Ethics vs the Law
The concept of right and wrong is known as ethics. Ethics, therefore, deals with right and wrong conduct or practice, with what people should do and what they should refrain from doing. Medical standards are concerned with how healthcare professionals should handle moral problems resulting from minute by minute encounter and care of patients. Clinical ethics is defined as a discipline or methodology that helps in considering the ethical implications of medical practices, techniques, policies, and treatments. The discipline’s main attention is on determining what measures are to be undertaken or not in the delivery of health care. The law, on the other hand, is a constellation of established and enforceable legal standard and rules for conduct or non-conduct, whose violation may create criminal or civil liability (American Nurses Association, 2001).
The traditional ethical pillars in nursing and other medical professions are respect for patients’ autonomy doing good to the patient (beneficence), avoiding harm caused to the patient (non-maleficence) and doing justice to the patient. These pillars together with others such as honesty, confidentiality and fidelity guide the medical practice all over the world. In the course of nursing practice, there are instances when the ethical directive is in conflict with the law. Sometimes, the ethical consideration during the care of a particular patient is regarded as a practice against the law of the land. The nursing presume the case faced with a dilemma on what should be the best way forward (Olson, Cutcliffe, & O’Brien, 2011).
This paper aims at exploring the conflict that exists between the law and ethics in nursing. By doing so, the paper will provide a deeper insight on the issue, looking at the historical perspective and also finding the possible ways of handling this conflict without hurting neither the patient nor self.
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Autonomy and the Law
In medical ethics, autonomy is a right for self-determination. It implies that the patient has the authority to come up with their own decisions regarding their health and treatment. The patient, therefore, has a legal right to intend an action and act without coercion. In as much as this is accepted as an ethical code in nursing, the law recognizes the nurse as the patient’s advocate and primary caregiver. This means that patients’ decisions may not be fully upheld, especially when they go against the law. Euthanasia is one of such decisions. For a long time, the debate about ‘mercy killing’ has been going on. The patient’s decision to have their life terminated is a sign of autonomy. However, allowing the patient to terminate their own life or helping them in this matter is a crime (Bharadwaj & Ward, 2008).
Autonomy dictates that the patient has an authority to decide what intervention can be done and what cannot be done to them regardless the risks involved. For instance, the case was filed in the court of appeal to provide a ruling whether a woman at 40 weeks pregnant was right to refuse cesarean section as a mode of delivery since the baby was in breech presentation. In as much as this was a medical decision aimed at saving the life of the mother and the baby, the court decided that a mentally competent person who can decide may, for religious, rational or irrational reasons or for no reason at all, choose to have or not to have medical intrusion, even if the results may be the death or disability of self or the baby. The medical professionals, however, stood their ground and as a result, came up with directives that the patient’s autonomy should only be extended to the level where it is reasonable. Their argument was that the patient’s decision to seek medical attention is enough to warrant the application of the available forms of help (Rodriguez et al., 2011).
To negotiate these conflicts, many hospitals included a pre-treatment consent that the patients have to sign indicating that they accept all forms of procedures that the healthcare providers may find necessary. From that point, the medical ethics of beneficence and non-maleficence should take over to ensure that all what is done is for the benefit of the patient (Bharadwaj & Ward, 2008).
Confidentiality and the Law
Confidentiality in medical practice refers to the requirement that all the information regarding a patient should not be shared indiscriminately. This implies that this information can only be shared with other medical personnel and only for the reasons related to the improvement of the care of the patient. Discussing the patients’ diagnosis and treatment outside the healthcare setting is illegal. However, sometimes it is not easy to control the flow of information (Olson, Cutcliffe, & O’Brien, 2011). In 2009, a general practitioner was charged in the UK with a breach of the code of confidentiality. She was overheard by a number of patients dictating referral details of a patient to a nurse in another ward over the phone. This information included the diagnosis, family and medical history of the patient. The court decided that the nurse was guilty of an offense. In response to this, nurses came out to the lobby for the lifting of the case on the ground that the suspect was in the office and not outside. However, the ruling remained because regardless of where the nurse was, the information went to the unintended people.
