Critically analyse how ethical, professional and legal issues underpin nursing practice.
Legal, Ethical, Professional Issues in Nursing.
Nurses are subject to a plethora of ethical, legal and professional duties which are too numerous to discuss within this thesis. Therefore the main professional, ethical and legal duties will be discussed. These three main duties are generally considered to be to respect a patient's confidentiality and autonomy and to recognise the duty of care that is owed to all patients. These three main duties are professional duties, however there are legal implications if they are breached, therefore they are also legal duties; ethical considerations arise in contemplation of these duties, such as consideration of when they can be breached and they are therefore ethical duties as well. Before considering the main duties, consideration will be given to the regulatory body of nursing, the GMC.
2. The Nursing and Midwifery Council
The medical and nursing professions are bound by their own code of ethics which is enforced by disciplinary procedures. The professional governing body has for the most part a more immediate influence over the conduct of its members than does the law, which is invoked relatively rarely in medical matters.
The NMC is a regulator of professional standards. Central to its regulatory function is the Register of Medical Practitioners. The register operates as a regulatory tool in two ways; first of all, by operating the register the GMC is the profession's gatekeeper, allowing entry only to those who have achieved the required standards for a 'registered medical practitioner' ('RMP'). Secondly, 'fitness to practise' proceedings against RMPs may result in their being suspended or erased from the register. As a means of pre-empting the necessity for disciplinary proceedings, the NMC issues guidance on aspects of a practitioner's duties and responsibilities in areas such as consent, confidentiality and medical research, to prevent poor practice at source. The translation of NMC guidance into conduct rests primarily, of course, on the individual conscience of members of the profession whom, it is hoped, adhere to the guidance on a day to day basis.
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3. Respecting Confidentiality
The Blue Book sets out the rules on patient confidentiality and it stipulates that Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care (GMC:1993)
This has also been confirmed judicially in Hunter v Mann  QB 767- and W v Egdell  Ch 359 (CA); X v Y  where it was confirmed that:
In common with other professional men. the doctor is under a duty not to disclose [voluntarily] without the consent of his patient information, which he, the doctor, has obtained in his professional capacity, save in very exceptional circumstances.
The only circumstance in which a clinician may breach this is where there is competing public interests:
Rarely, cases may arise in which disclosure in the public interest may be justified, for example, a situation in which the failure to disclose appropriate information would expose the patient, or someone else, to a risk of death or serious harm.
In the case of x v Y one or more of the employees of the claimant health authority supplied information to a report (defendant 1) of a national newspaper (defendant 2) identifying two doctors who had AIDS, yet were still practicing medicine. This information was obtained from confidential medical records held by the hospital. The claimants subsequently obtained an order restraining publication or other use of the information received. Despite the existence of the order, the second defendants published an article written by defendant 1 entitled Scandal of Docs with Aids. It was clear that the follow-up article intended to publish the names of the doctors. The claimants applied to the court for an injunction restraining publication of anything which purported to name the doctors, and for the defendants to disclose their sources. The question was whether the second defendants had a public interest in publication.
Rose J was forceful in viewing the public interest in maintaining confidence in the circumstance of AIDS as a significant and fundamental one. The judge was clear about the implications of allowing such breaches of confidence as contemplated here. Patients who knew or feared that their condition would become known would be afraid to come forward for treatment and advice that might alleviate the risk of the spread of the disease. Against this had to be weighed the public interest in the freedom of the press. Rose J went further, and agreed that there would be a public interest in knowing what was sought to be published. The judge found, however, that the public interests in publication were substantially outweighed by confidentiality in the medical context generally, and with the medical records of the AIDS patient in particular. Usefully Rose J pointed out that the public interest in debating the Aids issue would not be substantially affected by the granting of an injunction. There was already a public debate on many aspects of the disease. The injunction was granted, but the application for the defendants to reveal the names of the sources was not made out here. Rose J did, however, make it clear that an informer in future might not be so fortunate and a custodial sentence would ensue:
The public in general and patients in particular are entitled to expect hospital records to be confidential and it is not for any individual to take it upon himself or herself to breach that confidence whether induced by a journalist or otherwise
Many of the difficulties relating to the exceptions to the duty of confidentiality come under the broad heading of public interest and there is little guidance from the court, this therefore raises ethical quandaries as to whom a Nurse should protect. Should the patient's confidentiality be protected or does the public interest in revealing the information override the patient's right to confidentiality? The General Medical Council will protect and defend a practitioner who breaches the rule against disclosure if the public interest warrants it. It is for each specific practitioner to decide personally if the particular circumstances justify disclosure in the public interest. Failure to notify the relevant person(s) or body in circumstances that warrant disclosure can sometimes amount to a breach of duty towards that person or body. Situations that warrant disclosure of information raise difficult legal, ethical and professional questions. The reason for this difficulty lays mainly in the fact that most of the law that underpins the public interest is determined by case law. The individual nurse practitioner still has to use her professional judgement in determining whether disclosure is justified and she is personally and professionally accountable for her decision.
