Ethics Notes.docx

Lecture 1: Learning Objectives ============================== - Discuss the historical context relevant to bioethics broadly and nursing ethics\ specifically - Articulate the fields of ethics and the relevant nursing questions that they discuss. - Reflect on nursing as a moral e...

Lecture 1: Learning Objectives ============================== - Discuss the historical context relevant to bioethics broadly and nursing ethics\ specifically - Articulate the fields of ethics and the relevant nursing questions that they discuss. - Reflect on nursing as a moral endeavor. - Discuss nursing codes of ethics and apply them to practice. - Reflect on cultural care as it applies to nursing ethics. - Discuss the concepts of cultural safety and cultural humility. Lecture 1: Readings - Chapter 21: Ethical and Legal Issues in Nursing ===================================================================== **Guiding Questions** **Section:** Situating Ethics (pp. 343-347) - *What is meant by the nurses occupying "in between" spaces?* - The nurse strives to maintain balance and meet the needs of more than one stakeholder - *How can you describe your nursing practice as a moral endeavour?* - Everyday nursing is a moral endeavor because: - Nurses must provide patient-centered care with empathy and compassion; cultural sensitivity; integrity and trustworthiness; and safety and quality - Nurses often face ethical dilemmas, such as respecting patient autonomy, maintaining confidentiality, and ensuring justice in resource allocation - Nurses are patient advocates - **Everyday nursing is a moral endeavor because it is grounded in principles of caring, empathy, integrity, and advocacy for the well-being and rights of patients** **Guiding Questions** **Section:** Analyzing the issues & Ethical Theories (pp. 347-349)  As you read this section, ask yourself:   - *What are the main distinctions between deontological and consequentialist ethical theories? * - **Deontologic**: concerned w/the duties we have toward others adherence to these duties + consistency are what makes an action morally right - **Consequentialist**: the rightness/wrongness of an action is det by the outcomes/consequences of an action - Ie. Utilitarianism - *What are some of the critiques of these two categories of ethical theories? * - Deontologic theory critiques: - Often difficult to det what our duties are - There can be multiple and conflicting duties w/no advice on how to handle it - Paying attention only to duties and not outcomes/consequences can be problematic/irresponsible - Consequentialist theory critiques: - Our ability to predict outcomes is always imperfect since the future is so uncertain - Measuring abstract/subjective notions like happiness/goodness is challenging - What one person considers good can be considered bad by another - Critiques for both: - Difficult to apply to real-life challenges - Lack guidance for what principles should be used to make decisions [Notes] - 3 levels of moral responses to ethical problems: - **Expressive**: simply stating how we feel about something w/o justification/rationale - "I'm against MAiD b/c killing is wrong" - **Prereflective**: citing legal, religious, or professional norms w/o critical reflection on those norms - "I oppose MAiD b/c my professional duty requires me to do no harm" - **Reflective**: justification for the opinion is based on principles/values we've critically reflected on - "I oppose MAiD as the sanctity of all life and the principle of not doing harm takes precedence over the autonomy of a person to choose" **Guiding Questions** **Sections: **Codes of Ethics & Ethics and the Law (pp. 349-351) - *What does a Code of Ethics typically contain?* - Statement of values + how to apply them - Responsibilities + obligations - Professional standards - Prohibited conduct - Conflict of interest how to resolve it - Reporting mechanisms - Consequences of violations - *What is the relationship between Professional Codes of Ethics and the Law?* - What is legal may not be ethical, and vice versa - Nurse's legal obligations: to have knowledge of the legal boundaries of their jobs, to protect patients' rights, and to protect themselves from liability - *How does your own Code of Ethics inform your daily practice?* Lecture 1: History of Bioethics =============================== Important Historical Events --------------------------- - Nuremberg war crime tribunals (1945-1949) -- the Nuremberg Code of 1947 - Nutrition studies in residential schools (1942-1952) -- pablum studies - Tuskegee syphilis study (1932-1972) - US studies in Guatemala (1946-1972) - Radiation studies (1944-1948) - REBs in 60s - Declaration of Helsinki (1964) - Belmont report (1979) Fields of Ethics ---------------- - **Metaethics**: looks @ deep philosophical questions, defining moral terms, and asking questions like "What is the meaning?" - **Normative**: focuses on the formulation + defense of basic principles, values, virtues, and ideals governing moral behavior. Asks questions like "What makes an action right or wrong?" - **Descriptive**: focuses on factual descriptions and observations. An empirical analysis of what people actually do and what their reasons are. It describes the current reality - **Applied**: focuses on the practical application of ethics to specific contexts. Asks "In real life/this specific context, what is the right thing to do?" A diagram of an ethical approach Description automatically generated with medium confidence  Nursing Ethics -------------- A close up of a document Description automatically generated - Profession vs calling - Nursing moral character (always idealized as pristine), duties to self, virtues - Social activism - Professional trailblazers: - Bernice Redmon: first Black public health nurse in Canada - Marissa Scott: one of the first Black graduates from a Canadian nursing school Nursing as a Moral Practice --------------------------- - Nursing is a moral practice b/c it strives to: - Maximize good (health and healing, comfort, dignity, QoL, etc) - Minimize bad (pain, suffering) - **Moral agent:** an obligation to ensure integrity and ethical soundness in the care we provide in the interactions with others - Nurses are moral agents Nursing Codes of Ethics ----------------------- - Canadian Nurses Association: Code of Ethics - OIIQ: Code of ethics of nurses - Criticisms: - How exactly nurses should manage conflicting values and organizational factors - Gaps w/realities -- need for more applicability - More explicit commitment to human rights and equity Organizational Ethics --------------------- - Type of applied ethics/bioethics the organization's efforts to define its own core values and mission, ID areas where important values conflict, seek the best resolution of these conflicts, and manage its own performance to ensure it acts according to the espoused values - Issues: - Resource allocation - Business development (is it ethical to have fast food on site?) - Care access (pts w/no insurance) - Tx decision disagreements - **Organizational ethics** = ethics on a macro level - Clinical ethics = micro level - In practice: - Organizational ethics committees - Ethics advisors - Ethics sub-committees - Frameworks to guide decision-making: - Accountability for reasonableness (A4R): - What should we do? - Why should we do it? - How should it be done? Cultural Humility and Safety ---------------------------- - Relational ethics: in-between; a care ethic is relational and focuses on meeting others with respect - Essential nurse qualities in SBNH: - Strengths of mindset: - Mindfulness - Humility - Open-mindedness - Nonjudgemental - Strengths of knowledge and knowing: - Curiosity - Self-reflection - Relationships and culture: - Diverse perspectives and beliefs - Importance of safety in partnership - Power dynamics as healthcare provider - Cultural humility: - Lifelong learning and self-reflection - Acknowledging + redressing power differentials - Institutional accountability and collaborative partnerships - Not an outcome but a process Lecture 2: Learning Objectives ============================== - Compare how each ethical theory can provide a distinct perspective on an ethical\ issue. - Recognize ethical dilemmas & situations where fundamental values are in opposition. - Articulate an ethical issue in practice using the frames of ethical theories, principles,\ and values, including in research ethics. - Apply an ethical analysis process to ethical dilemmas, including in research ethics. - Reflect on moral resilience as a valuable concept to foster growth in nursing when\ faced with moral distress Lecture 2: Readings =================== #### Reading 1: What are the major ethical issues in conducting research? Is there a conflict between the research ethics and the nature of nursing? - When nurses participate in research, there are 3 value systems at play: society (human rights), nursing (ethics of caring), science (scientific inquiry) - Major ethical issues in conducting research: - Informed consent the means by which a pt's right to autonomy is protected - Needs to incorporate an intro to the study + its purpose, an explanation about the selection of the research subjects, the procedures that will be followed, any physical harm/discomfort, any invasion of privacy, compensation, expected benefits, disclosure is alternatives - Beneficence - Beneficence = benefits of research; nonmalificence = potential risks of participation - Respect for anonymity and confidentiality - If researcher can't promise anonymity (when the subject's identity can't be linked to their response), they must address confidentiality (the management of private information) - Respect for privacy - Vulnerable groups of people is it ethical to use them in research? Can they give informed consent? - Skills of the researcher any lack of knowledge in the area must be clearly stated - The nature of nursing what does it mean to care? - Advocacy in nursing - Conflicts in nurses - Beneficence-non maleficence - Advocacy dilemma nurses may have to protect pts from researchers' incompetence/unethical behavior - Vulnerability of nurses nurses may feel they lack the power and voice to resist unethical practices in research - Conflict b/w care and research research often prioritize contributing to knowledge \> direct pt benefit - Challenges in randomized control trials may involve withholding potentially beneficial tx from pts - Concerns abt ethics committees committee members may have vested interests in research outcomes - Confidentiality - Nurses are prohibited from revealing confidential info to research team members - Certain features can make it easy