Ethical and Legal Aspects

Elizabeth J. Murray, PhD, RN, CNE

L E A R N I N G O U T C O M E S

● Discuss the five core professional nursing values.

● Describe several ethical theories and principles crucial to nursing practice.

● Understand the federal and state regulations that impact health care and nursing.

● Describe the five elements of malpractice.

● Discuss areas of potential liability related to the nurse leader and manager’s role.

● Analyze the types of ethical and legal issues nurse leaders and managers may face.

K E Y T E R M S Accountability

Advance directive Autonomy Beneficence Civil law Code of ethics Confidentiality Contract law Criminal law Deontology Ethical dilemma Ethical principles Ethics

Fidelity

Informed consent Justice

Liability Licensure Malpractice Moral courage Moral distress Moral integrity Moral obligation Moral uncertainty Morals

Negligence Nonmaleficence Paternalism Principlism

N

ursing care is undoubtedly intimate because interactions with patients are very intimate and occur at a time when patients are in a very vulnerable state. In turn, the career of nursing comes with myriad ethical and legal consid- erations. Establishing nurturing relationships with patients and their families is an important goal of nursing, as is delivering care without prejudice and while respecting human needs and values. Nurses are ethically and legally accountable for their own actions and for the actions of those to whom they delegate care. All nurses must practice nursing in accordance with professional codes of ethics and recognized standards of professional practice. Nurse leaders and managers are responsible and accountable for ensuring that staff members maintain compe- tence, provide safe and ethical care, and practice within legal and regulatory boundaries. In today’s complex health-care system, ethical and legal issues very often become entwined.

In this chapter, nurse leaders and managers learn the ethical and legal aspects of nursing practice, including their essential roles in developing, maintaining, and/or monitoring standards, licensure, and regulation of professional nursing practice to ensure safe care and quality outcomes. Additionally, the elements and categories of malpractice along with common ethical and legal issues nurse leaders and managers may face are presented.

Knowledge, skills, and attitudes related to the following core competencies are included in this chapter: patient-centered care; teamwork and collaboration; quality improvement; informatics; and safety.

ETHICAL ASPECTS OF NURSING PRACTICE

Respect for the individual is the ethical underpinning of nursing practice, and most nurses use a combination of ethical morals, values, principles, theories, codes, and laws to guide practice (Murray, 2003). Ethical nursing practice necessitates applying moral beliefs and making logical, consistent decisions (Burkhardt & Nathaniel, 2008). Ethicsin nursing requires “the examination of all kinds of ethical and bioeth- ical issues from the perspective of nursing theory and practice, which, in turn, rest on the agreed core concepts of nursing, namely: person, culture, care, health, heal- ing, environment, and nursing itself” (Johnstone, 2009, p. 16). By applying ethics, nurses can determine the best course of action in specific situations. Ethics is an integral part of nursing practice and involves respect and advocacy for patients and families in all settings (American Association of Colleges of Nursing [AACN], 2008).

Privacy Professionalism Respondeat superior Standard of care Tort

Utilitarianism Values

Values clarification Veracity

Morals

The terms morals and ethics are often, incorrectly, used interchangeably. Moralsare defined as “conduct, character, and motives involved in moral acts and include the notion of approval or disapproval of a given conduct, character, or motive that we describe by such words as good, desirable, right, worthy, or conversely bad, unde- sirable, wrong, evil, unworthy” (Davis, Fowler, & Aroskar, 2010, p. 1). Morals are ingrained in one’s consciousness, provide people with established rules of conduct based on societal customs and habits, and reflect what is right or wrong and good or bad. In comparison, ethics reflects what actions people should take in a specific situation based on their own morals. Both morals and ethics are influenced by per- sonal life experiences and value systems. Nurses must maintain moral integrity and fulfill their moral obligation to patients, regardless of the setting.

Moral Integrity

Moral integrityrefers to quality of character and involves acting consistently with per- sonal and professional values (Butts & Rich, 2013). Nurses with moral integrity are honest and trustworthy, consistently do the right thing, and stand up for what is right despite the consequences (Laabs, 2011). In addition, nurses with moral integrity have a sense of self-worth because they have clearly defined values that are congruent with their actions (Epstein & Delgado, 2010). Moral integrity is a positive attribute for nurses in leadership and management positions and is critical to ethical decision making. Nurse leaders and managers with moral integrity own their own beliefs and values, respect the beliefs and values of others, and, despite possible differences, avoid compromising their own moral integrity. When a nurse behaves in a way that is not congruent with professional moral beliefs, moral integrity is in jeopardy.

