Legal, Ethical and Professional Issues in Nursing
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Get Help Now!Critically analyse how ethical, professional and legal issues underpin nursing practice.
Ethics regards standards of moral judgement and professional conduct. Nurses are highly accountable to patients, the public, employers, and the entire profession. It is imperative they have a sound understanding of various ethical, legal and professional issues they will face during their careers. There are three primary duties for nurses, among many others, which are the duty of autonomy, confidentiality, and duty of care to all patients. i These duties are supplemented by the principles of beneficence, meaning promoting or doing good and acting in patients’ best interests, and non-maleficence, meaning to avoid harm. ii These are professional duties which become legal duties if any legislation or policies are breached during practice. In 2001 a study found that there was a perceived need for more advice on ethical dilemmas within the health profession, after increasing legal cases and public inquiries.iii As a result, various Clinical Ethics Committees (CECs) and Research Ethics Committees (RECs) were established within the UK to provide comprehensive ethics support. Constantly changing values in health, behavioural science, and society mean that medical practitioners must be aware of new ethical issues for the medical sector, and learn how to respond appropriately.
2. Regulatory Bodies
The nursing practice upholds its own code of ethics and this is regulated by strict disciplinary guidelines, with the governing body having more influence over its member than legislative entities in medical matters. The Department of Health issued a Health Service Circular 219.99, which mandated some requirements of a new nursing education programme. In the Nursing and Midwifery Order 2001, the Nursing and Midwifery Council (NMC) must establish minimum standards and requirements for nursing education in professional and ethical issues.iv The NMC is an organisation established by parliament to protect the public and regulates the medical and nursing professional standards using the Register of Medical Practitioners (RMP). The Register acts to allow the GMC to monitor entry to the profession only by achieving the standards required to become an RMP, and also by monitoring ‘fitness to practice’ proceedings to ensure all practitioners maintain consistently high standards of conduct. The NMC contains guidelines regarding the expectations of particular duties such as confidentiality, medical research obligations, consent rights, and autonomy. The nursing practice is expected to comply at an individual level with these guidelines on a daily basis. The NMC’s ‘Code of Professional Conduct: Standards for conduct, performance and ethics’ is widely adhered to in the profession. To be registered, it is a general rule that nurses must undergo education in addition to personally indicating through performance and training that they intend to follow ethical standards to retain a licence for nursing.v
The General Medical Council (GMC) is a statutory entity with the role of protecting the public by maintaining a register of medical practitioners fit to practice, while also monitoring complaints about practitioners. There are fourteen key concepts which outline the ethical standards and responsibilities expected of a doctor. The GMC has also provided guidance on particular areas such as consent, confidentiality, and withholding or withdrawing treatment.vi This guidance is not mandatory, but is recognised at law, and in the case of W v Egdell, the court referred to the GMC guidelines on confidentiality.vii The British Medical Association (BMA) is the national association of practising doctors, with its own medical ethics unit which deals with individual ethical queries from doctors and nurses, and provides guidelines on ethical issues. Together, the GMC and BMA act to provide guidance for nurses and other practitioners to assist in ethical decisions, however it should be noted that these decisions are highly personalised, dependent on the patient and situation, and often subjective therefore unable to be entirely answered by these guidelines.
