Legal, Ethical and Professional Issues Essay
Legal, Ethical and Professional Issues Ethical Dilemma Within healthcare, practitioners often have to make difficult decisions regarding the care of their patients. This could be to do with giving or withdrawing treatment, or as simple as sharing risk information (Glover, 1997). Ultimately, the practitioner must be able to rationalise any decision they have made (Morrison, 2009). With this in mind, the following assignment will draw upon an ethical dilemma and explore how theoretical perspectives can be utilised within the decision making process.
Therefore it will also be pertinent to draw upon the law, and how this influences actions within health care.
To facilitate this discussion, I will identify a scenario from practice that has presented an ethical dilemma. Due to the reflective nature of this assignment, I feel it appropriate to proceed in first person narrative (Webb, 1992). However, I must point out that, in accordance with university and professional guidance, the confidentiality of patients, colleagues and services will be protected throughout (Nursing and midwifery council, 2008).
I feel it reasonable at this point to define the point of interest for this essay. ‘Ethics’ is an important term within health care (Edwards, 2009). As Johnstone et al (2008) states, ethics is about doing the right thing. Though this is not always clear and the answer not always readily available. Therefore, one must rely on experience, inherent knowledge, instinct. There have been many theories that attempt to take a systematic approach to reaching a decision from an ambiguous situation, and these date back to BC350, with the work of Aristotle (Cohen, 2000).
Some of these will be explored and analysed in relation to the chosen scenario, in the hope that some recommendations can be identified. The case I am going to draw upon for this essay is that of ‘Mary’ and her carers. Mary has been known to mental health services for around three years, and is currently being treated for a psychotic illness. Mary is suspected to have a learning disability, though formal assessment of this has not been available, as Mary has moved around the country a great deal throughout her life. Mary has lived with two carers for the past twelve years, since the passing of her mother.
Mary identifies these carers as her grandparents, and calls them as such. During a routine visit with her care coordinator a few months ago, Mary became very tearful and disclosed that she had been suffering verbal and physical abuse from both carers. Mary had a visible bruise on her shoulder, which she stated was caused by a punch. This was understandably very concerning, and as such, Mary was not able to return home. Emergency accommodation was sought and safeguarding protocol was instigated which involved contacting the police and senior managers.
After two days in respite care, Mary became very distressed and subsequently retracted her accusations. Mary stated that the disclosure was false, and had been the result of commanding auditory hallucinations. An urgent outpatient appointment with the consultant psychiatrist was arranged and Mary was subsequently admitted to hospital due to relapse of symptoms. Since then, Mary has maintained that the accusations were false and has explicitly stated that she did not want further action to be taken, and that she wants to maintain a relationship with her carers.
Mary was assessed as having capacity to make decisions about where she lives. Safeguarding was closed and no action taken by police. Mary remains in hospital and is having contact with her carers but this is being supervised by staff, despite there being no substantiated concerns. This presents an ethical dilemma: are the service justified in infringing Mary’s privacy, even though her vulnerability is only perceived and there is no evidence to suggest any actual abuse? I will now draw upon theory to explore what actions should be taken by the professionals.
As mentioned earlier, Aristotle presented one of the very early theories of ethical thinking. He proposed that individuals should strive to behave in a virtuous manner, and that when achieved this would allow them to know what would be the right thing to do (Cohen, 2000). Though this is a simplistic explanation, the essence of Aristotle’s perspective appears somewhat idealistic and archaic. Though, it makes basic sense to assume that if one aims to be a ‘good’ person, they are likely to make decisions that they intend only to do ‘good’. One could assume that health care practitioners ould or should have a virtuous character, being in a care-giving role (Morrison, 2009). Though in reality, this is not always the case, and, religious or cultural differences could also cause huge variations in outcomes (Jonsen et al, 1992). In the case of Mary, it can be appreciated that the practitioners involved feel they need to protect her from potential harm. However, we must consider that patients with a psychotic illness typically experience either delusional beliefs or hallucinations, or both, and therefore at times the content of their conversation is likely to be removed from reality (Royal College of Psychiatrists, 2011).
With this in mind, it should not be assumed that what Mary had disclosed had any more truth than somebody who might have said they were being monitored by aliens, especially since she herself stated that it was false. This theory goes some way towards explaining how a decision may be deemed ethical if a practitioner believes it is the right thing to do, and that it falls in line with their own moral code, which seems to have been the case with Mary. However, it fails to address the wider issues and does not provide a practical application that will aid problem-solving (Campbell et al, 2005).
One theory that does have a workable approach is that of Beauchamp and Childress’ (1989) ‘Four Principles’. I am going to use this to illustrate how an ethically sound decision could be made for Mary. The first principle; ‘respect for autonomy,’ indicates that patients should have the right to make informed decisions about their care. In Mary’s case, her autonomy has been ignored – she would like to be able to return home to live with her carers and would like unsupervised contact with them, but this has been denied.
