LEGAL AND ETHICAL ISSUES IN CRITICAL CARE NURSING

INTRODUCTION

In today’s health care arena, the nurse is faced with increasingly complex issues and
situations resulting from advanced technology, greater acuity of patients in hospital and
community settings, an aging population, and complex disease processes, as well as ethical
and cultural factors.

Nursing practice in today’s society mandates the use of high-level critical thinking skills
within the nursing process. Critical thinking enhances clinical decision making, helping to
identify patient needs and to determine the best nursing actions that will assist the patient in
meeting those needs.

Ethical Nursing Care

In the complex modern world, we are surrounded by ethical issues in all facets of our
lives. Consequently, there has been a heightened interest in the field of ethics, in an attempt
to gain a better understanding of how these issues influence us. Specifically, in health care
the focus on ethics has intensified in response to controversial developments, including
advances in technology and genetics, as well as diminished health care and financial
resources. Today, sophisticated technology can prolong life and also contribute to an
increase in the average life expectancy.

Domain of Nursing Ethics

The ethical dilemmas a nurse may encounter in the medical-surgical arena are
numerous and diverse. An awareness of underlying philosophical concepts will help the
nurse to reason through these dilemmas. Understanding the basic concepts related to moral
philosophy, such as ethics terminology, theories, approaches and role of the professional
nurse in ethical decision making will assist nurses in articulating their ethical positions and in
developing the skills needed to make ethical decisions.

ETHICS VERSUS MORALITY

The terms ethics and morality are used to describe beliefs about right and wrong and
to suggest appropriate guidelines for action. In essence, ethics is the formal, systematic
study of moral beliefs, whereas morality is the adherence to informal personal values.
Because the distinction between the two is slight, they are often used interchangeably.

ETHICS THEORIES

One classic theory in ethics is teleologic theory or consequentialism, which focuses

on the ends or consequences of actions. The most well-known form of this theory,
utilitarianism, is based on the concept of “the greatest good for the greatest number.” Another
theory in ethics is the deontologic or formalist theory, which argues that moral standards
or principles exist independently of the ends or consequences. In a given situation, one or
more moral principles may apply. The nurse has a duty to act based on the one relevant
principle, or the most relevant of several moral principles. Problems arise with this theory
when personal and cultural biases influence the choice of the most primary moral principle.

APPROACHES TO ETHICS

Two approaches to ethics are meta-ethics and applied ethics.

An example of meta-ethics (understanding the concepts and linguistic terminology

used in ethics) in the health care environment would be analysis of the concept of informed
consent. Nurses are aware that patients must give consent before surgery, but sometimes a
question arises as to whether the patient is truly informed.

Applied ethics is the term used when questions are asked of a specific discipline to
identify ethical problems within that discipline’s practice. Various disciplines use the
frameworks of general ethical theories and moral principles and apply them to specific
problems within their domain. Common ethical principles that apply in nursing include
autonomy, beneficence, confidentiality, double effect, fidelity, justice, nonmaleficence,
paternalism, respect for people, sanctity of life, and veracity.

Nursing ethics may be considered a form of applied ethics because it addresses moral
situations that are specific to the nursing profession and patient care. Some ethical problems
that affect nursing may also apply to the broader area of bioethics and health care ethics.
However, the nursing profession is a “caring” rather than a predominantly “curing”
profession; therefore, it is imperative that one not equate nursing ethics solely with medical
ethics, because the medical profession has a “cure” focus. Nursing has its own professional
code of ethics.
MORAL SITUATIONS

Many situations exist in which ethical analysis is needed. Some are moral dilemmas,
situations in which a clear conflict exists between two or more moral principles or competing
moral claims, and the nurse must choose the lesser of two evils. Other situations represent
moral problems, in which there may be competing moral claims or principles but one claim
or principle is clearly dominant. Some situations result in moral uncertainty, when one
cannot accurately define what the moral situation is, or what moral principles apply, but has a
strong feeling that something is not right. Still other situations may result in moral distress,
in which the nurse is aware of the correct course of action but institutional constraints stand
in the way of pursuing the correct action (Jameton, 1984).

For example, a patient tells a nurse that if he is dying he wants everything possible
done. The surgeon and family have made the decision not to tell the patient he is terminally ill
and not to resuscitate him if he stops breathing. From an ethical perspective, patients should
be told the truth about their diagnoses and should have the opportunity to make decisions
about treatments. Ideally, this information should come from the physician, with the nurse
present to assist the patient in understanding the terminology and to provide further support,
if necessary. A moral problem exists because of the competing moral claims of the family and
physician, who wish to spare the patient distress, and the nurse, who wishes to be truthful
with the patient as the patient has requested. The use of an ethics consultant or consultation
team could be helpful to assist the health care team, patient, and family to identify the moral
dilemma and possible approaches to the dilemma. The nurse should be familiar with agency
policy supporting patient self-determination and resolution of ethical issues. The nurse should
be an advocate for patient rights in each situation (Trammelleo, 2000).

