Module Three Healthcare law and ethics · 2019-04-08 · 8/3/19 4 Beverly Allitt:‘Angel of...

8/3/19

1

Module Three Healthcare law and ethics

Suprem e Court H ears Argum ents O n Constitutionality O f H ealth Care Law . [Photography]. Retrieved from Encyclopæ dia Britann ica Im ageQ uest. http ://quest.eb .com /search/115_3935425/1/115_3935425/cite

Learning outcomes: Module 3• LO1: Describe the historical and contemporary role

of nursing and how this role is both articulated within the current Australian healthcare system and within the regulatory frameworks which govern healthcare practice• LO2: discuss the roles and responsibilities of the

registered nurse and other members of the multidisciplinary health care team to promote practice which is of safe and of quality across a range of settings

Learning objectives

• Understand the contextual relationship of the Australian healthcare and legal systems• Describe key legal concepts in healthcare • Describe the coronial system in Australia and how it

relates to nursing• Demonstrate an introductory understanding of

ethical principles of justice, autonomy, beneficence and non-maleficence• Describe the nurse’s professional obligations in

lawful and ethical practice

http://quest.eb.com/search/115_3935425/1/115_3935425/cite

8/3/19

2

Assessment Tasks – reminder!

Australian Healthcare Law

Intensive Care U nit. [Photograph]. Retrieved from Encyclopæ dia Britann ica Im ageQ uest.http ://quest.eb .com /search/181_763199/1/181_763199/cite

Sources of Australian law

• Common law: Case law, precedents. Laws formed through the decisions of the court and ongoing research of legal practitioners

• Statutory law: Parliament has the power to create, change and remove laws. Parliamentary law is known as an Act

(Staunton & Chiarella, 2017)


8/3/19

3

Criminal or Civil?

• The law is divided into two categories: criminal and civil• This is significant because nurses can be prosecuted

in criminal and civil courts arising from their actions as professionals• A nurse can be cleared of criminal wrongdoing but

be subject to civil legal action by interested parties

(Forrester & Griffiths, 2015)

Criminal Law

“Rules of behaviour backed by sanction of punishment”

• Governs our social conduct in relation to peopleand property • Requires evidence / burden of proof

• Requires actus reus and mens rea


Criminal Law in nursing

• Nurses can, and have been convicted for criminal negligence but it is unusual

•Mens rea is usually absent – the intent to harm is very rarely present, and need to prove significant reckless indifference

8/3/19

4

Beverly Allitt: ‘Angel of Death’• Paediatric nurse (UK) • Killed 4 of her patients, attempted to kill another 3• Injected the babies and children with fatal doses of

insulin

• Both actus reus and mens rea could be established• Not ‘clinical errors’ or negligence due to poor nursing

care• Criminal conviction for multiple murders and life

imprisonment(Marks & Richmond, 2008)

Civil or Tort law• Legal action taken by one (plaintiff) against another

(defendant)

• Perceived harm to a person, their property or their interests

• Centred on dispute resolution

• Police and punishment absent from the process of civil law

(Atkins et al., 2017)

Civil law in nursing

The most common wrongs in tort law by nurses are…

• False imprisonment

• Assault and battery

• Trespass

• Negligence (Atkins et al., 2017)

8/3/19

5

But nurses would never breakthe law….?

False imprisonment - stopping a patient from leaving a hospital - confining a wandering patient to their room and

locking their doorAssault and battery - taking a patient’s blood when they have refused and are resisting - making threats to force patient compliance

(Atkins et al., 2017)

The law and healthcare

• As citizens we are of course subject to all laws, but in healthcare we have further specialised acts of parliament to follow

• National law act of 2012 – regulated by the NMBA Nurses must be licenced, subject to scrutiny and possess professional indemnity insurance

(Some) Healthcare Acts • Medicines Act • Human Tissue Act• Mental Health Act • Coroners Act• Poisons and Therapeutic Goods Act • Medical Treatment Act• Privacy Act Acts can be state or federally regulated. State acts share significant commonalities.

8/3/19

6

Fundamental legal concepts in health

Consent Assault and BatteryDuty of CareNegligence

https://w w w .cchw yo.org/CCH _H ealth_Connect/2015/O ctober/A_Day_in_the_Life_of_an_ED_N urse.aspx

Consent

Consent must be obtained when health professionals touch patients.

Essential elements of a valid consent:• Voluntary• Specific• Informed • Legal capacity


Types of consent

• Implied or inferred • Verbal• Written

Different situations may require one or a combination of these


8/3/19

7

Activity – which consent? Which consent fits best: implied, verbal or written?

