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2018-2019 CNUR 830

NOTE Course Text:


McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

Week 8 – Ethical and Legal Issues in Nursing – Chapter 21 Organizer


Objectives
• Articulate the overlap between ethical and legal perspectives and identify the differences between these two perspectives.
• Demonstrate a beginning understanding of common legal issues in practice.
• Acknowledge the implications for nurses, the nursing profession, and the public if complex ethical and legal issues are not
addressed and resolved.
• Identify some potential barriers to, and strategies for, approaching ethical issues in practice.
• Use a decision-making framework to help work through complex ethical dilemmas.

Chapter 21 – Ethical and Legal Issues in Nursing


Situating the topic…what is ethics?
- Ethics can be defined as the process of carefully thinking through what is right or wrong in behaviour, decision making, and
values.
- The study of ethics is not only about thinking and reflecting upon what we consider to be good but also examining critically
the social norms, practices, moral issues, and ethical foundations of our societies
- Many people use the term morality interchangeably with ethics. Morality can be defined as beliefs about what we consider
to be right or wrong in our actions and behaviours toward those around us and is, in essence, very similar to ethics.
- Tendency to associate the term ethics more with the academic and philosophical study of right and wrong and the term
morality more with individual and more general social norms, values, and beliefs
- field of bioethics focuses on the study of ethical issues surrounding human lives, health, and illness. It encompasses matters
such as medically assisted dying, the use and allocation of new technologies, stem cell research, and maternal–fetal conflict,
among many others.
- Bioethics is one of many fields of applied ethics, in which theories, principles, and value judgements are used to approach
and work through ethical dilemmas in particular contexts.
- Other examples of applied ethics include medical ethics (the study of the ethical dimensions of medical care), environmental
ethics (concerned with our obligations toward the land, water, and animals), and business ethics (addresses questions of how
corporations and other businesses should deal with problems such as conflicts of interest, product safety, and the rights of
consumers).
- Nursing is, indeed, a “moral endeavor” and as one author notes,“every nursing act is a moral statement”. Levine goes on to
explain that, while there are times in which nurses face ethical dilemmas and situations that are significant or major, much of
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

the moral work of nursing is found in the everyday activities of nursing care and that nurses, as a result of being engaged in
a moral practice, are constantly making ethical decisions that appear, to others, to be straightforward practice decisions.
- No one situation is the same as another, although the key issue and principles may be similar. This is why it is often so
difficult to recognize an ethical dilemma when faced with one
Articulating the issue…
- The first step is recognizing that we are facing an ethical dilemma and critically reflect upon what we think are possible
options, as well as what we think we ought to do, and why.
- Another key step is recognizing our own values and beliefs and how they might have an impact upon the kinds of decisions
we make when faced with ethical dilemmas.
- As professional nurses, we cannot simply leave our values and beliefs behind when we are working, but instead must learn
to be aware of and reflect upon the values and beliefs we hold, our own moral responses, and the subsequent effect upon our
ethical decision-making abilities.
- There are three levels of moral responses to ethical problems: An expressive level, a prereflective level, and a reflective
level
 At an expressive level, we may simply state the way we feel about something without providing justification or
rationale for beliefs. A statement such as “I’m against medically assisted dying because killing is wrong” is an
example of an expressive response
 At a prereflective level, we may well justify our response by citing legal, religious, or professional norms without
critical reflection upon those norms. The statement “I oppose medically assisted dying because my professional
duty requires me to do no harm” is an example of a prereflective statement
 A reflective response is one in which the justification for our position is based upon principles or values that we
have reflected upon, critically, and made a decision to use as a basis for our stance. Consider the following example
of a reflective response: “I oppose medically assisted dying as the sanctity of all life and the principle of not doing
harm takes precedence over the autonomy of a person to choose.” While reasoning at a reflective level does not
guarantee easier resolutions or agreement, it provides more opportunity than reasoning at a merely expressive level,
for discussing views between those who might disagree.
Analyzing issues: Ways of understanding…
Ethical theories Codes of ethics Ethics and the law
- A key skill in the articulation and - A profession is, in part, defined by - The relationship between ethics
analysis of ethical issues is the having a code of ethics that and the law is a dynamic
ability to provide a rationale, provides public documentation of relationship in which there are
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

