Ethical and Legal Issues in Healthcare Practice and Policy - Essay Example

Ethical and Legal Issues in Health Care Practice and Policy Introduction The health care profession has always been riddled with many legal and ethical dilemmas since time immemorial; health care practitioners, health authorities, as well as the public have often engaged in rigorous discussions regarding many issues in health care practice (Botes 2000, p.26). For instance, health care-related discussions have often centred on things such as organ or tissue transplantation, uneven access to critical life-saving drugs, emerging reproductive technologies as well as the ever-increasing numbers and varieties of medical trials. The question of abortion, perhaps one of the most controversial topics in the field, has always been a subject of discussion, given its complex legal and ethical implications, pitting health care professionals against each other and against members of the public. Whereas it may be legal for health care practitioners to perform an abortion today, other health care professionals and members of the public still consider it unethical to do so, thereby creating an ethical dilemma in the field (Wallace, Wiegand & Warren 1997, p.586). Apart from that, other ethical dilemmas emerge at the end of life point, when health care professionals have to make the critical decision of switching off the life-support machines to permit death to occur. As if that is not enough, the issues of confidentiality, patient/practitioner relationship as well as matters to do with consent as in the treatment of underage patients often present numerous ethical dilemmas to health care professionals (Greenwood, 2014). This paper explores the ethical and legal issues that are relevant to health care practice and policy while incorporating critical application of selected theoretical perspectives applicable to ethics in health. Relevant ethical arguments and legal perspectives will be applied to a specific practice situation in reference to the adult learning theory of Knowles (1990). Eventually, this paper will explore the issue related to ethical and legal issues in health care incorporating professional body guidance (NMC code) and legal acts, as well as the views of theorists and philosophers. Conceptualization of terms The term “ethics” has been conceptualized as “social values”, “morals” or “principles” that enable people in distinguishing between the acceptable and unacceptable social behaviour (Corning 2002, p.6); ethical values form the basis for social interaction because they are deeply entrenched in people. Health care professionals need to know ethical standards or principles and the professional code of conduct by heart to be able to make ethical decisions in the context of ambiguities or ethical dilemmas (Mann 2004, p.182). A health care professional code of ethics states the rules, principles as well as standards of practice that guide the conduct of health professionals; the code of ethics for health care professionals assures the public that care needs are catered for, and in a caring, safe, and operational manner. Laws can be defined as rules of conduct or actions that have been accepted to be formally binding and are enacted by governments to maintain order in society while preventing unacceptable behaviour that may undermine safety of the public. The health care professionals are subject to two strands of law including criminal law and civil law; while the latter involves crimes committed against the state, the former entails crimes committed against the individual. It is common for patients, relatives of patients and other parties to sue health professionals, health care facilities as well as the producers off medical equipment and products, among other entities, whenever they are dissatisfied with health care outcomes in today’s litigious society. Ethical perspectives Three dominant theories that underpin thought process of health professionals while making ethical decisions relating to patient care include formalism, consequentialism and virtue ethics (Corning 2002, p.19). Also known as the duty approach, the formalism approach to ethical decision-making entails a strict adherence to ethical rules and standards of practice; in that case, actions taken by health professionals are ethically justifiable and correct if ethical rules and principles are observed. Also known as the principle of utility, the consequentialism approach to ethical decision making argues that actions are not only correct but also ethically justifiable if they result to the best possible outcomes. Rule utilitarianism, a variation consequentialism, combines formalism, consequentialism, and it entails choosing the rules and principles of practice that bring the best out of individuals based on the consequences of their actions (Corning 2002, p.20). Rule utilitarianism is particularly important to decision making in the health care profession because it incorporates all the professional obligations, principles, human rights as well as consequences of their actions. The virtue ethics approach to ethical decision-making revolves around individual attributes of character and virtue (Armstrong 2006, p.110); health professionals following this approach arrive at