The Data Protection Act 1998 has tightened up access to and disclosure of personal information, putting more pressure on the decisions of the individual practitioner. Nurses should ensure that they make use of the existence of the Caldicott Guardian in their organisations to advice on issues relating to confidentiality and to assist in protecting the interests of the patient. If necessary, the protection of the Public Interest Disclosure Act 1998 could be sought if concerns on confidentiality need to be made at a senior level within the organisation.
The Human Rights Act, in enabling persons to bring actions against public authorities who have failed to uphold a person's right to respect for private and family life, as set out in Article 8, is likely to lead to more litigation where patients clam that confidentiality has not been respected.
In addition to the civil requirement to maintain confidentiality there is a professional requirement for to maintain the patient's confidentiality and failure to do so is a breach of good medical practice and will attract sanctions
The doctor and the nurse both owe a high duty of care to the patient. A Nurse, by virtue of her nurse/patient relationship does owe a duty of care to her patients. Whether a duty of care exists will be decided by established legal principles. It has been said of the existence of this duty that [a] patient claiming against his doctorusually has little difficulty in establishing that the defendant owes him a duty of care (Brazier 1992). The test for breach of duty is determined by reference to the judgements of 'responsible bod[ies] of medical opinion. This test arose out of the case of Bolam v Friern Barnet HMC  2 ALL ER 118 and is known as the Bolam test. The test is as follows:
When you get a situation that involves the use of some special skill or competence, then the test as to whether there has been negligence or not is the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon failed to measure up to that in any respect (Clinical Judgement or otherwise), he had been negligent and should be so adjudged (Whitehouse v Jordan  1 ALL ER 267)
It does not follow that simply to fail to follow the accepted practice is, in itself, evidence of negligence since there may well be very strong reasons why the usual properly accepted practice was not followed in a particular case. This is where professional and ethical guidelines would come into play, it may not be practical to deal with a situation in the properly accepted way and therefore a nurse must exercise her professional judgement and consider ethical issues that arise out of the exercise of that judgement.
In addition the legal duty of care for the safety of the patient; the care to be expected of professional people: Whitehouse v Jordan  1 WLR 246, HL; Maynard v West Midlands Health Authority  1 WLR 634, HL. The principal duty rests with the doctor but the nurse may also be liable. The nurse acts under the direction of the doctor and must follow lawful instructions from her employer. Despite being answerable to the doctor and to her employer, she is a member of a team and carries her own professional duty and responsibility. The nurse must exercise the skill and competence properly to be expected of a nurse of her standing and experience. She must follow the accepted good practice in the nursing profession. She must follow the Code of Professional Conduct for a Nurse UKNCC 1992. She must keep up to date with the literature and training. She must observe all safety precautions.
There are also professional guidelines on how a nurse must deal with a situation should she make a mistake.
If a patient under your care has suffered harm, through misadventure or for any other reason, you should act immediately to put matters right, if that is possible. You must explain fully and promptly to the patient what has happened and the likely long- and short-term effects. When appropriate you should offer an apology.
5. Respecting Autonomy
The autonomy principle is a powerful part of the ethical framework of most of the liberal western world. It is summed up by the well-known passage of J.S. Mill:
... the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. (Mill:1972)
The right to determine what happens to ones own body is the right to autonomy. The words autonomy and autonomous are used in respect of a capacity, a condition and a right.
It is said that, the assertion to the right to autonomous medical decision making is paramount and that the only justification for imposing medical treatment on a patient against his will is to prevent harm to others. Further, it is argued that illness is a value-laden concept and any form of paternalism runs the risk of doctors branding patients with illness and subsequent treatment. (Szasz: 1974)
It is a cardinal principle of medical law that a patient should always, wherever possible be provided with informed consent for any treatment that is given to him.
