Ethical Distress

Quality & Safety in Health Care Write an essay of around 2,000 words (+/-10%) that draws upon Steps 1 – 3 of the decision-making framework (McDonald & Then 2019) to explore and analyse the legal and ethical implications of the case study given in the instruction document below. See Assignment 3 Instructions and Marking Rubric for the Case Study, further instructions and the marking rubric You will also need to access the Decision Making Framework discussed in McDonald, F. J. & Then, S. H. 2019, Chapter 2: Ethics and ethical decision- making frameworks, in Ethics, law and health care: a guide for nurses and midwives, United Kingdom: Red Globe Press See below or in the Readings list for Module 6. Case Study:Apply the decision-making framework (McDonald & Then 2019) to this case study (Steps 1-3 only).Huang is a registered nurse and has recently commenced employment in a regional South Australian town in a large nursing home. During his shifts he is the only registered nurse in charge of 68 residents, 35 of whom have high care needs. The majority of high care residents have been diagnosed with dementia or related disorders. Most of his shift involves completing medication rounds through various wards and documenting records. The nursing home is constantly plagued with understaffing issues. Huang has little time to attend to the individual needs of residents. Assistants in Nursing provide most of the care to the residents in both the low care and high care wards. During his first week at the nursing home Huang has witnessed the following incidents in the 12-bed high care dementia ward: •At any given time up to eight 'mobile' residents in the ward are restrained in chairs (the other four are restricted to bed) for lengthy periods of time. Two of the more alert residents display signs of psychological distress as a result of the restraint. One of the patients continually asks to have the restraint removed. Huang has been told the restraints are necessary to prevent falls as there is not enough staff to watch the residents and ensure their safety. •One aggressive and noisy resident is restrained at all times and 3 is often moved to a secured room for long periods of time, particularly during peak visiting hours. Huang has been told that visitors have complained about the resident's constant screaming and that his noise also upsets other residents in the ward and therefore the seclusion of this patient is necessary for the comfort of others. Reference Case is adapted from McDonald, F. & Then, S.- N. (2019). Ethics, Law & Health Care: A Guide for Nurses and Midwives (2nd ed.). Macmillan International; Red Globe Press Decision-making framework (Steps 1 – 3) For more information and examples of applying the framework, please see Chapter 2: Ethics and ethical decision- making frameworks, in McDonald, F. J. & Then, S. H. 2020, Ethics, law and health care: a guide for nurses and midwives, United Kingdom: Red Globe Press Instructions: Refer to the Student Learning Centre resource ‘writing an essay ’ for detailed instructions about how to prepare, structure and write an academic essay. Your essay must have an introduction, body and a conclusion, and itmust be referenced using APA style (2020, 7th). It is a good idea to use headings based on Steps 1-3 of the decision-making framework (McDonald & Then, 2019) to help you create aclear and structured argument. However, this is not mandatory as the main focus is ensuring the essay structure and ideas are clear and logical. Academic papers are usually written in the third person, however some parts of this essay may require you to write in the first person (i.e. using ‘I’and ‘me ’)because you are writing from your own perspective as a nursing student. For example, when you are discussing how you would respond to the situation (Step 3). Regardless of whether you are using first or third person, it is expected that you use formal/professional language and writing style. Additional resources: The Student Learning Centre has many great resources to support your academic writing skills. Some examples of especially relevant resources include ‘Introductions & conclusions ’, ‘Paragraphs ’and ‘Case Studies ’.You can also access the Learning Lounge or Studiosity for further individualised support. If you have questions about this assessment, please post them on the ‘Assessment Forum and FAQs ’so that everyone can benefit from the answers. You may also find that somebody else has already asked and received an answer for your question. If you continue to have difficulties with the assignment despite accessing the above resources, you should email your tutor for support. It is important to do this early, so you have time to implement your tutor ’sadvice. https://students.flinders.edu.au/support/slss/online- guides https://students.flinders.edu.au/support/slss/online-guides Assessment criteria Introduction (10%) Purpose of paper comprehensively stated and described. Comprehensive outline of all key points to be discussed. Succinctly outlines essay structure. All key terms clearly and concisely defined. Core content/main body （ 60% ） Correctly identifies & comprehensively explains all key legal & ethical issues. Comprehensive and insightful summary of all key stakeholders and their interests. Concise and relevant summary of what further information is needed. Comprehensive identification and application of core relevant legal and/or ethical principles. Comprehensive identification and application of relevant legislation and/or professional guidelines. Application of legal and/or ethical principles effectively addresses the complexity of the case and manages conflicts between ethical and/or legal principles. Discussion indicates the case has been comprehensively considered from multiple viewpoints.Proposed actions are insightful, relevant and within the scope of practice of a nursing student. Proposed actions comprehensively address issues identified in step 2.Ethical and/or legal reasoning underpinning the proposed actions is comprehensively explained.The intended outcomes of the actions are logical and comprehensively identified. Conclusion (10%) Conclusion providescomprehensive and concise summary of all key discussion points. The conclusion does not introduce new ideas, discussion points or references. Assignment instruction Resource provided by the university Commonwealth of Australia, 2021, Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect, https://agedcare.royalcommission.gov.au/sites/default/files/2021- 03/final-report-volume-1_0.pdf Aged Care Quality Standards, https://www.agedcarequality.gov.au/providers/standards Minimising the use of restraints -https://www.agedcarequality.gov.au/resources/minimising-use- restraints Minimising restraints in aged care -https://www.health.gov.au/health-topics/aged-care/providing-aged- care-services/working-in-aged-care/minimising-restraints-in-aged-care Reducing the use of sedatives - Scenarios involving physical and/or chemical restraint - https://www.agedcarequality.gov.au/resources/scenarios-involving-physical-andor-chemical-restraint Blow is the copied chapter from the book---- Decision Making Framework discussed in McDonald, F. J. & Then, S. H. 2019, Chapter 2: Ethics and ethical decision-making frameworks, in Ethics, law and health care: a guide for nurses and midwives, United Kingdom: Red Globe Press See below or in the Readings list for Module 6. 