The Nurse’s Legal Accountabilities and End-of-Life Issues Individual Case Analysis

Background

The Nurse’s Legal Accountabilities and End-of-Life Issues Individual Case Analysis Guidelines for Writing Once you have read the materials for the lesson please complete the following case analysis. - Analyses must not exceed 3 double-spaced pages(750 words).

• provide in-text citations for any quotes or paraphrases of their ideas, as well as a complete reference list at the end.please provide website URL where ever applicable All citations and references must be in APA style, 7th edition

• Andrea is employed at a long-term care facility. For each shift, there is one nurse on duty for 40 patients. The major nursing responsibility is to give medications to patients. On average, patients have 10 medications each. Andrea must take the blood sugar readings of 10 residents every morning, because they are on sliding-scale insulin orders. The personal support workers provide hands-on care for the patients. Andrea has told her unit manager that she is overworked. She recommends that the institution get unit-dosing and employ more registered nurses and registered practical nurses for safety reasons. Her manager says these options are too costly. Andrea replies that she will not continue to work under these conditions. She submits her resignation, giving her employer two weeks' notice. That night, the evening nurse calls in sick.

The unit manager tells Andrea she must stay until he can find an agency nurse to replace her. Andrea says she is not happy about this, but she will stay because she does not want the patients to be without a nurse. Andrea administers the evening medications and leaves when a replacement registered nurse arrives at 2200 hours. When she returns to work the next day, Andrea finds the coroner is present because a new resident died during the night. The resident, Mrs. Smith, had a respiratory arrest; CPR was given, but she did not survive. Andrea looks at the medication record with the coroner. It is clear from the narcotic count that she had given Mrs. Smith 100 mg of morphine and not 10 mg, as ordered.

Questions:

1. After being shown the documentation in the narcotic count book, Andrea sees that she made an error when administering Mrs. Smith's medication. Do you think Andrea is fully responsible for the patient's death, or were there mitigating circumstances? What should Andrea say and do when asked about her care of Mrs. Smith?

2. Under what circumstances are coroners required to investigate a death? Should the coroner have been called in this case? After the coroner makes a report, what are the next steps? How will Andrea be involved in the coroner's report and any further actions? 3. The family thinks Mrs. Smith's death was preventable. They complain to the college and consider using litigation.

Case Analysis Questions

 In some instances, you may decide that the views and arguments advanced by Keatings and Adams and Yeo and colleagues are inherently sound. In other instances, you may decide that the arguments set forth by the authors of the articles are more compelling. The objective of each exercise is to apply the ethical framework set forth in lesson one in order to make a judgment in favor of or in opposition to the author’s position. In each case, you should ask yourself the following questions: What is the central ethical issue (or issues)? How do the differing moral principles highlight differing aspects of the case? What are the alternative actions that might be taken? You are expected to respond to the question at hand and may add personal details or anecdotal material if these deemed relevant to the analysis at hand. With regard to the individual case analyses you will be asked to formally respond to questions pertaining to cases included in the textbooks.

you are expected to use the theoretical framework set forth in lesson one to respond to the questions that follow each case but are free to disagree with the views expressed by Keatings and Adams as long as you present a persuasive and coherent line of reasoning. In other words, you should first define the ethical theories and principles that we use to guide our discussions and apply these to the case at hand. In some instances, the questions will pertain to legal issues or governmental or institutional policies that are not open to discussion. For instance, when discussing legal issues such as negligence or battery there are accepted legal definitions with which students are expected to familiarize themselves.

There are also issues that are open to interpretation, such as the constituent elements of consent. Here, you may take issue with the disputed component of competence, which may be treated as either an element of consent or a threshold notion. Finally, there are opaque, amorphous subjects like autonomy that have an infinite number of facets and may be discussed in many different ways depending on the context and the parties involved.: Thus, there are questions and responses to which there are right and wrong answers, there are questions that are open to debate and there are questions or issues that are speculative or philosophical.

You should therefore use the theoretical framework outlined in lesson one in conjunction with your own practical experience, to arrive at ethically defensible conclusions. You should answer questions posed as fully as possible and provide adequate references and citations for any supporting sources. Chapter 2 in Keatings and Adams’ textbook provides guidance on the manner in which you should analyze and respond to the questions that follow each individual or group case analysis.

Ethical Framework

On p. 16 the authors include the scenario, “Margaret’s Story”, which recounts the dilemma faced by a novice nurse attempting to care for a patient who has had a cardiac arrest and whose wife insists on being permitted to stay by him while the healthcare team attempts to care for him. On the following pages, authors introduce the ethical theories, e.g., utilitarianism and deontology, described in lesson one of this course and then apply them to the case at hand. For instance, the authors explain that Utilitarianism is not concerned with the motivation of actions but, rather, focuses on the consequences of an act.

The right action will be that, compared with all possible alternatives, which produces the greatest amount of good for the greatest number of people. Classically expressed by Mill, the good that is to be maximized is happiness. The authors then apply this theory to the case at hand (see p. 23) and observe that “Utilitarians would certainly be concerned with the short- and long-term consequences of whatever decision Margaret arrives at. If the patient’s wife is allowed into his room during the team’s resuscitation efforts, team members might be distracted when they should be focused on saving her husband’s life.”

