Legal and Ethical Issues in Nursing Lesson 2: Ethics Resources for Nurses and the Canadian Legal Sys

Codes of ethics throughout history

NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Discussion Forum Question -Please discuss Kelleher’s arguments with regard to government’s responsibility to care for its citizens. How would Kelleher classify attempts to create a two-tiered healthcare system in Canada to help alleviate wait times? Materials - Keatings, M. & Adams, P. (2019). Ethical & Legal Issues in Canadian Nursing (4th ed.). Toronto: Elsevier. (p. 49-99). Yeo et al. (2020). Concepts and Cases in Nursing Ethics (4th ed.). Peterborough, ON: Broadview Press. (p. 103-142). Fisher, J. (2013). Expanding, • In general, your posts will focus on specific points in the readings. You should strive to use the terms employed by the authors, but be careful to provide in-text citations for any quotes or paraphrases of their ideas, as well as a complete reference list at the end. Note that all citations and references must be in APA 7th Edition style along with page numbers . PLEASE provide website URL • Your posts will be assessed on how well they demonstrate: a solid understanding of the readings; the application of what has been learned to new contexts; the clear articulation and development of a single line of thought; the supporting of your argument with valid disciplinary reasoning and examples; the making of connections to major themes or debates in the literature or in the course; a clear, coherent, and compelling style of writing; the correct use of grammar, spelling, and punctuation; and the completeness and accuracy of in-text citations and references in APA style. Lesson Summary Codes of ethics have existed for thousands of years and have been used to ensure justice, enforce contracts, and provide a means of redress when individuals have been wronged. Keatings and Adams cite the Babylonian Code of Hammurabi and the Hippocratic Oath, the latter of which is most likely familiar to you. The Ten Commandments are another example of an ethical code that has regulated the actions of Jews and Christians for more than two thousand years and are implicit in many of our laws and customs. The Nuremberg Code, drafted in 1947 in response to the atrocities committed by Nazi physicians in World War II concentration camps, was one of the first codes that sought to limit the indignities to which human beings could be subjected in the name of scientific research. http://www.hhs.gov/ohrp/archive/nurcode.html During World War II, German physicians and scientists conducted a wide range of experiments on political prisoners, Jews, Russians, Roma, and homosexuals. These studies fell into two broad categories. The first set of experiments was driven by the Nazi program of “racial hygiene”, which attempted to purify the German race by eliminating those classified as undesirable. The physicians involved sought more efficient ways to sterilize and execute individuals deemed to pose a threat to the purity of “Aryan” blood. The second set of experiments was motivated by the exigencies of war. A well-known example was a series of experiments conducted to examine ways to revive pilots downed in the North Sea who had become hypothermic. These experiments involved the immersion of political prisoners in vats of ice water, in some cases until the prisoners died. The significance of the Nuremberg Code lies chiefly in the fact that it established, for the first time, the ethical requirement of obtaining informed consent from research participants before they are subjected to harmful treatments or experiments. While the Nuremberg Code established a clear requirement to obtain the consent of human subjects of research, physicians continued to act in a paternalistic manner during the 1940’s, 50’s and 60’s. In the Willowbrook hepatitis study, for example, hundreds of intellectually disabled children at a state-run institution on Staten Island, New York, were fed a live hepatitis virus to observe their immune responses. Hepatitis was already rampant at the school due to overcrowding and poor sanitary conditions Dr. Saul Krugman, the physician in charge of the study, proposed to use gamma globulin antibodies derived from hepatitis patients to foster immunity in the children at Willowbrook. More than 700 children were involved in a series of studies. In one study, Dr. Krugman and his colleagues gave newly admitted children protective antibodies but deliberately infected a subset of these children with hepatitis. The children who were deliberately infected with the virus had a mild reaction and fared better than those children who contracted hepatitis in the normal course of events at Willowbrook. As the study progressed Dr. Krugman and his colleagues noticed that the children exhibited different symptoms depending on which antibodies they were infected with. This led to the realization that there were two strains of hepatitis, namely A and B, and that the latter was more difficult to transmit but frequently led to long-term (i.e., chronic) infection. Interestingly, Dr. Krugman and colleagues obtained oral and written consent from the parents of the children involved in the study. In many instances, however, parents were coerced into giving their consent. They were told that, due to overcrowding, no new patients would be admitted unless the parents gave consent for their children to participate in the study. At the same time that Dr. Krugman and his colleagues at Willowbrook were conducting their experiment, Dr. Chester M. Southam was injecting live cultured cancer cells into