14 ETHICS, LAW AND HEALTH CARE to form as an organised profession in the nineteenth century. Part of the process of establishing a health profession is that the professions in ques-tion enter into what has been termed a 'social contract' -an unwritten (implied) contract between the professions of nursing and midwifery and the public. In law a contract is entered into by at least two parties and each party provides what is termed 'consideration', or something of value to be offered to the other party, as part of their contract. The terms of the social contract between the professions of nursing and midwifery and the public are, simply put, that the public will go to the professions for nursing and midwifery care and treatment and, in return, the profes-sions of nursing and midwifery make sure those professions provide sat-isfactory care and treatment. The consideration in each case is that the public will use or access services provided by nurses and/or midwives and allow some degree of self- governance by the nursing and midwifery professions and, in return, the professions promise to regulate the prac-tice and conduct of nurses and midwives (discussed in more detail in Chapter 4). One mechanism through which the professions do this is through establishing ethical and other standards for practice and conduct -Codes of Ethics and Codes of Conduct. These types of codes have a long history, with the medical profession's Hippocratic Oath being an early example of a code for ethical and professional practice. These documents are 'living' documents that evolve over time as the nursing and midwifery professions assess their role in our ever-changing societies and health care systems. A significant recent change has been the release of updated Aus-. tralian Codes of Conduct for both nurses and midwives in 2017 and the adoption of international Codes of Ethics for both professions in 2018. All these documents seek to provide guidance to students, nurses and midwives working directly with patients in a clinical setting, or in any other nursing or midwifery setting (for example, research, management or education). Codes of Ethics Prior to 2018 nurses and midwives in Austr4lia had national Codes of Ethics. However, in March 2018 these national codes were replaced with international Codes of Ethics. The Nursing and Midwifery Board of Australia, the Australian College of Midwives, the Australian College of Nursing and the Australian Nursing and Midwifery Federation jointly agreed to adopt the International Council of Nurses Code of Ethics for Nurses -referred to in this text as 'ICN Code of Ethics' (ICN 2012) -and Le S- n y~s )f lS ylS s- t-Le ~s yilh ~s y, le :e y:e s-Le 3. d .y lt)f d d re .y )r d ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS Hi the International Confederation of Midwives Code of Ethics for Mid-wives - referred to in this text as 'ICM Code of Ethics' (ICM 2014) -as the appropriate documents to guide ethical decision-making for nurses and midwives in Australia. These high-level Codes of Ethics have been developed with consid- eration of broader international developments in human rights and the delivery of health servic;es. In the preambles to both Codes of Ethics the importance of human rights to both professions is emphasised. As such, the Codes of Ethics for these professions draw not just on ethical theory but on human rights norms, indicating the nursing and midwifery profes-sions' commitment to respecting, promoting, protecting and upholding fundamental human rights (ICN 2012, pp. 1, 2; ICM 2014, p. 1). Both Codes of Ethics have common purposes: ► To identify the fundamental ethical standards and values to which the nursing or midwifery professions are committed. ► To provide a reference point for self-reflection and reflecting on the conduct of others. ► To guide ethical decision-making and practice. ► To indicate to patients, families, colleagues and communities the profes-sions' commitment to upholding certain ethical values and human rights. Both the ICN and the ICM Codes of Ethics acknowledge the reality that ethical analysis occurs at different levels and that ethical responsibilities are not just to patients. The Codes of Ethics recognise that ethical analy-sis occurs at an individual level with nurses and midwives needing to be self-reflective, needing to reflect on the needs of patients or women and infants (and families) and colleagues. It is also recognised that nurses and midwives should consider their responsibilities to communities. Codes of Conduct Unlike the Codes of Ethics, national Codes of Conduct exist for each profession that establish the minimum standards of conduct that a nurse or a midwife is expected to maintain while acting in a professional capacity in order to maintain the public's trust and confidence in the professions of nursing and midwifery in Australia (NMBA 2018a, see also Appendix A this; NMBA 2018b, see Appendix B this). Having national Codes of Conduct allows specific consideration of issues of importance in 16 ETHICS, LAW AND HEALTH CARE the Australian context -in particular to recognise the human rights of Aboriginal and Torres Strait Islander people. The Codes of Conduct are far more detailed than the Codes of Ethics, with both professions' Codes of Conduct dealing with the following: ► Legal compliance ► Person/woman-centred practice ► Cultural practice and respectful relationships ► Professional behaviour ► Teaching, supervising and assessing ► Research in health ► Health and wellbeing. These Codes of Conduct are an important component of the social con-tract between nurses and midwives and the public. It is explicit in the codes that a breach of the Code of Conduct may provide grounds for dis-ciplinary action (see Chapter 4 for further discussion). Ethical theories However, no Code of Ethics or Code of Conduct can possibly address all the ethical challenges a nurse or midwife may encounter in practice. This is where ethical theories can assist by further clarifying the ethical values that arise. As discussed in Chapter 1, there are a variety of ethical theories that can be used; however, in this book we focus on using the Interna-tional Codes of Ethics and Australian Codes of Conduct supplemented by the use of the principles approach. A general introduction to the princi-ples approach is set out in Chapter 1. The principles were developed in the late 1970s by philosophers Beauchamp and Childress (2013) to bridge the gaps between the abstract nature of much ethical theory, the realities of clinical practice, and common morality. They devised four principles that they suggest are at the heart of ethical analysis conducted in a health care context. These principles were derived from their observation of the key values that arose in the context of clinical practice but are also consistent with the values