On the other hand, “[p]erhaps her presence would positively influence the outcome, and resuscitation efforts would be successful.” The authors then turn to a discussion of deontology and Kantian ethics. As they observe, a feature of all deontological theories is the fact that they are concerned with the motivations behind actions and are not concerned with the consequences of actions. Perhaps the best-known example of a deontological theory is that of the German philosopher Kant.

Moral duties for Kant ultimately derive from the fact that human beings have a rational faculty. Kant’s dictum, “treat others as ends in themselves rather than merely as means to an end,” is commonly invoked in health care ethics and is taken to mean that human beings ought to be afforded respect and not treated in ways that do not show respect for their humanity. The authors then apply this theory to Margaret’s story (see. p. 27) and observe that “[f]rom a deontological perspective Margaret has a duty to her patient and to his family—in this scenario, his wife. She also has a duty to her team members, who expressed their concern about bringing the wife into the room.” The authors next turn to an examination of the moral principles set forth in lesson one and focus primarily on autonomy, beneficence, non-maleficence and justice.

Legal Issues

They describe how the principle of autonomy means that health care providers ought to take seriously the choices expressed by persons capable of making their own decisions. An important corollary of this is that those who are incapable of making their own decisions, such as children or adults with dementia, are entitled to protection. The principle of beneficence, meanwhile, has two components. The first is that one ought to do no harm (this is referred to by some as a separate principle of non-maleficence). The second is that one ought to act in such a way as to maximize potential benefits to the patient while minimizing harms. The principle of justice, finally, requires that health care providers treat patients equitably. The nurse must treat patients differently only as their medical condition requires. Patients may not be treated differently on non-medical grounds, such as race, ethnic background, age, or sexual orientation. In other words, health care providers must not engage in discrimination.

The authors apply these principles to the case at hand (see. p. 33) and argue as follows: “[t]he principle of autonomy would suggest that it is the patient’s right to decide who or who may not be present at any time…Adherence to the principle of beneficence, which requires that health care professionals act to benefit others, might also require that Margaret allow the wife to be with her husband to provide him comfort…On the basis of the principle of nonmaleficence, the team might argue that there is the possibility of harm to both the patient…and the wife…beyond this situation, the principle of justice would require that the hospital review its policy to ensure fairness to all patients and families.” Lesson Guide Legal concepts that are germane to the practice of nursing include standard of care, negligence and vicarious liability. The use of advance directives and proxy consent are of major significance to the practice of nursing as our society ages and life expectancies increase.

Nurses must also acquaint themselves with the cultural and religious traditions associated with death and dying in an increasingly diverse society. They must be familiar with the practical and emotional challenges associated with withdrawal and withholding of life-sustaining technologies and the legal and moral issues associated with organ donation and transplantation. Lesson Summary In chapter 7, Keatings and Adams discuss the distinction between two concepts that are of particular relevance to nurses and other healthcare professionals, namely, professional misconduct and malpractice. Ontario’s Nursing Act (1991) lists 37 acts that can be classified as professional misconduct, including:

Mitigating Circumstances

• Practising the profession while the member’s ability to do so is impaired by any substance

• Abusing a client verbally, physically or emotionally.

• Misappropriating property from a client or workplace.

• Doing anything to a client for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose in a situation in which a consent is required by law, without such a consent.

• Giving information about a client to a person other than the client or his or her authorized representative except with the consent of the client or his or her authorized representative or as required or allowed by law.

• Failing to keep records as required. The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 3 Template version: 2019-08-06 Malpractice is less specific than professional misconduct in terms of the activities that are worthy of censure and relates more to the failure to carry out one’s professional duties in a careful and responsible manner. One of these is the failure to report instances of incompetence on the part of nursing colleagues or other healthcare professionals. The nurse who fails to take action to ensure the safety of patients “shares responsibility for any subsequent consequences of that incompetence” (Keatings and Adams, 2019).

We have discussed the subject of the duty of care that nurses owe to patients. On pages 170 to 177, Keatings and Adams discuss the well-known Ontario case Latin v Hospital for Sick Children et al. (2007) in which a 14-month old girl was brought to hospital with a very high fever and suffered a prolonged series of seizures, resulting in permanent brain damage and disability. This case is particularly interesting as it involves so many of the issues discussed in this chapter, including: professional competence, negligence, duty of care, vicarious liability, and the importance of keeping accurate records, especially when these may be used in legal proceedings.

In the Latin case the parents of the girl sued the hospital, including the triage and charge nurses, claiming that their daughter arrived at the Emergency Department in a state of early/compensated distributive shock due to sepsis as a result of a bacterial pneumonia, and that this went undetected due to an inadequate history taking and triage assessment. Their daughter progressed to a state of uncompensated shock with decreased perfusion of her brain. As a result, she sustained a hypoxic-ischemic brain injury. Her parents asserted that:

Coroner's Investigation

Due to the delay in the recognition and treatment of shock, [the child’s] brain did not receive an adequate supply of oxygen and/or adequate blood supply when it was needed and this caused her brain damage. She should have been triaged as emergent in which case a physician would have recognized the signs of early shock and taken measures before she decompensated. Thus, any seizure would have been controlled and a prolonged period of status epilepticus would not have occurred. The defendants, meanwhile, argued that the girl’s brain damage was most likely caused by infection due to Influenza A, which also caused the status epilepticus and other symptoms of severe illness. At the time of death, encephalitis caused by Influenza A was not considered to be the most likely cause of infection but, by the time the case went to trial in 2006, increased knowledge of Influenza A suggested that it may in fact have been the etiologic viral agent. The defendants further argued that no treatment available at the time could have prevented or reversed the brain damage and that “even if [the girl] had been triaged as emergent and an emergency.

