public disclosure of private facts, any type of pub-licity that puts the client in the public eye under false pretenses, and any type of appropriation that is a benefit due to the client’s name or likeness (p.
160). The case of Bethiaume v. Pratt involved a dying client who had cancer of the larynx and was repeatedly photographed for use by the physician.
The client asked not to be photographed, but these wishes were ignored, and the court found the physi-cian liable for invasion of privacy (Fiesta, 1988, p.
160). Nurse leaders and managers must make sure that a client’s privacy is not invaded during their care. This includes ethical as well as legal overtones in client care delivery. Confidentiality is one of the ethical principles that nursing practice upholds via the American Nurses Association Code of Ethics with Interpretative Statements (2001). Nurse man-agers must make certain that the privileged infor-mation regarding clients in their care is kept confidential. Nurses are privy to highly confidential information regarding client care. Information should be disseminated exclusively on a need-to-know basis. Nurse managers should also caution their staff not to discuss interesting client cases in open areas. Nurse managers are charged with the maintenance of nursing standards within the ranks of their nursing staff.
Contract Law
The area of contract law most relevant to nurse managers is employment. Most employment rela-tionships between nurses and employers are “at will,” which allows the employees to quit “at will”
and the employer to terminate “at will,” for no rea-son. An actual employment contract between employee and employer is more binding, however.
The nurse promises to provide specific nursing services in exchange for financial reimbursement. If either side violates its promises under the contract, the contract has been breached, and the other part may seek damages.
Contracts also come into play in the labor law arena. Many nurses work under the auspices of a union. The Massachusetts Nurses Association (2003) points out that 35% of nurses with union affiliation make a higher wage and work less mandatory overtime than nonunion nurses. This brings into play collective bargaining agreements, which protect the nurse and will not allow the dis-charge of a nurse without “good cause.” Nurse
supervisors are not allowed to participate in collec-tive bargaining.
regulate particular choices of actions or decisions (Mappes & DeGrazia, 2001). These rules are based on philosophical theories. Ethics and ethical deci-sion making stem from works of major philoso-phers, such as Immanuel Kant, Rawls, and Mill (Brannigan & DeGrazia, 2001). Deontology, or for-malism, is a theory that focuses on an individual’s motives rather than on the consequences of actions.
Deontology encompasses natural law and incorpo-rates dutiful actions of the individual (Hill & Zweig, 2003). Kant further recognized that reasoning is sufficient in leading an individual to moral actions and that these actions should be commenced as ends in themselves rather than as means to an end (Raphael, 1994). For example, a physician asks a
nurse to monitor a depressed 40-year-old patient who has been placed on a new, experimental anti-depressant medication. The nurse monitors the patient and tells the physician that the patient said,
“The medication makes me feel nauseated all of the time,” but the depression has lifted. The physician makes the decision to maintain the patient on the medication because of the need to continue testing on this new medication. The physician is using the patient as a means to an end rather than demon-strating concerns for the patient’s needs and feel-ings. Kant insisted that moral actions be placed within the boundaries of reason. He further pointed out that an action is not right unless it has the capa-bility of becoming a binding law for everyone. For instance, in truth telling, if the caveat of telling a lie to please a patient exists, then to tell the truth is not a categorical imperative for everyone.
The other major ethical theory is teleology, or consequentialism. Utilitarianism, which is part of teleology and supports the “the greatest good for the greatest number of people,” considers consequences of actions (Beauchamp & Childress, 2001). For instance, if there were to be a flu epidemic and flu vaccine was limited, the decision would be to allow the greatest number of individuals who would be affected to receive the vaccine first. If after their vaccinations, more vaccine became available, then the remainder of the population could be vacci-nated. Utilitarianism truly considers real-life and commonsense approaches. John Stuart Mill expressed the view that pleasure and happiness have different qualities. This followed with the distinction that applying the golden rule in one’s conduct takes precedence over immediate gratifi-cations. Mill thought that the greatest happiness must involve everyone concerned, not just an indi-vidual. Therefore, the emphasis of this principle is based on groups aimed at producing the most hap-piness, focusing on utility, consequences, and means to an end (Raphael, 1994).
Another ethical theory is the more contemporary ethics of care. Mappes and DeGrazia (2001) point to the history of this ethical theory as being based on the moral experiences of women, with a focus on personal relationships and responsibilities of the relationship. Munson (2004) determines that indi-viduals who prescribe to the care ethic think in terms of specific circumstances by using individual context rather than universal rules and principles.