and perspectives of a number of religious and moral traditions. The principles approach is not without its critics, Some suggest that, although there may be consistency between the principles and some religious and moral traditions, the principles are based in, and derived :l-ie s-tll cis es es a- )Y :i-in ge es es th of so 1d tt, :ie ~d ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 17 from, a western paradigm and are not universally applicable. Some sug-gest that use of the principles approach results in health professionals who are able to rattle off the four principles but who are unable to actu-ally use the principles in a meaningful way in a clinical setting. The intention is that these principles guide ethical reflection; they may not and, in fact, generally will not provide definitive answers, instead leaving some scope for judgement and flexibility in order to respond to specific contexts. There is no hierarchy between the principles - each is considered equally as important and critical. A challenge in using the principles is that sometimes the principles conflict and the model provides no guidance as to how to resolve such conflicts. Again this calls for a judgement to be made as to the relative importance of each principle and that judgement will be shaped by every person's individual and professional values and by the situation itself. Additionally, sometimes when a particular value is analysed itcan result in two arguments: one supporting a proposed course of action and the other opposing it. For example, a best interests/harm argument could be made that an anxious patient or women should not be told of an adverse event as it might cause them psychological harm. But a best interests/harm argument could also be made that it is in the best interests of the patient to be told so that they can plan their care, do not feel as though they had been deceived, and can maintain trust in health professionals. The four principles identified by Beauchamp and Childress are set out in Figure 2.1. These principles are discussed in more detail in the sections that follow. Autonomy- To respect a patient's right to make choices about what he or she believes to be in his or .her best Interests (for example, obligations in /elation to informed consent, communication, confidentiality, respecting the patient's right to ·· make decisions about themselves even if the nurse disagrees, truthfulness, and promise-keeping). Beneficence -The duty to benefit others (for example, obligations to act in a patient's best interest and to undertake professional development and training). Ethical Principles Non-maleficence - The duty to do no harm and to protect others from harm (for example, obligations to provide care of an appropriate quality, to act in a 'manner that is consistent with the Code of Conduct, to not exploit patients, and to self-report and report others to appropriate authorities ifthere is a •possibility that serious harm might result). Justice -The threefold duty to: ensure the fair distribution of scarce resources (distributive justice); respect patient rights (rights-based justice); and respect morally acceptable laws and to be accountable for one's actions or inaction (legal justice). Figure 2.1 Summary of Beauchamp and Childress's ethical principles 18 ETHICS, LAW AND HEALTH CARE Autonomy A key ethical norm in western liberal societies is autonomy -the right to choose for yourself what is in your best interest or how to live in accord-ance with your values -in other words, self-determination. A judge from the United States has described autonomy in the health context as 'Every human being of adult years and sound mind has a right to determine what should be done with his [or her] own body' (Schloendorff vSociety of New York Hospital (1914) 211 NY 125 at 126). This is a limited expres-sion of what autonomy means in a health context because the ethical principle of autonomy is more extensive than this and goes beyond bod-ily integrity. If a competent adult has the right to make choices about what is in her or his best interest this creates an ethical obligation for nurses, midwives and other health professionals to respect individual autonomy. In prac-tice, respecting an individual's decision-making capacity means that nurses and midwives must: ► Provide patients with the information that they need to make an informed decision. ► Support the making of informed decisions by patients, including through recognising some patients will need additional time and assis-tance in decision-making (supported decision-making) and advocacy. ► Effectively communicate with patients. ► Tell the truth. ► Keep information confidential (within limits). ► Respect a patient's privacy. ► Keep promises. Above all, nurses and midwives must, in accordance with this principle, respect an individual's capacity to make decisions about what is best for them -even if that decision is to refuse treatment, to undertake a treat-ment option that the nurse or midwife does not believe is appropriate or to make a decision that does not accord with that nurse's or midwife's values. No matter how irrational, misguided or 'stupid' a nurse or midwife may think a decision is, ifthe patient is an adult and is judged compe-tent, then their decision must be respected, even if it places their life at risk. Nurses and midwives can educate, inform and advise but, ultimately, in accordance with this ethical principle, they must respect the individ-ual's right to make decisions and support the patient's exercise of their to rd- )m ery lne :ety ·es-cal )d- 1er ves ac- 1at an ng ;is- 1le, for at- or e's ife Je- at ly, ld- eir ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 19 decision-making capacity, within the limitations described below. The position is a little more complicated in respect of infants, children, teen-agers and adults with impaired decision-making capacity and these issues will be discussed in Chapters 5 and 6. It is important to note that autonomy is a particularly important concept in western liberal democracies like Australia. These societies are built around the idea of rational individuals making decisions about how to live their lives. This does not accord with the societal values of all cultures or societies -even within Australia. Australia is increasingly diverse so in your professional practice you will encounter patients whose view of autonomy is different from yours. Some cultures and societies, such as Aboriginal and Torres Strait Islander societies, may have a more communitarian ethos where an individual's decision-making capac-ity is subsumed within that of the family or community (McGrath and Phillips 2008). For many traditional Aboriginal communities consent may be given by the individual in terms of signing off the paperwork but in reality is a function of the extended family and perhaps also key members of the community. This in turn may mean that different considerations apply in terms of confidentiality, privacy and the length of time required to obtain consent (McGrath and Phillips 2008) (see Chapter 7). Feminist bioethicists also critique traditional