The Nurse’s Legal Accountabilities and End-of-Life Issues In terms of causation, the plaintiffs bore the legal burden of proving that the hospital and defendant nurses acted negligently. The trial judge explained that: A hospital may be directly liable for its own negligent conduct as well as vicariously liable for the conduct of its employees when they are acting within the scope of their employment. The law does not require perfection, but it does require the exercise of the care and skill that is to be reasonably expected of a prudent and careful hospital and of a prudent and careful nurse in the same circumstances as the defendants. The standard of care evidence offered in the trial was based on a number of sources, including: written hospital policies, nursing manuals and literature, and the expert testimony of nurses and emergency physicians.

The nurses charged in the suit Were judged according to the average standards of triage nurse and charge nurses—that is, having reasonable knowledge, skill, and ability related to these roles. These would also include the minimal standards of competence and knowledge set by the governing body for nurses in the provinces and any applicable standards prescribed by the health facility where the nurse is employed (Keatings and Adams, 2019). During the course of the trial, the issues of negligence and professional competence were raised as the triage nurse was alleged to have misdiagnosed the patient as urgent rather than emergent, thus delaying treatment.

Complaints and Litigation

The nurse’s conduct was alleged to have fallen below the standard of care and she was alleged to have failed to take a proper history and to have adequately documented her observations. The hospital itself was charged with vicarious liability insofar as it failed to prevent the nurse from acting in a negligent manner, thereby contributing to the damage inflicted on the plaintiffs’ daughter. It is frequently the case that employers are held vicariously liable for the damages caused by their employees, provided that the tort occurs during the course of the employment. In the case John Doe v Bennett, for instance, the Supreme Court of Canada “considered the liability of a church for the sexual assault of one of its priests,” arguing: [t]he doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that Continuing & Distance Education, St. Francis Xavier University. All rights reserved.

5 Template version: 2019-08-06 as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise. (Duhaime, 2006) In the Latin case the court assessed the charge nurse’s alleged failure to meet the standard of care by allowing a more stable patient to be moved to an examination room and seen ahead of the child. According to Keatings and Adams: “availability of rooms was only one of the factors: other factors included availability of physicians; support staff including, discharge planners…and cleaning staff to prepare rooms for new patients” (Keatings and Adams, 2019).

“On this point, the court found that while it would be inexcusable to keep patients waiting if a treatment room was available, there was nothing in the evidence to suggest that the child could have been seen any earlier” (Keatings and Adams, 2019). The court therefore held that “deference had to be shown to the judgment of those who manage work in an emergency department” and that “the charge nurse had met the standard of care of a reasonable and prudent charge nurse that day” (Keatings and Adams, 2019).

In the Latin case, the events in question took place in 1998, but the suit was not initiated until 2006. One of the issues investigated in this case was the failure of the triage and charge nurses to properly document events as they unfolded that day. In Ontario, where the events took place, “a record of admission, diagnosis, consent forms, examinations, treatment, care plan, nursing notes, and so forth must be kept on each patient” (Keatings and Adams, 2019).

Alternative Actions

“Physicians’ orders must be in writing and signed or authenticated by the physician who made the order. All entries in the patient record made by nurses and other health care professionals must be initialed or signed and dated, with the exact time of the entry noted…Late entries must also be indicated” (Keatings and Adams, 2019). As Keatings and Adams note, [i]n many cases of malpractice, the trial of the actions of health care professionals will occur several years after the events leading up to and including the negligent acts. Memories will fade with time, and the evidence given by witnesses, such as nurses and physicians, will often be hazy or incomplete. Therefore, the notes and records prepared by the health care team assume added value and significance because these are often the only source of information regarding what occurred (Keatings and Adams, 2019).

As a result: [d]ocumentation serves not only as a means of defending the nurse’s actions and interventions in legal proceedings but also [as] the main means of ongoing communication about a client’s care and progress…Nurses are required not only to meet The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 6 Template version: 2019-08-06 the standards of documentation but also to review this documentation on a regular basis. Thus, they will be in a position to provide safe and competent care to clients (Keatings and Adams, 2019). In chapter 8, Keatings and Adams turn to the subject of end-of-life care. They discuss such topics as the use of advance directives and proxy consent as well as the importance of understanding and respecting the many cultural and religious traditions associated with death and dying. They also explore the ethical challenges associated with withdrawal and withholding of life-sustaining technologies and the legal and moral issues associated with organ donation and transplantation.