the bodies of 22 elderly patients at the Jewish Chronic Disease Hospital (JCDH) in Brooklyn, New York. Based on previous research conducted on prisoners at the Ohio State Penitentiary, Dr. Southam believed that the injection of live cancer cells posed no risk to research subjects and that their immune systems would eventually reject these cells. While Dr. Southam hoped that his research would “lead to progress in our ability to boost the human immune system’s defense against cancer” his methods were highly questionable (Arras, as quoted in Emanuel et al., 2008). In order to obtain the patients’ consent Dr. Southam told them that they would be given injections to test their immune capacity. Prior to the start of the study, Dr. Southam and his assistant had asked three staff physicians at the JCDH to take part in the study and to help with the injection of the cancer cells. All three refused on the grounds that the study was unethical and that Dr. Southam had failed to obtain proper informed consent. When it was revealed that Dr. Southam had proceeded with his experiment regardless of their objections, the three physicians resigned, took their compliant to a member of the JCDH’s Board of Directors, William Hyman, who eventually took his case to the Supreme Court of Brooklyn, and accused Dr. Southam of acting like the Nazi doctors who had been tried at Nuremberg in 1947. In Canada, in the 1950s and 1960s, a series of unethical psychiatric studies was carried out at the Allan Memorial Institute in Montreal. The experiments, funded by the U.S Central Intelligence Agency, were conducted by Dr. Ewan Cameron, ironically one of the expert witnesses at the war crimes trials of German physicians after the Second World War. Unwitting psychiatric patients were subjected to a variety of mind-control techniques, including psychic driving experiments in which they were drugged into unconsciousness for days or even weeks and exposed to a taped message repeated thousands of times. Other patients were given large doses of LSD without their informed consent. Numerous patients suffered permanent psychological damage as a result of these studies. Perhaps the most notorious study in the United States was the so-called Tuskegee Syphilis Study. Running from 1932 until 1972, it remains the longest running research project ever funded by the U.S. Public Health Service. Operating on the hypothesis that syphilis may affect African Americans differently than European Americans, the Tuskegee Syphilis Study sought to document the natural history of untreated syphilis. Approximately 400 poor, relatively uneducated African Americans with syphilis were enrolled in the study in Tuskegee, Alabama. It remains controversial whether treatment for syphilis available in the 1930s had an acceptable balance of benefits to harms. Penicillin was introduced in the late 1940s and remains a safe and highly effective treatment for the disease. Study participants were denied access to penicillin and, as a result, approximately 20% died prematurely of the effects of untreated syphilis. From a moral perspective, one of the most fascinating characters of the Tuskegee Syphilis Study is nurse Rivers, an African-American nurse who played a key role as go-between for the predominantly white doctors who ran the study and the African-American community from which research subjects were drawn. Clearly, the success of the study in recruiting and retaining subjects was due, in large part, to the trust that the community placed in nurse Rivers. She saw the study as an extension of her public health work with this poor and under-serviced community. She believed that, by participating in the study, subjects had access to better health care than they would have obtained otherwise. The degree to which she ought to be held morally responsible for the events of the Tuskegee Syphilis Study remains controversial. NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 5 Template version: 2019-08-06 Each of these examples of unethical experimentation highlights the need for clear regulations and a robust moral framework to guide the conduct of research on human beings. A number of international documents govern the conduct of human-subjects research. The Nuremberg Code, as described in the preceding, articulates 10 principles for the conduct of such research. Recognizing the limitations of the Nuremberg Code, the World Medical Association wrote the first Declaration of Helsinki in 1964, the most recent revision of which dates from 2013. https://www.wma.net/.../wma-declaration-of-helsinki-ethical-principles-for-medical-re The Council of International Organizations for Medical Sciences has produced a definitive commentary on the Declaration of Helsinki directed specifically at research conducted in developing countries. Many countries have subsequently produced their own research ethics guidelines. Following the revelation of ethical problems with the Tuskegee Syphilis Study, the United States produced legislation governing the conduct of federally funded research in 1974. These regulations now cover research funded by 17 federal agencies, including the Public Health Service and the Central Intelligence Agency. Canada’s first research ethics guidelines were written in 1977. Umbrella guidelines covering research funded by the Canadian Institutes of Health Research, the Social Sciences and Humanities Research Council, and the Natural Sciences and Engineering Research Council are found in the Tri-Council Policy Statement released in 1998. As noted in the preceding lesson, the Canadian Nurses Association’s Code of