1. A patient takes off their shoe to show you their bleeding foot

2. A patient is scheduled for an Achilles tendon repair under general anaesthetic

3. You approach a patient to give them an analgesic injection

Withdrawal of consent• Consent can be withdrawn at any time, if the patient has legal

capacity

• The patient can refuse to continue with the procedure even if it means physical injury or death.

• May clash with the healthcare team’s commitment to duty of care and beneficence

• Respects autonomy, a fundamental ethical principle


Scenario – Emergency• A 10 year old has fallen off his

bike & hit his head.

• Suspected head injury and parents are un-contactable.

• Needs emergency craniotomy

• Can the neurosurgeon perform this procedure without consent?

8/3/19

8

Doctrine of Emergency

• or Doctrine of Necessity

• Allows HCP to initiate life-saving treatment in the best interests of the patient without consent

• NO legal definition of ‘emergency’ in common law

• Must meet accepted definition of imminent risk to life or health

(Kerridge et al., 2013)

Capacity

An adult of sound mind is said to have capacityor to be legally competent

Where capacity cannot be established or is disproven, substitute decision-makers are permitted

Exceptions to Legal Capacity

The person is:

üUnconscious

üHas an intellectual disability (e.g. dementia, brain injury)

üThreshold test of capacity – has to understand the nature, effect & treatment, voluntarily given, of own free will, and can communicate the decision to another.

üIn an emergency situation

8/3/19

9

Consent of a Minor: Capacity

• Recent changes to legal definition of a ‘minor’ • Child can be up to 12, or up to 16• Young person over 12 or 16 • Applies to the state in which law is being used

• In consent law, children and young people can consent and refuse treatment independently

(Staunton & Chiarella,2013)

Gillick competency

Gillick vs. West Norfolk …Health Authority (1984)

Gillick (UK Case law) • 16 year old female sought contraception from a

sexual health nurse without parental knowledge or consent

• Mother (Victoria Gillick) sued the health authority

• High Court found that the young person had the emotional and mental capacity to make informed decisions about their health AND had a right to confidentiality

(Griffith, 2013)

8/3/19

10

How is Gillick competence decided?

Assessment to….. “sufficient understanding, intelligence and maturity to appreciate the nature, consequences and risks of the proposed healthcare, and the alternatives, including the consequences of not receiving the healthcare”

(Gillick v. West Norfolk and Wisbech AHA, 1985)

Consent of a Minor – No Capacity• Parents / legal guardian

• Carers have no authority (friends, relatives, teachers)

• Doctrine of emergency applies

• Authority of parent/legal guardian is not absolute. Interests of the child first and always


Consent by relatives?

NO legal foundation.

The law says: ‘No person has the legal ability to consent to the treatment of another adult’

(Forrester & Griffiths, 2015 p 151)

8/3/19

11

Medical Power of Attorney

An individual appoints an agent ( can be family or legal practitioner) to make decisions related to medical treatment when they are incapacitated or unable to.

• Specific to medical treatments (not finances)

• Person can revoke at any time (as long as they have legal capacity)• Legal form signed and witnessed


Practice Implications

What if there is concern that the patient lacks sufficient understanding about the treatment to have made a valid decision?

Nurses have a duty to take reasonable steps to ensure the person receives the necessary additional information from the treating practitioner.

Lapses in legally obtained consent

https://com m unicatehealth .com /2013/08/p la in -language-is-not-dum bing-dow n/

8/3/19

12

If consent is NOT given?

Long legal precedence: Schloendorff v Society of New York Hospitals (1914)

Mary Schloendorff and specific consent

Justice Cardozo (1914)

“Every human being of adult years and sound mind

has a right to determine what will be done with his own

body; and a surgeon who performs an operation without

his patient’s consent commits an assault, for which he is

liable in damages”.

(Forrester & Griffiths, 2005 p. 128)

NegligenceFailure to adequately inform may be deemed to be a breach of duty of care? relevant information was not effectively communicated : if the information had been given, the patient would not have consented to treatment/procedure


8/3/19

13

Assault – contact without consent •Criminal Assault

•Self Defence

• Indecent Assault


Assault and Battery

Battery is the actual physical contact with the person of another, does not require that the plaintiff prove that such contact was harmful or offensive.

Law says there is no requirement to sustain injury- rather the actual touching of the person without their consent is unlawful and forms the basis of the action.


Clinical application?

