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Ethics and Law in Nursing

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Submitted By jooniebaby
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Contents:

Topic Page Number
Glossary Of Terms 1
Introduction 2
Aspect Of Care 3
The DNACPR Policy 4
Ethics 7
Patients Consent 9
Withholding Information 14
Informed Choice 17
Forcing Information Upon Patients 20
The Nurses Role 22
Conclusion 25
References 26
Appendix 27

Glossary of terms
CPR: Cardiopulmonary Resuscitation.
DNACPR: Do Not Attempt Cardiopulmonary Resuscitation.
NMC: Nursing & Midwifery Council.
GMC: General Medical Council.
BMA: British Medical Association.
GP: General Practitioner

Introduction
The Aim of this module is to encourage me to enhance my personal and professional skills, to increase the efficacy of patient care and interaction. Also to make me more aware of the legal, professional and ethical implications of practice.
The module allowed me to further develop my knowledge of these topics: Ethics & Accountability, Legal Aspects of Practice, finally Accountability & Professional Practice.
I was then asked to submit an essay of 4500 words based on the following:
“Critically analyse an aspect of care from your practice setting that encompasses the ethical, professional & legal role of the nurse. Issues of accountability should be incorporated into this essay”.

Aspect of care
The aspect of care I have chosen to include in my essay is the “Do Not Attempt Cardiopulmonary Resuscitation (DNACPR)” Adult Policy 2010 (please see Appendix 1).
I decided to choose this topic as there was a situation on my ward recently where a patient discovered a DNACPR form in the front of her nursing notes. The patient was very upset as she was not aware of this decision. She was an elderly lady with end stage Chronic Obstructive Pulmonary Disease. It came to light that the consultant had decided that CPR would be unsuccessful on her and had completed the DNACPR without informing or consulting the patient – this would be seen as paternalism by the consultant.

The DNACPR Policy
The DNACPR adult policy was brought out by the Scottish Government in May 2010. This policy is in place to “prevent inappropriate, futile and /or unwanted attempts at CPR which may cause significant distress to patients and families as a death with an inappropriate CPR attempt may be undignified and traumatic.”(Scottish Government 2010).
This policy is widely available over the internet & also on every ward in the hospital for staff & patients to familiarise themselves with.
The DNR (Do Not Resuscitate) decision is crucial for the provision of good quality care, as the experience of resuscitation for both the patient & his / her family & the healthcare professionals is not a pleasant one. There is no dignity associated with the event & relatives are excluded from being with their loved one at the potential point of death (Mason 1997).
Cardiopulmonary resuscitation (CPR) was first introduced in 1960 with the development of closed chest cardiac massage (Kouwenhoven et al, 1960). Described as an emergency procedure, it was originally intended for use on those victims of sudden cardiac or respiratory arrest who had a good survival prognosis (Rundell & Rundell, 1992).
The performance of this emergency event is an expected part of the hospital treatment; in the last decade, this has been glamorised in films & hospital soaps as an exciting heroic event, where the survivor makes an amazing recovery. Unfortunately, neither the glamour nor the success rate seen on screen reflect the real life situation (Diem et al, 1996).
Expectations have altered as health care has advanced (Bandman & Bandman, 1985). Sometimes you get the impression from patients that as our technology is so advanced that surely there must be something that we (doctors & nurses) can do to extend their life.
However, Gordon et al (1998), in their review of the portrayal of heroic attempts to administer CPR in televised medical dramas concluded they had little or no effect on public perception.
Patients presume if they suffer a cardiac arrest they will automatically be resuscitated, of course if they are not aware that they have a DNACPR status then they are perfectly entitled to think this. They also assume if CPR is performed on them that it will bring them back to life as that’s the reason for performing it. The effectiveness of CPR however is relatively low with fewer than half of patients in hospital surviving the initial intervention & only a third of those who survive living to go home (Haas, 1994).
A DNR order indicates that CPR will not be initiated at the time of a patient's cardiac or respiratory arrest, but does allow for all other medical interventions (Resus Council UK, 2001; American Heart Association, 2000).
Some patients automatically assume that as soon as they have a DNACPR status that the medical profession stop treating them & we are just leaving them to die. This of course is not the case as it only means we would not be performing CPR on them if they suffered a cardiac arrest.
Some equate having a DNR order with the withdrawal or withholding of other medical interventions (Jezewski, 1994; Daley et al 1996), which is not the intention. This lack of clarity causes fear among the general public.
CPR can prolong the process of dying and deny patients a dignified and peaceful death (Jevon, 1999). If a patient is in the end stages of a terminal disease it would only prolong their suffering by performing an unsuccessful Resuscitation.
Schultz (1997) comments on the uniqueness of CPR under medical control: It is the only medical intervention performed by non-medical staff that requires a medical order for it not to be performed'.