Ethics for Registered Nurses cites seven primary values that are used to define ethical responsibilities. With regard to the value, “Promoting and Respecting Informed Decision Making”, Keatings and Adams argue that nurses must provide persons with the information they need to make informed decisions related to their own health; nurses must also respect the wishes of capable persons to decline to receive information about their health condition and “be aware of the power differential that exists between the patient/client and the [healthcare] team and ensure that this does not influence decision making” (Keatings and Adams, 2019). Nurses must also “understand the difference that exists across individuals and families, and cultures. A person may choose to have others consent on their behalf, perhaps a family member or in the case of an Indigenous person a community elder” (Keatings and Adams, 2019). Under the heading “Preserving Dignity” the authors argue that this ideal is maintained “when nursing is guided by consideration for the dignity of persons and their right to be treated with integrity, respect, and compassion. Disrespectful communication, disregard for client privacy, or failure to involve patients in discussions that relate to their healthcare violates this moral responsibility” (Keatings and Adams, 2019). The CNA Code of Ethics is thus clearly influenced by the ethical requirements set out in the Nuremberg Code, the Declaration of Helsinki and the TriNURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 6 Template version: 2019-08-06 Council Policy Statement. In order to avoid exposing patients to harm and to preserve their human dignity nurses must act to ensure that informed consent to treatment is always obtained and that the vulnerable are protected. On pages 68-80, Keatings and Adams set out a detailed, 14-point ethical decision-making framework that can be used by both individuals and healthcare teams to address ethical problems and concerns. The framework consists of the following steps: 1. Identify Problem or Issue Statement 2. Decide Who Should be Involved in the Discussion 3. Describe the Issue in Detail 4. Share Preliminary Perspectives on the Issue 5. Share the Person’s Story and Undertake a Comprehensive Assessment and Analysis of the Situation 6. Explore Relevant Legal Factors 7. Share Values 8. Clarify Ethical Principles 9. Select Applicable Ethical Theories 10. Identify Alternatives or Options Available 11. Deliberate and Agree on the Potential Alternatives 12. Choose a Course of Action 13. Develop an Action Plan 14. Evaluate the Plan (Keatings and Adams, 2019) In using this framework, the goal is not necessarily to achieve consensus. Not only is there “room for disagreement…about the relative weight of different ethical values and principles” but “more than one proposed intervention may be ethical and reflective of good ethical practice” (CNA, as cited by Keatings and Adams, 2019). Another extremely important resource that can be used to provide support and guidance in the face of ethical dilemmas is the clinical ethics committee. As you no doubt already know, most clinical ethics committees are broadly based and seek input from a variety of sources, including nurses, physicians, chaplains, lawyers, administrators, social workers, and community representatives. The mandate of such committees is consultative, educational, and policyoriented. As Keatings and Adams note: “[n]urses are aware of the extent of ethical problems and violations because they face them daily. Therefore, they must participate or be represented in ethics committees. Involvement in these processes is essential so that the voice of nurses directly facing these challenges is heard” (Keatings and Adams, 2019). NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 7 Template version: 2019-08-06 In chapter 4, Keatings and Adams provide an overview of the Canadian legal system and explore the difference between English Common Law, which applies in 9 of the 10 Canadian provinces and 3 territories, and French Civil Law, which applies in Quebec. English Common law has been used since 1189 and has been exported to such Commonwealth countries as Canada, Australia and New Zealand. It also forms the basis of the U.S. legal system. In common law jurisdictions, judges make decisions on the basis of precedent, i.e., the body of decisions that have been made over time and are considered authoritative and persuasive. In the common law system, precedent demands that consistent principles applied to similar facts yield similar outcomes. The Latin phrase stare decisis literally translates as “to abide by the decision” (Keatings and Adams, 2019). According to the doctrine of stare decisis, The decision of a higher court within one provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including…the nature of the other jurisdiction [and] the degree of persuasiveness…of [the] court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition...