Ethics and Law in Nursing - Case Study Example

Ethics and Law in Nursing Introduction The duty to disclose all medical information to the patient is part of the patient and health care giver relationship. Informed consent is an essential ethical practice. It is one of the most basic rights of a patient. In cases where the patient is senile and elderly, the patient is now under the care and guidance of the medical staff and of his family. The duty to disclose encompasses a wider and more extensive area in the patient’s life. Do Not Resuscitate (DNR) orders are also part of patient rights. They are part and parcel of the need to guarantee the protection of patient rights and patient choices on his care. This paper shall discuss the case of the elderly patient who has advanced senile dementia and is about to be scheduled for hip surgery. This paper shall evaluate the ethical and legal implications of the medical and the hospital staff’s decisions and actions referring to her care. This paper shall assess whether or not it was ethical not to inform the family of the patient about the surgery. It shall also assess the doctor’s decision to proceed with the surgery despite the fact that the patient entered her refusal to the surgery. This paper shall assess the ethical and legal implications of the doctors, the nurses, the hospital, and even the nursing home as regards the care and the decisions made in the care of the elderly patient. Finally, this paper shall describe the ethical responsibilities of the medical staff as regards the care of elderly patients, especially those whose cognition and intellectual ability are compromised. Discussion Current knowledge about elderly care is that the elderly patient’s mental faculties are not as sharp as they once were. To a certain extent, it is compromised by poor memory and possible neurological problems. And these neurological problems all impact on the way these patients are to be treated. As far as informed consent is concerned, the law prescribes that the patient must give his informed consent before any medical procedure can be undertaken on his person (Fulmer, et.al., 2001, p. 386). Barring such consent, the medical health care givers who proceed to administer care to the patient can be held criminally and/or civilly liable for their actions. Based on the situation as illustrated by the case, the patient is elderly and has senile dementia. Under the Mental Health Act, there is informed consent when a patient has given consent based on a “clear appreciation and understanding of the facts, and the implications and consequences of an action” (Department of Health, as cited by Tidy, 2009). In this adult case study, the patient had no clear appreciation and understanding of the facts when she consented to the surgery. She had senile dementia which compromised her ability to issue her informed consent. Moreover, her capacity to give consent to the procedure was also compromised. The law requires that patients giving their informed consent must understand what the medical treatment is – including its purpose and why it is being proposed to them. They must also understand the benefits and risks involved and they must be able to communicate such decision to the medical health professionals charged with their care (Tidy, 2009). In the case, the elderly patient had a limited capacity to understand what the medical procedure was all about. She also had a mental limitation on her ability to assess the risks involved in the procedure. Hence, the patient, by law cannot be considered as mentally competent to give her consent to the surgery (Joel, 2006, p. 362). It is therefore important to note the Mental Capacity and the Mental Health Act in assessing the legality of this case. The Mental Capacity Act sets forth that for a person to have the capacity to make decisions, he “must have the ability to weigh up information and use it to arrive at a decision” (Code of Practice, 2005, p. 48). This ability to weigh in information must also be based on a consistent ability to make decisions. In the case of the elderly and senile patient, her ability to make decisions is fluctuating as her medical condition sometimes gets better and then later gets worse. When she is well and has control over her mental faculties, she can make the proper decisions for herself; however, when her dementia sets in, she tends to forget about her previous decisions (Code of Practice, 2005, p. 49). It is also important to note that the Mental Capacity Act defines a person who lacks capacity as someone who has an “impairment or disturbance (for example, a disability, a condition or trauma) that affects the way their mind or brain works, and the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made” (Code of Practice, 2005, p. 42). The elderly patient has a major disability which very much affects the way her mind works. One moment she may be doing something she normally does, like cooking food or brushing her teeth, and a few minutes later she forgets these things and then repeats them again. In other words, her mental faculties cannot be relied on to make sound decisions. Therefore, her decisions cannot be trusted or used for major concerns in her