Adapted from Edge R.S. (1995). Ethical and legal implications of practice, in Scanlan, C.L., Spearman, C.R, and Sheldon, R.L. (eds) Egan’s Fundamental of Respiratory Care, 6th edition. St. Louis: CV Mosby.
Contemporary ethical principles have evolved from many sources. These include Aristotle and Aquinas' natural law, Judeo-Christian morality, Kant's universal duties, and the values characterizing modern democracy. Although some controversy exists, most ethicists agree that autonomy, veracity, nonmaleficence, beneficence, confidentiality, justice, and role fidelity are the primary guiding principles in moral decision-making.
As applied to professional practice, each of these ethical principles consists of two components: a professional duty and a patient right. For example, the principle of autonomy obliges health professionals to uphold others' freedom of will and freedom of action. The principle of beneficence obliges us to further the interests of others, either by promoting their good or by actively preventing their harm. The principle of justice obliges us to ensure that others receive what they rightfully deserve or legitimately claim.
Expressed in each duty is a reciprocal patient right. Reciprocal patient rights include the right to autonomous choice, the right not to be harmed, and the right to fair and equitable treatment. From these general principles of rights and obligations one can generate more specific rules, such as those included in a code of ethics.
The principle of autonomy acknowledges patients' personal liberty, and their right to decide their own course and follow through a plan that they freely agree on.
It is from this principle that rules about informed consent are derived. To decide freely requires that an individual has adequate information to comprehend the available options. However, true informed consent requires more than just information. Individuals must also be "situated as to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching or other ulterior form of constraint or coercion" (The Nuremberg Code, Rule 1).
Autonomy, then, has two basic requirements: freedom to decide and freedom to act without coercion. Freedom to decide depends on information and comprehension. Freedom to act without coercion depends on the respect for personal autonomy granted by health care professionals and the families involved.
Thus, under the principle of autonomy, a health professional’s use of deceit or coercion to get a patient to reverse the decision to refuse a treatment would be considered unethical. Likewise, it would be unethical to threaten a patient unwilling to sign a consent form.
Unfortunately, the principle of autonomy is not regularly followed. There is a tendency among healthcare professionals to assume that they know what is best for the patient. This view, called paternalism, has long been a mainstay of health care practice. Take, for example, the following excerpts from the 1848 Medical Code of Ethics (Katz, 1986):
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"Obligations of Patients to their Physicians" The obedience of a patient to the prescriptions of his physician should be prompt and implicit. He should never permit his own crude opinion as to their fitness to influence his attention to them. "Duties of Physicians to their Patients" A physician should not be forward to make gloomy prognostications, because they savor of empiricism, by magnifying the importance of his services in the treatment or cure of disease. But he should not fail, on proper occasions, to give to the friends of the patients timely notice of danger when it really occurs; and even to the patient himself if absolutely necessary. 1848 Medical Code of Ethics |
In the past, medical care was based mainly on good bedside manners and, often, bad science. Patients were made well as much by their faith in the caring and authority of the caregiver as by the opinions and medications prescribed. Today medicine has given up much of its home-based art for the benefits of modern science. The rising expectations of the population, as well as the heavy involvement of the government and third-party payers, has created a new consumerism. Essential in this new consumerism is the expectation that lay people will be given greater responsibility and authority in personal health care decision- making.
Indeed, Robert Veatch, of the Kennedy Institute of Ethics, believes that the old ethic of patient benefit is now outmoded and should be replaced by an ethic of patient responsibility (Veatch, 1981). Many authorities feel that the growing conflict between patient autonomy and the paternalism of health care providers is the central crisis in medical relationships today (Beauchamp and McCullough, 1984).
To help patients and providers better understand these new expectations, the American Hospital Association (AHA) has published "A Patients' Bill of Rights". This document, although lacking the force of law, provides excellent insight into the emerging patient-provider relationship. A careful reading of this document provides the professional with a helpful guide in addressing issues in this vital and changing area.
Many states have adopted specific legislation giving patients "the fundamental right to control the decisions relating to their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in circumstances where such persons are diagnosed as having a terminally and irreversible condition" (Cook and Anderson, 1987).
The principle of veracity is often linked to autonomy, especially in the area of informed consent. In general, veracity binds the health provider and the patient to tell the truth. The nature of the health process is such that both parties involved are best served in an environment of trust and mutual sharing of all information.
Problems with the veracity principle revolve around such issues as benevolent deception. In actions of benevolent deception, the truth is withheld from the patient for his or her own good.
When the physician decides to withhold the truth from a conscious, well-oriented adult, the decision affects the interactions between health care providers and the patient, and has a chilling effect on the rapport so necessary for good care. In a poll conducted by the Louis Harris group, 94% of Americans surveyed indicated that they wanted to know everything about their cases, even the dismal facts (Scully and Scully, 1987). Outside of pediatrics and in rare cases where there is evidence that the truth would lead to a harm (such as suicide), the truth, provided in as pleasant a manner as possible, is probably the best policy (Fowler, 1987; Bok, 1978; Francoeur, 1983).