All too often, families confronted with the imminent death of a loved one find themselves at a loss regarding the decision whether or not to prolong the dying process or to curtail lifesustaining measures. In many instances, cultural and religious considerations will dictate the choices made by the family of the terminally ill patient. In light of these considerations, “[a] general familiarity with the fundamental concepts of various traditions allows nurses to provide competent, compassionate, and respectful care as patients from differing backgrounds approach the end of life” (Ross, as cited by Keatings and Adams, 2019). For many Canadians religious obligations are not essential aspects of the process. This does not mean that end-of-life decision making is any less difficult and, in many instances, there will be disagreement among family members; in such cases, advance directives may offer guidance as to what the dying patient would have chosen for him- or herself had he or she been conscious. Nevertheless, these directives are not infallible “because it is not always possible for individuals to anticipate every possibility in advance of their future state of mind and circumstances” (Porteri, as cited by Keatings and Adams, 2019).

APA Style and Referencing

A living will can serve to instruct family members regarding which life-sustaining measures the patient would agree to in the event that he or she is rendered incompetent. In the absence of specific instructions, a living will may be used to designate a proxy decision-maker who will make choices in keeping with the beliefs and values of the incompetent patient. On pages 202-204, Keatings and Adams discuss the painful choices facing the families of lowbirth- neonates and terminally ill children. Authors Janvier and Barrington note that “[i]n these extremely challenging and emotional moments, the healthcare team and parents have to weigh the benefits and burdens of aggressive intervention for the infant, for example, in the following circumstances: • Early death is very likely, and survival would be accompanied by high risk of severe morbidity The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 7 Template version: 2019-08-06

• Intervention would only prolong dying

• The prognosis is uncertain, and survival may be associated with diminished quality of life

• Significant neurodevelopmental disability is possible

• The infant would suffer significant discomfort (e.g., pain).

• Survival is likely and the risk of morbidity is low” (Janvier and Barrington, as cited by Keatings and Adams, 2019) On pages 210 to 221, the authors discuss euthanasia, assisted suicide and withdrawal of treatment along with a number of landmark legal decisions relating to these issues. The cases of Karen Ann Quinlan and Nancy Cruzan took place in New Jersey and Missouri, respectively. The cases of Nancy B., Sue Rodriguez and Robert Latimer, meanwhile, took place in Quebec, British Columbia and Saskatchewan. One of the interesting features of these cases is the fact that they point to a shift that has occurred in North American society with regard to the provision of heroic life-saving measures.

On the one hand, physicians seem to be more willing to curtail measures designed to prolong life by artificial means than they were 40 years ago. On the other hand, many of the cases that are now being tried in both U.S. and Canadian courts do not involve family members petitioning courts to allow them to remove life-support systems from patients in persistent vegetative states (as in the Quinlan and Cruzan cases) but rather families attempting to prevent physicians and hospitals from disconnecting these systems. Indeed, many of the families involved in recent cases have expressed hostility to healthcare workers trying to withdraw life-support systems and their frustration in dealing with a healthcare system that does not adequately recognize their cultural and religious traditions.

Conclusion

The Karen Quinlan case, which went to trial in 1975, involved a 21-year-old woman in a “chronic vegetative state” whose physician refused to honor her parents’ wish that her means of lifesupport be removed. Mr. Quinlan sought to gain legal custody of his daughter so that he could authorize removal of the breathing machine to which she was connected. Mr. Quinlan was supported by his parish priest who advised that the Roman Catholic Church does not demand the continuation of extraordinary means to prolong a hopeless life (Munson, 1992).

Mr. Quinlan’s lawyer based his legal petition on three constitutional principles. First, that there is an implicit right to privacy guaranteed by the U.S. Constitution that permits individuals or others acting on their behalf to terminate the use of extraordinary measures of life-support, even when death may ensue. Second, that the First Amendment guarantee of religious freedom applied to the Quinlan case. Third, that the “cruel and unusual punishment” clause of the Eighth Amendment also applied if the state proposed to keep Karen alive against her will and the will of her family (Munson, 1992). 

The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 8 Template version: 2019-08-06 At trial, Karen’s mother and sister both testified that Karen had previously expressed her desire not to be kept alive by artificial means should the situation arise. An expert witness testified not only that Karen was in a persistent vegetative state but also that she was unlikely ever to regain consciousness. Physicians testifying on behalf of the hospital conceded this but argued that because she still had a pulse and her brain showed signs of electrical activity, she could not be considered dead by legal or medical criteria. The trial court judge found that Karen’s father was unfit to be awarded custody because his anguish would likely cloud his judgment.

Also, as Karen was still legally alive, to allow for termination of life-support would constitute “homicide and an act of euthanasia” (Munson, 1992). The decision was appealed to the Supreme Court of New Jersey, which ruled that Mr. Quinlan could assert a right of privacy on his daughter’s behalf; the court set aside any criminal liability for removal of the respirator, claiming that if death resulted it would not be homicide. Karen was weaned from the respirator but continued to breathe on her own until her death ten years later (Munson, 1992). In deciding that a legally based right to privacy permits a patient to refuse medical treatment the court also found that this right can, in the case of incompetent patients, be exercised by a parent or guardian (Munson, 1992).