If you touch or threaten to touch your patient without consent, you have assaulted them

In an action of assault, it is not a defence to say the patient was incompetent, so consent was not sought

The intention of the health professional being in the best interest of the patient is not an appropriate defence.

(Westrick & Dempski, 2009)

8/3/19

14

Duty of Care and Negligence

http ://www .ch icagonow .com/ch icagos-real-law -b log/2015/02/the-two-th ings-needed-to-w in-a-case-for-negligence/

A concept that arises out of a general duty on members

of a society to take reasonable care to avoid

injury or damage to other people.

Duty of Care - Nursing• Legal duty to act

• Existing relationship (nurse – patient)

• Relationship can be spatial or potential – someone walks into an ED, not yet ‘a patient’

(Tingle & Cribb, 2013)

Do nurses have a duty of care to their next door neighbour?

8/3/19

15

Is there a LEGAL duty of care?

Requires:

Proximity (actions closely & directly effect consumer)

Reasonable foreseeability of probable harm if there is careless action or non-action


Negligence

Negligence occurs when a professional fails to provide the quality of care that should reasonably be expected in the circumstances, with the result that her patient or client is harmed.


Establishing negligence

1. There was a Duty of Care

2. The duty of care was breached

3. There was resultant harm

4. Harm was reasonably foreseeable


8/3/19

16

Bolam Test

• A doctor or nurse are not in breach of their duty of care if they practised to the standard accepted by responsible peers.

• The courts would accept medical (nursing) opinion as to what the standard should be.


Breach of Duty of Care

• Failure to act with reasonable care and skill•Carelessness or lack of skill on the part

of the care provider. • Addressed using the ‘reasonableness test’


Who provides the standard?

• Professional Peers

• Professional Organisations

• Employer Policy

• Law


8/3/19

17

Damage or Harm• The plaintiff suffered damage/harm as a direct

consequence of the breach of duty of care

• Physical, psychological or financial

• The harm must have been caused by the conduct of the defendant, not the result of the illness, disease or disorder


Causal relationship

• The breach of duty of care must cause the damage or no compensation will be awarded• Reasonable proximity required• Compensation is not awarded for damage that is

too remote a consequence of the defendant’s negligent act.


Institutional Liability

• Hospitals owe a duty of care when a patient

presents at the hospital

• Restrictions apply to activities of students

• Professionals rules dictate delegation

• Policies direct/limit actions of different levels of staff


8/3/19

18

Professional & Legal Obligations

You must question an order if you believe the care is medically inappropriate or incorrect.

You are Obligated to check anything you do not understand


Coronial inquest: Adelaide Coroner’s Court 1989

Nurses do have the expertise and obligation to contact the doctor and express their opinions and concerns.

Legal aspects of future care

http ://www .carp .ca/2013/01/23/patient-rights-dying-w ith-d ign ity/

8/3/19

19

Advanced care directives

• Enable a competent adult to specify treatment of a future condition when he or she becomes legally incompetent

• Records the person’s wishes for a potential / future medical condition

• In Australia, merely recording one’s wishes on paper, when those wishes are not in keeping with State or Territory legislative requirements, is unlikely to be acceptable


Advanced care planning

• Must be informed • Ideally discussed with significant others• Signed by GP • May nominate power of attorney (medical)

Power of Attorney

• Patient appoints an agent and possible alternative agent in case they should become incompetent

• Agent may enact a refusal of treatment on behalf of the person

• Agent has no role while person is able to act on own behalf

• The enduring power of attorney (medical treatment) is only for medical treatment


8/3/19

20

Changes to POA

Can be revoked at any timeCeases to operate:• once circumstances no longer current• or person cancels it• only applies to present and not to

future problem• only comes into operation when person

is unable to make their own decisions(Forrester & Griffiths, 2010)

Not for Resuscitation (NFR)

• Signifies that resuscitation will not be commenced by the health care team

• This order is relevant in situations in which a person’s condition is unlikely to improve or considered to be hopeless

• The practice should be willingly discussed as it could be argued that there are times when lack of clarity and communication have rendered the practice legally questionable

• Can be revoked by patient or treating team

NFR guidelines • Clearly documented, ideally on a dedicated form

• Signed by senior medical staff

• Notes family and/or patient involvement

• Specifies measures to be withheld if appropriate

• Reviewed regularly and at each admission

• Status handed over each shift

8/3/19

21

Medical Futility

• Allows for expert medical opinion to consider a clinical situation as untenable and cease treatment• Health professionals must be acting in the patient’s

best interests• Detailed family meetings, clarifications and TIME

to consider the plan of action• Also known as withdrawal of treatment or ‘turning

off life support’

