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Chapter 3
Legal and Ethical
Considerations
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Learning Objectives
• Define ethics, bioethics, values, morality, moral
uncertainty, moral distress, moral outrage, and
moral/ethical dilemma.
• Explain the principles of ethics: autonomy, justice,
fidelity, beneficence, nonmaleficence.
• Explain how values are formed.
• Explain how values clarification is useful in nursing
practice.
• Discuss the relationship between culture and values.
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Learning Objectives
• Describe the following philosophical bases for ethics:
deontology, utilitarianism, feminist ethics, ethics of care.
• Describe the steps in processing ethical dilemmas.
• Describe the role of institutional ethics committees.
• Explain the role of the LVN/LPN in relation to informed
consent.
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Ethics
• Values relevant to human conduct
• Defines what actions are right and wrong,
and whether the motives and outcomes of
those actions are good or bad
• Choices are often shades of gray, not black
and white, or a choice must be made
between two good or two bad options
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Ethical Dilemmas
• Ethics does not prescribe one right answer
• Defines formal processes to explore what is
proper conduct
• Bioethics
• Ethical questions that arise in the context of health
care
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Ethical Dilemmas
• Morality
• Shared ideas of what is right or good within a
society or culture
• Moral distress
• Occurs when nurse feels powerless because his/her
moral beliefs cannot be followed because of
institutional or other barriers
• One reason that some nurses leave nursing
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Ethical Dilemmas
• Moral outrage
• May occur when another person in the health care
setting acts in a way that the nurse believes is
immoral and the nurse feels powerless to intervene
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Principles of Ethics
• Autonomy
• Recognition is inherent in the concept of informed
consent and in advance directives
• Respect for the rights of people to make decisions
about their own health and health care, such as
accepting or refusing blood transfusions or
medications
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Principles of Ethics
• Beneficence
• Actions to promote good, prevent harm, or remove
the patient from harm
• Nurse behaves in the patient’s best interest
• The problem is to define good, recognizing that the
definitions of the patient, the family, the nurse, and
the physician may differ
• An example of preventing harm is reporting a coworker who is impaired or incompetent
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Principles of Ethics
• Justice
• Fairness, equity, appropriateness of treatment
• Recognition that goods and services are limited
• Decisions about who will receive limited resources
are based on various philosophies and might use
the criteria of equal distribution; individual need,
merit, social contribution, rights, or effort; or serving
the greatest good for the greatest number of
individuals
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Principles of Ethics
• Nonmaleficence
• Requires that the nurse “do no harm”
• Therapeutic interventions can be uncomfortable;
benefits must justify the discomfort
• A patient getting out of bed for the first time after surgery
likely will experience some pain, but the benefits of
mobilization far outweigh temporary discomfort
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Principles of Ethics
• Fidelity
• A commitment to carry through on promises
• May be spoken or implied
• Patients have the right to expect staff is committed
to their care and will not abandon them
• The duty of the nurse to practice within the legal
definition of the profession and remain competent
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Principles of Ethics
• Confidentiality
• Patient information must be protected
• Patients have the right to control who has access to
personal information
• Nurses must guard against the careless, accidental,
or deliberate sharing of private information
• Veracity (truth)
• Nurses must be honest with patients as well as in
documentation and communication with colleagues
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Values
• Beliefs and attitudes important to a person that
influence daily choices
• Result of cultural, social, and personal experiences
• Family is foundation for values formation
• Values essential for professional nurses: altruism,
equality, esthetics, freedom, human dignity, justice,
and truth
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Values
• Values conflicts
• Values of individuals and institutions are different
• Risk that patient’s values may not be recognized or
respected
• As a nurse, you can recognize values conflicts by
being aware of your own values and learning about
those of your patients
• Try to understand the other person’s views and find
common ground
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Philosophical Basis of Ethics
• Deontology
• Defines right and wrong on the basis of whether an
action meets the criteria of fidelity, veracity,
autonomy, beneficence, and justice
• Consequences of the action are not considered
• A limitation of deontology is apparent when an
action represents conflicting values
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Philosophical Basis of Ethics
• Utilitarian
• “Right” action produces the greatest good for the
greatest number of people
• Challenge is to agree on the “greatest good”
• Bound to be differences in opinion as to what
constitutes a good outcome
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Philosophical Basis of Ethics
• Feminist ethics
• Inequalities between people on the basis of gender;
also places value on relationships
• Ethics of care
• Care is a “central activity of human behavior and
one that deserves special attention in health care”
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Steps in Processing Ethical Dilemmas
• Determine that it is an ethical problem
• Ethical problems have all of the following
characteristics
• Scientific information does not provide the answer
• The problem is perplexing, i.e., the answer is not simple
• The solution is profoundly relevant to several areas of
human concern
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Steps in Processing Ethical Dilemmas
• Problem must be stated clearly so that all can
agree on it
• Courses of action and consequences outlined
• Action is taken
• Outcome evaluated
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Institutional Ethics Committees
• Most institutions have committees to process
ethical dilemmas
• Multidisciplinary membership seeks input from
patients, families, professionals, administrators
• Functions of the ethics committee: education,
policy recommendation, oversight of policy
implementation, consultation on specific cases
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Legal Implications for Nursing Practice
• Law defines the boundaries of nursing practice
• Nurses must know their functions and
limitations in order to protect their patients and
themselves
• A nursing license is granted only to those who