[O]n some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority. (Daly, 2016) The Civil Code of Quebec, meanwhile, derives from the Napoleonic Code of 1804 and, ultimately, from the Roman legal heritage, which forms the basis of the judicial system in much of Western Europe. In Roman civil law systems, “legal rules and principles that establish the rights and responsibilities of individuals…are formally written.or, as lawyers say, codified.in a single document known as the civil code” (Keatings and Adams, 2019). For nurses, a familiarity with the basic elements of tort law is indispensable. A tort commonly arises “when there has been a breach of a legal duty which is recognized under the law and…the appropriate remedy is a claim for damages”. http://www.westlawnextcanada.com/academic/ced/torts Negligence is one example of a tort and is deemed to occur when one party fails to take the kind of care a prudent person would take in the same situation and harm ensues. Negligence may be either intentional or unintentional. Intentional negligence results when an agent knowingly imposes an unwarranted risk. “For example, a nurse knowingly fails to change a bandage as scheduled, creating an increased risk of infection” (Beauchamp and Childress, 2009). NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 8 Template version: 2019-08-06 Unintentional negligence typically involves the careless imposition of risks. “For example, a physician acts negligently if he or she forgets that a patient does not want to receive certain types of information and discloses that information, causing fear and shame in the patient” (Beauchamp and Childress, 2009). For a nurse to be found guilty of negligence in a court of law the following elements must be proved: • The nurse owed the patient a duty of care: a patient’s “reliance on a nurse’s knowledge and expertise creates a special relationship that gives rise to a legal duty for the nurse to provide reasonable care. Nurses do not have a duty to treat everyone they meet but if a person relies on their professional skill and knowledge, a legal duty to take reasonable care is established” (Canadian Nurses Protective Society, 2004). • The nurse breached the standard of care: a court will determine what constitutes reasonable nursing care in a given set of circumstances. The court’s determination as to “what could reasonably be expected of a competent, prudent nurse in similar circumstances will be based on the evidence introduced by the parties to the lawsuit” (Canadian Nurses Protective Society, 2004). Examples may include: “the patient’s chart; professional standards of practice; institutional policies; and testimony about the availability of equipment and personnel. Specialized nursing expertise may lead to a higher standard of care being imposed” (Canadian Nurses Protective Society, 2004). • Foreseeable harm was caused by a breach of the standard of care: the plaintiff must “suffer actual harm and prove that the harm was caused by the nurse’s negligent acts or omissions” (Canadian Nurses Protective Society, 2004). A nurse will not be held liable “if the harm could not have been reasonably anticipated as a consequence” (Canadian Nurses Protective Society, 2004). A court “will not find negligence if there was no harm, even if the nurse’s act or omission breached the standard of care, or if the harm would have happened anyway, despite the nurse’s breach of the standard of care” (Canadian Nurses Protective Society, 2004). The defenses that are available to nurses charged with negligence are as follows: • The nurse’s actions were those of a reasonable and prudent nurse in the circumstances (Canadian Nurses Protective Society, 2004). NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 9 Template version: 2019-08-06 • Error in judgement, i.e., “if the evidence suggests that the incident was an error in judgement rather than a failure to act reasonably and prudently…a court may find there was no negligence” (Canadian Nurses Protective Society, 2004). • Actions of other defendants: a nurse will have the opportunity to provide evidence in his or her own defense. “Given the multidisciplinary nature of health care delivery, witnesses or defendants may testify as to how they interacted with fellow health professionals during the incident that gave rise to the lawsuit. The court must then determine the proportion of negligence, if any, of each defendant” (Canadian Nurses Protective Society, 2004). • Contributory negligence: The court may find the plaintiff contributorily negligent “if she is partially or entirely responsible for the harm suffered. The court would reduce the damage award proportionately but a nurse found negligent may still be liable for a portion of the compensation” (Canadian Nurses Protective Society, 2004). With regard to the last of these elements, it is interesting to note that: Before the passage of the negligence statutes by the legislatures of the common law provinces, the common law held that a person suing another for negligence could not recover any damages whatsoever regardless of fault if the person claiming the damages (the plaintiff) had in any way…contributed to the accident or occurrence that caused his or her injury or damage (Keatings and Adams, 2019). Ontario’s Negligence Act, passed in 1990, was the first Canadian provincial statute to address the issue of contributory negligence and provides that: “[i]n any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively” (Negligence Act, R.S.O., as cited by Keatings and Adams, 2019). In other words, “a plaintiff who is…20% responsible for his or her injuries is still entitled to recover 80% of the damages from the defendant” (Keatings and Adams, 2019). In most cases, “[a] defendant will be liable for harm to a plaintiff if the harm was caused by the defendant’s negligent conduct” (Keatings and Adams, 2019). Yet, in some instances, the results “that follow negligent conduct can be so remote…that they should not be within the purview of what is compensable damage” (Keatings and Adams, 2019). Therefore, “[t]o qualify as damage for which the plaintiff can recover compensation, that damage must be something that a reasonable person could foresee as resulting