Moral Obligation

An obligation is a duty to or responsibility for another human being. Nurses enter a relationship of trust with a patient that involves a moral obligationor duty to provide care in a nondiscriminatory manner. A nurse’s primary commitment is to the recipient of care (American Nurses Association [ANA], 2015a). Once a nurse-patient relation- ship has begun, a nurse has a duty to the patient and cannot abandon a patient in need of care (ANA, 2006). At times, nurses are challenged to balance professional obligations and personal risks. Although nurses have a moral obligation to care for patients at all times, situations may arise in which nurses could face potential personal harm. Therefore, nurses must be able to critically think and analyze certain situations in which the risk may outweigh the moral obligation to care for a patient.

In such cases, it is a nurse’s decision to accept personal risk that exceeds the limits of his or her moral obligation. The ANA asserts that nurses are morally obligated to care for patients when the following four criteria are present (ANA, 2006, p. 3):

1. The patient is at significant risk of harm, loss, or damage if the nurse does not assist.

2. The nurse’s intervention or care is directly relevant to preventing harm.

3. The nurse’s care will probably prevent harm, loss, or damage to the patient.

4. The benefit the patient will gain outweighs any harm the nurse may incur and does not present more than an acceptable risk to the nurse.

If one or more of these criteria are absent, the nurse must evaluate the situation and choose whether or not to care for the patient as his or her moral obligation (ANA, 2006). However, once a nurse accepts an assignment, he or she must fulfill the assignment or risk being charged with abandonment (Guido, 2010).

Values

Valuesare personal beliefs that influence behavior and give meaning and direction to life. Values evolve over time and reflect ethnic background, family life, cultural beliefs, environment, and societal norms. As people mature, their value systems may change and grow to encompass personal, professional, and societal values.

Although people are not always conscious of how much value systems influence decision making, people are constantly making decisions based on values. “Nurses have a right and duty to act according to their personal and professional values”

(ANA, 2015a, p. 20). Being aware of personal values helps nurses to make clear, thoughtful, and consistent decisions. The process one goes through to understand personal values is called values clarification.

Values Clarification

Values clarification is the process of reflecting on and analyzing values to better understand what is important. Self-reflection on personal and professional values requires a readiness and willingness to take an honest look at personal behaviors, words, actions, motivations, and any congruencies or incongruencies among them (Burkhardt & Nathaniel, 2008). Values clarification leads to self-awareness.

Through self-reflection, nurses can develop an insight into their value systems, thus enhancing their ability to make value decisions in nursing practice (Burkhardt

& Nathaniel, 2008). Values clarification is an ongoing process of becoming self- aware of the personal and professional values that are important. Nurses must become self-aware to be able to provide nonjudgmental care to patients and to de- velop and maintain a nonjudgmental approach to leadership and management.

The nursing code of ethics, discussed later in this chapter, obligates nurses to de- liver care with respect for human needs and values without prejudice. It is difficult to carry out this obligation without self-awareness.

Core Professional Values for Nurses

Professionalismin nursing is defined as “the consistent demonstration of core values evidenced by nurses working with other professionals to achieve optimal health and wellness outcomes in patients, families, and communities by wisely applying principles of altruism, excellence, caring, ethics, respect, communication, and ac- countability” (AACN, 2008, p. 26). Being a professional nurse involves accountabil- ity for oneself and one’s nursing practice and a duty to provide safe and quality care. Professional values and associated behaviors are critical to professional nursing

practice (AACN, 2008; ANA, 2015a). There are five core professional values nurses must follow (AACN, 2008, pp. 27–28):

1. Altruism: A concern for the welfare and well-being of others. In professional prac- tice, altruism is reflected by a nurse’s concern and advocacy for the welfare of patients, other nurses, and other health-care providers.

2. Autonomy: The right to self-determination. Professional practice reflects auton- omy when the nurse respects a patient’s right to make health-care decisions.

3. Human dignity: Respect for the inherent worth and uniqueness of individuals and populations. In professional practice, concern for human dignity is reflected when the nurse values and respects all patients and colleagues.

4. Integrity: 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.

5. Social justice: Acting in accordance with fair treatment regardless of economic status, race, ethnicity, age, citizenship, disability, or sexual orientation.

Nurses must become self-aware and understand their personal values to better recognize situations that may result in inner conflict between personal and profes- sional values.

Principles

Ethical principlesare basic moral truths that guide a person’s actions. Valuing human dignity, respecting individuals, and believing in an individual’s right to be self- governing are the foundation of ethical principles. The principles of autonomy, beneficence, nonmaleficence, justice, fidelity, veracity, privacy, and confidentiality guide everyday nursing practice, regardless of roles or settings. Table 4-1 provides a brief definition for each ethical principle.