TYPES OF ETHICAL PROBLEMS IN NURSING

As a profession, nursing is accountable to society. The code is an ideal framework for

nurses to use in ethical decision making.

Ethical issues have always affected the role of the professional nurse. The ANA, in
Nursing’s Social Policy Statement (1995), defines nursing as “the diagnosis and treatment of
human responses to health and illness.” This definition supports the claim that nurses must
be actively involved in the decision-making process regarding ethical concerns surrounding
health care and human responses. To practice effectively in these settings, nurses must be
aware of ethical issues and assist patients in voicing their moral concerns. Some of the most
common issues faced by nurses today include confidentiality, use of restraints, trust, refusing
care, genetics, and end-of-life concerns.

Confidentiality

We all need to be aware of the confidential nature of information obtained in daily

practice. In the practice setting, discussion of the patient with other members of the health
care team is often necessary. These discussions should, however, occur in a private area
where it is unlikely that the conversation will be overheard. Another threat to keeping
information confidential is the widespread use of computers and the easy access people
have to them. This may increase the potential for misuse of information, which may have
negative social consequences (Zolot, 1999). For example, laboratory results regarding
testing for human immunodeficiency virus (HIV) infection or genetic screening may lead to
loss of employment or insurance if the information is disclosed. Because of these possibilities
of maleficence to the patient, sensitivity to the principle of confidentiality is essential.

Restraints

The use of restraints (including physical and pharmacologic measures) is another

issue with ethical overtones. It is important to weigh carefully the risks of limiting a person’s
autonomy and increasing the risk of injury by using restraints against the risks of not using
restraints. Before restraints are used, other strategies, such as asking family members to sit
with the patient, should be tried (Rogers & Bocchino, 1999).

Trust Issues

Telling the truth (veracity) is one of the basic principles of our culture. Two ethical
dilemmas in clinical practice that can directly conflict with this principle are the use of
placebos (non-active substances used to treat symptoms) and not revealing a diagnosis to
the patient. Both involve the issue of trust, which is an essential element in the nurse–patient
relationship. Placebos may be used in experimental research, where the patient is involved in
the decision-making process and is aware that placebos are being used in the treatment
regimen. Informing patients of their diagnoses when the family and physician have chosen to
withhold information is a common ethical situation in nursing practice.
Strategies the nurse could consider in this situation include the following:

• Not lying to the patient

• Providing all information related to nursing procedures and diagnoses

• Communicating to the family and physician the patient’s requests for information

Although providing the information may be the morally appropriate behavior, the manner in
which the patient is told is important. Nurses must be compassionate and caring while
informing patients; disclosure of information merely for the sake of patient autonomy does not
convey respect for others.

Refusing to Provide Care

Any nurse who feels compelled to refuse to provide care for a particular type of patient
faces an ethical dilemma. The reasons given for refusal range from a conflict of personal
values to fear of personal risk of injury. Such instances have increased since the advent of
AIDS as a major health problem. The ethical obligation to care for all patients is clearly
identified in the first statement of the Code of Ethics for Nurses. To avoid facing these moral
situations, a nurse can follow certain strategies. For example, when applying for a job, one
should ask questions regarding the patient population. If one is uncomfortable with a
particular situation, then not accepting the position would be an option. Denial of care, or
providing substandard nursing care to some members of our society, is not acceptable
nursing practice.

End-of-Life Issues

Dilemmas that center on death and dying are prevalent in medical-surgical nursing
practice and frequently initiate moral discussion. The dilemmas are compounded by the fact
that the idea of curing is paramount in health care. With advanced technology, it may be
difficult to accept the fact that nothing more can be done, or that technology may prolong life
but at the expense of comfort and quality of life. Focusing on the caring as well as the curing
role may assist nurses in dealing with these difficult moral situations.
PAIN CONTROL

The use of opioids to alleviate a patient’s pain may present a dilemma for nurses.
Patients with excruciating pain may require large doses of analgesics. Fear of respiratory
depression or unwarranted fear of addiction should not prevent nurses from attempting to
alleviate pain for the dying patient or for a patient experiencing an acute pain episode. The
intent or goal of nursing interventions is to alleviate pain and suffering while promoting
comfort. The risk of respiratory depression is not the intent of the actions and should not be
used as an excuse for withholding analgesia. However, the patient’s respiratory status should
be carefully monitored and any signs of respiratory depression reported to the physician. The
administration of analgesia should be governed by the patient’s needs.