Given that the duty of confidentiality is a combined public interest and individual interest assessment, the judicial system does not provide ample guidance. This creates a problem for nurses and the ethical questions about who to protect. The GMC acts to protect practitioners who breach confidentiality rules if it was in the public interest, although this depends on the circumstances. The GMC will be unable to protect nurses if disclosure amounts to a significant breach towards the particular individual, despite assessment of legal and ethical questions. viii While case law often determines the ‘public interest’ query, individual practitioners and nurses must still exercise professional judgment and are personally accountable for any decisions which may breach ethical standards. ix
However, the ethical guidelines are not entirely subjective, and the NMC regulates the code of ethics which enforces all disciplinary processes for practitioners. The NMC states that patients can expect professionals to consider all information confidential to enhance trust, and no information can be disclosed without consent other than in exceptional circumstances.x Nurses are also under instruction from doctors and employers, required to exercise their own judgment as well as following directions and adhering to the ethics of the team and the Code of Professional Conduct for Nurses.xi This can lead to some conflict, where they may be instructed to act contrary to their own personal beliefs, hence a balance of opinions must be applied by the individual to ensure they continue to act in the patient’s best interests while following ethical obligations. Additionally, nurses are expected to work together with other health practitioners and care professionals or agencies, service users, carers and communities, and extended families, to ensure decisions made about patient care adhere to shared values.xii
3. Legal Issues in Nursing
The current legal framework in the UK includes statute law and case law. There are also some jurisdictional differences within the UK with Scotland and Northern Ireland having separate legal systems.xiii For instance, in Scotland a person can appoint an attorney of welfare to make medical treatment decisions if that person becomes incompetent, under the Adults with Incapacity (Scotland) Act 2000, yet this is not an option in England. There is a range of statutes impacting health care in the UK, as well as international standards. These include the Abortion Act 1967, the Mental Health Act 1983, theData Protection Act 1998, The Children Act 1989, various Acts relevant only in Scotland, and guidance such as the Guidance for Access to Health Records Requests provided by the Department of Health. Particular examples of these acts include the strict control of disclosure of personal information under the Data Protection Act, and the concurrent use of the Public Interest Disclosure Act 1998 if nurses are concerned about confidentiality decisions made at executive levels in organisations. The Human Rights Act, Article 8, also allows people to take action against public authorities who have no upheld their right to a private life. xiv When read with Article 3, it can be implied that there is a fundamental right for all individuals to determine their own lives, without interference from the government, including the right to choose medical treatment – treatment must be either consensual, or if the patient is in fact incapable of consent, it must be therapeutically necessary. xv
Case law is the second branch monitoring ethical standards in nursing and the medical profession. Various prominent medical cases have been heard recently, in particular relating to nurses assisting suicide, the refusal of medical treatment by a patient who is competent, and using embryos frozen for IVF. xvi In England, nobody can consent to treatment for an incompetent adult, so the Court must make a declaration in the best interests of the patients and the overall medical practice. However, before reaching litigation, it is often expected that nurses are competent in making these decisions and informing their supervisors and subsequently the court regarding patient consent. xvii Nurses require a sound understanding of the associated ethical and legal principles in order to make such a judgment, and this is best understood by implementing stringent teaching and education procedures prior to practicing in a health clinic to ensure they can apply principles of health care and ethics.
In England, a patient is considered a minor if he or she is under 18 years of age, although in Scotland the required age is lower at 16. In England and Wales, the Family Law Reform Act 1969 states that a person who is 16 or 17 years old has a statutory right to consent to treatment, under section 8, a minor aged 16 or over is considered an adult and has the legal rights which flow from this categorisation. The consent must be effective, and then no consent is required from a parent, except in specific procedures such as organ donation and nontherapeutic research. xviii The consent is valid if the minor is of ‘sufficient intelligence and understanding to appreciate the information and advice about the treatment and what it involves,’ for instance if a teenage girl consent in receiving contraceptive advice without her parents’ knowledge or consent.xix As the law enforces a duty of confidentiality by nurses to adults, the law then extends the duty to children who are competent in consenting to treatment. Knowledge of these circumstances is integral in enabling nurses to perform their roles following ethical standards.
The most common reaction to a perceived breach of ethical standards in the health profession is an action in negligence and malpractice, being the act or omission or commission made by the nurse or doctor.xx It requires four elements: duty, being a legal obligation owed to the patient – nurses must provide the degree of care reasonably exercised by other nurses in that practice area. Second, a breach of that duty by not meeting the required standard. Third, causation, which is a factual connection between the action of the nurse and the harm suffered by the patient. Finally, damages, being monetary payment intended to compensate the patient for the detriment. xxi The patient must have suffered bodily, economic, or emotional injury. The breach of duty test refers to the reasonable judgments of ‘responsible bodies of medical opinion,’ where those of special skills or competence are judged at a higher standard for that profession, rather than the ordinary person test.xxii The standard of care is also higher for professionals, and while the primary duty is with the doctor, nurses can also be held liable even when acting under direction from her employer.xxiii The nurse, even when supervised, must exercise her own skill and competence as expected of a nurse of the same level and experience.xxiv
4. Confidentiality
The principle that a patient who understands relevant information regarding his or her medical problem should be able to make a decision about treatment extends to the duty conferred on doctors and nurses. This is a duty of confidentiality, to not give information about the patient to others without consent.
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