Legal & Ethical Considerations

In the Practice of Respiratory Care

Philosophical Foundations

• Ethics has its origins in philosophy - the love of wisdom & the pursuit of knowledge

• Ethics is primarily concerned with the question, “How should we act?”

• Ethics represents commitment to “respect humanity in persons.”

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Ethical Viewpoints

• Formalism

– Ethical standards of right and wrong are determined

by rules or principles

Ethical Viewpoints

• Consequentialism

– Ethical standards are judged based upon the

consequences, the relative amount of good that

an action will bring into being

Ethical Viewpoints

• Virtue Ethics

– Ethical standards are based in personal attributes of character or virtue

– The profession has a history of character standards

– Action is based upon the answer to the question “How would a good RCP act?”

Ethical Viewpoints

• Intuitionism

– Ethical standard based upon self-evident truths

such as “Treat others fairly”

Ethics and Respiratory Care

• AARC Code of Ethics – revised in July, 2004• General principles and rules ensuring safe,

effective, and caring administration of care

• Good Samaritan Law

Legal Terminology

• Tort – civil wrong committed against an individual

or property for which the court provides a remedy

in the form of an action for damages

– Negligent tort

– Intentional tort

– Difference is intent

Negligence

• Failure to perform one’s duties competently

• Failure to take reasonable and prudent action

• Res ipsa loquitur – “the thing speaks for itself”

Negligence

• May involve acts of omission or commission

• Based upon what is reasonable and prudent action as determined by established guidelines (AARC), direct expert testimony, or by circumstantial evidence

Negligence

Four “D”s of negligence

• Practitioner owes a duty to the patient

• Practitioner was derelict with the duty

• Breach of duty was the direct cause of damages

• Damage or harm came to the patient

Role Duty

• Practitioners have duty to understand limits of role & to practice w/ fidelity

• Respiratory therapists must not perform duties outside defined role

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Negligence

• Respondeat superior – “let the master answer”o Physician assumes responsibility for the RT actions

The act was within the scope of practice of the RT The injury to the patient was the result of an act of

negligence

o If RT acted outside the scope of practice, court will decide if physician retains liability; hospital may still be held liable

Malpractice

• Form of negligence which involves professional

misconduct, an unreasonable lack of skill, an evil

practice, or unethical conduct

• “Intentional Tort”

Malpractice

• Criminal Malpractice

– Includes assault, battery, and euthanasia (criminal court)

• Civil Malpractice

– Negligence or practice below a reasonable standard (civil court)

• Ethical Malpractice

– Violations of professional ethics (licensing board)

Slander

• Verbal defamation of an individual by false

words by which reputation is damaged

Libel

• Printed defamation of an individual by written

words, cartoons, and such representations to

cause an individual to be avoided or held in

contempt

Licensure

• Regulated by the Respiratory Care Board of

the state of California

• RCB Wall of Shame

Respiratory Care Board

• Sets requirements for initial licensure

• Determines educational requirement for continued

licensure (continuing education)

• Undertakes administrative action for inappropriate

care and/or unauthorized practice

Code of Ethics

• Code of ethics : Essential part of any profession claiming to be self-regulating

• AARC has Statement of Ethics & Professional Conduct– This code seeks to establish parameters of behavior for

members of profession.

• Moral obligations impose ethical duties on therapists

http://www.aarc.org/resources/position_statements/ethics.html 21

Confidentiality

• The maintenance of privacy by not sharing or

divulging to a third party privileged or entrusted

information

Confidentiality

• Qualified rather than absolute principle; may reveal information in specific instances

– When required to so by law, e.g., incidents of child or elder abuse

– Protect the welfare of the community at large, e.g., communicable diseases

– Protect a vulnerable individual, e.g., spouse of an HIV positive patient

Confidentiality

• Most instances of violations occur due to careless slips of the tongue

– Discuss patients only with caregivers who have a need to know

– Discuss patients only in secure areas – most common areas for breach: elevator, cafeteria

Confidentiality

• Record Keeping

– Common way to breach confidentiality

– Never give out password for electronic charting to anyone

– Only review patients’ charts to whom you are administering care

HIPAA

• Health Insurance Portability and Accountability Act (HIPAA) of 1996

• Privacy Rule

– Designed to strike a balance between protecting information and not impeding the exchange of information necessary for quality care

HIPAA

• Protects all “individually identifiable health information”

– Individual’s past, present, or future physical or mental health

– Provision of health care to the individual

– Past, present, and future payment for provision of health care

Confidentiality

• When doing case studies

– Never use patient’s name or medical record number

– Never divulge any of the patient’s personal

information other than that necessary for the

establishment of the case study

Advance Directives

• Definition – document in which an individual specifies what medical care is desired in the future should the patient be unable to make decisions about medical treatment

Advance Directives

• Durable Power of Attorney – allows patient to identify another person to carry out the wishes of the patient with respect to health care

Advance Directives

• Living will – document which states the patient’s health care preferences in writing

Ethical Dilemmas

• Presence of two or more right choices which are incompatible• Different priorities• Limited resources

Ethical Dilemmas

• Presence of two or more right choices which are incompatible• Different priorities• Limited resources

Examples of Ethical Dilemmas

• A certified technician wants to pass himself off as a registered therapist in order to move up in the department. After considering falsifying documents for a period of time, he decided not to because he feared sanctions and the loss of his position. Has the technician done anything unethical? Is this an example of an ethical dilemma?

