Law and Ethics in Nursing Practice - Case Study Example

Running Head: LAW AND ETHICS IN NURSING PRACTICE Law and Ethics in Nursing Practice. Name: Institution: Abstract. Mrs. Col is a resident in a retirement village who is terminally ill with cancer, but is still mentally and physically competent. At the time of her admission, she has executed an Advance Care Directive, including a Do Not Resuscitate Order, in consultation with her physician. Subsequently, the board of the retirement home has changed its’ policy and made it mandatory for cardiopulmonary resuscitation to be performed on all patients, irrespective of their wishes. Mrs. Col’s Advance Care Directive conforms to all the legal criteria necessary to make it valid. It conforms to the principle of ‘informed consent,’ is supported by the ethical principles of autonomy, beneficence, non-malfeasance and justice. Its’ contravention can be considered an offence of battery/assault. The board of the retirement village is therefore legally and ethically bound to honor Mrs. Col’s Advance Care Directive. Law and Ethics in Nursing Practice. The refusal of consent to a particular medical treatment, or intervention, is an issue which raises several legal, ethical and moral considerations. The appropriateness of judicial intervention, the patient’s right to self-determination, the principle of sanctity of life as opposed to the quality of life – particularly in terminally ill patients, are all issues which are subject to ongoing debate. Due to the infinite variety in the circumstances and personal histories of patients, a ‘one-size-fits-all’ legal and ethical approach is an impossibility. Each case has to be considered on its own, unique merits, with certain underlying principles serving as guidelines. In this case study, the indisputable facts are: Mrs. Col is a resident who is terminally ill with cancer; she is physically and mentally competent at present; she has executed an Advance Care Directive prior to her admission to the retirement village, in consultation with her physician; she has specifically requested no cardiopulmonary resuscitation in the event of her demise; subsequently, the management board has adopted a policy which mandates cardiopulmonary resuscitation in all cases of cardiac arrest, regardless of the patient’s wishes. In the context of the above scenario, several legal and ethical issues are relevant. Consent, or the refusal of consent, to treatment is a fundamental and established law in the United States. The concept of consent is an integral part of the fundamental precept of respect for a person’s bodily integrity. The emergence of consent as a medico-legal issue dates back to 1914, in the case of Schloendorff vs. Society of New York Hospital. Supreme Court Justice Cardozo declared that “Every human being of adult years and of sound mind has the right to determine what shall be done with his own body” (qtd. in Thula. 2004). Subsequently, the term ‘informed consent’ entered jurisprudence in 1957, in Salgo vs. Stanford University, in which the court held that “a physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment” (qtd. in Murkey et al. 2006). Implied consent is “words or conduct which is reasonably understood by another to be intended as consent” (Thula. 2004). Express consent may be verbal or given in writing. In order for consent to be valid, it must be given voluntarily, without coercion; it must be informed consent and the patient must be an adult of sound mind. ‘Informed consent’ stipulates a discussion of the nature, purpose and risks of the proposed medical intervention; reasonable alternatives to that procedure and their related risks, benefits and uncertainties; assessment of the patient’s capacity for understanding and the patient’s acceptance/refusal of the intervention. Adequate information must be provided to the patient, including the consequences of withholding consent (Thula. 2004). Informed consent thus involves a disclosure by the physician and a decision by the patient. Patients have the right to refuse medical intervention, provided they have the legal capacity (age, mental competence, consciousness) to make the decision and are fully informed of the nature of the intervention and the consequences of refusing it. This is ‘informed refusal.’ The patient is not obliged to justify or explain her refusal. As a competent, adult patient with intact decision making capacity, Mrs. Col is definitely entitled to refuse the medical intervention of cardiopulmonary resuscitation and her refusal must be respected by her health care providers. As her refusal is based on consultation with her physician, it can be assumed that she has been fully informed as to the diagnosis, the actual procedure involved in cardiopulmonary resuscitation and the consequences of her refusal, which is obviously death. The three necessary criteria of informed consent - information disclosure (Mrs. Col has received adequate information from her physician), voluntary decision (Mrs. Col has not been subject to coercion) and competency (Mrs. Col is physically and mentally capable of independent thought and action) - have been met in the case of Mrs. Col. Therefore, her decision to refuse cardiopulmonary resuscitation is legally valid and must be respected by the management of the retirement village. Mrs. Col has the right to bodily integrity, which includes the right to refuse medical intervention. The Federal Patient Self-Determination Act of 1990 defines an Advance Care Directive as “a written instruction --- recognized under state law, relating to the provision of care when the patient is incapacitated” (Arizona Department of Economic Security web site). This recognizes the patient’s right to make decisions about health care, including the right to decline treatment, even when that decision would probably, or even certainly, lead to death. Advance Care Directives are tools which facilitate end-of-life decision making, while acknowledging the patient’s autonomy and advancing the patient’s right to self-determination into the future, in the event that the patient becomes incapacitated and is unable to make his preferences known. Advance Care Directives are of two types: Instructive directives and Durable Powers of Attorney for Health Care. Instructive directives include the living will, which is a written statement specifying the medical treatments which are wanted or refused. The purpose of a living will is to safeguard the patient from “unwanted and ultimately futile invasive medical care at the end-of-life” (Tonelli. 