Having been assessed by the Consultant Psychiatrist, Mary has been deemed to have the capacity to make decisions about where she lives (Mental Capacity Act 2005), though this has not been acknowledged and she is going to be placed in supported accommodation. The second principle; ‘justice,’ relates to an action that is fair and equitable. In Mary’s case, it seems unjust that both she and her carers are seemingly being punished for a claim made during a time when she was unwell.
This is particularly important in health care, as practitioners must always be able to justify the care they are giving. In this situation, I think the practitioners would struggle to do this, as the main motivator seems to be based on perceptions, rather than facts. The third principle; ‘beneficence,’ refers to actions that result in a benefit to the patient. Mary does not appear to have benefitted from the decision to keep her from returning home. She has become increasingly distressed on the inpatient unit and her relationship with carers has been adversely affected.
Again, it seems that the fears and judgements of the practitioners are greatly impacting on the outcome, which specifically goes against professional conduct (NMC, 2008). The final principle; ‘non-maleficence,’ states that practitioners should not do harm in the course of their work. It would be reasonable to say that Mary has suffered harm, by way of having an extended hospital admission whilst accommodation is sought; that the relationship with her carers is tainted; that she has remained unsettled and acutely distressed at times, whilst being on the ward.
Conversely, should Mary be allowed to return to her home, she could be subject to harm by carers, for which the practitioners would then have to carry some responsibility. This is obviously concerning enough that action is being taken to prevent her from going home. Though, this would indicate that practice has become defensive, rather than defendable. Whilst the ‘Four Principles’ theory is inclusive and straightforward to use, it does not recognise all elements that may occur within an ethical dilemma, such as cultural or religious needs (Jonsen et al, 1992).
That said, it does place emphasis on the needs and wishes of patients, and therefore is particularly applicable within health care (Beauchamp and Childress, 2001). Another theory that talks of ethical actions is that of Immanuel Kant in the 18th century. His theory of ‘Deontology’ focusses upon duty and what ought to be done in a given situation. Kant states that consequences are irrelevant when trying to determine what the right thing to do is. So, in this scenario, emphasis would be placed on the duties of the practitioners (Warberton, 1999).
They have an explicit duty of care towards keeping Mary safe and well. It would appear that they are trying to fulfil this function by removing her from the home. However, they also have a duty to build a therapeutic relationship with Mary and her carers and this could potentially be damaged by the oppressive actions that have been taken. The difficulty with this theory is that on occasion, the duties of people involved may conflict (Schwartz et al, 2002). In addition, people may not always recognise what their duties are (Morrison, 2009).
An opposing perspective is that of ‘Consequentialism,’ which places great emphasis on the potential outcomes of a decision (Gillon, 1994). An ethical decision would therefore be deemed so, based upon the consequences being beneficial and of no harm (Schwartz et al, 2002). In Mary’s case, the consequences have been acknowledged and considered at length by the practitioners involved. They are able to justify the potential stress that Mary is placed under by considering that she may be caused further harm were she to return home. However, this is a short term measure and does not address the issue of Mary’s vulnerability.
Mary will not remain an inpatient in the long-term and therefore will be able to continue a relationship with her carers as she wishes, once discharged. Practitioners cannot control the decisions Mary makes about the company she keeps and therefore her vulnerability remains. It is also important to point out that Mary’s carers are also vulnerable in the sense that they have been accused of such an act. Practitioners working with Mary should support her carers with working through this and developing an increased awareness of Mary’s difficulties.
It would appear that little emphasis has been placed on longer-term plans or consequences, apart from thinking about looking at alternative accommodation. I feel it would be appropriate for Mary and her carers to be offered family intervention by a psychologist. A branch of the consequentialist theory is that of ‘Utilitarianism’. This also places weight upon the consequences of a decision, and aims to achieve the greatest good for the greatest number (Schwartz et al, 2002). This can be applied within a wider context, and could be used when thinking about how to allocate resources, for example (Johnston, 1999).
An ethical decision for Mary using the Utilitarianism approach would be one which allows for most of the involved parties to be comfortable and content (Melia, 2004). This places little emphasis on Mary’s personal views and feelings however, and is a drawback of the concept. Though it is widely popular, the consequentialist perspective fails to identify how subsequent contentment can be measured, and does not account for unpleasant side effects experienced by those who are not content (Thompson et al, 2000). And, ultimately, it would be impossible for any practitioner to predict the exact outcome of their ctions, which undermines the purpose of the theory (Hope et al, 2008) A modern approach to ethical decision-making was devised by Jonsen et al in 1992. Their ‘Four Quadrant Approach’ outlines that four criterion must be satisfied, in order of priority, for a decision to have moral value. I will use this to demonstrate how Mary’s circumstances could be applied and resolved. The first of their points is that there must be an indication for medical intervention; that is that practitioners should have cause to act in the first place. Mary’s care team initially reacted to the potential safeguarding issue appropriately.
