Essential Law and Ethics in Nursing

Patients, Rights and Decision-Making

Paul Buka

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000095289
• Edition: 3
• Topic: Medicine
• Subtopic: Nursing Skills

This thoroughly updated third edition lays a solid foundation for understanding the intersection of law, ethics and the rights of the patient in the context of everyday nursing and health care practice.

Outlining the key legal and ethical principles relevant to nurses, Essential Law and Ethics In Nursing: Patients, Rights and Decision-Making, previously entitled Patients' Rights: Law and Ethics for Nurses, uses an easy-to-read style that conveys key principles in an accessible way. It:

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• provides a clear understanding not only of basic legal provisions in health care but also of wider issues relating to human rights;

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• covers topics such as ethical decision-making, the regulation of nursing, confidentiality, laws concerning human rights, safe practice, vulnerable people, elder abuse and employment regulations; and

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• includes thinking points, case studies and relevant case law to help link theory with practice.

This is essential reading for nurses and an important reference for midwives and allied health professionals.

CHAPTER

1 Introducing ethics in health care

Chapter outline

Introduction and overview

Key ethical theories

The emergence of a bioethical theory

Development of professional regulation (NMC) and ethics

Ethical dilemmas and frameworks for decision-making

Ethics and research

Conclusion

References

Introduction and overview

The aim of this chapter is to introduce the key concepts of ethics while applying them to health care. Ethical principles emerged from a variety of systems of moral principles which influenced thinking and decision-making for moral philosophers or ethicists. These principles may apply to a range of aspects or situations in people’s lives, from the beginning of life to the end. Ethics or moral philosophy attempts to define norms of how people should live while providing a forum on what these standards should be. There are many variations of ethics theories, and they serve as guiding principles in a variety of settings and help decision-makers in distinguishing right from wrong. The question remains how to determine the most appropriate interventions for supporting decision-making in a given healthcare setting. There are many theories which attempt to provide some answers. Due to the nature and complexity of treatment decisions, application of ethical principles presents a challenge when competing interests may emerge, and tensions of human conflict may be exposed. Ethics may lend a hand in providing some answers. Ethical values may be at variance with other principles such as those based on law, for example, in the interpretation of statutes as informed by case law. In the provision of care, the service-user should be at the centre of decision-making (NHS Constitution, 2015). Within the wider society, applied ethical standards may regulate the conduct of groups of non-healthcare professionals such as architects, lawyers, tradesmen and other professionals. Nurses and midwives also fall into this category via the Nursing and Midwifery Council (NMC). Ethics is concerned with decisions affecting individuals and how the impact of family, friends and society. Ethics is often described as a branch of philosophy: namely ‘moral philosophy’. The discipline has evolved from a variety of sources with factors in any given society and includes the following moral choices on:

• how to live a good life
• our rights and responsibilities
• the language of right and wrong
• moral decisions – what is good and bad?

(http://www.bbc.co.uk/ethics/introduction/intro_1.shtml)

The word ‘ethics’ (ˈɛθɪks) originates from the Greek ‘ethos’. The branch of moral philosophy, ethics or sometimes loosely termed ‘morals’, may develop from societal norms of human conduct, which have shaped specific standards of conduct to which various professions of various disciplines subscribe. The Greek philosophers who were credited with developing moral philosophy were Socrates (c. 470–399 BCE), Plato (429?–347 BCE) and Aristotle (384–322 BC).

Stoicism

The ‘Stoics’ followed a prominent school founded by Zeno of Citium in Cyprus (344–262 BCE) and were responsible for the revival of Plato and Aristotle’s ‘Virtue Ethics’.

They built philosophy of life based on positive aspects and maximizing positive emotions based on practical ways to help improve a person’s strength of character. They also focussed on a person’s morals, character or the individual’s integrity. Some examples are very broad, and they include honesty, courage, fairness and compassion. Could this be part of a person’s individual integrity or ‘conscience’, both of which can be described as innate or rather as acquired later in life as the individual chooses to act in the way they do? The Stoics also identified wisdom, justice, fortitude and temperance as the ‘four cardinal virtues’; these are found within Plato’s Republic.

Moral philosophy or ethics classification may also be sub-divided into four approaches or sub- topics:

• Meta-ethics aims to understand the nature of ethical evaluations, the origin of ethical principles and the meanings of terms used but is value-free.
• Descriptive ethics involves, for example, determining what proportion of the population or a certain group considers that something is right or wrong.
• Normative ethics, sometimes referred to as moral theory, focusses on how moral values are determined, what makes things right or wrong and what should be done.
• Applied ethics examines controversial issues (such as euthanasia, abortion and capital punishment) and applies ethical theories to real-life situations. Applied ethical issues are those which are clearly moral issues and for which there are significant groups of people who are either for or against.