1999). Do Not Resuscitate orders, stating that cardiopulmonary resuscitation must not be performed on the individual if breathing and heartbeat stop, also constitute an instructive Advance Care Directive. Other instructive directives include verbal instructions and organ donation. A Durable Power of Attorney for Health Care is a written statement, nominating an adult to make health care decisions on behalf of the patient when the patient is incapacitated. This is also called a ‘proxy directive.’ The Federal Patient Self-Determination Act requires that all hospitals, nursing homes and health agencies provide information about Advance Care Directives to their patients, document any executed directives in the patient’s medical record, educate the staff about Advance Care Directives and refrain from discriminating against patients on the basis of the presence or absence of an Advance Care Directive. Likewise, the patient cannot be forced to execute a directive (American Bar Association web site). The Advance Care Directive reinforces a patient’s right to participate in his own health care decisions. Advance Care Directives, in various forms, are legally binding in all fifty states in the U.S. Mrs. Col has executed an Advance Care Directive, foreseeing a time in the near future when her terminal cancer will lead to debilitation and lack of competence to make decisions and an inability to make her choices known to her health care providers. She has issued an instructive, specifying her refusal of cardiopulmonary resuscitation. Legally and ethically, the board of the retirement village is definitely obliged to respect Mr. Col’s Advance Care Directive. A Do Not Resuscitate order is the recorded, sustained wish of a competent patient, who is aware of all the implications, benefits and risks of cardiopulmonary resuscitation, to refuse this intervention. The American Medical Association, in its’ Code of Ethics, states that “Efforts should be made to resuscitate patients who suffer cardiac or respiratory arrest except when circumstances indicate that cardiopulmonary resuscitation would be inappropriate or not in accord with the desires or best interests of a patient” (Euthanasia Procon web site). The decision to resuscitate a patient is based on the potential clinical benefits expected. Cardiopulmonary resuscitation is withheld when it is judged to be medically futile (no clinical benefit), when there is a low possibility of success (as in cases of severe pneumonia, acute shock or metastatic cancer), when the patient’s quality of life is so poor that no meaningful survival is possible (as in persistent vegetative states) or when the patient’s underlying diagnosis is terminal (Braddock. 1999). There is evidence that cardiopulmonary resuscitation is often ineffective, particularly in terminally ill patients dying of non-cardiac, multi-system diseases. The efficacy of cardiopulmonary resuscitation also decreases with age, leaving survivors more debilitated. Cardiopulmonary resuscitation is acknowledged to be a rough intervention with attendant risks, such as sternal or rib fractures and splenic ruptures. Intensive or coronary care is often needed after the procedure and there is a risk of brain damage if cardiopulmonary resuscitation is performed after a delay. In this context, it is the competent patient who is the best judge of whether the risks of cardiopulmonary resuscitation are acceptable in his own case (Resuscitation Council U.K. web page). Do Not Resuscitate orders are legally binding upon health care providers. The patient’s request, based on the principle of autonomy, must be respected and is supported by law in most of the states, as is the right of terminally ill patients to end-of-life decision . Mrs. Col has executed an Advance Care Directive which includes a Do Not Resuscitate order. She is a competent adult, who has been informed by her physician of the procedure involved and the implications of her refusal to consent to cardiopulmonary resuscitation. Furthermore, Mrs. Col is terminally ill and affected by advanced illness and cardiac arrest usually precedes death in such circumstances. In her case, the clinical benefits, possibility of success and the chances of a meaningful survival are all open to debate. In any case, the decision is hers to make and her health care providers are obliged to respect her Do Not Resuscitate order. The issue of negligence comes into play in informed consent. The failure by a physician to obtain informed consent in considered to contravene good medical practice and leaves the medical practitioner open to allegations of negligence. Information regarding the choices available to the patient, the prognosis if left untreated, alternative procedures and their attendant risks, must be given to the patient to avoid liability for negligence. In the case of assault, Justice Cordozo stated that “a surgeon who performs an operation without a patient’s consent commits an assault” (Thula.2004). In many jurisdictions, a practitioner is held to be guilty of the civil offence of assault/battery if he carries out a procedure contrary to the patient’s expressed wishes. Medical intervention, without the patient’s consent, is equal to unauthorized touching and is technically a battery. Claims of battery in cases of non-consensual medical treatment have an established precedent in U.S. medical law. In the case of Anderson vs. St. Frances-St. George Hospital (Ohio, 1996) non-consensual treatment was recognized as battery, when the patient was resuscitated in spite of a Do Not Resuscitate order. The imposition of medical treatment, contrary to the instructions of the patient in