DO-NOT-RESUSCITATE ORDERS

The “do not resuscitate” (DNR) order is a controversial issue. When a patient is
competent to make decisions, his or her choice for a DNR order should be honored,
according to the principles of autonomy or respect for the individual (Trammelleo, 2000).
However, a DNR order is at times interpreted to mean that the patient requires less nursing
care, when actually these patients may have significant medical and nursing needs, all of
which demand attention. Ethically, all patients deserve and should receive appropriate
nursing interventions, regardless of their resuscitation status.

LIFE SUPPORT

In contrast to the previous situations are those in which a DNR decision has not been
made by or for a dying patient. The nurse may be put in the uncomfortable position of
initiating life-support measures when, because of the patient’s physical condition, they
appear futile. This frequently occurs when the patient is not competent to make the decision
and the family (or surrogate decision maker) refuses to consider a DNR order as an option.
The nurse may be told to perform a “slow code” (ie, not to rush to resuscitate the patient) or
may be given a verbal order not to resuscitate the patient; both are unacceptable medical
orders. Discussing the matter with the physician may lead to further communication with the
family and to a reconsideration of their decision, especially if they are afraid to let a loved one
die with no further efforts to resuscitate (Trammelleo, 2000).
FOOD AND FLUID

In addition to requesting that no heroic measures be taken to prolong life, a dying

patient may request that no more food or fluid be administered. Many individuals think that
food and hydration are basic human needs, not “invasive measures,” and therefore should
always be maintained. However, some consider food and hydration as means of prolonging
suffering. In evaluating this issue, nurses must take into consideration the potential harm as
well as the benefit to the patient of either administering or withdrawing sustenance.

Evaluation of harm requires a careful review of the reasons the person has requested
the withdrawal of food and hydration. Although the principle of autonomy has considerable
merit and is supported by the Code of Ethics for Nurses, there may be situations when the
request for withdrawal of food and hydration cannot be upheld.

Preventive Ethics

Frequently, dilemmas occur when the health care practitioners are unsure of the
patient’s wishes because the person is unconscious or too cognitively impaired to
communicate directly. The Patient Self Determination Act, which became effective in
December 1991, encourages people to prepare advance directives in which they indicate
their wishes concerning the degree of supportive care to be provided if they become
incapacitated. This legislation does not require a patient to have an advance directive, but it
does require that the patient be informed about them by the staff of the health care facility.
Consequently, this is an area where nursing can play a significant role in patient education.

ADVANCE DIRECTIVES

Advance directives are legal documents that specify a patient’s wishes before
hospitalization and provide valuable information that may assist health care providers in
decision making. A living will is one type of advance directive. In most situations, living wills
are limited to situations in which the patient’s medical condition is deemed terminal. Because
it is difficult to define “terminal” accurately, the living will is not always honored. Another
potential drawback to the living will is that these documents are frequently written while the
person is in good health. It is not unusual for people to change their minds as their illness
progresses. Therefore, the patient retains the option to nullify the document. Another type of
advance directive is the durable power of attorney for health care, in which the patient
identifies another individual to make health care decisions on his or her behalf. In this type of
directive, the patient may have clarified his or her wishes concerning a variety of medical
situations.

Without advance directives, surrogate decision makers and physicians often make
erroneous assumptions regarding the preferences of patients. Recent studies have indicated
that most emergency physicians (78 percent) withhold resuscitation attempts for patients with
a legal advance directive, indicating a willingness to honor patients' wishes regarding their
own medical care. Additionally, most prehospital providers (89 percent) withhold resuscitation
attempts for patients with a legal advance directive. These results suggest that advance
directives may be especially significant in medical decision making to emergency health care
providers.

CARDIAC RESUSCITATION AND OUTCOMES

Based on several data, authors have suggested proposed criteria for withholding
resuscitative efforts for patients in certain clinical settings with a low likelihood of successful
resuscitation [e.g., apneic, pulseless for longer than 10 min prior to emergency medical
service (EMS) arrival, no response to ACLS, and preexisting terminal disease]. Knowledge of
data regarding resuscitation outcomes in various clinical settings is crucial when making
evidence-based decisions regarding the risks and benefits of attempting CPR and the
duration of the resuscitation attempt.