to ID research subjects - Informed consent - Nurses are in a good position to assess if informed consent has been obtained appropriately - Nurses shouldn't obtain informed consent on behalf of other professionals - When nurses have to withhold info for research purposes, it can create conflict - Researcher role conflict - Nurse researchers are not responsible for the care of pts and should only intervene when a harmful situation is imminent can conflict w/nursing culture - Providing physical or psychological care during research interviews by nurse researchers can introduce bias into the research results and make generalization difficult #### Reading 2: Transforming Moral Suffering by Cultivating Moral Resilience and Ethical Practice **Notes** - Moral suffering occurs when ethical conflicts, confusion, or uncertainty cannot be resolved. It can lead to negative consequences such as undermining patient care, teamwork, well-being, and integrity - Moral resilience can address moral suffering - Involves sustaining one\'s integrity in the face of moral challenges rather than eliminating suffering entirely not about ignoring but recognizing moral suffering as a signal of one's moral conscientiousness - Enhanced via interventions focusing on mindfulness, resilience, and ethical practice - Rushton Moral Resilience Scale (RMRS): measures moral resilience among healthcare workers - #### Reading 3: Aboriginal health care and bioethics: A reflection on the teaching of the Seven Grandfathers **Guiding Questions** - *How do you think this lens on valuable virtues aligns or contrasts with the way healthcare is organized?* - Alignment: - Patient-centered care aligns with the Gifts of the Seven Grandfathers - Cultural competence - The Gifts align with certain ethical frameworks (ie. Virtue ethics) - Contrast: - Dominance of Western bioethics, bureaucracy/institutional practices may not align w/the Gifts - Healthcare systems lack the cultural sensitivity needed to align with the Gifts - *How would a better understanding of Indigenous values and ways of knowing influence nursing care for this population?* - Cultural competence - Building trust - Holistic, pt-centered care - Respect for traditional healing **Notes** - Indigenous peoples face a disproportionately higher burden of illness d/t poor access to things such as water quality, nutrition, housing, education, and access - Bioethics often uses the same principles for all pts regardless of their cultural background - Gifts of the Seven Grandfathers: a traditional Ojibway teaching that could be a potential framework for culturally specific bioethics models - Wisdom, love, respect, bravery, honesty, humility, and truth Lecture 2: Introduction to Normative Ethics =========================================== Normative Ethics ---------------- ### Virtue Ethics - Focus on the moral agent: what kind of person am I? What kind of person should I be? - Aristotle and "Ways of Being" - Virtues are central to leading a good life - Virtue ethics are not about doing, but being - Expresses moral laws as "be this", not "do this" or "don't do this" - **Phronesis:** practical wisdom - **Eudaimonia:** the good life - Features: - **Virtue**: a trait of character, manifested in habitual action - **Vice**: a way to feel/think/act poorly - **The Aristotelian Mean** (Goldilocks principle) virtues lie at the intermediate between extreme vices - Focal virtues in healthcare: - Compassion - Discernment - Trustworthiness - Integrity - Conscientiousness - Critiques: - No clear guide on how to act - What if virtues conflict? - Focuses on agent's own character, not how to behave towards others - Assumes virtuous people will always make the right choice - Do virtues change over time? - Not culturally relative - Lacks guidance on how to become virtuous ### Utilitarianism - Jeremy Bentham: no qualitative differences in pleasure you can't place one person's pleasure over another's - John Stuart Mill: some happiness/benefits are more valuable than others it might be beneficial to sacrifice a short-term good for a long-term good - Interest of many \> interest of few - Actions are right based on what produces the most good and wrong based on utility/consequences goal is greatest amount of happiness for greatest amount of people - Features: - Weigh consequences for all - Egalitarian, not equitable - Seeks evidence impartial agent - Doing nothing is also an action - Includes all sentient beings (animal rights) - Types: - **Act utilitarianism**: focuses on a single act overall good is only measured related to this specific action at this specific time - **Rule utilitarianism**: focuses on a rule/set of rules when this set of rules is adopted by society, it produces the most amount of good - Reproducible over time - Critiques: - Only looks at future consequences but the future is unknowable - Who defines "good"? - What about how we feel? problem of agent's integrity - Possible conflicts w/justice and rights - Harm to minority groups for overall good - Too demanding - Utilitarianism in healthcare/nursing: - **Scarcity**: limited resources, allocation of resources - Striving for **collective good** (public/global health) - **Evidence**-**informed** care ### Deontology - Utilitarianism vs deontology: - Utilitarianism: ends justify means - Deontology: journey matters most - Virtue