Legal and Ethical Health Care Issues - Term Paper Example

Legal and Ethical Health Care Issues Name xxxxxx Course xxxxxx Lecturer Xxxxxx Date xxxxxx Introduction This paper seeks to explore the legal and ethical issues surrounding involuntary treatment of mental health patients. It also explores other nursing ethical and legal implications for nurses in healthcare practice. It applies legal and ethical provisions to two different case studies. Essentially, nurses and other health care givers are obliged to legal and ethical health care standards. It is by these that government and other regulatory bodies ensure both efficacy and efficiency of health care interventions. Case Study 1 Involuntary treatment and commitment for mental health illnesses is described in literature as one of the most problematic concerns in the history of medicine (King & Robinson 2011). It is rocked with legal and ethical arguments because patients with mental illnesses present a two sided dilemma to care givers and family. On one side, involuntary treatment and commitment to a health care facility violates individual rights as underlined by bioethical principles of health care. These are autonomy and self-determination since the care takers and community is empowered above the patient and this authority is subject to abuse. On the other side, it is argued that such patients face the potential challenge of inability to give consent of treatment and commitment. The individual may not be able to weight the benefits of treatment and may even get violent about being committed to health care. As such, these considerations outweigh the individual rights for self-determination, consent to medical care and autonomy and have potential benefits both for the person and the community or third parties. It is for these considerations that various laws have been established in various jurisdictions. The Queensland Mental Health Act 2000 is one such law. Essentially, this law provides for involuntary assessment, treatment and commitment for persons with mental illnesses. In the same breath it provides for the aforementioned, this Act also sets a foundation on which the patients’ rights and freedoms are safeguarded as well as being balanced with reference to other persons’. Phillipa has had a bipolar affective disorder for the last 10 years. She sometimes gets depressive and suicidal and has been under medication. Recently, she had refused to takes drugs and to attend a mental health care provider. Rob, her husband, takes initiative to call for medical care and given Phillipa’s refusal for treatment and her violence, it is imperative that she has to be involuntarily committed to assessment and treatment. Accoriding to the provisions of Act, Rob and health care providers can apply for a mental health order. Part 2 stipulates that for such an order, the patient must incapacitated by the mental health to judge reasonably or do anything on matters of his or her health thereby being under substantial risk. In addition, the person must be appraised as having the likelihood to harm him or her and/or the others due to the mental dysfunction. The Act provides for authority for the police and health care professionals and the community or third parties. For a mental health officer, it is imperative to ascertain that the person is mentally ill and requires immediate attention, that the illness may deteriorate in three days and that the person has refused treatment thereby necessitating detention. In addition, the doctor must prove, in his professional opinion, that the care can only be effective in restrictive environments (Stewart, et al. 2007). The police are also authorised with reference to the Police Powers and Responsibilities Act of 2000. The vulnerability of the mentally ill and other populations who are marginalized in a society of social and economic rationalism and indifference to social injustices should be adequately taken care of. The Mental Health Act provides for the procedures to be followed for involuntary treatment and commitment. It is provided for the authorised public officers who may undertake the coercion to assessment: a health practitioner, police officer and an ambulance officer. Additionally, it provides that this must be done with a legal order and assessment documents about which the public officer must explain to the patient. However, this explanation is required to the extent that it is practical and reasonable. In the violent and uncontrollable status of Phillipa, it may be impractical since her rationality is even compromised. In addition, the order for involuntary assessment is valid to the extent that it was authorised by a qualified health care officer. However, if the order was confirmed by a health officer not qualified in mental health care, it must be confirmed by a qualified doctor or psychiatrist in 72 hours (Drynan 2012). The order must have in it indications on hospital stay and a treatment plan to be implemented in an authorised health care facility. It is in force to the extent that