Ethics
Ethics comes from the Greek word meaning character or customs. Within each society, particular customs & norms develop. While a custom may be sanctioned in one society or context, the custom may not be seen as right by other cultures or societies (Bosek, 2001). Ethics suggest a code of acceptable behaviour or practice & includes the study of social morality as well as philosophical reflection on its norms & practices (Beauchamp & Walters, 1999).
Johnstone (2009) identifies four ethical principles in nursing, they are: Autonomy, Non-malefience, Beneficence & Justice. As these principles will cover a very large area I have decided to try & focus mainly on the principle of Autonomy in relation to the DNACPR Policy.

The term Autonomy comes from the Greek “autos” (meaning “self”) & “nomos (meaning “rule”, “governance” or “law”). When Autonomy is used as a concept in moral discourse, what is commonly being referred to is a person’s ability to make or to exercise self-determining choice – literally, to be “self governing” (Johnstone 2009).
The main issues that I can see in this scenario are: deciding on a DNACPR status without patients consent. Deciding on the DNACPR status without giving the patient all the relevant information for them to make an informed choice. Withholding information from patients. Forcing information upon patients when they have chosen not to receive it. Also the nurse’s role in the situation.

Paternalism, or control over people’s lives, allegedly in their own best interests, is the common denominator of many ethical dilemmas & pseudo-dilemmas in todays medicine & health care (Hayry 1991).
There are complex issues involved in promoting autonomy, including the need to consider national resources, patient choice, individual responsibility, and the legal issues involved in risk management and how these interlink. This is not an easy situation to resolve & requires dialogue between professionals, and between patients and professionals, so that limits on autonomy are explicit. The reality is that patient autonomy cannot be seen as a stand-alone feature of health care, and must be facilitated within complex healthcare finances, policy & politics (Hewitt-Taylor, 2003).