ethics vs deontology vs utilitarianism: - Utilitarianism: endorse killing Joker - Deontologists: reject killing Joker b/c killing is wrong - Virtue ethics: does the person want to be the kind of person who kills another? - Kant: moral imperative act as if the maxim of your action were to become by your will a universal law of nature - Non-consequentialist - Instead of results, focuses on motive of duty and conforming to a moral law or principle things are done not because of what might be achieved, but because it's the right thing to do - Requires following rules b/c morality based on human reason - Features: - All humans have dignity and require respect - We are all rational beings capable of reason - Moral worth involves free will and is found in choices that agree w/principles - We are autonomous when we act out of moral duty - Categorical imperative: - Hypothetical: action is good as a means to something else (conditional) - Categorical: action is good in and of itself and not dependent on anything - 3 formulations: 1. Does my maxim make sense as a universal law? 2. Would I be treating people w/respect? 3. Would my action prevent someone from exercising their rational faculties? - Critiques: - Outcomes and contexts not particularly considered - Denies exceptions - What about conflicting duties? - Who makes the rules and who do they apply to? Who det moral duties? - Dismisses moral value of actions motivated by emotions/goodwill b/c motivation is not duty - Can the motive of duty always justify actions? - Deontology in healthcare/nursing: - Kantian duties in Codes of Ethics - Duty-based language often underpins laws, roles, responsibilities - Dignity, respect, promotion of autonomy ### Principlism - Principles of ethics: - **Autonomy** - **Beneficence**: do and promote good - **Nonmaleficence**: do no harm - **Justice** - Additional principles: - **Veracity**: tell the truth - **Fidelity**: obligation to do what we say we're going to do - Strengths: - Common language to talk abt ethical dilemmas - Widely used - Structured - Focus on rationality - Critiques: - Risk of using as a 'recipe' - Ignores complex sociopolitical climates + contexts flattens experiences - Is there consensus on these four principles? based in Western, North American values ### Feminist and Ethics of Care - **Personhood**: people are autonomous, independent, rational, and unencumbered ### Paradigms: Relational Ethics, Narrative Ethics, Casuistry - **Relational ethics**: focuses on embodiment, mutual respect, and engagement - **Narrative ethics**: focuses on individual narratives - **Casuistry**: focuses on case studies Ethical Dilemmas and the Decision-Making Process ------------------------------------------------ - An ethical dilemma: - Involves a choice/course of action with multiple alternatives and possible consequences - Generates uncertainty abt best course of action - May result in complexity d/t many interpersonal and contextual aspects involved - The decision-making process: - Best alternative is det in accordance with the ethical norms and moral values of a community - Not just one right and one wrong alternative - Other components of ethical dilemmas: - Conflict/opposition b/w 2+ moral values/principles - Compromises well-being - Communication difficulties often present - Difficult for healthcare team, pt, family - Ethical decision-making tools and frameworks: - IDEA framework - Canadian nurses association (CAN) - Storch model - Community ethics toolkit ### IDEA Framework  ### Canadian Nurses Association A diagram of steps to a business Description automatically generated ### Storch Model  Identifying the Ethical Question -------------------------------- - When clarifying... - Clearly ID conflicting perspectives/values/principles - Include different perspectives from all relevant stakeholders - Be specific - Be framed as a question - **Moral distress:** negative feelings that arise when one knows the correct response to a situation but cannot act accordingly b/c of institutional/hierarchical constraints - Psychological disequilibrium and state of neg feelings when a person makes a moral decision but doesn't follow through in their actions - Is NOT moral uncertainty: when one doesn't know the correct course of action - Can indicate professional conscience when in an environment that prevents clinicians from practicing in an ethically correct manner - From moral distress to moral agency: - Agency: capacity for a person to engage in deliberate action - Moral agency: a stronger framework for understanding the moral dimension of clinical practice - A person's capacity to engage in deliberate actions that are morally relevant - All nurses are moral agents! - What nurses can do to address moral distress: - Recog sx - Reflect - Reconnect to original purpose + intention in being a nurse - Commit to personal wellbeing - Support + restore moral integrity - Learn to listen to intuition + somatic responses - Develop ethical competence - Speak up - Take action - Contribute to a culture of ethical practice - Moral courage + resilience: - Moral courage: an expression of moral agency - Moral resilience: the capacity of an individual to sustain or restore their integrity in response to moral complexity, confusion, or setbacks - Moral community: workplace where values are made clear and are