based on principles, to help back the expectations of ethical some overlap as well as some clear
up our positions practice. points of divergence.
- Learning about ethical theories can - CNA has developed a Code of - It is not against the law to spread
help us in communicating our Ethics for Registered Nurses, a malicious gossip or to talk badly
viewpoints to others. living document that is continually about coworkers behind their
- Two specific types of theories are revised backs, although most of us would
widely discussed in applied ethics: - The 2017 version of the code consider those actions to be
Deontologic and consequentialist outlines seven “nursing values and unethical.
theories ethical responsibilities.” - While we are ethically and legally
 Deontologic ethics is - Unlike a law, a code of ethics bound to maintain confidentiality
mainly concerned with the cannot be legally enforced by of patient information, there are
duties we have toward courts. situations in which breaching
others. From the point of - every profession has the legal right confidentiality is allowed and even
view of deontology, to sanction members for failure to required. Situations such as child
adherence to these duties adhere to their ethical abuse or neglect or a patient
and consistency are what responsibilities and duties intending to do imminent harm to
makes an action morally - Provincial regulatory bodies have self or others are reasons to breach
right. For example, from a disciplinary committees that confidentiality
deontologic point of view include members of the lay public - Mandatory gunshot wound
we might regard telling the - Internal regulation and sanctioning reporting is a good example of
truth to patients as an of members who do not act in balancing the needs of
absolute duty, rooted in the accordance with the code of ethics communities and the safety of
principle of respect for is the responsibility of a societies against the best interests
persons, which we must professional regulatory body. of an individual patient.
adhere to regardless of - What a code of ethics does not do, - Nurses have three kinds of legal
consequences. however, is prescribe particular obligations: To have knowledge of
 There are three difficulties actions to take in specific the legal boundaries of their jobs,
with deontologic theories situations where ethical problems to protect patients’ rights, and to
 it is often difficult have arisen. It is expected that a protect themselves from liability.
to determine what professional nurse can apply the - Nurses must provide a reasonable
our duties are. principles, values, and and competent standard of care to
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

 we often find responsibilities outlined in the their patients. Sometimes this is


ourselves facing code in particular situations. For referred to as a fiduciary duty, a
multiple and often many novice nurses, this can be trust-based duty that implies a
competing duties challenging as constructs or higher duty of care to others.
 paying attention notions such as “dignity” and - Those in fiduciary roles are
only to duties and “respect” are highly interpretable. required to place the needs of
failing to also - Beginning with the 2008 revision another person ahead of their own
consider the of the Code of Ethics for needs. Implied trust in both the
possible range of Registered Nurses, and continuing nurses’ knowledge and integrity
outcomes or with the 2017 revision, the are part of a fiduciary relationship.
consequences of Canadian Nurses Association - Legal concepts important to think
adhering to our (CNA) has outlined about within the sphere of
duties can be responsibilities associated with professional competence include:
problematic and upholding the values outlined in Professional misconduct,
may be seen as the document. This was seen as an negligence, and duty of care.
irresponsible important step toward making the - These kinds of legal concepts are
 In contrast to deontologic or duty- Code of Ethics a more easily usually found under the category
based theories, consequentialist applicable, less abstract, and more of unintentional torts
theories state that the rightness or clinically relevant document. This - A tort refers to an act of
wrongness of an action is version of the code also includes a wrongdoing that results in harm or
determined by the outcomes, or helpful appendix that addresses injury.
consequences, of a particular how to apply the values and - Torts may be intentional or
action. responsibilities of the code in unintentional.
 Utilitarianism is the most special circumstances, such as in  Intentional - include
commonly identified interactions with nursing students, examples such as assault,
consequentialist theory and when job action (i.e., a strike) is battery, false
we will be discussing it involved, in the context of a imprisonment, or invasion
here (greatest good for pandemic or natural disaster, when of privacy.
greatest number) a nurse is being asked to do  Unintentional - divided into
 In utilitarianism, an action something that is in opposition to two kinds: Liability and
is deemed to be ethically her values, or in a situation in negligence
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