an Advance Care Directive, is considered to be battery (JRank web site). As Mrs. Col has executed an Advance Care Directive, in which she has explicitly issued Do Not Resuscitate orders, any future attempt at resuscitation will constitute an unwarranted infringement of her bodily integrity and will be considered as assault. The board of the retirement village will definitely be liable to prosecution for assault/battery if cardiopulmonary resuscitation is imposed on Mrs. Col. The board of the retirement village does not have the right to override the instructions given by Mrs. Col in her Advance Care Directive, which has met all the criteria necessary to make it valid. Under the Federal Patient Self-Determination Act, it is mandatory for all health care facilities to inform the patient at the time of admission of the institution’s policy regarding Advance Care Directives. It can thus be assumed that Mrs. Col was informed that her Advance Care Directive would be respected and her Do Not Resuscitate order was included in her medical records. The board is therefore legally and ethically bound to honor Mrs. Col’s wishes. As the board has subsequently changed its’ policy, it is legally and morally obliged to explain to Mrs. Col the changed policy which, if implemented, will prevent them from respecting her legal right to refuse cardiopulmonary resuscitation. They will be required to secure her consent to be transferred to another facility which will honor her Advance Care Directive. Such a move, assuming that Mrs. Col consents to it, will also pose practical difficulties. The question as to whether Mrs. Col is eligible for compensation or damages is very much open and can be decided only in a court of law. Morally, there is no doubt that the board of the retirement village is bound to honor the commitments made to Mrs. Col at the time of her admission to the facility. This is the only option which is just. The four principles of medical ethics – autonomy, beneficence, non-malfeasance and justice, all support the contention that Mrs. Col’s Advance Care Directive must be respected. The principle of autonomy, or self-determination, in which the individual chooses what is to be done with her own body, is a fundamental right. The health care provider has a moral and legal duty to respect Mrs. Col’s autonomous choice to refuse to subject her body to cardiopulmonary resuscitation. The practice of ‘informed consent’ is based on autonomy. The principle of beneficence calls upon health care providers to provide services which benefit the patient. The benefits of cardiopulmonary resuscitation in the case of Mrs. Col are questionable as she is terminally ill with cancer. The risks of cardiopulmonary resuscitation are multiplied in her case and the weighing of these risks against any possible benefits can only be done by Mr. Col herself. The principle of non-malfeasance – above all, do no harm – prohibits the medical practitioner from causing unnecessary harm or injury to the patient. Subjecting Mrs. Col, after her demise, to a severely invasive medical intervention, such as cardiopulmonary resuscitation, is definitely a tool of injury. Finally, the principle of justice, which calls for the equitable treatment of all patients in similar circumstances, mandates that Mr. Col is treated in the same way as any other patient with a valid Advance Care Directive. As Advance Care Directives are legally binding in all cases, the retirement village is obliged to honor Mrs. Col’s directives (McCormick. 1998). Mrs. Col is a competent adult who is legally entitled to issue an Advance Care Directive, including a Do Not Resuscitate order. Her directive is valid as it meets the necessary criteria and conforms to the principle of informed consent. Any contravention of her Do Not Resuscitate order will constitute an offence of battery/assault. The ethical principles of autonomy, beneficence, non-malfeasance and justice also hold that her directive should be respected. In conclusion, it can be unequivocally asserted that the retirement village is legally and ethically bound to honor Mrs. Col’s Advance Care Directive, irrespective of any changes in policy subsequent to her admission. References. American Bar Association. Law for Older Americans. Health Care Advance Directives. Retrieved on 28 September 2007 from http://www.abanet.org/publiced/practical/patient_self_determination_act.html Arizona Department of Economic Security. Advanced Directives for Health Care. Retrieved on 28 September 2007 from http://www.de.state.az.us/aaa/pdf/adhfc.pdf Braddock, Clarence H. (1999) Ethics in Medicine. University of Washington School of Medicine. Do Not Resuscitate Orders. Retrieved on 28 September 2007 from http://depts.washington.edu/bioethx/topics/dnr.html Euthanasia ProCon web site. Do Do Not Resuscitate Orders Endanger Patients? Retrieved on 28 September 2007 from http://www.euthanasiaprocon.org/dnrendanger.html JRank web site (2007) Assisted Suicide and the Right to Die – Further Readings. Retrieved on 28 September 2007 from http://law.jrank.org/pages/12474/Assisted-Suicide-Right-Die.html Murkey, P.N. et al. (2006) Medico-Legal Update. Vol. 6, No. 4. (2006-10 – 2006-12) Consent – Medico-Legal Aspects. Retrieved on 28 September 2007 from http://www.indmedica.com/journalsphp?journalid=9&issueid=86&articleid=1160&actio n=article McCormick, Thomas R. (1998) Ethics in Medicine. University of Washington School of Medicine. Principles of Bioethics. Retrieved on 28 September 2007 from http://depts.washington.edu/bioethx/tools/princpl.html#prin2 Resuscitation Council (U.K.) 2001. Web page. Decisions Relating to Cardiopulmonary Resuscitation. Retrieved on 28 September 2007 from http://www.resus.org.uk/pages/dnar.htm#disag Tonelli, Mark R. (1999) Ethics in Medicine. University of Washington School of Medicine. Advance Directives. Retrieved on 28 September 2007 from http://depts.washington.edu/bioethx/topics/advdir.html Thula, Mpho A. Mmegi Online (1 June, 2004) On the Subject of Consent. Retrieved on 28 September 2007 from http://www.mmegi.bw/2004/June/Tuesday1/3107548401196.html Read More