Examples of Ethical Dilemmas

• A patient has been diagnosed with end-stage lung cancer and has been told by the physician that his condition is terminal. The patient is due to be discharged through hospice care in two days. As the therapist administers routine therapy, the patient begins to ask questions regarding the pain medication that will be prescribed upon discharge. Questions include the normal dosage of the medication and the unsafe levels of the drug. Should the therapist answer these questions?

Examples of Ethical Dilemmas

• A day shift therapist receives report in the department from the outgoing night shift therapist regarding a patient on life support. The incoming therapist proceeds to the ICU twenty minutes later to begin the shift and perform the first inspections. Upon arrival, the therapist notes that the alarms on the ventilator are in the “off” position and that the patient is apneic and in cardiac arrest. A Code Blue is called. The patient is successfully resuscitated, but dies later in the shift. The therapist charts the events as he found them. The next day, the department director meets with both the night shift therapist and the day shift therapist and tells the day shift therapist to modify the patient chart, removing references to the alarm being turned off.

Ethical Conflict

• Conflict between patient’s rights and professional obligation• Autonomy• Veracity• Nonmaleficence• Beneficence• Beneficent deception• Justice• Role duty

Autonomy

• The right and the ability to govern one’s self. It allows patients to make decisions about the medical treatment they will receive and decide which treatments they do not wish to receive.– Principle acknowledges patients’ personal

liberty & their right to decide their own course of treatment

– Basis for “informed consent”– Under this principle, any use of deceit to get

patient to reverse decision to refuse treatment is considered unethical

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Veracity

• Truth. This principle implies that practitioners should tell patients the truth at all times.– Principle binds health care provider & patient to be

truthful– Problems w/ veracity center around issues w/

benevolent deception (withholding truth from patient for his or her own good)

– In most cases, telling truth is best policy– What is “benevolent deception”?

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Nonmaleficence

• The principle that requires therapists to avoid or refrain from harm and is often viewed as the opposite of beneficence.– Principle obligates health care providers to avoid

harming patient & to actively prevent harm when possible

– Problems occur when treatment has serious side effects or “double effect”

Beneficence

• Charity or mercy and imposes the responsibility to seek good for the patient under all circumstances.– Raises “do-no-harm” requirement to higher level– Requires health care workers to contribute to health &

well-being of their patients– Dilemmas in this domain have led to development of

“advanced directives”– The debate over prolongation of life versus relief of

suffering in elderly patients mainly involves differing opinions of beneficence

Beneficent deception

• Not disclosing information to a patient in their best interest

Justice

• The principle that deals with fairness and equity in the distribution of scarce resources, such as time, services, equipment, and money. – Involves fair distribution of care– Balance must be found between health

care expenses & ability to pay

Fidelity

• Implies an obligation or faithfulness to duty. • Each practitioner has a duty to practice within a

scope of practice (specific tasks and responsibilities), that is usually set by tradition or by the state legislature that regulates healthcare practice.

Ethical Issues

• Human experimentation

Ethical Issues

• Abortion for reasons of gender

Ethical Issues

• Medical care of prisoners

Ethical Issues

• Assisted suicide

Ethical Issues

• Payments to physicians from pharmaceutical companies and other sources

Ethical Issues

• Cloning

Ethical Issues

• Medical student on call. The resident decided that there was an opportunity for the student to perform a femoral arterial stick. The patient was in a vegetative state and was not expected to recover. The stick was not medically necessary and was not able to understand or consent to the procedure.

Ethical Issues

• Student saw physician constantly “putting off” adequate pain relief for a patient without giving any explanation to the patient or to the staff.

Ethical Issues

• Medical student told to perform pelvic exams on patients under general anesthesia even though there was not medical justification for it and the patients had not signed a prior consent.

Ethical Issues

• Student observed physician giving a women in the delivery room narcotics without informing her and after she had requested a natural delivery be done without use of narcotics.

Ethical Issues

• Student assigned patient. In the course of the shift, the patient became unstable. When requested to help, the preceptor told the student to handle it and would not assess patient.