Patients Consent
Consent is not simply a signature on a form: it is the outcome from a process of communication between clinician & patient over the nature of the treatment & investigations proposed & the risks & benefits which could occur (Dimond, 2002).
A patient has the right to be resuscitated if it is likely to be successful & if they have a good prognosis after CPR.
Under article 2 of the European Convention of human rights (please see appendix 2), every person has the right to life:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.
Legally when performing a procedure on a patient you need their consent, so why is it that for a DNACPR status you do not need the patients consent? This to me does not seem right as surely the patient has a right to know what decisions are being made in regards to their health & wellbeing.
Careful consideration should be given as to whether or not to inform the patient of the decision. Although patients should be helped to understand the severity of their condition, whether they should be informed explicitly of a informed decision not to attempt CPR will depend on the individual circumstances. In most cases a patient should be informed, but for some patients, for example those who know that they are approaching the end of their life, information about interventions that would not be clinically successful will be unnecessarily burdensome & of little or no value. Others indicate by their actions & involvement in decision making that they want detailed information about their care & want to be fully involved in planning for the end of life. Therefore an assessment should be made of how much information the individual patient (or if the patient lacks capacity, those close to them) wants to know. The decision must be the one that is right for the patient & information should never be withheld because conveying it is difficult or uncomfortable for the healthcare team. In considering this clinicians need to take account of the fact that patients are legally entitled to see & have a copy of their health records, so it may be preferable for them to be informed of the existence of a DNAR decision & have it explained to them rather than for them to find it by chance. It may be distressing to them to find out by chance that a DNAR decision has been made without them being involved in the decision or being informed of it (RCN, BMA, Resuscitation council 2007).
I do agree with the above in that it would be better for the patient to be fully informed about their care rather that to come across a DNAR (Do Not Attempt Resuscitation) decision by accident, this can be very upsetting for the patient & can also make them question wether or not they can trust you to act as their advocate in future.
Kennedy (2003) identifies that in British culture individuals now expect choices & are more aware of their rights. And Bassett (1993) stated that as patients want to know more about their treatment, diagnosis & future prognosis it follows that they will want more control over the timing & circumstances of their death.
Paternalistic attitudes dominate DNR decisions instead of team discussions which keep everyone informed and up to date about what is happening and why (Castledine, 2004).
Risk assessment may also be in conflict with patient autonomy where NHS trusts, fearful of litigation, increasingly use risk assessment & management as a method of protecting themselves against claims of negligence. This may conflict with patient autonomy but may also be seen to be a result of the changing approaches to healthcare and the increased awareness that patients have of their rights and the potential for litigation if they feel they have suffered harm (Hewitt-Taylor, 2003).
When CPR is futile and offers no benefit & possible harm, then patient autonomy cannot be our only guide (Blackhall, 1987).
Truth-telling follows respect for autonomy, & is required for informed consent. Truth-telling is fundamental to being ethical & moral; however, “it takes two to speak the truth – one to speak, & another to hear” (Tschudin, 1992). So when speaking with the patient about the DNACPR decision it requires openness & honesty from the Doctors & nurses.
It is commonly felt that if a patient is content with his / her quality of life & wishes life to continue, respect for life and the autonomy of the patient should rule out the DNR order. If however, the patient indicates that he / she does not want life to be prolonged, then it is necessary to consider wether respect for his /her autonomy should outweigh the prolonging of life (Castledine, 2004).

Witholding Information
In the past it was often considered inappropriate to burden patients with the onus of decision making regarding their health (kennedy, 2003).
The human rights act 1998 was implemented into UK law in October 2000. Healthcare professionals are now obligated, under the act, to demonstrate that their decisions are consonant with the human rights set out in the Articles of the European Convention (British Medical Association / Resuscitation Council(UK) / Royal College of Nursing, 2001).
The BMA / Resuscitation council (UK)/RCN guidelines are recommended as an appropriate basis for for resuscitation policy (NHS Executive, 2000). The 1999 guidelines maintained that the overall responsibility for a DNAR decision rested with the consultant (or GP) in charge of the patient, but emphasized the need to involve the patient, the healthcare team, and the people “close to the patient” in the decision making process. It would appear the patient, the person upon whom the decision will have the greatest effect, is still being excluded from the decision making process (Womersley, 2000).
The most recent guidelines (BMA et al, 2001) sought to draw the attention of health professionals to the Human Rights Act 1998. Provisions within the act that are relevant to decisions about attempting CPR are: Article 2 (the right to life), Article 3 (the right to be free from inhuman or degrading treatment) & article 10 (the right to freedom of expression, which includes the right to hold opinions & to receive information) (BMA, 2000; BMA et al, 2001). So it’s stating that the “right to life” means the patient has a right to be involved in the decision process, but yet “free from inhuman treatment” would mean CPR which leaves the patient in a vegetative state would be “torture”.
Failure to inform the patient of the significant risks of substantial harm arising would give rise to an action in negligence for breach of duty to inform the patient according to the reasonable standard of care ( I.e. the Bolam test; Bolam v Friern Hospital Management committee, 1957(see Dimond 2004)).
The current law & medical Practice is as follows. It is a principle of law & medical practice that all adults have the right to consent to or refuse medical treatment (lord chancellor, 1999, paragraph 16).
Doyal (1993) stated; there is no convincing argument that competent patients have any less right to know that they are being considered for non-resuscitation than they have to other general information about their treatment options.
Loewy (1991) suggests that involving patients in resuscitation decisions is perhaps more painful for the health-care professional than it is for the patient.
Traditionally medicine adopted a paternalistic approach to decision making about resuscitation; there was little or no consultation with the patient, family or other relevant health care professional, in particular the nurse (Mason, 1997). doctors justified paternalism using the premise they did not wish to cause patients undue distress (Hill et al, 1994; Stewart 1995). however, it is recognised that doctors often use their professional experience & knowledge of medicine to justify their decisions instead of using the wishes of patients as a basis (Grundstein – Amado, 1992).