Airedale NHS Trust v. Bland

• Anthony Bland was a 17 yr old boy injured in the Hillsborough disaster• Bland sustained hypoxic brain damage following a

crush injury• Found to be in a persistant vegetative state• Bland could not see, hear or feel• Brainstem function intact: breathing normally• After 3 years of constant care and enteral nutrition,

the hospital approached the high court

Airedale NHS trust vs. Bland

• With support of his family, the medical team applied to stop Anthony’s nutrition and implement comfort measures

House of Lords (Lord Goff) “ I cannot see that medical treatment that is

appropriate…simply to prolong a patient’s life...has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious…no prospect of any improvement to his condition”

8/3/19

22

Hastening death lawfully• Doctrine of ‘Double Effect’ under common law

• The essence is intention

• Administering pain relief is a good effect which may hasten death which is a bad effect (in the eyes of the law)

• Lawful to give opioids to relieve suffering even if death is the outcome (not intentioned)

Hastening death unlawfully

R. vs. Cox • Patient Boyes had intractable pain from rheumatoid

arthritis• Cox injected potassium chloride and Boyes died

soon after• The court found Cox guilty: intention may have

been honorable, but the medication achieved relief by causing death• Potassium chloride is not an analgesic therefore the

aim was death

Coronial matters

Forensics, Autopsy room in a hospita l. [Photograph]. Retrieved from Encyclopæ dia Britann ica Im ageQ uest.http ://quest.eb .com /search/300_344638/1/300_344638/cite


8/3/19

23

The Coroners’ Court • Role is to investigate deaths due to negligent or improper activity

• Establishes identity of the deceased, the cause and manner of death

• The role is ‘inquisitorial rather than adversarial’ The coroner does not hear arguments from two opposing sides

• Calls witnesses, and can recommend a change to standards and practices

• Legal, NOT medical role – magistrate or judge(Forrester & Griffiths, 2015)

What is a reportable death?

Some in-hospital examples:• Death in a mental health unit• Death under anaesthesia• Unexpected death: not fitting with clinical scenario• Unknown identity ( happens in ED)• Inpatient normally under State care

Reported does not mean an inquiry is initiated

Nursing role – caring for the deceased • The body should be left as close as possible to the

state at time of death

• Minimum interference. If in doubt, don’t remove anything!

• All tubing, airway, dressings left in place

• If the death is on the operating table, cavity packed

8/3/19

24

Post-Mortem• Determines (or confirms) cause of death

• 80% of deaths reported to the Coroner do NOT proceed past post-mortem

• Does not always involve extensive dissection -sometimes simply a tissue sample or external examination

• When the coroner is satisfied to cause and manner of death, they can release the body to relatives

Ethical considerations

http ://nation .com .pk/p icture-gallery/02-Apr-2017/march-for-health

Law and ethics

• The application and consideration of law in healthcare is intimately tied to that of healthcare ethics• While the legal system considers ethical dimensions

of law-making, nurses have a distinct responsibility to act ethically as well as lawfully• Nursing has Code of Ethics specific to our

profession

8/3/19

25

What are nursing ethics?• Ethical issues as they apply to nursing practice

• Ethical issues unique to the nursing role

• Ethical issues from the real world, experienced by nurses

(Johnstone, 2017)

Context of nursing ethics

Ethics in nursing and healthcare go beyond the well publicised issues such as abortion or assisted dying: Some examples…How to relieve suffering How to stop patients getting the wrong or inadequate care How to advocate for and protect vulnerable peopleHow to make a difference How to whistle-blow dishonest or unsafe practicesHow to do the right thing when being prevented from doing so

(Johnstone, 2017)

Autonomy• Also called self-determination • Allowing people to make their own decisions about

their life, and health • Allowing people to determine their own best

interests even if it leads to them facing harm, suffering or even death

Can you think of an example in healthcare?

8/3/19

26

Beneficence• A clear intent to benefit another• Working to an accepted standard of care• Making sure nursing care benefits the patient (not

just the nurse) • Recognising what ‘quality of life’ means for your

patient(Atkins et al., 2017)

A nurse decides to shower and dress a dying patient because she thinks ‘everyone feels better after a wash’. Is this beneficent?

Non-maleficence

• Doing no harm • Refraining from treatment that will not help the

patient • Refraining from falsely giving hope to a patient • Sometimes the most effective and ethical care is to

do nothing (Atkins et al, 2017)

When would ‘doing nothing’ be ethically appropriate?