notions of autonomy from within a western paradigm (Sherwin 1992). Even in traditional western societies feminist bioethicists suggest that the coricept that we make decisions as individuals based on what is best for us as individuals is unpersuasive. They suggest that we exercise our autonomy relationally. Relational autonomy recognises that we generally do not make decisions only considering our personal interests but, in reality, we also consider the interests of others as part of our decision-making framework. For example, a person may delay a procedure because there is no one to look after their children. All of this is to say that, although autonomy is a key concept in ethics and law, it may not be a concept that is understood the same way by all patients or accorded the same importance. Nurses and midwives need to be aware of this and consider what autonomy might mean for the patient and their family. There are also limits on an individual's exercise of autonomy. The philosopher John Stuart Mill (1985) suggests that the only justifiable limitation on an individual's exercise of their autonomy is when the exer-cise of that autonomy may place others at risk of harm. In order to have peace, order and good governance we restrict an individual's choices when those choices have the potential to impact negatively or to harm others. For example, as a society we justify the compulsory hospitalisa-tion of individuals with a mental illness who are posing arisk to others 20 ETHICS, LAW AND HEALTH CARE as necessary to protect the public. Some argue that further limits on an individual's autonomy may be imposed to protect that individual from self-harm. For example, as a society, in limited circumstances, we justify the compulsory hospitalisation of those individuals with a mental illness who are threatening self-harm, despite the fact that suicide is no longer illegal. We also make itillegal to possess and use a range of 'recreational' drugs. However, in some cases the desire to prevent an individual from self-harm was used to justify shielding patients from decision- making, concealing information or misleading or lying to patients, because it was presumed to be in their best interest -such as, not telling a patient she had a sexually transmitted disease in order to protect the patient's mar-riage. This approach has largely been rejected in western nations as being paternalistic as it undermines an individual's autonomy and is contrary to patient-centred care. However, in some circumstances, not providing a patient with information about their health status may still be considered appropriate in some cultural traditions. For example, in Japan and Korea it has traditionally not been considered appropriate to disclose cancer diagnoses to the patient (although attitudes towards this are changing) (Ells and Caniano 2002). Justice The ethical principle of justice has three faces: (1) distributive justice -ensuring the fair distribution of benefits and burdens; (2) rights-based jus-tice -respect for patient rights; and (3) legal justice -respect for morally just laws and being accountable for one's actions or inaction. The conversation about the distribution of benefits and burdens can occur at the societal level -for example, we ask questions such as: Who gets what from the health system? Are we providing enough resources to groups with poor health outcomes? However, these conversations can also occur at an individual level. An issue that was discussed in Western Australia was whether that state should provide funds to·a young woman who was addicted to drugs to go overseas for her second organ transplant. That transplant would replace her first transplanted organ that had been damaged by her ongoing addiction. Should funding, even a loan, be pro-vided to her when that money could be used in other areas of the health system to save another life or lives or to improve the quality of life of others? Should we make judgements about which individuals are 'worthy' of receiving services or should we be examining which individual is most likely to benefit from health care interventions? (ABC News 2010). The second face of justice is rights- based justice -where one should respect patient rights. There are a number of sources of patient rights. In Australia, the Australian Charter of Healthcare Rights (the Charter) ~ ~ t~ ~ ~ I~ ~ 1'~ ~ ~ 1~ 1 l n n y5S ~r 11' n g, lS 1e r-ig ry a ~d ~a er g) lS- lly in clO :es an rn an clt. en ro- lth of 1y' DSt 1ld ltS. er) ETHICS AND ETHICAL AND LEGAL DECISION- MAKING FRAMEWORKS 21 developed by the Australian Commission on Safety and Quality in Health care (2008), is one source of moral rights for patients throughout Aus-tralia in all care settings. At an international level, the United Nations Con-vention on Persons with Disabilities and the United Nations Convention on the Rights of the Child recognise certain rights of people with disabilities and children. The third face is legal justice -which is to act in a way that respects or complies with morally acceptable laws and to be accountable for one's actions or inaction. An example of a morally unacceptable law today would be a law that forcibly sterilises certain segments of the community. Accountability is also an important part of justice. Accountability can be in the prospective sense -of making a decision, acting on itor choosing not to act and assuming responsibility for any consequences that may fol-low. Or accountability can be in a retrospective sense -where your peers (formally or informally), a health complaints agency, a coroner, a court/ tribunal or you yourself hold you accountable for a past act or omission to act. Accountability is a critical part of the social contract between the professions of nursing and midwifery and the public as itis, in part, the basis on which the public's trust rests. Beneficence Beneficence is the duty to benefit and assist others, to care for their welfare and to always act in the best interests of the patient. This duty extends to the need for nurses and midwives to undertake professional development and training, to comply with the competencies expected of registered nurses or midwives, to collaborate effectively with others, to keep good records and to advocate for patients, or, in other words, to take positive steps to act in a patient's best interest. The necessity to act in the best interests of the patients is viewed as self-evident for nurses and midwives as caring lies at the heart of these professions. The principle of beneficence applies to individual patients but also to society as a whole. For example, the good health of a particular patient is an appropriate aim of nursing but so too is the prevention of disease through public health- related programs which benefit the population as a whole. It is sometimes suggested that beneficence can only go so far. For example, nurses are duty- bound to seek to benefit their patients; how-ever, what happens iftwo patients need treatment at the same moment? There has to be some criteria for deciding who receives treatment first (an issue discussed under the principle of justice), which