Informed Choice

The principle of respect for autonomy is arguably the most fundamental of moral principles (Fletcher & Buka, 1999).
Also it has been suggested that reducing a persons autonomy reduces his/her wellbeing and that a failure to respect autonomy affects the moral requirement to promote health (Wilmot, 2003).
So Wilmot is stating that by reducing the freedom to choose it will effect the patient’s health – possibly in fact decreasing it, so by not informing the patient you are in fact making them more ill. So does this mean by making the patient more informed of their choices it would increase their health? It could also be said that morally you could ignore a person’s autonomy if you had the aim of improving their health. This would become a paternalistic approach. Illich (1977) sees this kind of medically – dominated view of health as an instrument of oppression, being harmful & not in the best interests of the patients.
The expectation is now that patients should be informed & viewed as equal partners in decision making (DOH, 2000; Joffe et al, 2003; RCN,2003; Sullivan, 2003).
Kennedy (2003) identifies that traditionally the patients best interests were unquestioningly judged by doctors & that it would have been considered unreasonable and even harmful to impose the burden of decision making on patients (Kennedy, 2003) and, in contrast to earlier thinking a harmful approach (Illich, 1977).
Individuals may be independent, able to reason and to make decisions, but in order to make autonomous decisions regarding their health, they need sufficient information. Providing information in a way that facilitates autonomous patient decision making is an ethical obligation for healthcare professionals (Flecher & Buka, 1999). Canter (2001) identifies that even when patients are given extensive information, this information will almost inevitably be influenced to some degree by the individual practitioner’s views of health & his/her interpretation of the evidence.
In the past, potentially distressing diagnoses were sometimes withheld from patients, allegedly in their best interests. Current thinking on respect for autonomy & partnership in care suggests that such conduct is outmoded (Rudnick, 2002). Kennedy (2003) & Rudnick (2002) acknowledge that such discussions may be difficult, but do not see this as a valid reason to disregard the complex issues involved in facilitating patient autonomy. assisting patients to a position of maximum autonomy involves enabling them to access unbiased information. Providing value-free information includes staff being ready to engage in debates that include awareness of the interpretation which their own values and beliefs unavoidably impose on the evidence (Canter, 2001).
Advanced directives or “living wills” have been considered to be more useful for use in family practice (Arenson et al, 1996) but they do not seem to have been met with the same enthusiasm in the UK as they have in the US. The way that health care is delivered differently in the two countries may have an influence. Competent individuals make advanced directives about treatments that they would accept or decline if they subsequently become incompetent to decide. They are seen as a way of increasing patient autonomy (Arenson et al, 1996; Bruce- Jones, 2000).
Article 3 of the European Convention of human rights states that: no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
CPR can be withheld in this situation: where effective CPR is likely to be followed by a length & quality of life which would not be in the best interests of the patient to sustain (NHS Executive, 2000).
Recent cases have highlighted the desirability of consultation with patients & their relatives before making a decision to resuscitate. This particularly relates to cases where DNR orders have been written in the notes of elderly patients without their knowledge (Rumbelow, 2000; Shah, 2000; Mayor, 2001).

