NURS 6050: Policy and Advocacy for Improving Population Health “Legal and Ethical Aspects of Healthcare Delivery”
NARRATOR: Understanding the legal aspects of health care delivery.
JACK SCHWARTZ: There are some kinds of legal obligations that everybody needs to know.
NARRATOR: And the role of ethics in health care delivery.
NNEKA MOKWUNYE: No matter what culture you’re from, no matter what mortal belief system you have, what the laws of your land say, what values your family has taught you, the ethics still transcends these. And it’s those set of principles that we use to regulate health care.
NARRATOR: This week our experts share insights into the legal responsibilities of the nurse and health care professionals and the role of ethics in decision making and nursing practice.
JACK SCHWARTZ: There’s some kinds of legal obligations that everybody needs to know, anybody who works at a hospital or a nursing home, other care facility that gets confidential patient information needs to know they have a legal obligation not to disclose it improperly. That’s for everybody; everybody needs to know that law.
Let’s take somebody who’s an administrator and who’s in charge of say, medical informatics. Well, that person needs to know a lot more about the law that governs medical privacy and confidentiality because the nature of the job requires more detailed knowledge. Doing that job day-to-day requires knowing about HIPAA, the federal privacy law, and state law on medical records.
You have to know the day-to-day legal context for what you do. If you’re in the business of sending bills to the government, you need to know the laws and regulations that surround that activity.
You’re not going to have a lawyer perched on your shoulder all the time. And so, as part of your job, you need to have enough familiarity with those day-to-day basic legal requirements to do the job.
You also have though, to have the discernment to know when you’re encountering something that’s unexpected, that’s new, that’s complicated, where you need help.
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One characteristic of law is that it’s a command. It’s a directive from the sovereign, from the government, that tells people what to do or what not to do. And often there is a specified consequence to the failure to obey. So if you’re a health care professional for example, you have a license. You have certain requirements in the law, in regulation that you need to meet. If you don’t, you’re putting your license at risk.
If you’re a hospital, you’re a nursing home, you have a license too, that the state gives in expectation that you will conform to certain legal and ethical standards. If you don’t meet that, you put your licensing in jeopardy, the very existence of the organization in jeopardy. And of course, for some breaches of legal obligation, there’s the risk of paying out a lot of money.
NNEKA MOKWUNYE: At our hospital we have ethics as a mandate, and there’s over 400 cases a year that we do. And in our 400 cases, we still don’t even capture all the needs of our patients and our staff. We have to embed ethics into health care in order to make any patient visit to a hospital the best possible, in order to make our staff have a feeling of comfort and decrease of distress in working with sick patients, in order to have families feel like what could be done with the best things that should be done were actually done.
JACK SCHWARTZ: People sometimes wonder about the relationship between law and ethics. The cynical say, well, there’s no relationship. They fight with one another, like unruly siblings. And others say, well, there’s no real difference. If you act ethically, you’re acting legally. It’s somewhere between the two. But it’s actually closer to the two going together.
A Supreme Court Justice once said that “Law floats in the sea of ethics.” That the ethics comes first because of immorality in society gives rise to certain ways of behaving, which often get codified in the law.
FELICIA COHN: Ethics is the systematic study of morality. It’s asking the question, what should I do, and why should I do it?
What ethics is not is also as important as what ethics is. And you can define it almost in the negative. Ethics is not mere common sense. It’s not mere opinion. The difference is that ethics requires argumentation. You have to have good reasons for the decisions you make. You have to be able to justify what you do and explain why you did it. Mere common sense is usually a gut reaction.
An opinion, you’re entitled to hold opinions without rational reasons for them. In ethics, you’re required to provide those rational reasons.
Ethics is also not the law. Sometimes, and ideally, they will merge. They will reflect one another.
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Common situation is a decision to forgo life sustaining treatment. We have to decide if we should turn off a ventilator for a terminally ill or dying patient. So we ask, what should I do in this situation? Should I turn off the ventilator or not?
So if we make the decision to turn off the ventilator, we then have to figure out why, that’s the ethical question. Why should I turn it off? What principles or values justify turning off the ventilator? And why are those principles or values more important or prioritized over principles and values that would support not turning off the ventilator?
We like to think that our law is based in ethical expectations. But that’s certainly not always the case. A lot of our law is based in practicality. Speed limits, for example, have really nothing to do with ethics. Murder laws, however– we have a law of prohibition against killing, fraud– certainly do have a basis an ethics. But there are occasions when the ethical course of action in a particular situation will diverge from the law. That what I, as an ethics consultant, would recommend for treating a particular patient might be contrary to a particular law. And when that occurs, I have to work harder to justify the course of action I’m advising.
NNEKA MOKWUNYE: I don’t believe here we have a conflict with our legal department. When we decide to uphold the ethics and not uphold the law, there is this tension because our legal team has to be prepared for whatever backlash that has. But the only reason why I think that there is no conflict where they feel like they shut us out or we shut them out is because we are working partners.
They understand where we’re coming from. We understand where they’re coming from. They know that we will uphold the ethics and we know that they have to abide by the laws. So that clarity in our rules has been very helpful. The relationship between legal and ethics has to be very strong and very clear in order for it to work because there is the chance that there could be conflict between the two, and conflict will never allow an institution to grow the way it’s supposed to grow.
There are four ethical principles. The principle of autonomy is the principle for respecting of persons. One way I like to define that is to not only respect a person by giving them the options as an informed consent, but to also bring in respecting them by helping them making decisions. What respecting autonomy truly is, is saying, here are your options, this is what I think is important. And let’s join this partnership together to figure out how to do, what’s best for you.
You come to a physician for help and guidance, and I think it’s disrespectful to just have the physician say back to you, well, this is all the things I can do. Tell me which one it is. Part of the respect is to give them the guidance of, although I
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can do this, I don’t think that’s in your best interest. So that’s respecting autonomy.
The next principle is beneficence, which is the do good principle and avoid harm. Some argue that beneficence and nonmaleficence, which is the third principle, should be one, a combined do good and avoid harm. But I think that the two need to be separate because although you may be doing good and avoiding harm in one way, there’s a lot of times where you are causing harm in order to do good.
Surgery can technically be seen as a harm; the body wasn’t meant to be cut open. But you’re doing it for the sake of promoting a good by trying to help the person. That’s one of those situations where it’s the intention behind it and the consequence of the intention that allows the principle to standalone.
And the last one is justice, which is fair and equality for all, which is always the hardest one. In order to really truly be a center that values patient care and deliver optimum care, you have to have ethics involved. Because we do help to make the bad decisions easier. We help to make the transition from aggressive therapy to comfort therapy easier. We smooth a lot of the rough edges and we deal with a lot of the conflict. So the wholeness of medicine cannot be without ethics.
Even if the experience was a sad one and a loved one died, they still feel like this is a place that took care them, that cradled them through the process, and that all comes from having ethics as a strong presence in the hospital setting.
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