Since the court held that the removal of life-sustaining equipment would not be a cause of homicide even if the patient should die, the decision was regarded as a major turning point. Yet, neither healthcare professionals nor the public at large fully understood the legal implications of the decision, a narrowly construed ruling meant to apply only to mentally incompetent patients that are brain dead, comatose or in a persistent vegetative state (Munson, 1992). The Nancy Cruzan case was, perhaps, even more significant given that it was appealed all the way to the U.S. Supreme Court. The woman in question, the victim of an automobile accident, was also left in a permanent vegetative state, dependent on artificial means of life-support. Her parents had appealed the decision of the Supreme Court of the state of Missouri, which held that “because there was no clear and convincing evidence of Nancy’s desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request” (Rehnquist, as quoted by Munson, 1992).

As with the Quinlan case, the Cruzan case revolved around constitutional issues, specifically, the state of Missouri’s right to set strict evidentiary standards for determining the wishes of incompetent patients. Supreme Court Chief Justice Rehnquist, author of the majority opinion, found that, while Common Law and the 14th Amendment furnished a basis for respecting an individual’s refusal of medical treatment, such wishes can only be discerned indirectly in the case of comatose persons (Rehnquist, as cited by Munson, 1992). Rehnquist further argued that it was not unconstitutional for states to determine their own standards of evidence (Rehnquist, as cited The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 9 Template version: 2019-08-06 by Munson, 1992). Missouri, he concluded, had decided to maintain the status quo and err on the side of caution in drafting its statutes in pursuance of a legitimate state interest to protect the lives of its citizens (Rehnquist, as cited by Munson, 1992).

In making their request, the plaintiffs (Nancy’s parents) had relied on a statement made by Nancy (in conversation with a friend) that if she were ever sick or injured she would not like to continue living unless she could do so relatively normally. The Supreme Court felt that a person in Nancy’s condition had a fundamental right under both the state and federal constitution to refuse or direct the withdrawal of “death-prolonging procedures” (Rehnquist, as quoted by Munson, 1992). Yet, at the same time, it found that Nancy Cruzan’s statements to her friend “were unreliable for the purpose of determining her intent” and, thus, were “insufficient to support the co-guardians’ claim to exercise substituted judgment on Nancy’s behalf” (Rehnquist, as quoted by Munson, 1992).

The court argued that the Common Law doctrine of informed consent generally “encompass[es] the right of a competent individual to refuse medical treatment” and that the U.S. Constitution would grant a competent individual “a constitutionally protected right to refuse life-saving hydration and nutrition” (Rehnquist, as quoted by Munson, 1992). Missouri, in some sense, had recognized the right of a surrogate to act for a patient in electing to discontinue nutrition and hydration but it had also, according to Rehnquist, “established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent” (Rehnquist, as quoted by Munson, 1992).

Two very persuasive dissenting opinions were penned by justices Brennan and Stevens. The former argued that the State of Missouri had no interest in keeping Nancy Cruzan alive, that maintaining the status quo could actually produce harm, and that the state may even force patients to receive medical treatments they would otherwise reject. Brennan argued: Although the right to be free of unwanted medical intervention...may not be absolute, no state interest could outweigh the rights of an individual in Nancy Cruzan’s position. Whatever a state’s possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri’s insistence that Nancy Cruzan remain on life support systems if it is indeed her wish not to do so.

Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy’s receiving medical treatment. No third party’s situation will be improved and no harm to others will be averted (Brennan, as quoted by Munson, 1992). NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 10 Template version: 2019-08-06 Justice Stevens, in a separate opinion, argued that the court’s focus on somewhat elusive state interests ignored the best interests of Nancy Cruzan.

The Court had, according to Stevens, “permit[ted] the state’s abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by allowing her guardians to exercise her constitutional right to discontinue medical treatment” (Stevens, as quoted by Munson, 1992). The court, in Stevens’ opinion, erred because it chose to ignore three basic propositions: (1) “a competent individual’s decision to refuse life-sustaining medical procedures is an aspect of liberty protected by the Due Process Clause of the 14th Amendment”; (2) “a qualified guardian may make that decision on behalf of an incompetent ward”; (3) “it is wise ‘not to attempt by any general statement, to cover every possible phase of the subject’” (Stevens, as quoted by Munson, 1992).

Living wills and advance directives offer limited protection from unwarranted medical treatment. Nevertheless, Stevens argued, “[t]he Court’s decision affords no protection to children, to young people who are victims of unexpected accidents or illnesses, or the countless thousands of elderly who either fail to decide, or fail to explain, how they want to be treated if they should experience a similar fate” (Stevens, as quoted by Munson, 1992). The philosopher Ronald Dworkin similarly questioned Rehnquist’s assumption that life is an asset under any circumstances, thereby ignoring issues of dignity and the burdens imposed not only on patients but on friends, family and even on society.

Dworkin also questioned Rehnquist’s interpretation of states’ rights, claiming that he not only overemphasized the state’s right to protect its citizens but that, if states recognize the right of competent patients to refuse treatment, Rehnquist would have to justify forcing incompetent patients to accept medical treatment when they or their guardians believe is unnecessary or invasive. According to Dworkin, Rehnquist contrasted Nancy Cruzan’s autonomy not only with “her own best interests but also with the state’s interest in protecting and preserving life,” thereby “tip[ping] the evidentiary scales against termination” (Dworkin, as quoted by Munson, 1992). Dworkin argued that if, for example, a devout Jehovah’s Witness were to refuse a vitally necessary blood transfer on behalf of an unconscious relative, the state need not honor the relative’s wishes. Physicians and lawmakers work under the presumption that it is in the best interests of comatose persons to continue living even when there is decisive evidence they have indicated otherwise.

