Nurses today face many ethical dilemmas in the delivery of patient care. What can or should be done for the patient versus the wishes of the patient’s physician conflicting with the personal beliefs the nurse holds to be true. The client’s wishes may conflict with the institutional policies, physician professional opinion, the client’s family desires, or even the laws of the state. According to the nursing code of ethics, the nurse’s first allegiance is to the client (Blais & Hayes, 2011, pg. 60). The ethical ideals of each nurse must be weighed with the laws of the state along with providing the most ethical care for the patient. The advancements in medical technology make it possible to sustain a patient life where previously there was no hope of recovery. These advancements have put nurses in the forefront of decision making begging the question “just because we can, should we” to be answered. Nurses need to understand the legalities involved with these new technologies to practice safely and effectively. Scientific achievements have opened new ground for nursing exploration. In response to the need for nursing input into social and legal issues, nurses now find career opportunities as forensic nurses, legal nurse consultants, and nurse-attorneys (Blais & Hayes, 2011, pg. 75). This paper will explore the ethical and legal issues encountered by nurses in two case studies.
The American Nurses Association Code of Nursing Ethics could influence a final decision in each case study that was presented. The six caps study revealed family members to have conflict in their desires when it came time for a decision in going ahead with surgery (the father’s desire) and having a poor quality of life as the outcome (the adult children’s belief based on physicians prognosis). The adult children believe that their mother would not want to have the surgery and have a poor quality of life. The appropriate decision to involve the ethics committee shows the collaboration between health care professionals. Nurses should be aware of their own values and attitudes in order to recognize when a situation might affect the care they are able to provide (Blais & Hayes, 2011, p.52). The nurses primary commitment is to the patient, whether an individual, family, group, or community. The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient (ANA Code of Ethics for Nurses, 2014). Given the information that the adult children believe, their mother would not want to undergo the surgery, it is implied that it was the patient’s wish.
Based on the above information the ANA code of ethics can influence the final decision in that the family members would come to realize that the outcome from surgery would not be what the patient desires. A good decision is one that is in the client’s best interest and at the same time preserves the integrity of all involved (Blais & Hayes, 2011, p. 61). The critical thinking exercise gives information that a nurse is a witness in a malpractice case. The negligence resulted in harm to the client and the case is against the healthcare institution and another nurse who was overtly negligent. The nurses primary commitment is to the patient, whether an individual, family, group, or community. The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient. The nurse is responsible and accountable for individual nursing practice and determines the appropriate delegation of tasks consistent with the values of the profession through individual and collective action (Blais & Hayes, 2011, p. 59). Given the above ethical codes the nurse failed to uphold and follow ethical practice which resulted in harm to the patient. It is reasonable to assume that the ANA code of nursing ethics would have a significant impact on the courts final decision, as codes of ethics are usually higher than legal standards, and they can never be less than the legal standards of the profession (Blais & Hayes, 2011, p. 58)
Registered Nurses (RN’s) are routinely faced with moral and ethical decisions concerning their patients and fellow employees. In healthcare these issues can be very complex and complicated. An R.N. must frequently challenge their own moral and ethical values when they tasked with supporting their patients and families through difficult end-of-life decision making. Additionally, they may be forced to face the ethical decisions surrounding a fellow co-worker that might be compromising patient care due to impairment, because of an addiction or sleep deprivation. As with other people, there are many issues that influence an RN’s moral and ethical decision making. According to Chitty & Black, an individual’s moral and ethical decision making process is affected by their value system which is largely influenced by their culture and life experiences (Chitty & Black, 2011). Additionally, literature states that ethical decisions are also affected by the social norm of a society or group (Chmielewski, 2013). Unfortunately, when the decision making process for moral and ethical decisions is made through this form of influence, the choices made for moral conduct may go awry.
An example of this might be a group of students that decide as a whole to cheat on an exam. In other words, if the social norm is used as moral compass, there must be an unbiased check and balance system in place. In a hospital setting, this process may involve an ethics committee, an organization’s corporate compliance, or a human resources department. For RN’s that are faced with ethical and moral dilemmas, it is also important to refer to the Code of Ethics for Nurses that has been established by American Nurses Association (ANA). The ANA has set very clear guidelines for RN’s concerning the professional ethical obligations that are expected of nurses when faced with moral decisions concerning patients, colleagues, and the organizations that they work in (American Nurses Association, 2014).
The nurse has a legal duty to assist justice as far as possible (Blais & Hayes, 2011). In the case study of the nurse who observed a nurse violating standards of care, and who was overtly negligent, the nurse has a legal duty to report the incident. The primary responsibility of a nurse is to the patient. It is vital for the nurse to report negligence on any level in order to protect the safety of patients. The nurse also has a legal responsibility to be truthful and honest when testifying as a witness in court (Blais & Hayes, 2011).