sound if it minimizes the which a nurse experiences - In nursing and healthcare, most of
negative outcomes (e.g., workplace bullying. the cases that arise are cases of
sadness, grief, distrust) and - Practical applications of the code unintentional negligence.
maximizes positive are helpful in illustrating to nurses Unintentional negligence occurs
outcomes (e.g., pleasure, (and to the public) what tangible when any treatment or aspect of
happiness, trust). responsibilities are implied by the care clearly falls below an
 From a utilitarian more abstract and idealistic values. acceptable level and causes injury
perspective, deciding upon to a patient.
the most ethically sound - Nurses are legally regarded as
option is straightforward: having a duty of care, that is, they
Consider the possible have an obligation to not act in a
options, “calculate” the particular way that causes harm,
relative balance of good either intentionally or
and bad outcomes from unintentionally (through being
each option, and choose the careless or having a lack of
one that produces, for knowledge or skill).
example, the most - When the care provided is not
happiness or satisfaction consistent with the duty of care, or
and the least distress or falls below the duty of care (i.e., the
dissatisfaction for the most nurse fails in his or her duty of
people concerned. care), and injury of any kind
 utilitarian calculation poses results, this is referred to as
three inherent difficulties negligence and also falls under the
1. our ability to predict outcomes umbrella of professional
is almost always imperfect as misconduct. While the actions of
we are making predictions the nurse may be unintentional in
about a future that involves cases of negligence, they are
much uncertainty deemed to be unreasonably unsafe
2. measuring abstract and and are deemed to have resulted in
subjective notions such as the injury.
goodness, happiness, or
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

dissatisfaction is very - In order to determine that a


challenging situation is, in fact, one of
3. what one person may consider negligence, four elements must be
to be a good outcome another present
person may evaluate quite 1. a duty of care must exist.
differently. 2. it must be evident that the duty
 Quarantine and vaccination of care was breached through
are two examples of the actions or conduct of the
utilitarian measures used to nurse
produce the most good for 3. there must be a resultant injury
the most people or harm.
- Criticisms that apply to the two 4. it must be clearly evident that
most common ethical theories the injury or harm resulted
include the criticism that they are directly from the conduct or
difficult to apply in real-life actions of the person entrusted
healthcare challenges and that they with a duty of care
lack any kind of guidance for what - In cases of unintentional
principles should be used to make negligence, the legal focus is
decisions, across a variety of usually on some kind of
contexts, times, and places. compensation for the injury rather
- Thomas Beauchamp and James than on punishment of the nurse.
Childress, in response to some of - nurse who is found to be negligent
this criticism, draw on the basic will most likely also be subject to
wisdom contained in those two disciplinary action from their
theories to conceptualize a provincial professional nursing
fundamental set of four principles regulatory body.
(respect for autonomy, - Understanding both the legal and
beneficence, nonmaleficence, and ethical obligations we have to
justice) called principlism to guide patients as well as knowing one’s
ethical decision making for own level of skill, knowledge, and
limitations is an important part of
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

healthcare providers dealing with providing safe, competent, and


ethical problems high-quality care.
- Of the four, respect for autonomy
is very likely the most strongly
emphasized in modern
Westernized thinking about
healthcare ethics, as the authors
originally intended
- Autonomy refers to the ability of a
competent person to make
decisions regarding his or her own
life and health.
- Beneficence refers to the
obligation of the healthcare
provider to act for the good of the
patient, protect the patient from
harm, and promote the best
interests or welfare of the patient
- Nonmaleficence refers to the duty
to not do anything that might harm
a patient.
- Justice is fairness. Questions about
what is just may arise in
discussions of what is fair or what
is owed to a patient, how scarce
resources might be allocated, or
how the rights of patients are
protected. The most challenging
aspect of considering the principle
of justice in an ethical dilemma is
reaching consensus or agreement
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