Dworkin finds that this presumption is sensible because “life and health are fundamentally so important that no one should be allowed to reject them on behalf of someone else” (Dworkin, as quoted by Munson, 1992). Yet, he also asserts that “no such assumption is plausible when the life in question is only the insensate life of the permanently vegetative” (Dworkin, as quoted by Munson, 1992). In such instances, the state’s concern for the health and NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues.

All rights reserved. 11 Template version: 2019-08-06 welfare of its citizens does not “give it a reason to preserve someone’s life when his or her welfare would be better served by being permitted to die with dignity” (Dworkin, as quoted by Munson, 1992). Dworkin does not dismiss the notion that life has intrinsic worth but does assert that such worth can be dissipated through suffering and disease. Such patients’ lives “cannot be improved just by keeping the bodies they used to inhabit technically alive”; there is nothing intrinsically worthy or admirable in having one’s body “medicated, fed and groomed, as an object of pointless and degrading solicitude after one’s mind is dead” (Dworkin, as quoted by Munson, 1992).

A number of Canadian cases dealing with euthanasia and assisted suicide are described by Keatings and Adams in chapter 8. The case of Nancy B. v Hôtel-Dieu de Quebec et al. (1992) involved a 25-year-old woman who, by late 1991, had suffered from Guillain-Barré syndrome, a disabling neurological disorder, for two years. In January 1991, Nancy B. indicated that she was unwilling to continue in her intubated, respirator-dependent state and petitioned the court to be allowed to have respiratory support withdrawn so that nature could take its course. In order to do this, however, she required the help of a third person. Nancy B. invoked her right to decline medical treatment in accordance with the Civil Code of Lower Canada (still in effect at the time), which provided that “[n]o one may cause harm to the person of another without his consent or without being authorized to do so” and, further, that “[n]o person may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent” (Civil Code of Lower Canada, as quoted by Dickens, 1993).

Citing the doctrine of informed consent as articulated in the case of Reibl v Hughes, the trial court judge argued that “the logical corollary of this doctrine of informed consent is that the patient generally has the right not to consent, that is the right to refuse treatment and to ask that it cease where it has already been begun” (Dufour, as quoted by Dickens, 1993). Although suicide was decriminalized in 1972 in Canada, section 241 of the Criminal Code provided that anyone who aids or abets a person to commit suicide is guilty of an indictable offence. The judge trying the case asked: “[c]an the conduct of a physician who stops the respiratory support treatment of his patient at the freely given and informed request of the patient…be characterized as unreasonable” (Dufour, as quoted by Dickens, 1993). The judge answered: “I do not believe so” (Dufour, as quoted by Dickens, 1993) and found that “the circumstances of Nancy B.’s proposed death would constitute neither homicide nor suicide, but rather natural death” (Dickens, 1993).

The significance of the Nancy B. decision, according to one analyst, lay in the fact that “it narrow[ed] the gap between letting a patient suffer natural death and assisting suicide. It fit…within a category of lawful, medically assisted natural death, in that it authorize[d] a physician to prepare a patient for death that continuation of medical treatment could postpone for years The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 12 Template version: 2019-08-06 and perhaps decades” (Dickens, 1993). Nancy B. was thus “held to have a right to die, in that neither a physician nor a hospital could treat her without her consent” (Dickens, 1993). The case of Sue Rodriguez (Rodriguez v. British Columbia (1993)) was another landmark case in Canadian legal history. Sue Rodriguez was a young mother diagnosed with ALS who sought to obtain help to end her life. She brought an application before the Supreme Court of British Columbia, challenging the constitutionality of section 241 (b) of the Criminal Code.

Mrs. Rodriguez based her application on the grounds that section 241 (b) violated several of her Charter rights, including: life, liberty and security of person (Canadian Charter of Rights and Freedoms, 1982, section 7); equality before the law (Canadian Charter of Rights and Freedoms, 1982, section 15 (1)); and, freedom from cruel and unusual treatment (Canadian Charter of Rights and Freedoms, 1982, section 12). Mrs. Rodriguez argued that the relevant sections of the Criminal Code “deprive[d] her of control over her body…prevented her from obtaining assistance from another person in ending her life when she could no longer do so on her own and subjected her to cruel and unusual treatment at the hands of the state” (Keatings and Adams, 2019). She further argued that, since the provision making it a criminal offense to commit suicide had been repealed in 1972, the law was discriminatory insofar as it prevented a disabled person from doing what any other able-bodied person was legally entitled to do. Unsuccessful in the courts of British Columbia,

Mrs. Rodriguez appealed her case to the Supreme Court of Canada in 1993. In a five-four decision, the Supreme Court decided against Mrs. Rodriguez’s application. Over the course of the trial, the court examined various forms of euthanasia and assisted suicide, arguing that some form of passive euthanasia could be considered acceptable if the artificial means used to prolong life are withdrawn at the request of the patient and natural death ensues. Active euthanasia, on the other hand, could not be justified. The court examined evidence from The Netherlands, which decriminalized euthanasia and physician-assisted suicide several decades ago. One of the justices supporting the majority decision, Mr. Justice Sopinka found that the “slippery slope” argument pertained to the case at hand. Proponents of this view argue that allowing some form of euthanasia, as in The Netherlands, raised the spectre of the potential for abuse. Justice Sopinka “reviewed the record in the Netherlands, which at the time had the most liberal guidelines on euthanasia and assisted suicide and noted evidence…of a disturbing rise in cases of voluntary active euthanasia, not permitted by their guidelines” (Keatings and Adams, 2019).