from the negligent conduct, meaning that the cause NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 10 Template version: 2019-08-06 should be reasonably proximate to, or the reasonably foreseeable cause of the ensuing damage” (Keatings and Adams, 2019). As noted above “Promoting and Respecting Informed Decision-Making” is one of the seven primary values identified in the CNA Code of Ethics for Registered Nurses. Before turning to a more detailed description of the constitutional elements of informed consent in lesson 3, your attention will be called to one article that explores the element of voluntariness in the informed consent process and one that examines the relationship between beneficence and justice in the public provision of health care. These will serve as an ideological bridge from our discussion of principlism, global ethics, and multiculturalism in lesson 1 to an analysis of the role of trust in the doctor-patient and nurse-patient relationship in lesson 3. Fisher’s “Expanding the Frame of ‘Voluntariness’ in Informed Consent: Structural Coercion and the Power of Social and Economic Context” examines the theory of structural violence, which may be defined as “one way of describing social arrangements that put individuals and populations in harm’s way. The arrangements are structural because they are embedded in the political and economic organization of our social world; they are violent because they cause injury to people (typically, not those responsible for perpetuating such inequalities)” (Farmer as cited by Fisher, 2013). “Linked to analyses of social inequality”, Fisher writes, “the concept of structural violence emphasizes the material injury that results from differential access to capital and human services, such as housing, education, and health care” (Fisher 2013). While most anthropologists have focused on the study of structural violence in the developing world, Fisher notes that there are numerous examples of structural violence in advanced democracies, most notably in the welfare and healthcare systems. This sets the stage for an interesting analysis of the coercive role of social inequality in creating a pool of willing participants who engage in clinical research in order to obtain diagnostic procedures, investigational drugs, or financial compensation. A second article by Kelleher, titled “Beneficence, Justice, and Health Care”, expands on Fisher’s theme. While “[d]octors, nurses, and others in the healthcare field have specific duties to their patients that are determined by the profession and by the practices of their specific institutions” (Gert, Culver and Clouser, as quoted by Kelleher, 2014), philosopher Ronald Dworkin asserts that, when it comes to the adequate provision of healthcare, “no government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance” (Dworkin, as cited by Kelleher, 2014). Dworkin “grounds a political community’s duty to display equal concern toward its members in the coercively enforced commands issued by the community (or by its official agents)…[and] claims that the community’s NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Lesson 2: Ethics Resources for Nurses and the Canadian Legal System Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 11 Template version: 2019-08-06 commands are illegitimate unless they are accompanied by the display of a robust and equal measure of concern for each member” (Dworkin, as cited by Kelleher, 2014). While Kelleher acknowledges that the social duties of health promotion can and should be grounded in a principle of beneficence, widely construed, he makes a unique contribution by arguing that these duties may also be grounded in a principle of justice and that the duties thereby generated “correlate with rights” (Kelleher 2014). Amongst the many grim statistics to emerge over the course of 2020 are those which relate to the disproportionate impact that COVID-19 has had on African, Hispanic and Asian populations in the United States, Canada and Europe. While the reasons for this differential impact are not entirely clear at this point, structural inequality is one of the many theories that has been posited. Not only do Black, Hispanic and Asian Canadians, Americans, and Europeans have limited access to healthcare but, in many cases, they have been on the front line as healthcare workers, particularly in hard-hit nursing homes, in hospitals and in jobs that require direct contact with the public, i.e., taxi drivers, cleaning staff, and food delivery employees. The fact that members of these communities are two to three times more likely to contract and die from COVID-19 provides ample evidence in support of Fisher’s arguments regarding structural inequality. One of the other disturbing facets of the current pandemic is the manner in which it has been politicized and exploited by a variety of demagogues of various stripes in the United States, Brazil and Eastern Europe. The simple acts of wearing mask and socially distancing have become matters of tribal party politics which foment non-compliance with public health measures and add fire to the already fraught debate concerning vaccination. Few countries have witnessed the barrage of misinformation, incompetence and mismanagement that have combined to make the United States the worst affected country in the world. The Trump administration’s attacks on science and scientific officials served to deepen distrust of government policies such that, as of, February 2021, a large number of Americans (at least 35%) report that they would be unwilling to receive a vaccination against COVID-19.