Autonomy

The principle of autonomyrefers to self-governance, in that an individual is free to make choices about what can be done to his or her body. An individual makes

Principle Description

Autonomy Respecting a person’s right to self-determination Beneficence Adhering to the duty to do good

Nonmaleficence Adhering to the duty to do no harm Justice Treating others with fairness

Fidelity Keeping promises

Veracity Telling the truth

Privacy Respecting a person’s right to keep information about himself or herself from being disclosed to others

Confidentiality Preventing the disclosure of a person’s private information Table 4–1 Ethical Principles

autonomous decisions based on his or her own values, adequate and appropriate information, and freedom from coercion. An autonomous person has the capacity to understand, reason, deliberate, manage, and independently choose a plan of care (Beauchamp & Childress, 2009).

Nurses respect autonomy by supporting a patient’s health-care choices, obtain- ing informed consent, allowing a patient to refuse treatments, and maintaining privacy and confidentiality. Nurse leaders and managers are responsible for pro- moting and protecting patient autonomy as well as professional autonomy among staff. Autonomy for nurses means “determining his/her own actions through in- dependent choice, including demonstration of competence, within the full scope of nursing practice” (ANA, 2010, p. 39).

Beneficence

The principle of beneficenceis a core principle of patient advocacy and refers to any action intended to benefit another—in other words, one’s actions should always promote good. Promoting good in nursing is exemplified several ways, such as encouraging a patient to undergo painful treatment if it will increase quality and quantity of life or honoring a patient’s wish to die (Guido, 2010). Some forms of beneficence are obligatory and include moral rules such as the following (Beauchamp & Childress, 2009, p. 199):

1. Protect and defend the rights of others.

2. Prevent harm from occurring to others.

3. Remove conditions that will cause harm to others.

4. Help persons with disabilities.

5. Rescue persons in danger.

Nurse leaders and managers must frequently apply the principle of beneficence professionally when establishing staffing plans to ensure patient safety and avoid nurse fatigue, when conducting staff performance appraisals, and when assisting an employee in establishing a plan for professional growth.

Nonmaleficence

The principle of nonmaleficencerefers to the moral obligation to do no harm or injury to another person. Nurses honor the principle of nonmaleficence by following stan- dards of care and implementing best practices. Nonmaleficence also involves an obligation to avoid imposing risks of harm to another and includes moral rules such as the following (Beauchamp & Childress, 2009, p. 153):

1. Do not kill.

2. Do not cause pain or suffering.

3. Do not incapacitate.

4. Do not cause offense.

5. Do not deprive others of goods of life.

Nonmaleficence differs from beneficence in that nonmaleficence morally pro- hibits people from causing harm to anyone; beneficence is failing to help or

benefit another, but it is not always considered immoral (Beauchamp &

Childress, 2009). Some situations result in a conflict between beneficence and nonmaleficence and presenting challenges for nurses and other health-care professionals. A common example is the administration of chemotherapy.

Chemotherapeutic agents destroy cancer cells but also healthy cells and have extremely uncomfortable side effects. When providing chemotherapy, nurses violate the principle of nonmaleficence in the short term to produce a good outcome or benefit the patient in the long term. Table 4-2 presents a comparison of the rules of beneficence and nonmaleficence.

Related to the principles of beneficence and nonmaleficence is paternalism, which is “the intentional overriding of one person’s preferences or actions by another person” (Beauchamp & Childress, 2009, p. 208) or, in the health-care world, con- trolling a patient’s choices. Many nurses often justify paternalism in the name of beneficence and nonmaleficence. Many times a nurse, because of his or her knowl- edge, education, and experience, may believe that he or she knows what is best for the patient and act accordingly regardless of the patient’s wishes. This interferes with the patient’s autonomy and right to self-determination. Nurses must be able to differentiate between controlling patient choices, or paternalism, and assisting patients in making informed choices, or respecting autonomy. For example, when a nurse decides not to tell a patient that his or her temperature is elevated or his or her heart rate is irregular because the nurse believes that the news will upset the patient, that nurse is acting in a paternalistic manner. The nurse is deciding for the patient whether he or she should be told this information.

Justice

The principle of justicerefers to the obligation of nurses to provide fair, equitable, and appropriate treatment to all patients based on their needs and without preju- dice. Justice is about treating everyone equally and fairly and giving people what they deserve. Nurses apply the principle of justice when they deliver care to patients without bias. However, the principle of justice can be very complicated, especially when considering inequalities in access to health care and health insur- ance. Nurse leaders and managers apply justice professionally when they promote giving staff members adequate compensation commensurate with education, experience, and responsibilities (ANA, 2016).

Moral Rules of Beneficence 1. Present positive requirements for action 2. Do not need to be followed impartially 3. Generally do not provide reasons for legal

punishment when rules are not followed

Table 4–2 Comparison of the Moral Rules of Beneficence and Nonmaleficence

From Beauchamp & Childress, 2009.