involuntary treatment is necessary or as indicated by the treatment plan that provides the stated time. Section 31 stipulates that the order must end at the stated time which must not be more 7 days. Section 35 limits examination and detention time to 6 hrs within which doctors must make practical and reasonable recommendation for further treatment or otherwise. Should the assessment necessitate admission, the patient is entitled to a stipulated standard of care. Whether the admission was voluntary or involuntary, the patient has a basic right to dignified high standard treatment that is both timely and appropriate (Health Consumer Outcomes Task Force 2000). Essentially, it is imperative that care givers endeavour to provide care that matches the patient to universal human sameness. They have a right to privacy and participation in their own treatment. The 2000 Mental Health Act recognises the right for them to have support from third party individuals. According to Videbeck (2011), they should also be treated in a least restrictive environment with unrestricted visitors. However, this should always be subject to the condition of the patient and especially in cases where the patient is dangerous to himself and unto others. Nurses and other care givers are obliged by law and ethical standards to provide safe, competent and ethical care. Much as there are provided and implied rights for these patients, involuntary admission in itself is controversial contradicting the autonomy and freedom underlined by the state in the Act. Even with the role of the Mental Health Tribunal in deciding on the timing and context of detention, the complexity of legal and ethical issues for the state and professionals is not resolved. This notwithstanding, mentally ill persons should be treated with equal human sameness as any other individual as provided in the universal Principles of People with Mental Health Care of the UN (Atkins et al. 2011). Case two Over times in medical history, there has been increased decision making role for nursing staff that on previous time where the nurses essentially subordinated doctors. Subsequently, they have become more accountable than previously and therefore face more legal and ethical liabilities for any mistakes or omissions. This is established in common law as duty of care for nurses towards patients (Atkins et al., 2011). The Australian Nursing and Midwifery Council’s (ANMC) National Competency Standards, Code of Ethics and Code of Professional Conduct as well the law provide for the expected standards in practice and decision making. It is by these rules that nurses’ accountability to their patients is provided, legislated and enforced. In case two, it is clear that Ms White owed Mr Brown care of duty and failed to act in way that meets the standards. Reasonable care is defined as that standard of care which could be expected from any other registered nurse in a similar situation (Atkins et al., 2011). According the ANMC, a registered nurse should demonstrate competence and is independently and interdependently accountable for standards of care. The Competency Standards provide a high threshold of standards under domains of professional practice, criticality of thinking and analysis, care provision and coordination and care in interdisciplinary situations. Failure to meet the expected standards of care amounts to negligence and subsequent liability. Ms White is liable for not preventing harm to occur to Mr Brown while being dragged. After it happened, her failure to record and report even after ascertaining that there were injuries may be refered to as a gross act of negligence. In case Mr Brown’s daughter goes to a lawyer and file a suit for White’s negligence, the court will determine whether the latter owed Mr Brown duty of care and whether there was breach. Nurses can be negligent in acting or by omission. According to Atkins et al. 2011, negligence is proven in four conditions: that the nurse owed duty of care and that the duty was breached resulting to harm that was foreseeable and therefore preventable. The principles of bioethics standards stipulate that the nurse owes a patient duty of care. The principle of beneficence implies that a health care provider should not do any harm, but rather good. The principle of justice underlines that patients should be given due care as a right. By beneficence, nurses are expected to not only prevent harm, but also to take positive actions that remove harm away from the patient. As such, it would be expected of a reasonable registered nurse to stand and defend the patient from the care giver’s inhuman dragging and to report the case immediately. According to the Code of Ethics, value statement 7 requires nurses to ethically manage health care records. By failing to record the event, she denies the patient duty of care standards. A reasonable and ethical RN in a similar situation would be expected to record and report the incident pending action toward the care giver. The act of negligence or omission must lead