Successful relationships between doctors and patients depend on trust. To establish that trust you must respect patients' autonomy - their right to decide whether or not to undergo any medical intervention even where a refusal may result in harm to themselves or in their own death. Patients must be given sufficient information, in a way that they can understand, to enable them to exercise their right to make informed decisions about their care. (GMC:2005)
Any adult, mentally competent person has the right in law to consent to any touching of the person. If he is touched without consent or other lawful justification, then the person has the right of action in the civil courts of suing for trespass to the person - battery where the person it actually touched, assault where he fears that he will be touched. The fact that consent has been given will normally prevents a successful claim for trespass. However, it may not prevent an action for negligence arising on the grounds that there was a breach of duty to care and inform the patient.
To be valid, consent must be given voluntarily by a mentally competent patient without any duress or fraud
'Informed consent' is therefore an essential legal, ethical and profession duty and refers to all the elements of a 'valid' consent-be it for a legal or an ethical purpose. Issues of capacity to consent, or of undue pressure to consent, are aspects of 'informed consent'.
Consent can be regarded as being 'effective' for a legal or an ethical purpose. Depending on the context, its 'effectiveness' may-from a health care provider's point of view-be a matter of precluding legal liability or moral criticism, or of improving patient outcomes. Alternatively, it may be seen as a matter of enabling patients to exercise their decision-making capacities.
There are some circumstances where nurses may treat patients without their consent. One of these is the principle of necessity. The principle of necessity is very limited. In order to establish that it was necessary to treat it must be shown that not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person (Lord Goff in Re F (Mental Patient: Sterilisation)  AC 1)
In such circumstances a nurse must show that she carried out no more than was immediately necessary in the patient's best interests. (Marshall v Curry  3 DLR 260 and Murray v McMurchy  2 DLR 442; Devi v West Midlands Health Authority  CA)
Therefore in an emergency, where consent cannot be obtained, medical treatment may be provided to anyone who needs it, provided the treatment is limited to what is immediately necessary to save life or avoid significant deterioration in the patient's health. However clinicians should still respect the terms of any valid advance refusal which they are aware. Such an advance refusal has been given here and it should therefore be respected.
On a final point The European Convention on Human Rights protects individual freedom. This is the sum of the rights and freedoms protected within the Convention. When fully applied they ensure that each individual has the right to determine how to live their own lives, free from unwarranted interference from the state. One fundamental aspect of this right must be the ability to choose the medical treatment which is imposed upon one's body. The right to refuse unwanted treatment manifests itself in numerous Convention rights. The key Articles are 3 and 8 which, taken together, will ensure that treatment is consensual or, if the patient is genuinely incapable of consent, therapeutically necessary (Wicks 2002)
It should be recognised that there are limits to the contribution law can make to some topics (Dickinson 2002). The more wider topics such as consent and confidentiality discussed above also very often require not only knowledge of the law but full understanding of the ethical and professional duties. Each patient will present a different legal, ethical or professional question and no two situations will or should be dealt with in the same way as each patient is an individual.
Bolam v Friern Barnet HMC  2 ALL ER 118
Devi v West Midlands Health Authority  CA
Hunter v Mann  QB 767
Marshall v Curry  3 DLR 260
Maynard v West Midlands Health Authority  1 WLR 634, HL
Murray v McMurchy  2 DLR 442; Re F (Mental Patient: Sterilisation)  AC 1
W v Egdell  Ch 359 (CA); Whitehouse v Jordan  1 WLR 246, HL; X v Y 
Data Protection Act 1998
Public Interest Disclosure Act 1998
The Human Rights Act 1988
Wicks E, (2001), The Right To Refuse Medical Treatment Under The European Convention on Human Rights, Medical Law Review 9(17)
Brazier M, (1992), Medicine Patients and the Law, 2nd Edition
Dickenson D (2002) (ed.), Ethical Issues in Maternal-Fetal Medicine, Cambridge University Press,
Dimond B ,(2005) Legal Aspects of Nursing, Fourth Edition, Longman Press: London
Johnstone M (1999) Moral Principles & moral rules, in bioethics: A nursing perspective.
McHale J & Tingle J (2000)Law and Nursing 2nd Edition Butterworth-Heinman
zasz TS, Law Liberty and Psychiatry: An Inquiry into the Social Uses of Mental Health Practices,1974, London: Routledge and Kegan Paul
hiroux J.(2000).Basic principles: Individual freedom,& their justification in ethics: Theory & Practice.
Tschudin V(1992) Making Ethical Decisions in ethics in nursing: The caring relationship, 2nd Edition London: Butterworth Heinemann
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