In the Hippocratic Oath taken by physicians as they enter practice, they swear to "never use treatment to injure or wrong the sick." This principle of nonmaleficence obligates health care providers to avoid harming patients and to actively prevent harm where possible.
In a simpler time this was an easier principle to uphold in practice. Now, many drugs and procedures have undesirable secondary effects. As an example, we might ask whether it is ethical to give a high dose of steroids to an asthmatic patient, knowing the many harmful consequences of these drugs.
One solution to these dilemmas is based on the understanding that many helping action inevitably have both a good and a bad, or double effect (Francoeur, 1983; Ramsey and McCormick, 1978). The key is the first intent. If the first intent is good, then the harmful effect is viewed as an unintended result.
For an action with unintended but harmful results to be considered ethically acceptable, it must meet four basic conditions, as outlined in accompanying box below (Fowler and Ariff, 1987).
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Principle of Double Effect An action that helps but may harm a patient may be ethical if:
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A simple example of the principle of double effect is drawing blood for a series of lab tests. The intent, to provide diagnostic information to help properly treat the patient, is good. However, this procedure has harmful effects: pain, anxiety, and complications. But because the health professional drawing the blood does not intend to cause pain or complications; these are unintended results. Moreover, the adverse effects are not the means to diagnosis; they are side effects. Last, the good that can occur (and bad that might occur without) outweighs the immediate adverse effects. Accordingly, drawing a blood sample in order to aid in patient management is consistent with the principle of nonmaleficence.
Not all people agree with the principle of double effect. According to some, foreseen secondary effects are avoidable and thus become intended if they are not avoided. Even if this critical position holds and the principle of double effect is rejected, it leads us to ask the right question: Under what circumstances can you be said to act morally when some of the foreseeable effects of your actions are harmful?
In simple terms, the principle of beneficence requires that health providers go beyond doing no harm and actively contribute to the health and well-being of their patients. In this dictum lies many quality-of-life issues, for practitioners of medicine today possess the technology to keep some individuals alive well beyond any rational good to themselves. This presents real dilemmas for those who are confronted with the ability to prolong life but not the ability to restore any uniquely human qualities.
In these cases, some interpret the principle of beneficence to mean that they must do everything to promote a patient's life, regardless of how useful the life might be to that individual. Other professionals in the same situation might believe they are allowing the principle to be better served by doing nothing and allowing death to occur without taking heroic measures to prevent it.
In most such cases, patients cannot decide for themselves. Instead, the matter is left to the family, the health care team, ethics committees, or, at times, the legal system. Decision-making by others is easier when individuals make their wishes known by way of an advanced directive or "living will." In the past, living wills have been ignored by health care professionals, and their legal weight has been challenged in court. Recently, however, state legislatures have begun to support these documents. Since the 1976 California law, most states have adopted similar legislation (Dennis, 1985; Allen, 1992). In addition, the Patient Self-Determination Act of 1990 requires that all health care agencies receiving federal reimbursement under Medicare/Medicaid legislation provide adult clients with information on advanced directives (Dennis, 1985).
The professions have also been active in addressing the complex issues involved in artificial life support. As an example, the American Medical Association (AMA) recently has provided physicians with a set of broad guidelines on the withholding or withdrawal of life-prolonging medical treatments.
The principle of confidentiality is founded in the Hippocratic Oath; it was later reiterated by the World Health Association in 1948. It obliges health care providers to "respect the secrets which are confided…even after the patient has died." As with the other axioms of ethics, confidentiality must often be balanced against other principles, such as beneficence.
A classic confidentiality case involved a young man who had voluntarily visited an outpatient psychiatric unit for evaluation. During his time with the psychologist, he related that he was planning to kill a certain young woman. Although the psychologist briefly had the patient detained, the young man appeared quite normal and demanded to be released. Given the voluntary nature of the man's visit and his otherwise normal behavior, he was released. The psychologist's decision not to hold the patient or to warn the woman was based on confidentiality. The tragedy of this case is that the patient did go on to kill the young woman.
When the parents of the murdered woman learned that the psychologist and security officers had been aware of the threat to their daughter's life but had made no effort to warn her of the potential harm, they sued. The court ruled for the parents, stating that the obligation to the innocent party outweighed the obligation to maintain patient confidentiality.
The main ethical issue surrounding confidentiality is whether more harm is done by occasionally violating its mandate or by always upholding it, regardless of the consequences. This limitation to confidentiality is known as the Harm Principle (Bok, 1983). This principle requires that practitioners refrain from acts or omissions that would foreseeably result in harm to others, especially where the others are vulnerable to risk.
For example, this principle would require that confidentiality be maintained for an AIDS patient in matters involving his or her landlord. In this case, confidentiality is justified because the landlord is not particularly vulnerable. However, if the patient were planning to marry, the Harm Principle would require that confidentiality be broken because of the special vulnerability of the spouse.