decisions by modelling the actions of distinguished virtuous practitioners while adhering to the established professional ethics of practice. Ethical and legal issues in healthcare In their daily decision making processes, health professionals are guided by the ethical principles of autonomy, confidentiality, justice, beneficence as well as non-maleficence (Arries 2005, p.64). Health professionals make a vast range of decisions that vary significantly in terms of scope of ethical concerns; for instance, these decisions may involve a simple selection of antibiotics for a disease or the most efficient remedy for an illness (Thomas 2009, p.335). On the extreme end of the spectrum, decisions by health professionals may also involve major ethical concerns such as organ transplantation, genetic manipulations, clinical trials, assisted reproductive technologies as well as end of life issues. Irrespective of the nature of decisions health professionals have to make, the ethical standards or principles remain unchanged and must be observed to the letter in all contexts of decision-making. Confidentiality is a critical ethical and legal issue in health care, primarily because it demonstrates acknowledgement of the patients’ autonomy in decisions about disclosing information; health professionals are obligated to maintain confidentiality of all patient information because not doing so could potentially harm them (Corning 2002, p.17). Any unwarranted access to patient information by third parties or unsanctioned disclosures by doctors may eventually violate the patient’s wellbeing while destroying the fundamental trust between health professionals and their clients. Patient information and data must only be shared on the need-to-know basis within the confines of the health care team that is directly responsible for the patient’s care; even so, it is only the information that is crucial to the treatment and welfare of the patient that can be disclosed. Nevertheless, ethical dilemmas often arise in relation to fulfilment of this obligation, particularly in instances where health professionals have to break confidentiality to protect a third party when there is potential risk of harm. Health professionals may be obligated under law to disclose patient information as in the context of mandatory disclosure for public health concerns; existing policy frameworks also provide for the use of patient information for the purposes of ongoing quality improvement, peer review, as well as for insurance payments, but only to specific extents. Health professionals are also obligated to pay attention to patient rights or autonomy in decisions relating to care and welfare since informed consent must be obtained for health care to be legal (Mallardi 2005, p.312). Patients are ethically and legally entitled to make informed judgements regarding what shall be done to them based on their own evaluations of complete, accurate and understandable information regarding their conditions. The autonomy principle in health care is closely tied with the veracity principle, which binds the health professional and the patient in a truthful relationship that involves the mutual sharing of all crucial information that is pertinent for the patient’s wellbeing. The non-maleficence principle ethically and legally obligates heath care professionals to prevent and thoroughly diminish potential harm to patients, even the unforeseen inadvertent consequences of treatment (Corning 2002, p.14). In that case, health practitioners must evaluate and weigh all the pros and cons before deciding on the best course of care to minimize harm to the patient. Upholding the non-maleficence principle is often rendered difficult given the possibility of inescapable adverse side effects of some drugs and procedures that are prescribed for the patient; taking the consequentialist approach to decision making, health decisions that result to the best possible outcomes of the patients are ethical and correct. Health professionals are obligated to be proactive in promoting and contributing to the patient’s health and overall wellbeing by what is commonly referred to as the beneficence principle (Kennedy 2004, p.64). Numerous dilemmas arising in the process of fulfilling the beneficence principle revolve around the quality of life issues since current practice has the potential of prolonging individuals’ lives beyond the possibility of meaningful recovery. The quality of life of patients during and after treatment is a major concern to health practitioners when dealing with the dilemma presented by the issue of prolonging life beyond the point of meaningful recovery; a dying patient is entitled to die with dignity, esteem, as well as the appropriate care options (O’Keefe & Crawford 2002, p.183). The principle of justice in health care delivery systems entails the fair and balanced distribution of health services within the population without any biases; upholding this principle often poses adequate legal challenges and dilemmas (Hart & Lockey 2002, p.485). For instance, the disproportionate population growth as evinced through the increase in the elderly population, coupled with the decrease in medical funds, achieving a balance in healthcare delivery requires a sort of rationing of