means that, strictly speaking, the best interests duty to one of those patients has been breached. Another example of the difficulties comes when one considers the separation of conjoined twins when one twin will die as the result of tra-but [in ,as J.Ce ple fes- tar-ted em ha ose Les, ter- ::>m :of Ke 1ry tct. 1th ::>n. 15), or, :er-lity n. ide rm 1ty ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 23 ,,. Not commit criminal acts (for example, rape, indecent assault, torture, murder or selling drugs to patients). ,,. self-report concerns about competence or conduct (that is, difficulties in performing certain functions, illnesses or addictions that inhibit performance, certain criminal convictions). ,,. Report others to appropriate authorities if their performance or con-duct creates a possibility that serious harm to patients might result. This principle affirms the need for professional competence. Decision-making framework The codes and ethical principles discussed above may not in isolation assist a nurse or midwife facing an ethical and/or legal problem in prac-tice. A decision-making framework provides a process through which nurses and midwives can systematically consider the situation and its legal and ethical implications and come up with a conclusion or a course of action. There are a variety of decision-making frameworks avail-able (see, for example, Swisher and Krueger-Brophy 1998; Purtilo 1999; NMBA 2007; Kerridge et al. 2013). However, in this book we are using the framework set out in Figure 2.2. The framework presented is one way to approach these issues but is not the only way. Ultimately, each nurse and midwife must reflect about ethics and ethical decision-making and take responsibility for integrating ethics (and legal knowledge) into their pro-fessional practice. Step One: Identify issues and collect information How do Iidentify or recognise an ethical issue? The first question that many ask is 'how do Iidentify or recognise an ethical issue?' An ethical issue might be experienced in three ways: 1. As an ethical violation - incompetence or deliberate wrong-doing in the context of professional practice. 2. As an ethical dilemma -arising from a situation where there may be opposing but equally morally legitimate approaches to resolving a dilemma. 3. As ethical distress -moral distress (guilt, concern, distaste) arising from action or inaction -sometimes actions or inaction imposed on a person by another health professional, organisation or government. 24 ETHICS, LAW AND HEALTH CARE Identify options Act upon decision Make a decision & take responsibility Justify decislon Plan for consequences Evaluate decision-making process Figure 2.2 Decision-making framework Seek support if needed Ethical violations -incompetence or deliberate wrong- doing -place patients at risk and are unethical. Perhaps the most serious ethical vio-lation one can imagine is when a health professional takes advantage of their position to murder their patients. In 1991 a nurse, Beverley Allitt, was convicted of murdering four children, attempting to mur-der three others and the grievous bodily harm of six other children in the paediatric unit at Grantham and Kesteven Hospital in the United Kingdom (UK Department of Health 1994). In Australia a nurse, Roger Dean, pled guilty to the murder of 11 nursing home. patients and to eight counts of recklessly inflicting grievous bodily harm, as well as other charges, after he set fire to the nursing home where he worked (ABC News 2013). Reports have also been made of a Japanese nurse arrested for fatally poisoning patients in hospital (Sydney Morning Herald 2018). While such extreme deliberate wrong-doing is fortu- nately rare, other forms of serious violations, such as boundary viola-tions involving sexual assault or misconduct, are less rare. Violations also include recklessness or incompetence; where, for example, a nurse or midwife deliberately chooses to ignore good infection control practices, such as handwashing, they may be considered reckless or Ke 'io- 1ge ley ur-in' ted ger to as :ed rse ng tu- ila- ms a rol or ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 25 they may not understand the importance of maintaining good infec-tion control practices because they lack competence or are careless, In relation to violations, nurses and midwives have responsibilities to participate in professional development and to self-monitor their performance. Nurses and midwives also have an important role to play in exposing incompetence or deliberate wrong- doing to ensure that patients are safe, They may uphold this role by contributing to internal reporting and monitoring processes and, where institutional processes do not exist or are not responsive, by whistle-blowing (see Chapter 4). A recent Australian instance of whistle-blowing by a nurse was in 2004/2005 when Toni Hoffman, a nurse unit man-ager in the intensive care unit at Bundaberg Hospital, raised inter-nally, and ultimately externally, concerns about the competence of Dr Jayent Patel. A Commission of Inquiry ultimately commended her for her actions and concluded that Dr Patel's conduct and practice were below the expected standard and that systems at Bundaberg Hos-pital were inadequate (Queensland Public Hospitals Commission of Inquiry 2005). Ethical dilemmas -situations where there may be opposing but equally morally legitimate approaches to resolving a dilemma. An example of a significant ethical dilemma is illustrated by the legal case Re A (children) (conjoined twins) [2001] Fam 147. In that case the English Court of Appeal was asked to decide whether conjoined twins should undergo a surgical separation. Without the procedure both girls (referred to as Mary and Jodie for the purposes of the legal proceedings) would die within a relatively short period of time. How-ever, the surgical separation would result in Mary's death -she would have no chance of survival. Jodie and Mary's parents refused the pro-cedure based on their religious beliefs and, no doubt, the cruelty of the choice they were asked to make. The Hospital and the health care team were of the view that the surgery should proceed to save Jodie's life. In his judgement Lord Justice Ward of the Court of Appeal wrote: 'Icannot emphasise how much Isympathise with them [the parents] in the cruelty of the agonising choice they had to make. Iknow because Iagonise over the dilemma too' (Re A (children) (conjoined twins) at 196). No doubt the health professionals involved in caring for the twins agonised over the dilemma as well. The Court of Appeal concluded in this case it was permissible that the surgery proceed, despite Mary's certain death, and that the refusal of the twin's parents could be overruled by the Court as it was in Jodie's best interests to live. The Court ordered that the surgery proceed. Mary died during the procedure. Jodie survived. This type of case is exceedingly rare, more i~ 26 ETHICS, LAW AND HEALTH CARE commonly a patient or family may wish to refuse treatment when the health care team is convinced it is in the patient's best interest, at least from a clinical