to damage or injury. By letting the care giver drag Mr. Brown, she contributes to him sustaining injuries, which she later dresses as she helps him change his clothes. Finally, she is liable to the extent that the harm is related to the breach of care. According to Daly, et al., (2003), a defendant is legally and ethically liable for harm that is related to the breach of care. She may not be the one that directly caused the injuries. However, she even appears to be an accomplice of the care taker by failing to act to prevent the harm and by failing to report to relevant after having treated the victim. Daly, et al. (2009) indicates that a plaintiff must prove the defendant’s negligence with reference to all probabilities. Mr. Brown’s daughter has to prove that her ignorance not only led to the injuries, but that she also failed to advice the patient or report the case for further legal redress. She also must prove that the nurse owed Mr. Brown duty of care and that it was breached. The Queensland Civil Liability Act 2003 sets a threshold for the court in determining the case. Section 9 of the Act stipulates that it must be determined whether there was a probability of the harm if care was abdicated, determine the likely seriousness, the burden of providing care to prevent the risk and the social utility of the causative activity. From a legal perspective, Ms White may be deemed as having committed gross negligence. This is defined as failure to act or acting in a way that demonstrates serious or substantial recklessness. She fails to act with respect to technical practice and information management. This was the case in McMullen v. Co, of Lake III., 2008 when the nursing home was sued for failure to implement fall prevention plans and structures which led to the falling and subsequent death of the plaintiff’s father (American Association for Justice 2009). It was considered that the home breached duty of care owed to residents whose falling risk was foreseeable. From the ethical point of view, her actions essentially breach core bioethical principles of beneficence, justice and veracity. Apart from desisting from causing harm, beneficence requires nurses to act positively to avert harm ensuring the safety of patients. This implies that one should engage positively to avert all harm. The ANMC Code of Professional Conduct for Nurses requires that nurse to demonstrate safety and competence. Secondly, by failing to record and to report, she denies the client a valuable opportunity to be served justice. A reasonable registered nurse should have recorded, reported to relevant authorities and/or advised Mr. Brown to seek legal redress. The principle of veracity seeks to develop trust through truth telling. It requires nurses to not only tell the truth or desist from lying, but also to disclose all relevant information especially to the client, other relevant health care staff and family (White & Duncan 2002). She also violates ANMC Code of Ethics value statements 6 and 7 for safety and ethical management of information. In conclusion, legal and professional ethical standards have far reaching implications on nursing profession. Professional codes of ethics provide for rules that stipulate for moral standards of practice. The legal provisions provide for systems that enforce the expected moral standards of practice. Using legal provisions, it is possible to hold nurses legally accountable for their actions. It is thus imperative for nurses to understand both legal and moral expectations. Reference American Association for Justice, 2009. Professional negligence law reporter. American Association for justice, 24(4), pp. 66-83. Atkins, K., Britton, B. & Lacey, S., 2011. Ethics & law for Australian nurses. New York: Cambridge University Press. Australian Nursing & Midwifery Council. 2008. Code of Professional Conduct for Nurses in Australia. Canberra: ANMC Australian Nursing & Midwifery Council. 2008. Code of Ethics for Nurses in Australia. Canberra: ANMC Daly, J., Speedy, S. & Jackson, D., 2003. Nursing leadership. Marrickville: Elsevier Australia. Daly, J., Speedy, S. & Jackson, D., 2009. Contexts of nursing : An introduction. 3rd ed. Chatswood: Elsevier. Drynan, A., 2012. Walking the tightrope – mental illness; patient rights and doctor’s liability. Barry.Nilsson. Lawyers, 9 February. Health Consumer Outcomes Task Force, 2000. Mental Health statement of rights and responsibilities: Report of the Health Consumer Outcomes Task Force, Canberra: Commonwealth of Australia. King, R. & Robinson, J., 2011. Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation. International Journal of Law and Psychiatry, 34(1), pp. 64-70. Civil Liability Act (Qld), 2003 Stewart, C., Kerridge, I. & Parker, M., 2007. The Australian medico-legal handbook. Marrickville: Elsevier Australia. Videbeck, S., 2011. Psychiatric-mental health nursing. 5th ed. Philadelphia: Wolters Kluwer. White, L. & Duncan, G., 2002. Medical-surgical nursing : an integrated approach. 2nd ed. Albany: Delmar Thomson Learning. Read More