RISKS AND BENEFITS OF RESUSCITATIVE EFFORTS

When considering offering or withholding resuscitative efforts, risks and benefits of

resuscitative efforts should be considered carefully. The goal of resuscitative efforts is to
restore circulation and life to the patient. Other less tangible benefits may include such
entities as resolution of guilt of the survivors and the additional time for acceptance of bad
news for survivors.

However, often resuscitative measures are undertaken in clinical situations in which

physiologic survival is very unlikely and almost impossible. In some situations, there is a
substantial risk that if circulation is restored, significant anoxic brain injury will result, resulting
in significant impairment of quality of life (dementia, persistent vegetative state, or other
cognitive impairments).
 Additionally, substantial resources (supply costs as well as personnel) are often
invested in this clinical setting of low likelihood of benefit, while the care of many other
patients is delayed (distributive justice). Another consideration for limiting resuscitative efforts
is the potentially large investment of human resources that otherwise might be used for
family counseling and communication.

FUTILITY AND NONBENEFICIAL INTERVENTIONS

The withholding or limitation of medical interventions that have a predicted low

likelihood of producing a successful outcome can be a difficult and far-reaching decision.
Many emergency physicians continue to attempt resuscitation on patients in cardiac arrest in
situations considered nonbeneficial, often because of fears of litigation or criticism.

There have been numerous ethical opinions supportive of the position of offering only
those treatments judged to be of likely medical benefit. The AMA Council on Ethical and
Judicial Affairs wrote that CPR may be withheld, even if requested by the patient, "when
efforts to resuscitate a patient are judged by the treating physician to be futile."

Ultimately, the decision regarding CPR and its likelihood of benefit to the patient and
decisions to provide, limit, or withhold resuscitative efforts are to be made by the emergency
physician, patient and family wishes, and professional judgment. Individual bias regarding
quality of life or other related issues should be avoided. There are many cases where dying
should be accepted as a natural process, even in an emergency setting.

FAMILY PRESENCE DURING RESUSCITATION

Although, traditionally, family members have not been allowed to witness resuscitation
attempts, several recent reports have demonstrated positive results of this practice. Although
most research to date has addressed medical arrests, the practice also should be considered
for traumatic procedures and arrests. Family presence may serve to relieve guilt or
disappointment and may be a helpful part of the grieving process. Many families simply wish
to have the option of being present. If family members are allowed to be present, a nurse
should assist with communication and education about procedures and other medical issues.

COMMUNICATION AND COUNSELING FOR SURVIVORS

In many cases, the communication, care, and counseling provided for survivors
(family, friends, and the like) of victims of cardiac arrest will have more impact than the actual
resuscitative efforts. Optimal care should be provided for families and friends of victims of
cardiac arrest, regardless of the level of treatment rendered and outcome.

Ethical Decision Making

Ethical dilemmas are common and diverse in nursing practice. Although the situations
vary and experience indicates that there are no clear solutions to these dilemmas, the
fundamental philosophical principles are the same, and the process of moral reflection will
help nurses to justify their actions. The approach to ethical decision making can follow the
steps of the nursing process.

The following are guidelines to assist nurses in ethical decision making. These
guidelines reflect an active process in decision making, similar to the nursing process.

Assessment

1. Assess the ethical/moral situations of the problem. This step entails recognition of the
ethical, legal, and professional dimensions involved.

a. Does the situation entail substantive moral problems (conflicts among ethical principles or
professional obligations)?

b. Are there procedural conflicts? (For example, who should make the decisions? Any
conflicts among the patient, health care providers, family and guardians?)

c. Identify the significant people involved and those affected by the decision.

Planning

2. Collect information.

a. Include the following information: the medical facts, treatment options, nursing diagnoses,
legal data, and the values, beliefs, and religious components.

b. Make a distinction between the factual information and the values/beliefs.

c. Validate the patient’s capacity, or lack of capacity, to make decisions.

d. Identify any other relevant information that should be elicited.

e. Identify the ethical/moral issues and the competing claims.

Implementation

3. List the alternatives. Compare alternatives with applicable ethical principles and
professional code of ethics. Choose either of the frameworks below, or other frameworks,
and compare outcomes.

a. Utilitarian approach: Predict the consequences of the alternatives; assign a positive or

negative value to each consequence; choose the consequence that predicts the highest
positive value or “the greatest good for the greatest number.”

b. Deontological approach: Identify the relevant moral principles; compare alternatives with
moral principles; appeal to the “higher-level” moral principle if there is a conflict.

Evaluation

4. Decide and evaluate the decision.

a. What is the best or morally correct action?

b. Give the ethical reasons for your decision.

c. What are the ethical reasons against your decision?

d. How do you respond to the reasons against your decision?

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