perspective. Another example of an ethical dilemma that may confront nurses and midwives is that an individual's personal values may, at times, conflict with the values of the nursing and/or midwifery profes-sions. An example of this may be in the midwifery setting where some nurses or midwives (and other health professionals) may feel conflicted between their personal values -that breastfeeding of newborn infants should always be attempted -and professional values that emphasise the right of a woman to make her own decision, including the decision not to attempt breastfeeding. This conflict may also cause ethical distress. Ethical distress -moral distress arising from action or inaction -sometimes imposed on a person by another health professional, organisation or government. Moral distress might arise, for example, in the context of participating in the surgery to separate Mary and Jodie knowing that Mary would die as a direct consequence. Moral dis-tress might also arise in the context of determining whether to report a colleague or to act as a whistle-blower (see Chapter 4). It might also arise when the policy of an institution conflicts with a nurse or mid-wife's professional values, for example when a decision is made by an institution to move a mental health outpatient service to a small block of shops at the edge of the city, with no effective public transport, further marginalising a vulnerable community. Once you have identified the relevant issue (which may present as a vio-lation, dilemma or through experiencing ethical distress or as a mixture of some or all of these) you should consider who is involved. Who is involved? This is an important part of Step One, as by identifying who is involved, or ought to be involved, it enables an evaluation to be made of each indi-vidual's or group's interests in the matter at hand. In some cases individu-als or groups may have competing interests and itis critical to have an appreciation of these. Gather information It may be necessary to gather further information to assist in the decision- making. This could include medical information and contextual informa-tion (societal, organisational, familial and individual). :he ast ·ses Les, fes- me ted nts the 1ot 1 -1al, )le, ind iis-ort lso lid- an )Ck )rt, 'iO- ure ed, tdi- du-an Dn- na- ETHICS AND ETHICAL AND LEGAL DECISION- MAKING FRAMEWORKS 27 Step Two: Evaluate the issues In this step you identify and apply relevant sections of the Codes of Eth-ics and the ethical principles to the issue(s) and identify any conflicts within or among them. Part of the process is to identify the perspectives and values of all those associated with the decision. Legal principles are also identified and applied in this step. Step Three: Action -What to do in practice In this step you identify and apply any relevant aspects of the Codes of Con-duct to the issue(s). Considering and synthesising the results of your analy-sis of the relevant aspects of the Codes of Ethics and Conduct, the ethical principles and the law, you then identify the options for action or reach a conclusion and analyse the consequences/outcomes of each option or your conclusion. If there are options for action you should make a decision on how to proceed (at least in the short term) and clearly justify why that deci-sion was reached, in particular how and why you balanced the ethical con-cerns. You must also, as part of this step, take responsibility for that decision. Step Four: Implement Act on the decision(s) reached in accordance with a plan to manage, as much as is possible, any foreseeable consequences of the action -for example, how do you discuss issues with the patient in such a way as to minimise anxiety? The decision should be documented and where rel-evant a care plan developed. Step Five: Assess outcomes In this step evaluate the decision-making process, your values and beliefs post-decision and the action taken, and seek support and assistance from your colleagues ifyou experience ethical distress. Depending on the situ-ation, a nurse/midwife may recognise that it is desirable that she or he or the team seek additional training. Decision-making framework: Example Hilda is an elderly woman newly resident in a nursing home. She has moderate dementia. Her decision-making capacity varies from day to ,,~ 28 ETHICS, LAW AND HEALTH CARE day -some days she is competent to make her own decisions and some days she is not. Hilda approaches the manager of the nursing home and asks to only be attended to by non-Asian nurses and caregivers. Step One Identify problem Who is involved? Gather additional facts Identify the problem: ► Hilda's request appears to amount to racial discrimination. Identify who is involved: ► Hilda, Hilda's family (including who acts as her substitute deci-sion-maker), staff at the nursing home, her General Practitioner (GP) and other residents of the nursing home. Gather information: ► Hilda refuses to explain her request. ► Hilda's family confirm that in World War II Hilda was a pris-oner of the Japanese and forced to act as a 'comfort woman' for troops. The Japanese Imperial Army in World War II forced captive women (from China, Korea, the Netherlands, Burma, Thailand, the Philippines, and Australia) into sexual slavery in military brothels ('comfort' stations). Survivors report being raped, beaten and otherwise tortured day and night, even by the (male) health professionals sent to check them for venereal disease. It is esti-mated that only 25 per cent survived and most were rendered ster-ile from rapes or disease. ► Hilda's GP confirms Hilda has post-traumatic stress disorder (PTSD) as a result of her experiences. ► Hilda's GP notes that Hilda has flashbacks due either to her PTSD or to her dementia. ► Hilda's GP notes that during her last hospital admission Hilda went into physical convulsions and fought violently when attended by a male Asian doctor. ri-,r e l, y n h i-r-~r D .a n ETHICS AND ETHICAL AND LEGAL DECISION- MAKING FRAMEWORKS 29 Step Two Ethical principles Which are relevant? ICN Code of Ethics for nurses Legal principles What does the law say? ► Element 1: 'The nurse's primary professional responsibility is to people requiring nursing care ... In providing care, the nurse pro-motes an environment in which the human rights, values, cus-toms and spiritual beliefs of the individual ... are respected.' Hilda, as the patient, should be the primary focus. She could be phys-ically or emotionally harmed if an Asian nurse provides care because of her PTSD/dementia. The history of her last hospital admission (convulsions) establishes that the risk is real. ► Element 3: 'The nurse, acting through the professional organisa-tion, participates in creating a positive practice environment and maintaining safe, equitable social and economic working condi-tions in nursing.' In this context, in order to maintain an equitable working environ-ment it is important not to allow other nurses to be discriminated against by patients. However, in this case it appears that Hilda's desire to not have an Asian caregiver may be motivated by a desire to pro-tect them and herself from harm, a