In the case study of Marianne, the responsibility of the nurse is to organize discussion between the patient and her family regarding end of life decisions. In this case, there is no advanced directive, which puts the family in a bind, not knowing exactly what to do. According to the American Nursing Association, the nurse should attempt to have the Advanced Directive signed during the admission process (“End of Life Issues”, 2014). Doing this will not only protect the patient, but will assist the family in
knowing what the patient wishes in the event that the patient cannot speak for herself. A nurse has a legal responsibility to put the patient’s needs first, protect the safety of every patient, and act as patient advocate with every patient encounter.
As stated above nurses are faced with many personal and professional dilemmas in their daily duties. The ANA Code of Ethics is intended as an aid to these difficult decisions. The danger, though, with any such “aid” is that it may be applied in an unthinking manner as simply a set of preexisting rules (Dahnke, 2014). Nurses must always keep the focus on delivering the highest quality of care to the patient.
American Nurses Association, Code of Ethics for Nurses. (2014). Retrieved from http://nursingworld.org/MainMenuCategories/EthicsStandards/CodeofEthicsforNurses/Code-of-Ethics.pdf American Nurses Association, End of life issues. (2014). Retrieved from http://www.nursingworld.org/MainMenuCategories/EthicsStandards/End-of-Life Blais, K.K., Hayes, J.S. (2011). Professional Nursing Practice: Concepts & Perspectives. (6th ed., cpt. 6). Upper Saddle River, NJ: Pearson/Prentice-Hall. Chitty, K.K. & Black, B.P. (2011). Professional nursing: Concepts and challenges (6th ed.). St. Louis, MO: Elsevier Saunders Chmielewski, C. (2013). Values and culture in ethical decision making. The Global Community for Academic Advising. Retrieved from http://www.nacada.ksu.edu/Resources/Clearinghouse/View-Articles/Values-and-culture-in-ethical-decision-making.aspx Dahnke, M. D. (2014). Lippincott’s nursing center.com: The role of the American Nurses Association code in ethical decision making… Retrieved from http://www.nursingcenter.com/lnc/static?pageid=864590
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It is estimated that up to 10% of UK patients invoke their right to confidentiality each year (NHS, 2003), at least to some extent, and research has shown (Tingle, 2002) that this is a subject that is of growing concern for many patients within the NHS system. Given the ability of patients to take legal action when their right to confidentiality has been breached, the issue of patient informatics has perhaps never been more important. The rule governing confidentiality between doctor and patient dates back at least as far as the 1964 formation of the Hippocratic Oath, which includes the following statement: “I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know” (Tingle, 2002: 5). As well as this moral guideline, patient confidentiality is further protected in the UK by law, with various statutes such as the Common Law of Confidentiality, the Data Protection Act 1998 and the Human Rights Act 1998 all serving to underline the right of a patient to expect confidences shared with a physician or medical carer to be respected. However, there are various scenarios in which a care provider, including a member of nursing staff, might find that he or she is compelled to disclose information about a patient, in which case it can be argued that the ethical, professional and legal issues underpinning confidentiality in nursing practice are by no means clear-cut. In fact, the issue of confidentiality can raise questions for even the most experienced nursing practitioners, in which case it is important to consider the importance, relevance of patient confidentiality and to consider situations in which the duty to respect confidentiality might become strained.
In the UK, issues relating to confidentiality are outlined by the 2003 NHS Code of Practice on Confidentiality, as well as supplements such as the 2010 guidance on public interest disclosures. The aim of the Code is to ensure that medical staff are fully aware of their obligations to respect patient confidentiality, of their duties to inform patients of the way in which their data will be handled, and of the circumstances in which confidentiality must be reconsidered. As the Code notes, “all staff should meet the standards outlined in this document, as well as their terms of employment… Much of what is required builds on existing best practice. What is needed is to make this explicit and to ensure that everyone strives to meet these standards and improves pratice” (NHS, 2003). In other words, the overall aim is to ensure that NHS staff incorporate the Code into their everyday practice in such a way as to make confidentiality a natural part of the NHS system. The Code divides the duty of confidentiality into four distinct phases:
Figure 1. Confidentiality model (NHS, 2003).
These four phases can be summed up as follows:
– Protect. Staff have a duty to protect patients’ data and other information, including confidences.
– Inform. Staff must ensure that patients are informed of how their information is used.
– Provide Choice. Wherever possible, patients should be able to decide how and where their information is used.
– Improve. This final phase recognises that there are always areas for improvement, so confidentiality should constantly be monitored and, where necessary, improved upon.