Furthermore, in resolving ethical dilemmas and
Legal and Ethical Knowledge for Nurses 63
hot topic:
Advance Directives
Advance directives include living wills, do not resusci-tate (DNR) orders, and durable power of attorney for health care. Patients and their families as well as nurse managers and leaders must be conversant in these top-ics. Advance directives allow the individual who is of sound mind to make decisions regarding end-of-life or emergency treatment before situations arise. Advance directives may be executed through a living will, which designates the type of care the individual would like to receive in circumstances in which the individual is no longer able to decide.
Because living wills sometimes do not hold legal valid-ity, many individuals execute a durable power of attor-ney for health care, which names a person who will be responsible for end-of-life decision making and care.
Nurses are obligated to ask patients about advance directives, living wills, and durable power of attorney.
The Patient Self-Determination Act directs all health-care institutions receiving Medihealth-care/Medicaid funds to inform adult patients of their right to determine their care. This includes informing them of advance direc-tives and their right to have an advance directive.
Health practitioners have a duty to follow medical directives, out of respect for patients’ wishes. The physi-cian must adhere to state statutes when writing these orders, and the nurse must follow these orders. In fact, nurses have been sued for not observing these orders (Tammelleo, 1997). Claims that may be lodged against the nurse for violating DNR orders include battery and negligence.
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accepting complex circumstances, the people involved must utilize critical thinking within the context of solving or coming to a resolution of the ethical situation.
Mappes and DeGrazia (2001) also considered virtue ethics as part of the ethical picture. Virtue ethics, according to these authors, originated with Aristotle and is based on the character of the indi-vidual. Virtue ethics deals with the good or virtuous character traits that may be engendered within the individual. Aristotle named courage as a virtue, striking a balance between excess courage (rash-ness) and appropriate courage within a situa-tion. The Greek philosophers always strove for bal-ance between two ends of excesses. Balbal-ance was always considered the best approach in dealing with virtues. Aristotle also believed that virtues were attained and developed through training and routine practice. In understanding virtue ethics, it would be reasonable to believe that virtuous individuals fac-ing complex ethical dilemmas would make the right decisions due to their virtuous character.
Beauchamp and Childress (2001) laid the foun-dation for ethical dilemma resolution in their first edition of Principles of Biomedical Ethics. This book is now into its fifth edition and continues to act as a guide for ethical decision making. Nurse lead-ers/managers need to consider the following ethical principles in their decision-making process or if they are participating on an ethical committee.
ETHICAL PRINCIPLES
The principles listed in Box 5-3 act as a basic foun-dation for ethical decision making. The first princi-ple is autonomy, which involves the right to self-determination and to make independent per-sonal decisions regarding care. Beauchamp and Childress (2001) imply that the principle of omy is sometimes described as respect for auton-omy. An example in health care is the patient’s right to refuse treatment. The only restriction on auton-omy that may preclude this right would be a
com-municable disease, in which case the patient’s autonomy would be restricted. Devettere (2000) points to the Patient Self-Determination Act of 1990 as the first federal initiative that was intro-duced and designed to educate patients on the use of advance directives. Currently, hospitals and other institutions provide education and paperwork for patients being admitted who have not implemented an advance directive.
Beneficence is a principle that speaks to deeds of charity, mercy, and kindness toward the individ-ual. It also means promoting the welfare of others (Beauchamp & Childress, 2001) or doing good.
Nurses, by the nature of nursing practice, perform beneficent acts.
Nonmaleficence literally means to not harm the patient. Munson (2004) believes this is the overrid-ing principle in the care of patients. Aiken and Catalano (1994) declares that nonmaleficence is the other side of beneficence but that the two cannot be considered independent of each other. Nurses may sometimes violate this principle in the short term in order to give a positive long-term result. An exam-ple is chest compressions in the event of heart stop-page in an elderly patient; ribs may be broken, and/or sternal fractures may occur that are harm-ful, but recovering the patient’s life takes prece-dence over the harm.
The principle of justice is actually the deontolog-ical ethdeontolog-ical theory. According to Beauchamp and Childress (2001), it encompasses the entire field of ethics and refers to the right to be treated justly, fairly, and equally. Munson (2004) points out that justice in health care often refers to distributive jus-tice and/or the distribution of scarce health-care resources. Social justice becomes a part of this;
Munson continues that it implies fairness in the treatment of individuals. Nurses should be aware that when indigent patients arrive in the emergency department, they must be treated in an equitable way and that if persons require emergency service due to trauma, nurses must proceed to deliver the service as deemed appropriate. This goes along with Rawls’ concept of a Theory of Justice (1971).
Brannigan and DeGrazia (2001) cited Rawls’ two principles of equality and justice: (1) that everyone should be given equal liberty no matter what adver-sities exist; and (2) that differences among people ought to be recognized by being inclusive of the least advantaged and given their share of improve-ments. Others have explored this concept in health care, according to Brannigan and Boss, by proposing 64 Understanding Organizations
Box 5-3
Ethical Principles Autonomy
Beneficence Nonmaleficence Justice
Fidelity Veracity
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equitable health-care systems, benchmarks, and accessible points of entry.