harm she cannot control. In addi-tion, an Asian nurse who attempts to provide care to Hilda may place herself/himself and/or colleagues at risk of physical, emotional or psy- chological harm. The risk of physical harm to staff is a real possibil-ity, especially given Hilda's last hospital admission when she 'fought violently' when attended by a male Asian doctor. Emotional and/or psychological harm could result to nurses and to other staff from see-ing a patient react so strongly to a nurse's presence. The safety and/ or wellbeing of other residents may also be compromised through witnessing or being affected by Hilda's distress. Ethical principles Autonomy As discussed earlier, in general the rights of patients to make decisions about what is in their best interests should be respected, but there are limits to autonomy if a person's decisions are likely to harm others. Hil-da's request may harm members of staff by discriminating against them on the basis of race. This is a harm specifically recognised by the state as being of such concern that a specific law was created to prevent it. Beneficence and non-maleficence It seems in Hilda's best interest to agree to her request (beneficence) because of the extreme physical and emotional distress it would cause her if her request was not complied with. Equally, if you know that something will cause harm you have a responsibility to protect the patient from that harm (non-maleficence). More broadly, ifHilda is unable to control her physical, psychological and emotional reactions to Asian staff members (a possibility given her dementia and PTSD) she may inadvertently cause physical injury to staff or other patients or emo- tional distress to staff whose presence may trigger a reaction. Arguably there is also a duty to act in the best interests of others and to protect others, such as other patients and staff members from possible harm. Justice As discussed earlier there are three forms of justice -two seem par-ticularly relevant here: Legal justice -As a matter of legal justice to Asian members of staff the manager should respect the law and refuse to allow any form of dis- crimination against staff. However, are there any legal exceptions? Distributive justice -Human resources are scarce and there is a ques-tion about whether itis fair to other patients to arrange staffing around the request of one patient. What does the law say? All the states and territories and the federal government have legisla-tion that prohibits direct or indirect discrimination on the grounds of race (see Table 2.1). In this case Hilda's request is that staff be treated differently because of their ethnic backgrounds so her request, and any action taken to implement this request, would appear on its face to be discriminatory. The legislation all agrees that any motive for discrimi-nation is irrelevant. So a beneficent motive, such as in this case to minimise harm to Hilda and others, is irrelevant. There also has to be some negative impact on an individual. In this case, nurses may agree that it is in everyone's best interest that any nurse(s) with an Asian ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 31 Table 2.1 Legislation relating to discrimination in Australia ~Jurisdiction Legislation commonwealth Disability Discrimination Act 1992 Racial Discrimination Act 1975 Sex Discrimination Act 1984 Age Discrimination Act 2004 Australian Human Rights Commission Act 1986 Australian Capital Territory Discrimination Act 1991 New South Wales Anti-Discrimination Act 1977 Northern Territory Anti-Discrimination Act 1996 Queensland Anti- Discrimination Act 1991 South Australia Equal Opportunity Act 1984 Racial Vilification Act 1996 Tasmania Anti-Discrimination Act 1988 Victoria Equal Opportunity Act 2010 Western Australia Equal Opportunity Act 1984 background not attend to Hilda and, assuming that staff allocation can be managed, there may be no negative impact and no perception of discrimination. Additionally, the legislation contains an exception for acts that are reasonably necessary to protect the health and safety of people at a place of work. Is this reasonably necessary to protect the health and safety of people at this place of work? Arguably, yes, based on Hilda's past history and her inability to control herself because of her dementia and PTSD. Step Three Identify options Make a decision and take responsibility Code of Conduct for Nurses Justify decision Principle 1.2(c) states that: 'Nurses must not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct.' Principle 3.2(d) also states that nurses must 'adopt practices that respect diversity [and] avoid bias, discrimination and racism'. !....._ 32 ETHICS, LAW AND HEALTH CARE ► Nurses should recognise the potential for discriminatory behav-iour based on race and be familiar with anti- discrimination law to avoid engaging in unlawful behaviour. Principle 2.Z(a)/(c) states that nurses must 'take a person-centred approach to managing a person's care and concerns ... [and] advocate on behalf of the person where necessary'. ► Nurses should recognise that Hilda's concerns are legitimate ones and she is extremely vulnerable. Nurses should demonstrate understanding in relation to her position and advocate for steps to be taken to ensure she receives the best possible care and is not harmed. Principle 2.3(c)/(d) states that nurses must 'act according to the per-son's capacity for decision-making and consent... [and] obtain valid authority before [providing] treatment'. ► One way of viewing Hilda's request is that she is refusing consent to care in specific circumstances (that is, if provided by an Asian health worker). However, as Hilda's capacity to make decisions var-ies from day to day, itwill be necessary to involve her substitute decision-maker in any decision that is made. Options Ultimately, there seem to be two stark options: Option 1 -refusing Hilda's request. This may cause serious physical, psychological and emotional harm to Hilda and to Asian staff. It may also contravene the principles of beneficence and non-maleficence, but comply with the law. Option 2 -agreeing to Hilda's request. This seems to be in the best interests of Hilda, staff and residents. While on its face itmay consti-tute direct discrimination against Asian staff, we need to investigate if it might fall within a permitted legal exception. It is important to note though that this would only become a legal issue if an affected individual chooses to make it an issue. If managed ethically for all involved, the law may not need to be invoked. There is a conflict between ethical principles (autonomy and justice) and between some ethical principles and the law. Acting in Hilda's best \T-:o id te te )S )t r-id 1t n r-te ll, LY e, st :i-te :o id lll e) st ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 33 interests by agreeing to Hilda's request may be harmful to any Asian members of staff because itlooks like itmay constitute discrimination. Balancing the risks here, ifAsian staff care for Hilda, medical evidence suggests itis inevitable she will sustain at least psychological and emotional harm, if not