have met specific educational standards and
demonstrated the minimal required level of
knowledge as assessed by an examination
• The state board of nursing can revoke or
suspend the license of a nurse who violates
the provisions of the licensing statutes
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Types of Law: Statutory Laws
• Created by elected legislative bodies,
including nurse practice acts
• Classified as either civil or criminal
• Criminal laws are concerned with preventing
harm to society or punishing violators
• Civil laws protect individual rights
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Types of Law: Regulatory Laws
• Created by administrative bodies, such as
state boards of nursing
• Rules and regulations that address the
conduct of nurses
• Common law
• Result of judicial decisions made when
individual cases are decided in the courts
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Types of Law: Tort
• A tort is a civil wrong against a person or
property
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Types of Law: Intentional Tort
• Assault
• Contact without the patient’s consent
• Battery
• Touching in an offensive or harmful manner
without consent
• Invasion of privacy
• Unwanted intrusion into the patient’s private
affairs
• Defamation of character
• Releasing information that could damage a
person’s reputation
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Types of Law: Unintentional Tort
• Negligence
• Conduct that falls below the standard of care
• Malpractice
• Professional negligence
• To be found liable, it must be shown that the nurse
owed a duty to the patient, the nurse did not carry
out that duty, the patient was injured, and the injury
was caused by the nurse’s failure to carry out the
duty
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Types of Law: Unintentional Tort
• Nurse’s best protection against charges of
negligence and malpractice
• Adhere to standards of care; provide competent
care; communicate with other members of the
health care team; fully document assessments,
interventions, and evaluations; and establish good
relations with patients
• Student nurses are held to the same standards
of care as are licensed nurses
• Students should never perform care for which they
have not been prepared
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Malpractice Insurance
• Health care institutions commonly provide
malpractice insurance for nurses they employ
• Covers legal fees and awards if nurse is sued for
professional negligence or medical malpractice
• If the act in question occurs outside place of
employment, the agency insurance does not cover
the nurse
• Nurses need to decide whether to carry personal
liability insurance as well
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Malpractice Insurance
• At times nurses assist at accident scenes. As
long as actions are within accepted standards,
Good Samaritan laws protect them from liability
• State laws vary; nurses should acquaint themselves
with the laws in their states of residence
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Confidentiality
• Every patient’s right: medical diagnoses and
treatment must be kept confidential
• Protect the privacy of patient records and avoid
public discussion of patient information
• Never copy/remove any part of a patient’s
record
• HIPAA laws of 2003 made health care
providers acutely aware of the actions needed
to protect patient confidentiality
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Consent
• Patients have the right to make decisions
about their own care; caregivers may not
impose care against a patient’s wishes
• Informed consent
• Provide sufficient information for the patient to make an
informed decision
• Elements of informed consent: patient decision-making
capacity, sufficient information, and voluntary agreement
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Consent
• State law defines who can give consent for
minors and people incapable of making their
own decisions
• A confused or sedated person cannot give consent
even if usually capable of making decisions
• Signatures on consent forms must be obtained before
administering preoperative medications
• Consent must be voluntary
• There can be no real or implied coercion
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Consent
• Required for hospital admission, surgery, some
treatments, and research participation
• Physician is responsible for obtaining informed
consent
• Nurses may obtain patient signatures and serve as
witnesses to the signature per agency policy
• If the nurse suspects the patient lacks decisionmaking capacity or does not fully understand the
implications of the consent form, the physician
should be contacted and the supervisor notified
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Physician Orders
• Legal, appropriate orders should be carried out
• If nurse believes an order is inappropriate, physician
should be contacted for confirmation or correction
• If physician confirms order and LVN/LPN still believes it
is inappropriate, the nurse should contact the
supervisor to intervene
• Nurse may share responsibility for harm that follows
implementation of an inappropriate order
• Verbal orders increase the risk for error; follow agency
policy
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DNR (Do Not Resuscitate) Orders
• Resuscitation will not be initiated if a patient
ceases to breathe or the heart stops
• Orders should be written and reviewed
regularly in case patient’s status changes
• In many states in the absence of a written
order, it is assumed that resuscitation is
appropriate
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Short Staffing
• Staffing inadequate for competent care
• The supervisor should be notified
• Written protest submitted when required to
accept an assignment without adequate
staffing
• Nurses should know their state regulations and
agency policies for such situations
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Short Staffing: Patient Abandonment
• Walking out or refusing an assignment could
be viewed as patient abandonment
• Includes sleeping on the job, leaving in the
middle of a shift without notifying anyone,
failing to show up or complete an agreed
assignment in a home setting, and leaving the
patient care area and remaining unavailable
such that patient safety may be compromised
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Short Staffing: Safe Harbor
• A nurse may be able to invoke “safe harbor” if
given an assignment that the nurse believes
violates his or her duty to the patient
• Protects nurses from actions against their
license when they notify the supervisor at the
time the assignment is made
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Floating
• Nurses are obligated to inform supervisors if
they lack the skill to care for particular patients
• Nurses who float to new units must be oriented
to the setting and trained for the new area
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Right to Refuse Treatment
• Patients have the right to refuse medical
treatment, including life-sustaining care
• When a patient is incompetent to make his or
her own decisions, an effort is made to
determine what the person would have wanted
• Advance directives help define the patient’s
wishes
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