Moral Rules of Nonmaleficence 1. Present negative requirements for action 2. Must be followed impartially

3. Provide moral reasons for legal prohibitions in certain forms of conduct

Fidelity

The principle of fidelity refers to being faithful or loyal by keeping promises to others. Fidelity is fundamental for the nurse-patient relationship and requires nurses to be loyal, truthful, fair, and advocates for patients. When nurses receive their nursing license, they accept the mandate to practice nursing within established scope and standards of practice, which includes keeping promises to patients (Burkhardt & Nathaniel, 2008). Nurse leaders and managers apply fidelity profes- sionally when they keep promises to staff by maintaining a culture of safety and a healthy work environment, one that is empowering and satisfying. (A healthy work environment is discussed further in Chapter 13.) Nurse leaders and managers must be mindful of the health and safety of both patients and their staff members.

Veracity

The principle of veracity, which is connected to autonomy and fidelity, is the notion that patients have a right to truthful information. When nurses enter the nurse- patient relationship, they must speak truthfully and not be deceptive. Overall, society trusts health-care professionals; moreover, nurses consistently rank number one by the public regarding professional honesty and ethical standards (Riffken, 2014). Nurse leaders and managers apply the principle of veracity pro- fessionally when they are truthful with employees and avoid intentionally deceiving or misleading staff.

Privacy

The principle of privacyrefers to a person’s right to have control over access to his or her personal information. Privacy is not just an ethical principle but also a legal right and is protected by the Health Insurance Portability and Accountability Act (HIPAA), which is discussed later in this chapter. Patients confide in nurses and trust them with personal information. Nurses, in turn, must respect patients’

privacy and discuss patient information only with other health-care professionals and only if they have a need to know. Nurse leaders and managers promote patient privacy when they create an environment that allows for physical and auditory privacy for discussion of patient information and establish policies and procedures that protect patient confidentiality (ANA, 2015a). Nurse leaders and managers show respect for employee privacy by keeping an employee’s religious beliefs and lifestyle choices private.

Confidentiality

Patients have little or no choice to share private information with nurses and other members of the health-care team. The principle of confidentialitymeans preventing disclosure of private information shared between a patient and the health-care team. Once a patient shares personal information, the nurse can use that informa- tion only as authorized by the patient. Nurses are required to maintain confiden- tiality of all patient information.

Although confidentiality is similar to privacy, there is a difference between the two:

An infringement of a person’s right to confidentiality occurs only if the person (or institution) to whom the information was disclosed in confidence fails to protect the information or delib- erately discloses it to someone without first-party consent. By contrast, a person who, without authorization, enters a hospital record room or computer database violates rights of privacy, although he or she may also obtain confidential information. Only the person or institution who obtains information in a confidential relationship can be charged with violating the rights of confidentiality (Beauchamp & Childress, 2009, pp. 302–303).

Nurses at all levels have a duty to maintain confidentiality of all patient infor- mation, both personal and clinical, in the work setting and off duty in all venues including social media or any other means of communication (ANA, 2015a, p.9).

Nurse leaders and managers provide employees confidentiality by securing their personal information such as Social Security numbers and medical information.

Only staff members who have a legitimate need within the performance of their job duties should have access to employee personal information.

Theories

Ethical theories assist nurses in understanding the origin of ethical thinking and behavior in the context of culture and moral norms (Burkhardt & Nathaniel, 2008).

Ethical theories do not offer solutions to ethical problems; rather, they provide a guide for nurses at all levels to clarify their personal values and beliefs (Marquis &

Huston, 2015). Although various ethical theories are used in nursing, many experts consider utilitarianism, deontology, and principlism as the most relevant to nursing practice (Bandman & Bandman, 2002; Burkhardt & Nathaniel, 2008; Davis, Fowler,

& Aroskar, 2010; Joel, 2006; Volbrecht, 2002). These three ethical theories provide the foundation for ethical decision making by nurse leaders and managers.

Utilitarianism

Utilitarianismis a form of teleological theory, from the Greek word telos meaning “the end.” The basic premise of utilitarianism is the notion that acting morally should in- crease human happiness and make the world a better place. The principle of utility provides the foundation of utilitarianism, which assumes it is possible to balance good and bad. Utilitarianism is a theory of consequentialism in which the moral rightness of an action is determined by the consequences of that action (Burkhardt & Nathaniel, 2008; Volbrecht, 2002). The belief of utilitarians is that increasing happiness means maximizing pleasure and minimizing pain. In other words, the end justifies the means.

In nursing, the utilitarian approach is used in situations in which benefits should be maximized for the good of the greatest number of people, such as the funding of health care and the delivery of care (Black, 2014; Davis, Fowler, & Aroskar, 2010).

A drawback to utilitarianism is that, although the goal is the greatest happiness for the greatest number of people, this approach can overlook the rights of an individ- ual. Nurse leaders and managers may rely on a utilitarian approach when estab- lishing staffing schedules, when honoring time-off requests, or in times of high