shared, where values direct ethical action, and where individuals feel safe to be heard Learning Objectives for Law =========================== +-----------------------------------------------------------------------+ | 1. Understand and recognize key features in the division of | | jurisdiction between the federal, provincial governments, and | | professional bodies in Canada when it comes to health law. | | | | 2. Recognize the importance of the Canadian Charter of Human Rights | | and Freedoms in health law. | | | | 3. Familiarize oneself with the Civil Code of Quebec and its | | relevance to health law. | | | | 4. Understand the professional obligations of healthcare | | practitioners as outlined in the Act Respecting Health Services | | and Social Services. | | | | 5. Enumerate user rights as outlined by the Articles 4 to 16 in | | the Act Respecting Health Services and Social Services | | | | 6. Discuss how the Code of Ethics for nurses relates to legal | | obligations and its impact on healthcare practice. | | | | 7. Recognize the distinction between primary and secondary sources | | of law in health law. | | | | 8. Appreciate the importance of documentation in healthcare practice | | and the potential legal implications of not reporting incidents | | or injuries. | | | | 9. Understand the role of disciplinary boards in regulating the | | nursing profession and the potential consequences for | | practitioners who violate professional standards. | | | | 10. Discuss the principles and characteristics of informed consent. | | | | 11. Discuss how the courts determine whether negligence occurred in | | healthcare practice. | | | | 12. Differentiate between committing a professional fault and making | | a simple error of judgment in healthcare practice. | | | | 13. Recognize certain limits to patient rights in the provision of | | healthcare services, in terms of resources available. | | | | 14. Differentiate between negligence and misconduct in terms of civil | | liability. | | | | 15. Discuss the unique considerations related to consent for minors | | from a legal standpoint. | | | | 16. Identify the circumstances where court authorization is required | | for consent. | | | | 17. Discuss the legal obligations of healthcare professionals to | | inform patients of potential risks and benefits of treatment. | | | | 18. Recognize the pecking order for decision-making when a patient | | lacks the capacity to give informed consent. | | | | 19. Recognize the difference between contractual and | | extra-contractual claims in civil liability cases (Article 1458 | | CCQ vs. Article 1457 CCQ). | | | | 20. Discuss the three elements necessary for civil liability: fault, | | injury, and causal link. | | | | 21. Differentiate the standard of proof in civil law (balance of | | probability) and criminal law (beyond reasonable doubt). | | | | 22. Explain the \"but for\" test used to determine causation in legal | | cases. | | | | 23. Define the different unintentional and intentional torts in | | Canada and how it can apply to nursing practice. | | | | 24. Discuss the criteria for the legal definition of capacity | | | | 25. Recognize situations where a court order would be required for | | care | +-----------------------------------------------------------------------+ ***Key Aspects for the Legal Content:*** - You do not need to memorize the article numbers but should recognize legal rights and obligations. - You should have a good grasp of your OIIQ Code of Ethics - You should understand some key legal concepts that are outlined in the learning objectives. Lecture 3: Readings =================== **Guiding Questions** - *Can laws be unethical?* - Yes: - Though laws are rooted in moral foundations, they can reflect antiquated morals from a time where it would no longer apply. For example, housing discrimination was once legal, though it was unethical in that it restricted where people of colour were able to live - Laws can also clash with moral beliefs, such as the conscription of an individual who is a pacifist - Laws can also require professionals to act in ways that go against their ethical codes of conduct, such as Texas requiring medical professionals wait to perform an abortion until the mother's life is in severe danger - Laws can also have unintended, unethical consequences, such as a law in the United States requiring photo identification to vote. Since there currently exists no government-issued photo ID that is also free, this law disenfranchises the poor - Laws that lack broad public support and that are seen as serving the interests of a small, powerful group can be considered unethical because they don't reflect the will/values of the majority. For example, tax cuts for the ultra-rich can be seen as unethical in a democracy, if the majority of the population doesn't support it - *Can ethical actions be illegal?* - Yes: - Laws may not keep pace with ethical standards, so what is considered right/just might not be reflected by the law - Civil disobedience, that is, intentionally breaking a law that is considered unjust or immoral to bring out social/political change, can be ethically motivated and still illegal. For example, Martin Luther King Jr.'s civil disobedience was illegal and yet ethical by today's standards - Conscientious objection, where an individual refuses to comply with a legal requirement on ethical grounds, is another example. For instance, a healthcare professional might refuse to participate in the forced sterilization of an Indigenous woman - Emergency situations can also create actions that are illegal but ethical, such as trespassing to provide assistance - *How does Canadian law impact nursing practice?