on what is fair or just. Even among


reasonable or fair-minded persons,
there may be disagreement on
what is considered to be fair
- Principlism is often viewed as
more contextual and relevant to
today’s healthcare environment; a
criticism of this theory is that it
can be very limiting to think about
ethical problems by considering
only these four principles.
- New learners often utilize this
approach in a pragmatic and
inflexible way and may fail to
address the more nuanced aspects
of complex situations. Therefore,
principlism is most effective at
highlighting the key issues within
an ethical case study by providing
an overarching structure, or
starting point, for considering all
the facets of a problem or
dilemma.
- has limitations in effectively
applying the theory in situations
involving diverse cultures or
communities outside of a more
Westernized context.
- ethical theories don’t necessarily
provide a clear “answer” to often
complex ethical problems. But
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

they allow us to better understand


the values and attitudes of others
by highlighting the different ways
that diverse people approach the
same problem
- Taking time to reflect on whether
you are supporting a particular
option for the best outcome, to
adhere to a duty, or to ensure a
principle like respect for autonomy
is protected is an important step in
working with others to resolve
ethical problems.

Discuss the barriers to resolving ethical dilemmas.


- Factors such as scarcity of resources, low staffing, lack of knowledge, or a real or perceived lack of power may all have an
effect on an individual nurse’s ability to be a moral agent
- Moral distress was first defined by Jameton (1984) as resulting from knowing the right thing to do but being unable to do it,
typically due to institutional constraints that make the desired actions difficult or impossible to carry out. Others have done
on to add to Jameton’s definition, noting that an inability to act in an ethically appropriate way may not solely arise from
institutional constraints or factors related to the organization. Such inability might also be attributed to characteristics of the
moral agent (e.g., lack of adequate knowledge, a perceived or real lack of power, moral fatigue, or fear)
- Moral distress has been shown to contribute to a desire to leave the profession and to feelings of powerlessness, fatigue,
disrespect, and frustration
- Moral distress is evident in other health care professions as well as in nursing
- Moral distress that is not addressed or distressing situations that are not resolved can leave, over time, a moral residue
- Moral residue - remains of unhealed “moral wounds” that accumulate over time as a result of making moral compromises,
experiencing lack of control, and dealing with constraints on moral autonomy, moral residue can seriously harm one’s
integrity and career.
- There are no easy solutions to the problem of moral distress but strategies such as creating ethically conducive
environments, changing attitudes and structures to allow for challenging the status quo, increasing accountability, providing
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

for safe and open discussion, providing formal ethics education and fostering active collaboration with identification of
ethical nurse leaders are some ways to begin addressing moral distress
Discuss the strategies for solving ethical dilemmas under the following topics.
Moral integrity Ethical decision-making Creating ethical workplaces Ethical leadership
models
- The term “integrity” is - The two most difficult - It is clear that the - Nurse leaders are also
widely used to describe parts of approaching ethical culture or moral leaders, and can
a person of good moral ethical problems are (1) ethical climate of an act as a “moral
standing. figuring out that, in organization is compass for nurses,
- Can eb different from fact, you do have an important to nurses. using their power as a
person to person ethical problem and (2) - Ethical climate - positive force to
- Yeo et al. deal with this deciding how to go sustained or consistent promote, provide, and
topic particularly well about working through conditions, cultural facilitate a strong and
and outline four it norms, and practices, sustainable quality
necessary elements of - Using an ethical within an organization, practice environments
moral integrity: Moral decision-making model that have an effect for safe, competent,
autonomy, fidelity to can help structure the upon the way and ethical practice” (
promise, steadfastness, activity of working commonly encountered storch et al)
and wholeness. through such a problem difficult ethical - Storch and colleagues
- Moral autonomy refers and provide a problems are identified, go on to note that moral
to our developing a framework for dealing addressed, and resolved leadership implies both
sense of who we are, in with complex and and can have a direct commitment and moral
terms of the authentic multidimensional impact upon the courage—to address
and consistent values problems experience of moral inequities, to engage in
we hold. - No ethical distress resolving conflicts, and
- Fidelity to promise decisionmaking model - Poor ethical climates to facilitate a strong
involves two important can provide a guarantee are tied to more and sustainable
aspects: Making a that all decisions will frequent reports of connection between
promise and then be good ones, nor does moral distress for moral intent and moral
keeping it. such a model replace nurses and are clearly action.. But moral
thoughtful reflection linked to both low courage is never easy.
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