However, once this was dismissed, there were no longer any grounds to continue to intervene. The second point is that Mary was not consulted about her preferences or given the opportunity to make a choice. According to Jonsen et al, this would not have been deemed to be ethical. The third point looks at quality of life. Mary’s current situation is that she is in an inpatient unit against her will, she is being stopped from having privacy and time with her carers, and her distress levels continue to increase, that understandably are having a negative impact on her mental health.
It would be fair to say that her quality of life is minimal at the current time, as a direct result of decisions being made about her care, without her input. The last point that Jonsen et al makes is that the decision must be looked at in the context of wider issues, such as cultural or religious influences, or legal implications. There does not appear to be any of the former, though there may be points about the law that have been overlooked. Later, I will explore how the law might take priority over ethical frameworks.
As we know, practitioners are accountable to their patients, their employer, and their professional bodies (NMC, 2008) (Tilley and Watson, 2004). As such, this requires that practice is in accordance with the law of the land (Hope et al, 2003). I am now going to acknowledge the importance of legal implications in Mary’s case. After Mary’s capacity was called into question, following a relapse of her mental health, it was deemed to be present. The Mental Capacity Act (2005) states that capacity should not be called into question unless there is explicit indication that it may be lacking.
Otherwise, all patients should be deemed competent. It seems fair that this assessment was carried out with Mary, following concerns about her vulnerability following the retraction of her disclosure, and also in light of some indication that she may have learning difficulties. Though, despite having been supposed to have this capacity, her autonomy was overlooked regardless. This is where the practitioners involved could be called into question. In addition to this, the presence of suspected learning disability may have heavily influenced the practice of those involved.
It seems that Mary was not involved in the decision making processes, and furthermore, was not made aware of her rights to object. Since the introduction of the Human Rights Act in 1998, the practitioners may be acting illegally, as their actions may contravene article 8, which give people a right to privacy. Mary is not aware of this right and therefore cannot question the authenticity of the decision to invade her privacy. An ideal outcome would be that Mary is appointed an advocate, so that she aware and able to express her opinions and concerns about her care.
This would also ensure that practice remains legal, and protect the practitioners from having action taken against them. Another important point to add is that Mary may be being discriminated against due to her apparent Learning Disability. This would contravene the Disability Discrimination Act (1998). The presence of any disability may prevent Mary from retaining or understanding information that is presented to her, and therefore the practitioners have a responsibility to adapt the way they present this information (Caulfield, 2005).
This is also stated within the professional code of conduct, and is placed at the essence of nursing skills. In addition, it is fundamental to the obtaining of informed consent, which is vital for any interventions offered to Mary (Department of Health, 2009). As demonstrated, the law can often conflict with professional responsibilities and ethical guidance (Griffith and Cassam, 2010). Though a practitioner may feel that they are practicing in a morally ‘right’ way, and that it is for the benefit of those involved, it may not necessarily fall in line with the law.
This assignment has addressed an ethical dilemma from practice and used this to illustrate how ethical frameworks can be utilised to reach a decision about patient care. By mapping the chosen scenario against recognised theories, I have explored ways in which Mary’s care could reach a moral ground. As highlighted, there are strengths and limitations of each theory and not all can be applied in every situation. So, although useful in guiding problem-solving, they must not be the only consideration. I have also considered how the law can sometimes conflict with ethical thinking, though essentially this takes priority.
In combination, the use of ethical frameworks, guidance from the law and professional accountabilities should prove to be the best way of delivering care (HPC, 2008). For Mary, it would appear that practitioners have not approached their decisions in a systematic way. Their efforts to keep Mary safe, whilst being virtuous, are not necessarily going to be the most beneficial in the long-term. Ultimately, and despite the decisions coming from a positive place, her rights and opinions seem to have been ignored, and as such do not follow legal protocol.
To reach a more acceptable level, I feel that it should be a priority for Mary to be referred for an advocate; for her and her carers to be offered psychological intervention and psycho education, so that vulnerability can be address; and for Mary to be housed somewhere near to her family, in a place that will support her to develop her independence and coping skills. This will hopefully bring about a situation where Mary’s care is justifiably ethical, legal and positive for her and her carers. Word count: 2983 References Beauchamp, T Childress, J. , (1989) Principles of Biomedical Ethics. Oxford: Oxford University Press Beauchamp, T.
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