care, otherwise known as distributive justice. Practice situation In a specific case, an elderly lady patient that was described as lacking capacity had a son who had the house signed over to him by his mum; this son wanted to take her home and care for her there around the clock as he did not want to use the money to pay for her care. In such a case, an advance directive that allows the elderly lady to make decisions regarding her medical care as well as to exercise her right to accept or refuse care should be called into consideration. An advance directive provides guidance for the medical team regarding an individual’s care when they no longer have the capacity to communicate their wishes (Fang, Jhing, & Lin 2009, p.18); in this case, the lady’s Living Will serves as a valid advance directive for the health professionals to follow in caring for the elderly lady in question. The son’s desire to remove the mother from approved care to avoid spending the money on the elderly lady’s treatment is neither ethical nor legal because it does contravene the Living Will of the lady in question. Furthermore, as the lady’s only relative, the son holds the durable Power of Attorney, and is ethically and legally entitled to make all decisions regarding the patient’s health care; nevertheless, the son is bound to do so in accordance with the lady’s wishes as previously established in her Living Will. There were safeguarding issues surrounding the son as he was often aggressive and shouting towards his mum and the staff on the ward, and a Deprivation of Liberty Order was in place. A Deprivation of Liberty Order takes effect when a patient is under constant observation and control and cannot leave voluntarily, and does not have the capacity to consent to such arrangements as in the elderly lady’s case. The order is mandated through the Mental Capacity Act of 2005, which provides for the care of patients in care homes, hospitals and supported living in ways that do not necessarily restrict their freedom inappropriately (Bielaska, 2014). In that case, the Deprivation of Liberty Order ensures that the patient’s liberty is deprived in a safe and secure way in the best interests of the patient, and as an option of the last resort, when no other ways of caring for the patient are feasible. Since care should be offered in the least restrictive ways possible, health professionals in this case are obligated to explore all possible options before resorting to deprive the patient of her liberties, to allow for the provision of quality care in a safe manner through the Deprivation of Liberty Order. Teaching and learning principles such as Knowles’ adult learning theory (1990) are effective in the education of adult clients in various health care settings (Bastable et al 2011, p.192); health care professionals must play the role of educators, applying principles of teaching and learning in teaching clients of different developmental stages. In carrying out their educators’ role, to promote achievement of the most positive patient-centred outcomes as in the case of the elderly lady, health professionals must recognize that clients at different developmental levels often have varying learning needs, learning styles as well as different levels of readiness to learn (Atherton, 2013). Drawing from Knowles theory of adult learning (1990), health professionals must tell the elderly lady and her son why learning something is important before embarking on teaching while allowing the son to take responsibility for his decisions and allowing him considerable independence. Similarly, the son will be most willing to learn things that will help him support the lady to cope effectively with life’s situations and his vast range of life’s experiences, most of which may be imbued with bias and presupposition, inevitably form the basis for his learning. Nonetheless, health professionals must acknowledge that the son’s motivation to learn will only stretch as far as his perception of the importance of learning in supporting the lady to confront life’s situations goes. Ethical and legal issues within the context of the NMC code The Nursing and Midwifery Council (NMC) is the official oversight authority for regulating the nursing and midwifery standards in England, Wales, Scotland as well as in Northern Ireland and on the Islands. Its primary objective is to safeguard the health and wellbeing of the public by outlining the standards of conduct, performance as well as ethics for nurses and midwives (Goldsmiths 2011, p.12). The code recognizes that patients must be able to trust care providers with their health and wellbeing, health professionals are accountable for actions and omissions in their practice, and health choices must always be justifiable (NMC 2011, p.1). Health professionals are ethically and legally bound by the code and must always act within the legal confinements of the law; health professionals that do not comply with the prescribed NMC code, rules, standards, and guidance automatically risk litigation as well as forfeiting their licensure and registration (Christensen 2002, p. 86). Ethical and legal issues in healthcare abound, particularly within the context of the rapid progress and developments that have occurred in the health care profession (Sharp 1998, p.235); at the core of medicine practice is the fundamental focus of health professionals on the patients’ interests above everything else. Confidentiality is both an ethical and a legal issue in health care, and it recognizes patients’ autonomy in decisions regarding disclosure of information relating to their care; health professionals must supply the patient with all the crucial information they need to evaluate all the pros and cons of the available options to reach an informed decision regarding their healthcare. Patient autonomy in health care choices is paramount in care delivery (Hewitt-Taylor 2004, p.1323); patients have a right to agree to treatment, to refuse or to end treatment and should not be compelled to carry on with treatment through coercion or penalties. In case a patient is classified as a minor, or is not capable of making an informed decision, a designated surrogate decision-maker assumes this responsibility. Drawing from the patient’s previously expressed desires and known values, the surrogate decision-maker makes decisions just like the patient would have, if they could; in the absence of the surrogate decision-maker, health professions must make decisions that are in the best interests of the patient. Health professionals have an ethical and legal obligation to respect and uphold human dignity, and the human rights of their patients in recognition of the fact that health care are universal, irrespective of the differences inherent in the patients (Thompson 2002, p.188; Thompson 2004, p.176). Health professionals are bound by law and by professional ethics to establish effective working relationships that facilitate delivery of quality care within a context of respect for patient needs and values and without any bias whatsoever. Health professionals also have an ethical obligation to collaborate with the sole purpose of bettering healthcare outcomes while addressing the health care needs of patients. Health professionals must recognize that the intricateness of health care delivery systems calls for a multi-disciplinary approach that involves the proactive participation of numerous fields and health experts. For instance, addressing mental health illnesses in women requires a multifaceted approach to care because numerous factors such as gender inequalities, rights violations as well as economic dependence, among other variables contribute to women’s depressive and anxiety related disorders (Gülçür 2000, p.46; Blehar 2003, p.788). Health professionals must practice within professional boundaries while recognizing that stepping outside the professional boundaries and protocols of practice is not only unethical, but also illegal in so many levels, what is generally referred to as role fidelity. The licensure board and healthcare institutions collaborate in defining the scope of professional health care practice as well as the roles and responsibilities that are within the scope of specific clinician expertise. Healthcare professionals are also bound by ethical and legal principles to act on any questionable practice in the interest of promoting the health, safety and overall wellbeing of their patients. In that respect, health professionals are ethically and legally obligated to respond by taking an appropriate action whenever instances of malpractice including incompetence, unethical, illegal as well as inappropriate practice by members of their profession are sighted. Conclusion In their daily decision making processes, health professionals are guided by the ethical principles of autonomy, confidentiality, justice, beneficence as well as non-maleficence; in making ethical decisions relating to patient care, health professionals’ thought processes are guided by three dominant ethical perspectives namely formalism, consequentialism and virtue ethics. The interphase between health care and law is visibly important in developing cultures of the world, particularly as expressed in the widespread discourses relating to legal and ethical issues in the health care profession. Practitioners in the health care field are subject to numerous laws, regulations and standards of practice, which further increase the nuances of their working environment. Knowledge of the interphase between laws, ethics and health care is particularly important to health care professionals, given that they make decisions that touch on laws and ethical standards nearly on a daily basis in the course of their practice. The ethical obligations of health care practitioners are as old as the field itself since the health care profession has always been known for putting the interests of patients ahead of everything else. In accordance with the NMC code, patients must be able to trust care providers with their health and wellbeing while health professionals must be accountable for actions and omissions in their practice, and their health choices must always be justifiable based on approved ethical and legal standards of practice. References Armstrong, A.E. 2006. Towards a strong virtue ethics for nursing practice. Nurs Philos, 7(3):110-24. Arries, E. 2005. Virtue ethics: an approach to moral dilemmas in nursing. Curationis, 28(3):64-72. Atherton J. S. 2013. 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