* - Each province/territory has its own nursing regulatory body that establishes and enforces standards of practice, professional conduct, and licensure requirements - Canadian law also: - Dictates the requirements for licensure and certification - Defines the scope of practice for nurses - Governs the protection of pt privacy - Defines the req for obtaining + documenting informed consent - Obliges nurses to report certain incidents (ie. suspected child/elder abuse) - Emphasizes cultural competence - Sets out regulations governing the admin of controlled substances - Addresses end-of-life care (ie. MAID) - Prohibits discrimination - *Thinking specifically about death and dying, what parts of the legal framework do you think apply?* - MAID - Advance care planning - DNR orders - Palliative care - Privacy + health info - Informed consent - Funeral + burial laws - Estate planning + wills - Consent to autopsy - *What is negligence?* - A legal concept; the failure to exercise the level of care and caution that a reasonable person would under similar circumstances. Involves breach of duty + causation + harm - *Under what circumstances are nurses potentially held legally liable for their actions?* - Medical malpractice (ie. giving the wrong med, failing to properly monitor, not following IPC procedures) - Med errors - Failure to communicate w/other healthcare professionals - Documentation errors - Pt falls - Failure to obtain informed consent - Neglect/abuse - Scope of practice violations - Confidentiality violations - Failure to report - *How do the legal requirements of documentation align with what is found in the OIIQ and CNA codes of ethics?* - Accuracy and truthfulness - Confidentiality - Informed consent - Standard of care - Timeliness - Accountability + responsibility - Objectivity - Professional boundaries Lecture 3: Law -- Rights and Obligations ======================================== Civil Law --------- - 3 levels of gov in Canada: fed, prov, municipal - Constitution Act of 1982 (Schedule B to the Canada Act 1982) gives provinces the decision-making power in healthcare - Scope + standards of practice for medical professionals and rights of users of health services are det by provinces - Ethical standards, best professional practices are often decided by provinces (ie. OIIQ) - Disciplinary boards can sanction deviations #### Primary Sources of Law 1. Legislation - Civil Code of Quebec (CCQ) - Charter of Human Rights and Freedoms - Other legislation: - S-4.2: Act respecting health services and social services (AHSSS) - Chapter I-8, r.9: Code of ethics of nurses act (regulation 9 of the "main" Nurses Act I-8) - Professional Code, Youth Protection Act, P-38.001: Act respecting the protection of persons whose mental state presents a danger to themselves or others 2. Jurisprudence (Caselaw) #### Secondary Sources of Law - Doctrine: scholarly materials written by legal experts (ie. Textbooks, treatises, legal articles, gov documents) ### Patient's Rights - What legal recourses do pts have when their rights aren't being respected? - AHSSS: covers rights + obligations of users and providers of health, social services in QC - Articles 4-16: broad user rights - Right to... - 5 - Continuity and safety of services - 6 - Choose a medical professional - 8 -- Be informed of the existence of options + risks/benefits of each option - 11 - Be accompanied by a person of choice - 15 - Receive services in English - 13 -- All within the material limits of the institutions providing the service - Rights in AHSSS are echoed in other legislative texts - AHSS Article 8 = Code of ethics of nurses, articles 40, 41 - Nurses must provide explanations for pt comprehension and must obtain a free and enlightened consent to care, which is also guaranteed by CCQ Articles 10, 11 - AHSSS Article 19 = exceptions under Professional Code article 60.4 = alluded to in Nurses Act article 31 - Confidentiality of the user's record ### Professional Obligations - MDs, RNs have a duty to inform and obtain free + enlightened consent, produce a correct diagnosis, treat, follow, respect professional secrecy - MDs, RNs have an obligation of means (vs obligation of result) towards pts - Objective test to det whether or not nurse was negligent: - Did the nurse act w/the ordinary competence and diligence of a nurse placed in the same circumstances? - Must provide care that adheres to the current, generally accepted standards/practices in similar situations - Hospital has a legal responsibility towards the patients - It is vicariously liable (CCQ 1463) for the actions of its staff - CCQ article 1463: the principle is liable to reparation for injury caused by the fault of his agents in the performance of their duties; nevertheless, he retains his recourses against them - Outside the hospital setting, the MD is often responsible for the actions of an RN - In both cases, the hospital/doctor may sue the nurse the nurse is still individually responsible for