the client?

Refusal of Treatment. Additional concerns may involve the refusal of treatment. Can a client legally refuse treatment? Under what circumstances does the client lose the right to refuse treatment? Another consideration is, should treatment be given, even against the person’s will?

If the healthcare team makes the decision to provide treatment, it is called beneficence. If the client makes the decision, it is termed autonomy. Usually a person gives permission for treatment; thus, refusal is seen as reversal of that permission. States debate the individual’s right to refuse lifesaving treatment. If any argument among family members or doubt on the part of the healthcare team exists, treatment must be given until the case is resolved in court.

Withholding Treatment. Withholding treatment means denial of treatment or care because treatment has been deemed inappropriate, not enough of a particular treatment is available, which may occur with donor kidneys or dialysis, or the client or family has refused it. In some circumstances, a court order must be obtained before treatment may be withheld or removed. If a person refuses treatment and it is illegally given, the healthcare team can be charged with battery.

The only time a person does not have the right to make the decision to refuse treatment is when the greater public interest would be in danger. For example, if a person has a communicable disease or is in immediate danger of harming self or others and refuses treatment, legal action may be taken.

Termination of Treatment. Termination of treatment, or withdrawal of treatment, involves the conscious decision to stop treatment once it has been started. The treatment may be withdrawn at the client’s request or when the healthcare team determines brain death has occurred. Stopping treatment once it has begun is often more difficult legally than is withholding treatment altogether.

Euthanasia. In the past, euthanasia was called “mercy killing.” It meant the deliberate taking of a person’s life to put the individual out of misery. This definition has been amended to include the withdrawal or withholding of treatment. A great deal of discussion and controversy has occurred in recent years about assisted suicide. The laws surrounding this ethical problem differ among states.

The ethics committee may be composed of nurses, physicians, social workers, religious leaders, and community members.

FIGURE 4-4 • The ethics committee may be composed of nurses, physicians, social workers, religious leaders, and community members.

The Ethics Committee

Healthcare facilities have ethics committees made up of healthcare professionals, chaplains, social workers, and others (Fig. 4-4). The chief functions of the ethics committee are education, policy-making, case review, and consultation. These committees are important because they bring together a variety of healthcare workers from various disciplines. They are able to share ideas and concerns related to their field. Many nurses bring a unique voice to the committee because they act as an advocate for their clients.

CLIENTS’ RIGHTS AND RESPONSIBILITIES

Clients also have rights and responsibilities. The concept of clients’ rights stems from the rise of the consumer movement. The public demands the right to quality care.

Clients’ Rights

In 1972, the American Hospital Association (AHA) adopted A Patient’s Bill of Rights, which stated the rights of hospitalized individuals. The AHA has regularly updated this policy which is now referred to as The Patient Care Partnership: Understanding Expectations, Rights, and Responsibilities. The AHA, medical and nursing organizations, and other consumer/client agencies provide guidelines that serve as a basis for decision making in hospital care. The guidelines of the various versions of Patient’s Rights help to ensure the concept of basic human rights and are widely accepted among healthcare providers. For more information go to the Websites of the AHA or the National Institutes of Health (see Web Resources on Point;-)·

Key Concept Clients are active participants in their own healthcare and need to be provided with information regarding their own health.

Clients’ Responsibilities

In addition to the rights of a client, the responsibilities of the client have become a significant part of his or her self-care and welfare. Recognized as a priority, the client is an active participant in formulating his or her care plan and making healthcare decisions. The client also has a responsibility to participate in and cooperate with care given. Certain cooperative actions can be expected from clients. Your duties as a nurse are to help your clients understand their responsibilities, teach them how to enhance their recovery process, and assist them to attain their greatest level of health and wellness.

Key Concept In some cases, the nurse or physician also has the right to bring charges against a client for an unlawful act, such as a physical attack.

To summarize various organizations’ sets of identified responsibilities of the client, see the following bulleted list.

The patient/client has the responsibility:

•    To recognize that healthcare is a partnership among the client, the client’s family/significant others, and all healthcare providers.

•    To provide information about past illness, hospitalizations, medications, and other health-related matters.

•    To request additional information and clarification about health status or treatment when the client does not fully understand the current information or instructions.

•    To ensure that the healthcare institution has a copy of the client’s written advance directive, if one is completed.

•    To inform physicians and other caregivers if the client anticipates problems in following prescribed treatment.

•    To respect the facility’s rules and regulations and responsibilities to other clients and the community.

•    To provide necessary information and to assist in the process of payment for services.

•    To recognize the impact of personal lifestyle choices on one’s own health and to make positive lifestyle changes to improve one’s health.

KEY POINTS

•    You are legally and ethically bound to practice nursing within the rules and regulations of your Nurse Practice Act and within the laws of your state, territory, or province.

•    Several types of advance directives allow individuals to plan ahead and to make decisions in advance about healthcare to be received if they become incapacitated.

•    Individuals have the right to accept or to refuse treatment in most situations.

•    You will encounter many ethical decisions in healthcare. Some of these require the assistance of an ethics committee.

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