Justice Sopinka therefore worried that if euthanasia were allowed in a limited number of cases “it would be difficult to limit the act NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 13 Template version: 2019-08-06 to situations in which patients are terminally ill and actively dying” and might even extend to “the chronically ill, the aged and the demented” (Keatings and Adams, 2019). Applying the slippery slope argument to the Rodriguez case, the minority of justices reasoned that “decriminalizing assisted suicide would leave the physically disabled vulnerable to manipulation by others” but that “this would still not justify depriving a disadvantaged group (i.e., the disabled) of equality before the law, specifically the right to determine the circumstances in which they end their life” (Keatings and Adams, 2019).

The case of R. v Latimer (1997) concerned the conviction of a Saskatchewan farmer for the murder of his severely disabled 12-year-old daughter Tracy. The case related to ethical justifications for so-called “mercy killings” and the “defence of necessity”. Latimer was convicted in two separate trials and appealed his conviction to the Supreme Court of Canada. As defined by the Supreme Court of Canada in the case of R v Goltz, the defence of necessity doctrine [e]xists as an excusing defence, operating in very limited circumstances, when conduct that would otherwise be illegal and sanctionable is excused and made unsanctionable because it is properly seen as the result of a morally involuntary decision, to do an act which in the eyes of society is thought to have positive social value outweighing the detrimental effect of the contravention. It only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril, and where there are no reasonable legal alternatives to the conduct pursued (R v Goltz, 1991). In his first trial Latimer was convicted of second-degree murder.

This decision was overturned due to jury tampering and the Supreme Court of Canada ordered a new trial in which Latimer was again found guilty of second-degree murder although the judge in this case reduced Latimer’s sentence substantially in light of what he considered to have been the “agonizing choices and decisions that Latimer had to make in the face of his daughter’s suffering” (Keatings and Adams, 2019). This second, more lenient sentence was overturned on appeal to the Saskatchewan Court of Appeal. Latimer’s subsequent application to the Supreme Court of Canada was dismissed, the court ruling that “Latimer could not invoke the defense of necessity because he did not lack a legal alternative, there was no immediate peril, and the harm he had inflicted was out of all proportion to the harm he sought to avoid” (Keatings and Adams, 2019). In 2015, the Supreme Court was asked to reconsider its previous decision in the Rodriguez case after the British Columbia Civil Liberties Association (BCCLA) challenged the law on assisted suicide on behalf of the families of Kay Carter and Gloria Taylor, two British Columbia residents 

The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 14 Template version: 2019-08-06 suffering from ALS and spinal stenosis. In 2013, the Supreme Court of British Columbia ruled in favour of the BCCLA, “agreeing that the law that prohibits aiding another person to commit suicide violated sections 7 (the right to life, liberty, and security of the person) and 15 (1) (equality) of the Charter” (Keatings and Adams, 2109). In this case, the Attorney General of Canada argued that an absolute prohibition on assisted suicide was necessary to avoid risking the deaths of incompetent persons, deaths that are involuntary and the deaths of vulnerable persons, including the elderly and those with disabilities.

In her decision, Justice Smith elaborated on what she would consider to be “acceptable criteria for the exercise of physician-assisted death”, namely that it should be performed: [b]y a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult person who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacity with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is inoperable and cannot be alleviated by any medical treatment acceptable to that person (Carter v. Canada (Attorney General), 2012).

In making this ruling, Justice Smith implicitly rejected the principle of stare decisis and challenged Justice Sopinka’s decision in the Rodriguez case in which he articulated his slippery slope argument against euthanasia and expressed his fear “that in some cases, [a] third party will, The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 15 Template version: 2019-08-06 under the guise of palliative care, commit euthanasia or assist in suicide and go unsanctioned due to the difficulty of proof” (Carter v. Canada (Attorney General), 2012).

Justice Smith, by contrast, “found that the preponderant ethical opinion is that there is no brightline distinction….between physician-assisted dying and end-of-life practices such as withholding or withdrawing life-sustaining treatment or administering palliative sedation where the highly probable consequence is to hasten death” (Carter v. Canada (Attorney General), 2012). As Justice Sopinka had earlier done in the Rodriguez case, Justice Smith reviewed the evidence from The Netherlands, as well as from Belgium and Oregon.

In contrast to Justice Sopinka’s findings, Justice Smith maintained that “[t]he evidence shows the effectiveness of safeguards depends upon, among other factors, the nature of the safeguards, the cultural context in which they are situate, the skills and commitment of the physicians who are responsible for working within them and the extent to which compliance with the safeguards is monitored and enforced” (Carter v. Canada (Attorney General), 2012). She further argued that “Canadian physicians are already experienced in the assessment of patients’ competence, voluntariness and non-ambivalence in the context of end-of-life decision making” and that “[i]t is already part of sound medical practice to apply different levels of scrutiny to patients’ decisions about different medical issues, depending upon the gravity of the consequences (Carter v. Canada (Attorney General), 2012).