life such as those which involve major surgery or those which have legal implications. The Mental Capacity Act and the Mental Health Act has contingencies for patients who do not have the mental capacity to make sound decisions. The law sets forth that in cases of patients who lack the mental capacity to make sound decisions, the health professionals responsible for their care are now obliged to make the decisions for the patient. Among senile dementia patients, other people, like family members and proxy makers are assigned because the patient often comes in and out of sound intellectual functioning (Joel, 2001, p. 362). These decisions however should be made in the patient’s best interest and must be made in consultation with those who are close to the elderly person (Department of Health, 2001, p. 9). In this case, the relatives who accompanied the patient should have been consulted and been told of the impending major surgery. The nurse should also have taken the initiative to inform the family of the upcoming surgery and of the patient’s vacillating decision regarding her surgery. Bartter (2002, p. 74) quotes the Code of Professional Conduct and emphasizes that “nurses must work in and open and cooperative manner with patients, clients, and their families”. The decision of the health professionals should not have excluded the family members. “Carers and family members have a right to be consulted” (Mental Capacity Act, as quoted by Tidy, 2009). Without this consultation, the unilateral decisions made by the medical professionals cannot be considered ethical. We also consider the ethical principles of autonomy, dignity and honesty in assessing this case. Firstly, the principle of autonomy is about respecting a patient’s wishes and encouraging their input in the medical decision-making process (Rai, 2009, p. 2). This respect for autonomy provides the balance in the power between the patient and the doctor relationship. In this case, the patient had the right to change her mind about the procedure. Granting that the patient does not have the mental capacity to make sound decisions for herself, still, her family should have been consulted and properly informed of the major surgery about to be conducted. As far as this case is concerned, the informed consent should have been availed of by the doctor from the relatives of the patient, not from the mentally incapacitated patient. Since no such consent was availed of, it is sufficient to conclude that the patient’s right to an informed consent for the medical procedure was violated. Henceforth, any procedure to be undertaken on the patient can be considered an assault on his person. The medical health professionals legally obligated to avail of the patient’s consent for the surgery can be “deemed negligent, or could lead to a claim for damages on the ground of the civil tort of assault and battery” (Walsh, 2001, as quoted by Winn, 2006, p. 5). Many legal experts also point out that in making decisions for surgery among the elderly and vulnerable population, more care must be applied. Many elderly adults over the age of 65 have a high possibility of developing some mentally debilitating condition. Their medical conditions often compromise their reasoning and their ability to make sound decisions for themselves. Studies indicate that 1 in 10 individuals over the age of 65 will have some form of dementia, and about 50% of elderly adults above the age of 85 are likely to develop dementia. “This statistic only underscores the need for a thorough, unrushed explanation of proposed treatment to ensure that the physician meets his or her duty of care not only in providing the patient with the background necessary for an informed decision, but also in assessing the patient’s competence” (Smith, 2006, p. 58). The doctor and the other medical professionals should have taken more care in deciding whether or not to proceed with the patient’s surgery. The surgeon should have gone back to the patient and to the patient’s family and then reviewed the patient’s medical options. If after such discussion, the patient and/ or his family still opted to not proceed with the surgery, then the surgeon should respect the patient’s decision and autonomy. The patient’s dignity must also be respected and upheld by the medical professionals (Fry, et.al., 2002, p. 103). The fact that her decision is being ignored because she is ‘senile anyway’ is a significant violation of the patient’s dignity. Although, the surgery is a major step towards improving her health, the fact that she is not capable of making sound decisions on her medical care should not have stopped the doctor and the other medical professionals involved in consulting with her and her family. She and her family still had the right to refuse treatment. Various experts on the matter set forth that elderly individuals who are sick are still very much autonomous (Leino-Kilpi, 2000, 2007, p. 67). Since, the patient in this case has advanced senile dementia, her dignity in making sound decisions for herself is already compromised. Still, decisions made in her behalf should still be made in consultation with her family who can assess and decide in the best interests of their