The nurse may have thought it wise to use the phone, which is easier and faster, so that the patient can be admitted in time. This is a show of beneficence, but the confidentiality was breached in the process. To avoid this kind of conflict all nurses must be conversant with the codes and avoid verbal sharing of patients’ information, which could be uncontrollable.
Caring for a Dangerous Patient
A dangerous patient is the one that bares a potential risk for self and others including the healthcare provider. In this case, the nurse must not only consider the code of ethics, but also the law regarding the handling of such individuals. The privacy and confidentiality of all patients must be guarded by all healthcare workers. The nurses’ role of maintaining the privacy is, however, limited by the condition of the patient. This has resulted from recent incidences where a perpetrator of mass killing had a history of mental illness and from their medical records it was indicated that they were capable of violence. However, this was held confidential by the nurses and other medical professionals. In 2012, more than five mass shootings and killings were reported in America, with the perpetrator having been indicated as dangerous by the medics, but this was not communicated. In an attempt to control this, the law introduced a ‘duty to warn’ and ‘duty to protect’ in the practice of all the healthcare providers (Rodriguez et al., 2011).
A documented case of this kind of conflict is that of a murder of a college student by a friend whom she had rejected for a relationship. Although the murderer had admitted to a psychiatric nurse in the college of his intention, the nurse only communicated this to the college security who confined the man and later released him when he appeared rational and changed decision. However, nobody warned the victim or her parents of the planned murder. The court found the nurse and the college to have breached their duty and responsibility to warn all who were endangered by the decision (“Tarasoff v. Regents of the University of California”, n.d.).
As a result of these incidences, the states in America have come up with directives to issue it as a duty of the healthcare provider to warn and protect those who are endangered by a patient’s confession or decision. The nurses are, therefore, required to report some types of threats and potential harm, carefully assess the patients’ condition and inquire about injuries, and wounds that may be indicative of the potential harm from another person. The issue of confidentiality, therefore, has raised a considerable amount of conflicts between the ethical requirement of medical professionals and the law of the land (Bevins, 2011).
Advocacy for Undocumented Patients
Currently, more than 11 million illegal immigrants are present in America. These people will be found to seek healthcare from the public and private hospitals in the country. These individuals and their families are excluded from the Affordable Care Act and in the Medicaid program. They also cannot benefit from private health insurance policies due to their illegality of residence. A nurse is supposed to overlook the origin or other attributes of the patient when acting as the patients advocate. The actions of a nurse in their efforts to help these people are sometimes seen as a bending of the law. A nurse who chooses to address the healthcare needs of the illegal immigrants and their family may be faced with a case to answer in court (Nuila, 2012). The conflict, therefore, arises when the nurse is found guilty of breaking the law by providing care to these people or advocating for the same matter. A nurse that manipulates clients’ information or diagnosis to fit the domain that can be assisted by the state is acting out of advocacy for the patient. However, this advocacy results in the bending of the law and a change of patient’s information and, therefore, the nurse is considered to have broken the law. In as much as the intention is advocacy and beneficence, the law does not allow this.
The Informed Consent
In medical practice, all procedures performed on patients require an informed consent of the patient. However, the documented consent may not necessarily be the communicated information. Issues have been raised concerning consent signed by patients after a verbal explanation that was not similar to the signed document (Lampert et al., 2010). The patients and their relatives then file a lawsuit suing the nurse of malpractice. The nurse is, therefore, required to always consider having a documented consent that the client can read and understand. The verbal explanation should only be useful to clarify what is written in the printed document that the client signs.
The medical, clinical and ethical consideration has long been conflicting with the provisions of the law. This has led to the proceedings being filed against nurses who, although they act in line with the codes of conduct, bend or break the law in the process. Previously, the issues of this conflict have been handled by courts (Bevins, 2011). This means that nurses have been reacting to the conflicts rather than pro-acting. The result of this reaction is a failure to rectify and change. The nurses should, therefore, be well conversant with the requirements of the law through consultations of the lawyers and other legal representatives to avoid being sued. The regulatory bodies should be involved in lobbying for laws that do not compromise the patients’ care in the process. The laws should at least allow for the free exercise of the medical code of ethics without putting the healthcare providers in a strange ethical dilemma. Negotiating the conflicts between the law and ethics will, therefore, require more than lobbying and advocacy. It will call for the education of nurses of legal issues and requirements.