Fidelity focuses more on the delivery of health care and literally means keeping one’s promises or obligations to an individual. Munson (2004) sug-gests that keeping these commitments becomes of paramount importance when considering patient care standards that are to be met by the nurse.
Likewise, nurse managers are bound by their com-mitments to their employees. In particular, a verbal commitment involving a shift change is a contract with the employee and should be considered as such by the manager.
Veracity involves truth telling by all concerned in patient care. The nurse certainly has an obligation to tell the truth, for instance, when a patient asks about his or her condition. This, however, can take on tones of nonmaleficence when, for example, a cancer patient asks the nurse how long he might live. In this instance, it may be the duty of the nurse not to take hope away from the patient and to pro-vide a positive answer to this question. The answer might include the idea that no one is able to predict death and that there is always hope in life. Here again the balancing of beneficence and nonmalfea-sance within the boundaries of veracity is impor-tant in the nurse’s actions (Munson, 2004).
The sanctity of life principle is a part of ethical decisions when it comes to withholding or with-drawing life-sustaining treatments or assisting sui-cide. Sanctity of human life is defined as the obligation not to take human life (Fry & Veatch, 2000). The American Nurses Association (ANA) implies that nurses caring for patients should direct their care toward the relief and prevention of the suffering that is often associated with the process of dying (ANA, 1985, p. 4). This brings into focus the ANA’s position statement (1994) on active euthanasia and its position statement on withhold-ing nutrition and hydration for the patient (ANA, 2001). The latter position should be made by the client or surrogate with the health-care team. The ANA carefully considered the benefit-and-harm relationship of withholding nutrition, recognizing that, sometimes, living causes more harm to the individual than dying. The ANA differentiates between artificial nutrition and the individual being able to consume food and water by mouth. The ANA states that only artificial nutrition may or may not be justified. If the individual is unable to make decisions, then the surrogate must be relied upon. Nurses must continue to give good care and
educate client family members about the dying process and provision of comfort measures (ANA Ethics and Human Rights Position Statements, April 2, 1992).
ETHICAL DECISION MAKING
Nurses must learn how to make ethical decisions, and nurse managers/leaders must direct and guide nurses in making such decisions. Nurses, in increasing numbers, are being invited to participate on ethical committees. These committees are structured with members of the health-care team, administrators, risk managers, attorneys for the institution, and others. A popular ethical decision model called MORAL was put forward by Thiroux (1977) and Halloran (1982). This model offers a very concise and systematic way of making ethi-cal decisions (Box 5-4). It is most important that
Legal and Ethical Knowledge for Nurses 65
Box 5-4
MORAL Model of Ethical Decision Making M—Massage the dilemma. Identify and define the issues
in the dilemma. Consider the options of all the major players in the dilemma and their value systems. This includes patients, family members, nurses, physicians, clergy, and any other interdisciplinary health-care members.
O—Outline the options. Examine all of the options, including those that are less realistic and conflicting.
This stage is designed only for considering options and not for making a final decision.
R—Resolve the dilemma. Review the issues and options, applying basic principles of ethics to each option.
Decide the best option, based on the views of all those concerned in the dilemma.
A—Act by applying the chosen option. This step is usually the most difficult because it requires actual
implementation, whereas the previous steps require only dialogue and discussion.
L—Look back and evaluate the entire process, including the implementation. No process is complete without a thorough evaluation. Ensure that those involved are able to follow through on the final option. If not, a second decision may be required, and the process must start again at the initial step.
Modified from Thiroux, J. (1977). Ethics: Theory and practice.
Philadelphia: Macmillan; and Halloran, M.C. (1982). Rational ethical judgments utilizing a decision making tool. Heart and Lung 11, 566–570.
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tal values are changing, and there is an increasing abundance of litigation in the health-care arena.
Along with this, the rapid changes in technological advancement keep health professionals in a con-stant state of training. Nurse executives and man-agers must know the law and ethics as well as understand the ramifications of making sure their employees are also knowledgeable of the law and ethical dilemmas. The laws that affect nurses are critical for nurse executives to understand and fol-low by making their employees knowledgeable about the pitfalls that may arise due to not meeting standards of care in their units and what may hap-pen to them legally due to this failure to meet stan-dards of care. Along with the legalities of practice and care go the ethical issues involved in practice.
Understanding ethical foundations, ethical decision making, and ethical committees is an important part of the nurse executive/managerial role.