(https://www.alzheimer-europe.org/Ethics/Definitions-and-approaches/What-is-meant-by-the-term-ethics)

The discipline of applied ethics is relevant to healthcare practice when it comes to clinical decision-making.

Key ethical theories

The issue is, whether a claim that those universal ethical principles with common ground for morals which are acceptable to the majority of a given society can be justifiable. What should happen when a conflict of morals arises, and whose morality is it, anyway? Norms vary, from society to society, groups to groups or between individuals. Ethics usually revolves around distinguishing good from bad or right from wrong. Ethical dilemmas may arise in health care, and ethical principles may be invoked in support of viewpoints during decision-making, thus resolving disputes. The relation to the law will be demonstrated. It is possible that in one society it may be difficult to guarantee individual rights to choose where treatment decisions arise. Where decision-making involves several stakeholders, it may be difficult to have a consensus on a given ethical theory as morals or by norms for distinguishing right from wrong. It could be argued that ethical norms are relative to nations or individuals, depending on the society in which they have been brought up. It may be possible to hold that individuals born and bred within the same family, who are brought up within the same environment and under the same conditions, such as circle of friends, religion, schooling and neighbourhood, may later in life hold divergent ethical values. There are exceptions to the rule of morals when ‘unethical’ conduct may be acceptable in some sub-cultures such as those found in criminal fraternities. Hence the question remains whether there can ever be a consensus of universally accepted norms of ethics. Alongside other branches of philosophy, ethics or moral philosophy has evolved over centuries. Many ethical theories have both similarities and divergent ideas on the interpretation of what is ethical, that is, distinguishing right from wrong.

Although ethics can be described as a system of moral principles or rules, it is not quite an accurate reflection of ethics as there are different approaches to defining ethics. There are, however, some core ethical principles which are universally accepted. The development of ethical values may be linked to religion, culture and customs, while others have developed international treaties. There is no simplistic answer as to what is or is not acceptable, and this goes beyond responses to the dilemma between good and bad. The two main categories of ethical theories are consequentialism and non-consequentialism.

Virtue ethics

Greek moral philosophers are credited with originating ethical theories. The ‘triumvirate’ of moral philosophy in ancient Greece society was Socrates (470/469–399 BC), Plato (428–347 BC) and Aristotle (384–322 BC), who were largely accredited with developing moral philosophy or ethics as a discipline.

Socrates (470/469–399 BC) was hailed as not only the father of democracy but also the founder of virtue ethics which was followed by the Stoics. This was based on his questioning method. Virtue ethics was based on character traits or moral character rather than ethical duties, responsibility including the most basic of ethics, beneficence, non-maleficence and autonomy. Bioethical ethics developed from these principles (below).

Consequentialism

Consequentialism is concerned with outcomes or results of any action as a justification such as the greatest good for the greatest number. Teleology, which is a branch of consequentialism, may judge actions to be ‘right ‘or ‘wrong’ based on their consequences. Another branch of consequentialism is utilitarianism, which judges the morality of actions based on their utility or usefulness. The more prominent proponents of utilitarianism were Jeremy Bentham (1748–1832) and John Stuart Mill (1806–73). They broadly agreed that actions are morally right when they produce the most good (greatest happiness) for the majority of people (for the greatest number).

They were hedonistic in their approach, though against an egocentric (individual- focussed approach. This is maximization of benefits of a majoritarian theory which may have a problem in justifying overriding the rights of minorities, for example in respect of older people with multiple conditions, or whether seeking treatment for a small number of people with rare conditions. Consider whether the outcome or greater good be the deciding factor in allocation of resources. This could also mean excluding life-changing treatment for a small number of people who require substantial amounts of resources. The so-called Postcode Lottery has also been linked to consequentialism and unequal distribution of resources.

There are two branches: act utilitarianism and rule utilitarianism.

1. Act utilitarianism – An act is considered right if it results in a positive and good outcome. Alternative for the greatest number.
2. Rule utilitarianism – An act is right if and only if it is determined by a rule which belongs to a set of rules; these would lead to a greater good for society, the best possible option.

Both branches of utilitarianism judge the ethics of rightfulness of an act based on its consequences for the greatest number. The limitation of utilitarianism is that one cannot necessarily predict the outcome or consequences of any action; hence, the anticipated consequence may be wrong and therefore not a valid basis for decision-making. Such a reason-based approach to determine decision-making could not be justified.

Non-consequentialism (the main branch is deontology)

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