their wrongdoing - Pts usually sue the hospital in a medical malpractice lawsuit and not an individual nurse - Nurses are required to know + apply specific recognized standards of practice in their field of specialty - Behavior that doesn't meet established standards of care can be a breach of obligations, even if the nurse is convinced they are doing the right thing (since intentionality isn't a parameter for establishing fault) - Committing a professional fault is diff from an error of judgement through deviation from the standards of practice; it is based on what a "reasonable professional" would've done - Important case for medical community: Lapoint c. Hopital Le Gardeur 1992 1 RCS 351 - "Professional liability is governed by the principles of ordinary civil liability. Generally, doctors have an obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances. Medical professionals should not be held liable for errors of judgement, which are distinguishable from professional fault" - However, sometimes the obligation is to follow hospital protocol to a T - Hopital de Chicoutimi c Battikha: OR nurse didn't count gauges post-op properly and missed one left in pt's stomach - Standard of the prudent and diligent doctor placed in the same circumstances did the doctor act in accordance with the standards of treatment recognized by the medical community as accepted at the time of the incident - Ter Neuzen v Korn (1995) 3 SCR 674: SCC instructs that MDs should be judged on the basis of knowledge that could be reasonably possessed at the time of the incident - Exceptions to the "rules of practice" are extremely rare - Not enough to show that the MD didn't choose the "best tx" - Standard is set in part b/c of the realization that courts of law don't have the required expertise to settle scientific disputes involving diverging professional opinions #### Negligence vs Malpractice - **Negligence**: failure to use such care as a reasonably prudent and careful person would use under similar circumstances - **Malpractice**: improper/unethical conduct or unreasonable lack of skill by a holder of a professional/official position; often applied to denote negligent or unskillful performance of duties - However, IRL, malpractice = professional negligence, which involves civil/professional responsibility and is a civil offence - For nurses, the distinction should be drawn for **misconduct**: more admin than civil doing lawful things in an unlawful manner (ie. Failing to keep records as required, failing to renew a license, improperly delegating a controlled act, practicing while impaired) - Punishment for misconduct is admin in nature since nurses are usually reported to the professional board (ie. OIIQ's Disciplinary Council) Capacity and Informed Consent ----------------------------- ### Legal Framework: Core Provisions - CCQ 10: every person is inviolable and is entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person w/o free and enlightened consent - CCQ 11: no one may be made to undergo care of any nature except with his consent. Except as otherwise provided by law, the consent is subject to no other formal requirement and may be withdrawn at any time, even verbally \*\* not getting free and enlightened consent can give rise to a civil responsibility lawsuit - Ciarlariella v. Schater: - C. needed to undergo 2 angiograms to locate a suspected aneurysm - Procedure was associated w/serious risks. During the second test, C started moaning and was distressed, but the radiologist decided to complete the test after getting C.'s "Please go ahead," which rendered her quadriplegic and deceased soon after - It was ruled that there was no evidence to suggest that her condition b/w the 2 exams had deteriorated to the point where her consent was compromised and therefore invalidated. Also, given the risks of not finding the aneurysm outweighing the risk of potential quadriplegia, it was noted that a "reasonable patient" in C's position would've still consented - LSSS 8: before giving his consent to care, every user of health and social services is entitled to be informed of his state of health and welfare and to be acquainted with the various options open to him + the risks/consequences associated w/each option - The user is also entitled to be informed ASAP of any accident - LSSS 9: no person may be made to undergo care of any nature except with his consent \*\*Code of Ethics of Nurses, article 4: the options need to reflect the accepted professional practices and not be referral to/providing of products or methods that could be harmful to health/miracle tx ### Legal Framework: Duty to Inform - Code of Ethics, article 40: a nurse shall provide the patient with all the explanations necessary for the pt's comprehension of the care, treatment, or other professional services being provided to them by the nurse - Code of Ethics, article 41: when a nurse is obliged to obtain a free and enlightened consent, they shall: - Provide the pt with all the info required for that purpose - Ensure that the pt's consent remains free and informed for the duration of the period they provide care - Respect the patient's right to revoke their consent at any time - The pt's right to give free and enlightened consent gives rise to a duty to inform on the part of the healthcare provider - Issues for which pts