Confidentiality is usually considered a qualified, rather than an absolute, ethical principle in most health care provider-patient relationships. These qualifications are often written into codes of ethics. For example, the AMA Code of Ethics, Section 9, provides the following guidelines: "A physician may not reveal the confidences entrusted to him in the course of medical attendance or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the community or a vulnerable individual." Under the requirements of public health and community welfare there is often a legal requirement to report such things as child abuse, poisonings, industrial accidents, communicable diseases, blood transfusion reactions, narcotic use, and injuries caused with knives or guns (Pozgar, 1990). Child abuse statutes in many states protect the practitioner from liability even if the report should prove false, as long as the report was made in good faith. Failure to report a case of child abuse by one required to do so can leave that practitioner legally liable for additional injuries that the child may sustain after being returned to the hostile environment.
Unfortunately, breaches of confidentiality are more often due to careless slips of the tongue than to rational decision making. Such social trading in gossip about patients is unprofessional, unethical, and in certain cases, illegal. As a result of the widespread use of computerized databases, confidential information -- once highly protected -- is now relatively easy to obtain. Clinical data are available for close scrutiny by the clerical staff, laboratory personnel, and other health care providers. The widespread use of these data systems represents a real threat to patient confidentiality.
Potential violations of the individual's right to privacy in such populations as patients with AIDS pose a special threat because disclosure may result in economic, psychological, or bodily harm to the patient. Health professionals would do well to adhere to the dictum found in the Hippocratic Oath: "What I may see or hear in the course of the treatment or even outside of treatment of the patient in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things to be shameful to be spoken about."
The principle of justice requires that like cases be treated alike and that different cases be treated differently. Under this principle we find such issues as the fair distribution of care.
In an environment of rising expectation in regard to health care, issues of justice are coming to the forefront as policymakers wrestle with questions of how much care can be provided and on what basis. Current population trends indicate that in the year 2010, the number of individuals over 75 will have increased by 50% from the 1980s.
The United States is rapidly approaching a period in history when the number of those who contribute to the financial resources of our health care system will be smaller in number than those who rely on its resources. Nations such as Britain have long found it necessary to set up criteria for rationing certain kinds of care. Under the British health care system, for example, the government will not pay for kidney dialysis for patients over the age of 55.
As U.S. health care reimbursement policies change, our society is beginning to question the level of care citizens can claim or expect (Evans, 1983) Distributive justice deals with the proper allotment of the benefits and burdens in a society, as represented by taxes and subsidies. Questions of justice seem rather straightforward and possible to answer when they are seen as abstract policies, guidelines, or laws designed to allocate scarce resources. It is more difficult to address questions related to care of an individual patient, such as whether we should deny needed care to an individual on the basis of his or her inability to pay.
A second form of justice seen in health care is compensatory justice. This form of justice calls for the recovery for damages that were incurred as a result of the action of others. Damage awards in civil cases of medical malpractice or negligence are examples of compensatory justice. Industries that have been found to pollute or produce harmful agents such as asbestos have been sued for damages under this form of justice.
By necessity, modern health care is a team effort. This is because no single individual can be solely responsible for providing all of a patient's health care needs. Today there are more than 100 specialties under the heading of allied health. Along with nursing, these professions provide more than 80% of all patient care. Each of these specialties has its own practice niche, defined by tradition or by licensure law. Practitioners have a duty to understand the limits of their role and to practice with fidelity. As an example, because of differences in role duty, an allied health professional might be ethically obliged not to tell a patient's family how critical the situation is, instead having the attending physician do so (Edge and Groves, 1994).
Allen A (1992). Advanced directives provide answers for tough questions. J Post Anesth Nurs 7:183-185, 1992.
American Hospital Association. (1985). Values in conflict: resolving ethical issues in hospital care. Chicago, American Hospital Association.
Beauchamp TL, McCullough LB (1984). Medical ethics. Englewood Cliffs, NJ, Prentice-Hall.
Bok S (1978). Lying: moral choice in public and private life. New York, Vintage Books.
Bok S (1983). Secrets: on the ethics of concealment. New York, Vintage Books.
Cook SE, Anderson CC (1987). The current medical malpractice crisis. Schumpert Medical Quarterly.
Dennis C (1985). The power of attorney book. Berkeley, CA, Nolo Press.
Edge R, Groves R. (1994). The ethics of health care: a guide for practice. Albany, NY, DelMar.
Evans RE. (1983). Health care technology and the inevitability of resource allocation and rationing decisions. JAMA 249:2208-2219.
Fowler MD, Ariff JL. (1987): Ethics at the bedside. Philadelphia, 1987, Lippincott.
Francoeur RT (1983). Biomedical ethics: a guide to decision making. New York, Wiley Medical Publications.
Katz J. (1986). The silent world of the doctor and patient. New York, Free Press.
Pozgar, G. (1990). Legal aspects of health care administration. Gaithersburg, MD, Aspen Publishers.
Ramsey P, McCormick R (eds) (1978). Doing evil to achieve good. Chicago, Loyola University Press.
Scully TC, Scully C (1987). Playing God. New York, Simon & Schuster.
Veatch RM. (1981). A theory of medical ethics. New York, Basic Books.