 Those who are less and consideration of retention and high - Moral courage -
willing to make what is at stake in a turnover rates willingness to stand up
promises or keep situation. - The culture of an for what is right in the
promises that they have - In an ethical dilemma, organization is face of adversity
made are often viewed reasonable people can important in - Moral courage involves
by others as having less typically see “both establishing an ethical the ability to advocate
integrity sides” of the problem climate for others despite
 Keeping a promise but only one outcome - Sims (1991) refers to forces or pressures to
does not only is possible and often organizational culture act differently and
demonstrate that we are the challenge is moving as the “social glue that knowing that one’s
willing to abide by from the point where helps hold an actions might not be
social norms; but it also someone recognizes organization together” celebrated by all
shows trustworthiness that a problem has a - When the values and - Courage is considered
and reliability, two moral dimension to standards of an to be a virtue and like
fundamental elements figuring out a organization are other virtues, can be
of moral integrity. resolution. explicitly known, learned, taught, and
- Steadfastness might be - MacDonald (2010) openly discussed, further developed in
described as “sticking provides a supported, and shared practice
to our moral guns,” straightforward and by all who work there, - In nursing, the virtue of
even in the face of easy-to-use Guide to this can contribute to a moral courage means
adversity. Being Moral Decision more professional and overcoming fears,
steadfast is, for many Making consisting of positive working resisting pressures to
of us, a “work in nine steps environment act differently, and
progress” as we learn - There are a number of - when nurses cite standing up for what
over time to stand up ethical decision-making difficult relationships nurses, after careful
for our values and models that have been among peers as well as consideration, believe
beliefs and what we developed for use. between managers and to be right. Moral
believe is right, even Many of them share staff and how courage can be
when it may be similar properties and particularly challenging supported in ethical
difficult or may pose a foundational principles. patient care issues are workplaces, through
risk to ourselves. Some other examples discussed, handled, and education and the
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

- Wholeness - integrate include A Framework addressed by peers, active promotion of


all these roles into a for Ethical Decision- managers, other clear reasoning,
morally consistent Making and Storch’s healthcare wisdom, and
person who acts the Circle Method for professionals and the knowledgeable
same in every context.( Ethical Decision- organization, they are advocacy by nurses
being a spouse, Making really talking about the - Moral courage can be
daughter, mother , - The key is finding one ethical climate of their supported in ethical
nurse) eg. Treat elderly that reflects the reality workplace workplaces, through
patients and of your own practice, education and the
grandparents with the and then referring to it active promotion of
same compassion when faced with an clear reasoning,
ethical problem or wisdom, and
situation in which you knowledgeable
may benefit from some advocacy by nurses.
structure to facilitate Through the
working through the development of virtues
problem. such as moral courage,
nurses, as moral agents,
can become mentors
and moral leaders.
- Nurses who do not feel
silenced, but who
instead seize
opportunities to speak
out for what they
believe in, to engage in
advocacy for others, to
have an active voice in
promoting positive
change can, over time,
help to create
2018-2019 CNUR 830
NOTE Course Text:
McIntyre, M., & McDonald, C. (2019). Realities of Canadian nursing: Professional, practice and power issues (5th ed.).
New York: Wolters Kluwer – Lippincott Williams & Wilkins.

environments in which
all nurses can develop
and exercise moral
courage.
Discussion question:
Read the appended case study. Identify an ethical dilemma from the case study. Construct a conceptual map that would help resolve
the ethical dilemma using the theories and decision-making models from the chapter. A conceptual map is provided as an example.

Examples of steadfastness

The nurse who questions the medical order for a painful, futile treatment that the patient does not want.
The student nurse who reminds another nurse that disclosing information about their workday on social media is not acceptable.
The nursing professor who stands up for a student’s rights when the university is not listening.
The nurse who advocates for a marginalized or stigmatized client and finds herself “fighting the system.”