loved one. This way, whatever decisions made for the patient’s sake are not made with the patient’s and her family’s ignorance. As an essential part of respect for a patient’s dignity, the doctor and the other medical health professionals should also listen to their patients and respect their views; and respect the rights of the patients to be fully involved in decisions about their care (Rai & Mulley, 2007, p. 52). The doctor and the nurses in this case did not listen, nor did they respect their patient’s views. They also violated the ethical requirements on honesty and truthfulness when they failed to reveal to the patient and her family about their decisions regarding the patient’s surgery (Butts & Rich, 2005, p. 54). This is a crucial consideration in the patient’s care as she is a DNR patient. This DNR does not necessarily exclude the surgery which the patient is about to undergo, however, this cannot be definitively assessed unless the patient’s family is consulted on the matter. The order may actually be contributory to the patient’s subsequent refusal to proceed with the surgery. Hence, we see the importance of consulting first with the patient and his family about the surgery and its risks, benefits, and possible consequences. In relation to beneficence, the “doctor should act to promote the welfare of his or her patient and to do good” (Rai, 2009, p. 5). In failing to inform the patient’s family about the surgery, the doctor already was not acting in behalf of the patient. He was more concerned with finishing up the surgery because of his and the hospital’s busy schedule. The doctor did not want to take the time to consult again with the patient and the patient’s family in order to assess the patient’s situation. An important aspect related to beneficence is the principle of non-maleficence. Basically, this principle is about preventing harm from befalling the patient (Rai, 2009, p. 5). As was previously mentioned, the surgery would benefit the patient because it would actually repair her fractured hips. However, this intent ‘not to do any harm’ to the patient was already violated when the mentally incapacitated patient and his family was not informed about the surgery. Even if the surgery was actually an emergency surgery, there was still time to inform the family members about the surgery because they already were at the hospital. The doctor still had the obligation to inform both the patient and her family about the surgery (Wattis & Curran, 2006, p. 251). There would be no significant time lost in having to wait for family members to arrive at the hospital and be informed of the surgery. The harm incurred on the patient’s part is on his inherent right to make sound decisions for himself and for his decisions on his care to be respected and afforded dignity. There should be an incorporation, not a conflict in the use of the principles which relate to medical ethics. “Acting in the best interests of the patient is a stance that also incorporates respecting autonomy, and conflicts can arise between these two principles” (Rai, 2009, p. 5). In the case being assessed in this paper, the two principles were not adequately applied to the patient mainly because his family was never informed of the surgery and the patient’s personal choices about the surgery was ignored by the medical professionals. Conclusion In this case, the elderly patient is not fully capacitated to make mentally sound medical decisions. The Mental Health Act and the Mental Capacity Act point out provisions on informed consent which inform us that patients who are mentally incapacitated cannot make sound decisions; in these cases, the medical decisions should be made for them by medical professionals in proper consultation with the patient’s family. The patient’s family however was not consulted at all about the surgery. Therefore, the subsequent actions of the doctor and the patient are unethical and are in violation of the Mental Health Act. The doctor and the other medical professionals may also be criminally liable for assault if they insist on proceeding with the surgery despite the patient’s dissent. Informed consent is crucial to the patient’s care because they help determine the legality of the healthcare giver’s actions. The principles of autonomy were not upheld in this case because the patient’s right to make independent decisions about her care was not respected by the healthcare givers. Granting that she was not mentally capacitated to make the right decisions in her care, then her family should have been consulted. The principle of beneficence and non-maleficence dictate that the decisions made in the patient’s favour should only relate to what is best for her. Although the surgery will indeed be best for her, she still has the right to refuse it. Her right to autonomy overrides the principles of beneficence. All procedures and decisions made in her behalf must first do her no harm. And yet again, all these beneficial procedures can be set aside in favour of a patient’s personal choices. Moreover, the patient’s family must be given the chance to act in her behalf and to make sound decisions in her behalf. 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