After the decision was overturned on appeal, the BCCLA filed an application with the Supreme Court of Canada. In its decision of February 6, 2015, the Supreme Court of Canada “ruled unanimously that the Criminal Code prohibitions on voluntary euthanasia (Section 14) and assisted suicide (Section 241(b)) violated the Charter of Rights and Freedoms” (Keatings and Adams, 2019). The Supreme Court found that the prohibition against physician-assisted suicide interferes with the ability of grievously ill individuals “to make decisions concerning their bodily integrity and medical care” and thus infringes upon their liberty.

ResearchPublications The court identified the objective of the prohibition to be “preventing vulnerable persons from being induced to commit suicide at a time of weakness” but concluded that the prohibition was overbroad “because it not only prevented vulnerable persons from committing suicide, but also persons who are ‘competent, fully-informed, and free from coercion or duressResearchPublications NURS 330: LEGAL AND ETHICAL ISSUES IN NURSING Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University.

effort to balance respect for autonomy and protection of the vulnerable, the government amended the criminal law to permit medical professionals to provide MAID under specific conditions. “To be eligible for MAID in Canada, an individual must

• be ‘eligible…for health services funded by a government in Canada’;

• be ‘at least 18 years of age and capable of making decisions with respect to their health’;

• ‘have a grievous and irremediable medical condition,’ meaning ‘they must have a serious and incurable illness,’ ‘they are in an advanced state of irreversible decline in capability,’ they are in [a state of] ‘physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable’ and their ‘death has become reasonably foreseeable.

The Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 17 Template version: 2019-08-06 • ‘have made a voluntary request for [MAID] that…was not made as a result of external pressure’; and • ‘give informed consent to receive [MAID],’ meaning that the patient must be informed of their diagnosis and prognosis, reasonable alternative treatments available and their associated common risks, including palliative care, the fact they can rescind their request for MAID at any time and the exact nature of the MAID procedure and the consequences of receiving or not receiving MAID”. 

The remainder of chapter 8 concerns organ donation, legal definitions of death and human tissue legislation. As you are probably well aware, advances in the field of organ transplantation, coupled with stricter reinforcement of seat belt requirements and prohibitions against drunk driving have led to a severe shortage of transplantable organs for a growing list of candidates. In some countries presumed consent is the law. This means that one is presumed to agree to the donation of his or her organs after death unless he or she “opts out” and refuses to participate in this system.

While rates of organ donation increased for a period of time in countries that adopted a presumed consent approach to organ donation (e.g., France, Belgium, and The Netherlands), they eventually leveled off due to the reluctance of healthcare professionals to broach the subject of organ removal and transplantation with the families of the dying and recently deceased. With the exception of Nova Scotia, which recently became the first jurisdiction in North America to adopt such an approach to organ donation, presumed consent is not the law elsewhere in Canada or the U.S. and the same reluctance on the part of healthcare professionals to approach grieving families, even if the deceased has indicated his or her willingness to be an organ donor, has contributed to a chronic shortage.

An additional complication associated with organ removal has to do with legal and medical determinations of the time of death. The traditional approach to determining death was based on the cessation of such bodily functions as respiration and heartbeat. The ability to sustain life by artificial means and to revive patients who have ceased to breathe or whose hearts have ceased to beat has led to complications in the legal definition of death. The demand for transplantable organs, meanwhile, has led to increased debate among medical professionals and legislators in all countries in which organ transplantation has become common. In 1968, a committee at Harvard Medical School published a set of criteria that have been used to define brain death for the past half century.

The indications of deep irreversible coma or socalled “whole brain death” include: (1) absolute unresponsiveness to externally applied stimuliThe Nurse’s Legal Accountabilities and End-of-Life Issues Lesson 4: The Nurse’s Legal Accountabilities and End-of-Life Issues Copyright © 2021 Continuing & Distance Education, St. Francis Xavier University. All rights reserved. 18 Template version: 2019-08-06 (2) cessation of movement and breathing, including no spontaneous breathing for three minutes after an artificial respirator has been turned off; and (3) complete absence of cephalic reflexes. The pupils of the eyes must be dilated and unresponsive to direct light. (Ad Hoc Committee of the Harvard Medical School, 1968).

In Canada, Manitoba was the first province to enact legislation defining the moment of death. The Manitoba Vital Statistics Act of 1975 provides that “the death of a person takes place at the time at which irreversible cessation of all that person’s brain function occurs” (Vital Statistics Act (Manitoba), 1975). With respect to human tissue donation, “the laws of most provinces require that the death of a prospective donor be determined in the way stated above”, i.e., according to either the Harvard Medical School whole brain death criteria or the criteria listed in the Manitoba act (Keatings and Adams, 2019). Again, given the shortage of available organs, some healthcare professionals have suggested that the definition of death be further refined to include cortical death; this “would include patients in a persistent vegetative state, who have no cortical activity although the brain stem is intact. Such persons can maintain their vital functions, and their body can live for years with appropriate nursing care” (Keatings and Adams, 2019).