JusticeFairness in the way healthcare is allocated and delivered Some examples: • Spending more money on midwives in areas where

infant mortality is much higher• Affording respect to all patients regardless of

gender, orientation, race, or political affiliation

A generous donor asks for his son to be moved up the waiting list for a kidney transplant. Is this

unethical?

8/3/19

27

Truth-telling (veracity) • Ethical obligation to be honest with ourselves and

our patients• Speaking up against poor or unsafe, or unethical

care (whistle-blowing)

• Acting as an advocate and always putting the patient first

A patient is diagnosed with terminal cancer but his wife does not want him to know. What should the

nurse do?

Code of ethics

Standards of ethical practice for all Australian nurses, in all areas of practice. Recognises universal human rights and the dignity of each person

Represents our commitment to: “…..respect, promote, protect and uphold the fundamental rights of people who are both the recipients and providers of nursing and healthcare”

(NMBA, 2016)

Real-world work

• Ethics or ethical issues arise every day in nursing care

• Nurses maintain an awareness of the conduct of themselves and their colleagues

• Facing ethical dilemmas are part of being a thinking, engaged person as well as the professional responsibility of a nurse

8/3/19

28

Moral Distress vs Moral Dilemma

Care Situation

What do I do? Moral Dilemma

I can’t do what I should do! Moral Distress

Moral Challenge

(Jameton,1984)

Moral distressJameton (1984)

• “...aris(ing) when one knows the right thing to do, but institutional constraints make it nearly impossible to pursue the right course of action (p.6)

Jameton, A. (1984). Nursing practice: Ethical issues. Prentice Hall: Englewood Cliffs.

Hannah (2005)

• an inner response by the self when there is a perceived threat to “an objective good” (p.119)

Hanna, D. (2005). The lived experience of moral distress: Nurses who assisted with elective abortions. Research and Theory for Nursing Practice, 19 (1), 95-124.

How does this look in practice?

Effects of moral distress:

• Towards self

• Towards others

• Towards the system

(Burston & Tuckett, 2013)

8/3/19

29

Summary

• The practice of lawful and ethical nursing are inextricably linked

• There are a number of legal principles that guide good nursing practice

• Nurses are accountable legally and ethically for their knowledge, practice and conduct

ReferencesBurston, A. & Tuckett, A. (2013) Moral distress in nursing: Contributing factors, outcomes and interventions. Nursing Ethics, 20(3), 312-324. DOI: 10.1177/0969733012462049

Daly, J., Speedy, S. & Jackson, D. (2017). Contexts of nursing (5th ed.). Chatswood, NSW: Elsevier.

Fedoruk,M. & Hofmeyer, A. (2014). Becoming a nurse: An evidence-based approach. South Melbourne, Vic: Oxford University Press.

Forrester, K. & Griffiths, D. (2015). Essentials of law for health professionals (4th ed.). Marrickville, NSW: Mosby Elsevier.

Griffith, R. (2013). Nurses must be more confident in assessing Gillick competence. British Journal of Nursing, 22(12), 710-711.

Hanna, D. (2005). The lived experience of moral distress: Nurses who assisted with elective abortions. Research and Theory for Nursing Practice, 19 (1), 95-124.

ReferencesJameton, A. (1984). Nursing practice: Ethical issues. Prentice Hall: Englewood Cliffs.

Johnstone, M.J. (2017). Ethics in nursing. In: J. Daly, S. Speedy, & D. Jackson (Eds). Contexts of nursing (5th ed.). Chatswood, NSW: Elsevier.

Kerridge, I., Lowe, M. & Stewart, C. (2013). Ethics and law for the health professions (4th ed.). Annandale, NSW: The Federation Press.

Marks,V, & Richmond, C. (2008). Beverly Allitt: The nurse who killed babies. Journal of the Royal Society of Medicine, 101(3), 110-115.

Nursing and Midwifery Board of Australia (2016). Code of ethics for registered nurses. Retrieved from: http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx

Tingle, J. & Cribb, A. (2013). Nursing law and ethics. London: John Wiley & sons.

Westrick, S.J. (2014). Essential of nursing law and ethics (2nd ed.). Burlington, MA: Jones & Bartlett.

Module Three Healthcare law and ethics · 2019-04-08 · 8/3/19 4 Beverly Allitt:‘Angel of...

Documents

Transcript of Module Three Healthcare law and ethics · 2019-04-08 · 8/3/19 4 Beverly Allitt:‘Angel of...