physical harm, and the staff may sustain harm through experiencing moral distress. If there is no question that the Asian staff would lose their job and they would just not be rostered to attend to this one patient, the harm to them may fairly be considered limited or non-existent and perhaps, in the circumstances, arguably morally justifiable. A nurse concerned about the best interests of their patient might, in the circumstances, understand and be sympathetic to Hilda's request based on the fact that as her dementia progresses she is not able to control her reactions. The nurse may also not want to cause her to have a flashback to her traumatic past. In summary, itcould be argued that a great harm is avoided through the imposition of a lesser harm. As mentioned earlier in the chapter, when making ethical deci-sions itis often not a question of harming or not harming, but how to harm and benefit: Whom? How much? How certainly? In what ways? (Kenny and Giacomini 2005). However, the legislation is clear that itdoes not matter ifthe reason for the discrimination is beneficent as it will still amount to discrimi-nation. So if the nursing home manager assents to Hilda's request and itnegatively impacts on those staff it perhaps could be said that the nursing manager had discriminated against relevant staff members. But if this is so it may be that an exception could be made on occupational health and safety grounds - Does Hilda's condition pose an occupation health and safety risk? How might the nurse manager proceed? Before a final decision is made additional information needs to be gathered so that the nursing manager and staff can decide how to proceed in the short term to gather the information so that a final decision can be made about how to manage Hilda's needs in the long term. Possible immediate options for action for nurses in this circum-stance include seeking urgent expert advice from: ► Hilda's family (including her substitute decision-maker) about the best way to manage the situation based on their knowledge of her past. ► A geriatrician who specialises in dementia (with the patient's permission ifshe is to be identified). (As a practical matter the nurse manager needs to know how much physical, psychological and emotional distress will this cause Hilda. What are the risks to her and others? Is there any way in which Hilda's distress can be 34 ETHICS, LAW AND HEALTH CARE managed other than potentially discriminating against staff? Are there any care requirements arising from the interaction between past trauma and dementia?) ► A lawyer about the relevant law and the impact of other laws - for example, are there occupational safety and health concerns for staff? ► Other nursing managers and aged care administrators (not disclos-ing identifiable details about the patient). How do other facilities deal with these types of situations? What do the regulators of nurs-ing homes at the state and/or Commonwealth level suggest is good practice in these circumstances? What do Human Rights agencies say? The nursing manager should communicate with relevant staff, and probably their union representative, to discuss the problem. Once additional information is received: ► A decision must be made. ► That decision must be justified -in other words, you need to be able to justify how and why you balanced the ethical principles and legal considerations. ► The nursing manager must take responsibility for the decision. Step Four Act on decision Plan for consequences A plan must be developed to implement the decision and that plan should include mechanisms to address any foreseeable conse-quences of the decision. For example, whether Option 1 or Option 2 is followed the decision should be documented. A care plan would need to be developed in conjunction with a geriatrician to man-age Hilda's ongoing health needs and to plan for circumstances in which there is no other option than for an Asian nurse or other car-egiver to provide care or treatment. The decision and its rationale must be communicated to Hilda and her family and to staff as the key stakeholders. Good practice would indicate having a staff train-ing session on the effect of past trauma on dementia patients and mechanisms to manage the needs of such patients. '"---------------------J 1~ I~ I re Dr f? IS-es ·s->d es ff, )e es at e-m ld :i-1n r-le le :l-td ETHICS AND ETHICAL AND LEGAL DECISION-MAKING FRAMEWORKS 35 Step Five Evaluate decision-making process Seek support if required The decision- making process should be evaluated. Did you consider everything? Was everyone who needed to be consulted, consulted? Have your values changed? How would you address a similar issue in the future? Was the action taken the best possible action that could have been taken? If not how could it be improved in the future? Making ethical decisions is not easy -at times it may cause signifi-cant emotional distress. Do not hesitate to seek whatever support you need after a decision has been made. After dealing with a situation that raises some significant ethical issues, some facilities will under- take a formal debrief acknowledging the distress sustained by health professionals involved in the process. Further reading Veatch, R. 1995, 'Resolving conflicts among principles: Ranking, balancing, and specifying', Kennedy Institute of Ethics foumal, 5: 3, 199-218. Questions How would you balance conflicts between ethical principles? What are the differences between ethical principles and the Codes of Eth-ics and Codes of Conduct in terms of their purposes, objectives and functions? Scenario (Adapted from Fry and Veatch, 2006, Case Studies in Nursing Ethics, 3rd edn.) A 20-year-old patient, Blanche Smith, was admitted to a small regional hospital with signs of premature labour. The gestation of the foetus was uncertain. A midwife, Mary Jones, who had experience in neonatal care, and the obstetrician, Dr Angela Brown, were alerted. The obstetrician told ~ 36 ETHICS, LAW AND HEALTH CARE Blanche and her partner to prepare for the loss of the pregnancy. After a short labour Blanche delivered a small female infant who breathed spontaneously. Gestational age was estimated to be around 25 weeks. Mary anticipated that the infant would be given respiratory support and rushed to the nearest tertiary facility. However, Dr Brown stated that she was 'not sure we should be too aggressive with this patient' and decided that respiratory support should cease as Dr Brown thought the infant too small to survive. Mary disagreed, as she was experienced at treat-ing infants in a similar condition. Mary asked whether the parents were aware of the child's condition and the small chance for survival if she was transferred to another facility. Dr Brown said she was going out to speak with the parents and 'they're too young to cope with the kind of prob- lems the child will face. They'll have more babies.' Mary was told to keep the infant comfortable and to call Dr Brown when the child died. Dr Brown's first child had been born in similar circumstances and had sig-nificant disabilities as a result. Apply the decision-making framework to this problem.