66 Understanding Organizations
ethical decisions be reached in a timely manner.
and the use of this model certainly facilitates the process.
Ethics and ethical decision making have become a thread that is followed throughout the nursing curriculum. The American Association of Colleges of Nursing (AACN) has presented a set of nursing values for nursing students to internalize into their nursing education (Box 5-5). These essential values follow closely the aforementioned ethical principles as a guide for the profession and provide a founda-tion for future nursing leaders and managers to build upon.
All Good Things…
Legal and ethical issues are moving to the forefront of professional nursing practice. The current
socie-Box 5-5
Essential Values and Behaviors
Altruism is a concern for the welfare and well-being of others. In professional practice, altruism is reflected by the nurse’s concern for the welfare of patients, other nurses, and other health-care providers. The professional behaviors involved with this essential value include: understanding of cultures, beliefs, and perspectives of others; advocacy for patients, particularly the most vulnerable; risk taking on behalf of patients and colleagues; and mentoring other professionals.
Autonomy is the right to self-determination. Professional practice reflects autonomy when it respects patients’ rights to make decisions about their health. The professional behaviors involved with this essential value include:
planning care in partnership with patients; honoring the right of patients and families to make decisions about health care; and providing information so patients can make informed choices.
Human dignity is respect for the inherent worth and uniqueness of individuals and populations. In professional practice, human dignity is reflected when the nurse values and respects all patients and colleagues. The professional behaviors involved with this essential value include: providing culturally competent and sensitive care;
protecting patients’ privacy; preserving the confidentiality of patients and health-care providers; and designing care with sensitivity to individual patient needs.
Integrity is acting in accordance with an appropriate code of ethics and accepted standards of practice. Integrity is reflected in professional practice when the nurse is honest and provides care based on an ethical framework that is accepted within the profession. The professional behaviors involved with this essential value include: providing honest information to patients and the public; documenting care accurately and honestly; seeking to remedy errors made by self or other; and demonstrating accountability for own actions.
Social justice is upholding moral, legal, and humanis-tic principles. This value is reflected in professional prac-tice when the nurse works to ensure equal treatment under the law and equal access to quality health care.
The professional behaviors involved with this essential value include: supporting fairness and nondiscrimination in the delivery of care; promoting universal access to health care; and encouraging legislation and policy consistent with the advancement of nursing care and health care.
American Association of Colleges of Nursing, 1998.
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Let’s Talk
1. Discuss the interrelationship of law and ethics.
2. Discuss federal laws affecting nursing and their impact on the profession.
3. Describe the difference between the two types of common law.
4. Discuss the elements of malpractice, and give an example of each.
5. Give an example of the criminalization of negligence.
6. What are the three components of intentional torts?
7. Give an example of an intentional tort of battery.
8. Give one example of a best practice for reducing the risk of malpractice litigation.
9. Discuss advance directives and claims that may be lodged for not following them.
10. Give an example of each of the seven ethical principles.
11. Discuss the five steps of ethical decision making in the MORAL model.
NCLEX Questions
1. Legal and ethical issues are intertwined but:
A. They are not distinct bodies of thought or practice.
B. They are individual and distinct bodies of thought and practice.
C. Have no effect on each other.
D. Are not of great influence on each other.
2. Ethics is a body of knowledge that deals with:
A. Primarily legal aspects of health care.
B. Trying to get individuals to behave correctly.
C. The “shoulds” and “should nots” of individ-ual behavior or actions.
D. Religion only.
3. Common law refers to:
A. Laws that societies have in common.
B. Ethical ideas only.
C. Statutes.
D. Case law.
4. Some of the federal laws affecting nurses are:
A. Not important because only state laws impact nursing.
B. Age discrimination act and equal pay act.
C. Very important but not relevant to practice.
D. The nurse practice acts.
5. It is important for nurses to know the Nurse Practice Act in their state because:
A. It affects their practice.
B. It authorizes their licensure.
C. Neither a nor b.
D. Both a and b.
6. Nonmaleficence actually means:
A. For the nurse to take care of the client.
B. There is negligence.
C. To not harm the patient.
D. Malpractice.
7. Deontology encompasses:
A. Duty.
B. Natural law.
C. Utilitarianism.
D. All of the above.
8. Ethic of care is:
A. Part of all health-care philosophy.
B. Consequentialism.
C. Formulated by John Mill.
D. Based on the moral experiences of women.
9. Ethics is:
A. Based on moral values and reasoning.
B. Only part of the legal system.
C. Not as important as the legal system.
D. Important to philosophical studies.
10. Ethical principles are:
A. Autonomy, fidelity, veracity.
B. Only abstract ideas.
C. Not used in practice.
D. Not applicable to legal situations.
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