Patient care obviously demands that certain records are kept: it would be virtually impossible to provide adequate care to a patient if no records were allowed to be maintained. However, “nursing staff are compelled to keep confidences not only by UK law, but also by professional codes of conduct and by rules of the NHS” (Stanley, 2008: 158). As the NHS itself acknowledges, it must remain “a confidential service” (NHS, 2003) if it is to be fully trusted by patients. In many cases, patients in need of medical care are among the most vulnerable members of society, and there may be numerous reasons why they feel that they cannot fully discuss certain aspects of their lives. As Keegan and Levenson (2010) state, “the establishment of a blanket confidentiality policy will encourage some people to share more than they might otherwise be willing to offer” (Keegan & Levenson, 2010: 105), even if it must ultimately be accepted that there are some circumstances in which certain patients will never fully disclose all information. Nevertheless, from the point of view of the duty of care, it is important for medical staff to be able to develop a comprehensive understanding of a patient’s lifestyle so as to be able to determine whether any of these factors influence the course of treatment. A number of commentators note that while patients try to decide what information should be offered, they may also find the confidentiality clause in the doctor-patient relationship to be a welcome opportunity to share some burden that might have an impact upon their treatment.
Information disclosed by a patient must be treated as confidential unless there are compelling reasons to do otherwise. It is important to note, however, that anonymised information is generally considered to be free of the constraints of confidentiality, although failure to adequately protect the identity of an individual – no matter the intention – would constitute an ethical and legal breach. Nevertheless, there are situations in which information is shared, such as clinical audits and consultations with other medical staff, in which case patients might not immediately understand that this will happen and might become defensive when they subsequently discover that a disclosure has been made. For this reason, the NHS Confidentiality Code of Practice emphasises the importance of ensuring that patients are kept fully briefed on the way that their information will be shared. For example, Dimond (2010) states that “patients may view confidential information as a means of establishing a bond with a particular care provider, and may deem subsequent disclosure to be a violation of that bond even if the disclosure is fully in line with NHS practices” (Dimond, 2010: 105). In some cases, disclosure may include non-NHS bodies, in which case this concern is often increased and it is important that such bodies understand the importance of treating confidential information in a manner that conforms to the NHS’s own guidelines. In other words, the sharing of confidential information with outside agencies should only be allowed when it does not constitute a ‘leak’ in the process of guaranteeing confidentiality.
For all medical staff, however, there will inevitably arise situations in which they must consider breaching confidence. Among the most common are the following:
Situations where patients lack the necessary competence to understand explanations. If this is the case, all possible efforts must be made to get the information across and to watch for any kind of clear and unambiguous statement, or attempt at a statement, by the patient.
Children under the age of 16 have a right to confidentiality, but in situations where they are deemed to be acting out of their own best interests there is statutory permission for medical workers to breach confidentiality, e.g. to parents. Those parents might then be able to provide consent for the child.
Some patients are in a coma or are similarly unable to give consent. In such cases, due care should be exercised. In some cases, a next of kin can be consulted for the purpose of providing consent.
In some cases, court orders might apply to specific cases, compelling medical staff to reveal information that they would otherwise not reveal.
This framework sets out a clear set of conditions in which the usual markers of confidentiality are unable to function, in which case the patient’s best interests must be taken into account. Certain statutory rules apply, such as the First Principle of the Data Protection Act 1998, which concerns the issue of ‘fair processing’ and grants some leeway to practitioners when it comes to handling information for patients. Under Common Law, staff are also permitted to disclose information if it is deemed to be ‘in the public interest’, e.g. assisting in the capture of a dangerous criminal. In such circumstances, the context is clearly defined and medical staff must ensure that the proper guidelines for disclosure have still been followed. For example, disclosure may be made in the public interest if a patient is deemed to represent a harm to the public (e.g. as a potential terrorist) or if there is a serious risk of harm (e.g. the spread of an infectious disease, the risk of child abuse or the risk of some other type of violence). In these circumstances, a healthcare professional must consider the various implications of disclosure and must ultimately make a decision based on the demands of the NHS Code in this area.
When a patient has been asked for consent to share information, he has the right to refuse. In such circumstances, provided the patient is competent to make decisions, such a decision must be respected, even if it is deemed to be compromising the patient’s overall standard of care. As Dimond (2010) recognises, this can be “frustrating for medical staff, but patients have a right to refuse treatment and they have a right to refuse the sharing of their information” (Dimond, 2010: 35). When this happens, staff must find a way to work within the limits imposed by the patient’s decision. Although the Code prescribes “certain situations where the Mental Health Act can be invoked in order to determine that the patient is not competent to make such decisions” (Cordess, 2000: 7), this type of situation is rare and there are many reasons why a patient might want his or her information to be shared. One strategy that can be used to try to change the patient’s mind is to remind him of the clear rules regarding disclosure, so that he can be absolutely sure that his information will not be used in any way that might be deemed to be unsatisfactory. However, as Tingle (2002) states, “many patients who object to the sharing of their information do so on ideological grounds, and are unlikely to be dissuaded” (Tingle, 2002: 51). In such circumstances, the best that a nurse can do is usually to attempt to strike some form of compromise, but care should be taken to avoid a competitive or adversarial situation because some patients will use this as an excuse to become even more obstructive.