Forcing Information Upon Patients the key in autonomous decision making appears to be for healthcare providers to ascertain how far each individual wishes to be involved in decisions about his/her treatment or care and to facilitate this level of involvement (Kaplan, 2002). Nurses spend more time with patients and are possibly better placed than medical staff to engage in discussions regarding their preferences respecting information (Mulhall, (1998); GMC, (2000). when determining wether in all the circumstances of a particular patient's case a DNAR order would be lawful, healthcare professionals are urged by both the courts & their regulatory authorities to inform their best practice & decision making by reference to best practice guidance on the use & withholding of cardiopulmonary resuscitation (R (Adult: medical treatment) 1996; Glass v United Kingdom, 2004 (see Griffith, 2007)).
A strategy to prevent inappropriate resuscitation would be to ask all patients during each hospitalisation about their preferences. A 'cost' of this strategy would be the immeasurable fear & anxiety caused to patients and perhaps their families, who had been urged to make decisions regarding cardiac events that may never occur (Stevenson, 1998). It would be more realistic to select patients who were thought to be at greater risk of a cardiac arrest.

Nurses role
The Code of Professional Conduct (UKCC, 1992a) made it clear that the ‘other’ the nurse supports or speaks for is the patient, not the doctor or institution. The UKCC expects nurses to acts as a patients advocate. The role of the nurse is to inform & support patients in their decisions (Kohnke, 1982).
Rumbold (1993) argued that if nurses believe any treatment is being incorrectly or unnecessarily carried out, they have both a right to refuse to participate and a duty to make a complaint.
From an ethical standpoint the concept of nursing advocacy can be justified. From a legal perspective Dimond (1995) identified four areas of accountability: the public, the patient, the employer & the profession.
Although the concept of nurse advocacy is compatible with Dimond’s areas of accountability, it is not recognised in law (Mallik & McHale, 1995).
Power struggles are most likely to develop between doctors & nurses. Medical reaction to nurse advocacy has been mixed, but largely cautious. Some doctors have felt threatened by nurse advocacy, insisting that it is the doctor’s responsibility to give information, that nurses are not adequately prepared to take on the responsibilities of advocacy & that nurses should not encroach on doctor’s traditional roles (Marshall, 1991).
There is evidence to suggest that autonomous nurses experience greater job satisfaction (McCloskey, 1990; Dwyer et al, 1992; Tingle, 1992).
Hospital nurses want equal involvement & consultation with each DNAR decision made. Recognition by medical colleagues of their unique relationship with the patient in discussing resuscitation issues is paramount. This recognition should also be clearly defined, not only within hospital policies, but also at a national level. This latter finding supports literature, such as the work of Lofmark & Nilstun (1997) (Jepson, 2003).
Jepson (2003) then goes on to say: hospital nurses want their responsibilities & role clearly defined. They also want discussions with patients to begin earlier & to be sought at every available opportunity. The hospital ward environment appears to be inappropriate for discussing such issues with patients & their families in a sensitive, confidential & professional manner.

Both the NMC & the GMC have made it clear that failure to follow the guidelines could result in the practitioner being held accountable for their actions to the regulatory authority, their employer, the patient & the law (NMC 2005, GMC 2006).
The courts have stated that where a case involving a dispute over withdrawing or withholding of treatment comes before them it is invariably as a result of a health professional failing to follow the guidance. In Burke v GMC (2005) a number of patients challenged the lawfulness of the of the GMC’s guidance on withdrawing & withholding treatment (GMC, 2006). The court of appeal held that in each case it was the failure of the health professional to follow the guidance that had lead to the dispute rather than the guidelines themselves being unlawful.

Conclusion
Nurses must be ready to work collaboratively with patients and within the multidisciplinary team to enable patients to express their own point of view, commensurate with their desired level of involvement indecision making (Hewitt-Taylor, 2003).
My role as a nurse is to represent the patient & their best interests (as stated in NMC code of conduct), I feel that unless the patient is critically ill that they should be made aware if a DNAR status is to be decided for them. after all it is their body & their overall health we are deciding.
This in turn brings out a certain conflict between the nurses & doctors as the doctors feel that it is their decision & their role to discuss these issues with the patient. The patients however spent most of their time with the nurses & so we do tend to know them better – rather than the consultant that they may see every other day. Surely then the nurses should have some kind of input into the decision of a DNACPR status.

References
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Appendix

1. DNACPR Policy.
2. Human Rights Act 1998.
3. NMC: The Code: Standards of Conduct, Performance & Ethics for Nurses & Midwives.

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