Chapter 5 Ethical and Legal Implications of Practice

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Chapter 5 Ethical and Legal Implications of
Practice

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Objectives

• Summarize the philosophical foundations of
  ethics.
• Explain what constitutes an ethical dilemma and
  how they arise in health care.
• Describe how professional codes of ethics apply
  to ethical decision making.
• Explain how traditional ethical principles are
  useful in resolving ethical dilemmas.

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Objectives (cont.)

• Describe the information that should be gathered
  before making an ethical decision.
• Explain how the systems of civil and criminal law
  differ.
• Describe what constitutes professional
  malpractice and negligence.
• Explain how a respiratory therapist can become
  liable for wrongful acts.
• List the elements that constitute a practice act.

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Objectives (cont.)

• Explain how licensing affects legal
  responsibility and liability.
• Describe how changes in health care delivery have
  shaped the ethical and legal aspects of practice.
• Summarize the basic elements of the Health
  Insurance Portability and Accountability Act of
  1996 (HIPAA).
• Describe the role of advance directives and
  living wills in health care.

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Philosophical Foundations of Ethics

• Ethics has its origins in philosophy, which is
  the love of wisdom and the pursuit of knowledge.
• Ethics is primarily concerned with the question,
  How should we act?
• Ethics represents a commitment to respect the
  humanity in persons.

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Code of Ethics

• A code of ethics is an essential part of any
  profession that claims to be self-regulating.
• The AARC has adopted a Statement of Ethics and
  Professional Conduct.
• This code seeks to establish parameters of
  behavior for members of the profession.
• (See Box 5-1.)

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Ethical Theories and Principles

• Autonomy
• This principle acknowledges patients personal
  liberty and their right to decide their own
  course of treatment.
• The basis for informed consent
• Under this principle, the use of deceit to get a
  patient to reverse the decision to refuse
  treatment is considered unethical.

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Ethical Theories and Principles (cont.)

• Veracity
• This principle binds the health care provider and
  the patient to tell the truth.
• Problems with veracity center around issues with
  benevolent deception (withholding the truth from
  the patient for his or her own good).
• In most cases, telling the truth is the best
  policy.

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Ethical Theories and Principles (cont.)

• Nonmaleficence
• This principle obligates health care providers to
  avoid harming the patient and to actively prevent
  harm when possible.
• Problems occur when the treatment has serious
  side effects or a double effect.

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Ethical Theories and Principles (cont.)

• Beneficence
• Raises the do-no-harm requirement to a higher
  level.
• Requires health care workers to contribute to the
  health and well-being of their patients.
• Dilemmas in this domain have led to the
  development of advanced directives.

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Ethical Theories and Principles (cont.)

• Confidentiality
• Requires health care workers to respect the
  patients right to privacy.
• Considered a qualified rather than an absolute
  ethical principle.
• In certain situations, health care workers are
  permitted to share the patients medical history
  with others.

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Ethical Theories and Principles (cont.)

• Justice
• Involves the fair distribution of care
• Balance must be found between health care
  expenses and the ability to pay for them.
• Rationing of health care services calls for
  distributive justice.
• Compensatory justice calls for the recovery for
  damages incurred from medical malpractice.

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Ethical Theories and Principles (cont.)

• Role Duty
• Practitioners have a duty to understand the
  limits of their role and to practice with
  fidelity.
• Respiratory therapists must not perform duties
  outside their defined role.

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Ethical Viewpoints and Decision Making

• Formalism
• The viewpoint that relies on rules and principles
• Rules function apart from the consequences of a
  particular act
• An act is justifiable if it upholds the rules or
  principles that apply.

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Ethical Viewpoints and Decision Making (cont.)

• Consequentialism
• An act is judged to be right or wrong based on
  its consequences.
• Commonly uses the principle of utility, which
  aims to promote the greatest general good

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Ethical Viewpoints and Decision Making (cont.)

• Virtue Ethics
• Founded not in rules or consequences but in
  personal attributes of character or virtue
• Allows the established practices of a profession
  to give guidance
• Calls for behavior based on what the good
  practitioner would do in a similar circumstance

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Ethical Viewpoints and Decision Making (cont.)

• Intuitionism
• An ethical viewpoint that holds that there are
  certain self-evident truths, usually based on
  moral maxims
• Treat others fairly

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Ethical Viewpoints and Decision Making (cont.)

• Comprehensive Decision-Making Models

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Legal Issues Affecting Respiratory Care

• Systems of Law
• Public law?has two major divisions criminal law
  and administrative law
• Criminal law deals with acts against the welfare
  of safety of the public.
• Administrative law consists of the regulations
  set by the government agencies.

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Legal Issues Affecting Respiratory Care (cont.)

• Systems of Law (cont.)
• 2. Civil law?protects citizens from others who
  might seek to take unfair advantage of them
• Civil courts decide if the plaintiff has been
  wronged and the degree of reparation that is
  required.

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Tort Law

• A tort is a civil wrong committed against an
  individual or property for which the court
  provides a remedy.
• An intentional tort involves a willful act that
  violates anothers interest.
• A negligent tort is failure to perform ones
  duties competently as a health care provider.

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Tort Law (cont.)
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Tort Law (cont.)

• Three classifications of malpractice
• Criminal malpractice (e.g., assault and battery)
• Civil malpractice (e.g., negligence)
• Ethical malpractice (e.g., violations of
  professional ethics that may result in censure)

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Tort Law (cont.)

• Two general defenses against intentional torts
• 1. There was no intent to do harm.
• 2. The patient gave consent to the action,
  knowing the risks involved.

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Avoiding Lawsuits

• Be aware of and conform to all legal aspects of
  licensure and the standards of care.
• Institutional risk management processes should be
  an ongoing component of hospital operation and
  professional development.

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HIPAA

• A congressional act (1996) to establish standards
  for privacy of individually identifiable health
  information
• The basic goal of the act was to strike a balance
  between protecting individuals health
  information and not impeding the exchange of
  information needed to provide quality health care.