When dealing with children, this can be a particularly difficult area. The Code stipulates that young people aged 16 and over are presumed to be competent, whereas those under 16 “who have the capacity and understanding to take decisions about their own treatment are also entitled to decide whether personal information may be passed on and generally to have their confidence respected” (NHS,2003). In general, younger children are encouraged to involve their parents in the decision-making process even where there is no strict requirement for them to do so, in recognition of the fact that they might lack the emotional maturity to be able to make a considered decision. Some critics have argued that this is a sign that the current system is inefficient, and that children under the age of 16 should perhaps not be able to make such decisions on their own if they have been subjectively determined by staff to be competent. However, this is a debate to be carried out at management level and nurses must stick to the present rules, in which case staff must respect the decisions made by a child regarding the sharing of his or her information. Although there are provisions for parental consent to substitute for the child’s consent in areas where the child has refused to accept life-saving treatment, this does not extend to the issue of patient confidentiality and there has to be a clear competency based reason to ignore the wishes of a child in this area. This is one of the areas where the current NHS situation is most commonly criticised, since some people argue that too much power is given to children, who may not be in the best position to make informed decisions.
There are, of course, exceptions to all rules, and this is true when it comes to confidentiality within the NHS. MP’s, for example, can receive certain information if tests related to necessity and appropriateness have been carried out. Furthermore, it is entirely appropriate to disclose information to an MP if that MP has given a written assurance that the patient has previously consented to such disclosure; in these circumstances, there is no need to confirm this with the patient. When the police, meanwhile, request information, it must be remembered that they have no broad right to information without either a strong public interest factor or explicit authorisation by the courts. When authorisation for disclosure to the police has been granted, the information revealed should be pertinent to the request and should not be a general ‘dump’ of all available information; in circumstances where staff might be at risk, there may be cause to disclose more information, and this is another area where subjective judgement comes into play. The same rules apply to courts and their agents. In cases where the media requests information (e.g. about a celebrity, about a patient involved in a high-profile incident, or in circumstances where the patient’s family are complaining publicly about treatment levels), there is no automatic right to disclosure. If the patient’s consent to disclosure is not available, disclosure to the media can only take place if it is clearly related to a manner of ‘exceptional’ public interest. However, where information is clearly already in the public domain, there is freedom for staff to confirm that information.
Overall, it is clearly in the best interests of the NHS that the organisation’s reputation for strong disclosure and confidentiality policies remains in place. Any erosion of that reputation would undoubtedly impact negatively upon the ability of staff to provide adequate levels of support and care in some cases. Some critics have suggested that in areas where subjective judgements need to be made, e.g. where ‘public interest’ is in play, staff will tend to make decisions based on personal prejudices (in either direction) that would be different from staff member to staff member. There is certainly a degree of credibility to this claim, yet it is clear that there is no other mechanism by which quick judgements can be made. It is also clear that staff are constantly reminded (by the Code, among other things) of their duty to maintain confidentiality and of the compelling reasons why this is so important. The fact that staff are made aware not only of the letter of the regulations but also the spirit in which they are framed is a strong indicator of the seriousness with which the issue is dealt under NHS guidelines, and the strong level of importance attached to the matter of confidentiality. This is an issue that is covered by legal statute, but it is arguably just as important – if not more so – in terms of professional responsibility and adherence to professional guidelines regarding the maintenance of the carer-patient relationship and of the broader reputation of the NHS in general.
Cordess, C. (2000). Confidentiality and Mental Health. London: Jessica Kingsley Publishers
Dimond, B.C. (2010). Legal Aspects of Patient Confidentiality. London: Quay Books
Keegan, M. & R. Levenson (2010). Patient confidentiality. The British Journal of Hospital Medicine, 71 (7), pp. 105-107
NHS (2003). Confidentiality: NHS Code of Practice. URL: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4069254.pdf (accessed 11/10)
NHS (2010). Confidentiality: NHS Code of Practice – Supplementary Guidance: Public Interest Disclosures. URL: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_122031.pdf (accessed 11/10)
Stanley, P. (2008). The Law of Confidentiality: A Restatement. London: Hart Publishing
Tingle, J. (2002). Patient Confidentiality. London: XPL Publishing
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