have a right to information include the condition of their health, prognosis, tx options, consequences and risks associated with a given tx - Criteria of informed consent: 1. **Capacity** to consent/refuse care 2. Consent must be **given freely** 3. Consent must be **enlightened** - Capacity: a person's legal ability to exercise their rights - Presumed unless the person is a minor (distinction: minors 14+, as of CCQ article 14) or persons of full age incapable of giving consent (CCQ article 15, 16) - Minors \< 14: - CCQ 14: consent required by the state of health of a minor is given by the person having parental authority or by his tutor - CCQ 18: when care is not required by the state of health, it is given by the person having parental authority or the mandatary, tutor, or curator; the authorization of the court is also necessary if the care entails a serious risk to health or if it may cause grave and permanent effects - Minors \> 14: - May give consent alone to: - CCQ 14: care required by the state of health - However, persons having parental authority must be informed if his state of health requires that he remain in a health/social services establishment for 12+ h - CCQ 17: care not required by the state of health - However, consent of parental authority is required if the care entails a serious risk for the health of the minor and may cause him grave and permanent effects - Criteria to establish a person's lack of capacity in a medical context: - 2-tier test: - Tier 1: CCQ 16: pt is inapt to consent + categorically refusing tx - For inapt to consent: hospital lawyer must draft a motion. The motion is based on a detailed psychiatric report, whereby the treating psychiatrist would outline the facts and propose to the court the specific + detailed tx options and address the following questions: - Does the person understand the nature of the illness for which tx is being proposed? - Does the person understand the nature and purpose of the proposed treatment + other available options? - Does the person understand the benefits and risks of the proposed tx? - Does the person understand the risks + consequences of not undergoing the proposed tx? - Is the person's ability to understand affected by their illness? - For categoric refusal, tx would need to have been offered and there must be proof of refusal (ie. Testimony of psychiatrist) - Tier 2: CCQ 12: judge must assess if tx is appropriate and answer: - Is the tx required and if so, is it sufficiently described? - Do the benefits outweigh the negative consequences? - How long should the authorization be granted for? - When is a court order needed? - CCQ 16: - The person who can consent to care regarding a minor/person incapable of giving their consent is **prevented** from doing so or, without justification, refuses to do so - A person incapable of giving their consent **refuses** to receive care, except in the case of hygienic care or emergency - It is necessary to give care to a minor 14+ to care they refuse, except in the case of emergency, in which case the consent of the parental authority is enough - Balance between values: personal autonomy vs effective medical treatment in Starson v Swayze (2003) SCR 722 - When the individual is incompetent or lacks capacity, the law can override their wishes and order hospitalization - Drolet v Parenteau (1994) RJQ 689 - Ms. Drolet consults Dr. Parenteau who declares her to be fit for aesthetic surgery of the eyelids and explains the general nature of the operation. He gives her information sheets that contain no reference to risk of blindness - D comes to see P the following year and he schedules the operation without a discussion on the risks - Post-op, D complains of pain in her left eye and is given painkillers - Next day, sees P @ clinic, who diagnoses conjunctivitis and not hematoma, suggesting D see an ophthalmologist - D is diagnosed w/total loss of vision in left eye - P knew of risk but thought it was theoretical and failed to interpret monocular pain as a sign - P had a duty to inform D of such a severe risk and is liable for her injuries - If D had been adequately informed, she likely would've avoided damages, as she would've taken her sx seriously - Info provided was misleading and incomplete, failing to disclose long-term consequences - **Not just probability, but the severity of consequences** - General principle: all pts must give informed consent prior to receiving care - Exception: emergencies - CCQ article 13: consent to medical care isn't required in case of emergency if: - The life/integrity of the person is in danger AND - His consent can't be obtained in due time - However, when care is unusual/become useless/could have intolerable consequences, **consent is still required** - Emergency situations don't relieve healthcare professionals of the obligation to obtain the free and informed consent of the pt - If there are advanced/end-of-life directives, they must be respected - In 2010, the College de Médecins published a 3-tier test in order to adequately evaluate the necessity of the treatment to be imposed 1. Does the proposed intervention meet the patient\'s expectations? 2. Does the proposed intervention have harmful effects that outweigh the expected benefits? 3. Does the proposed intervention offer an overall benefit to the patient? - When consent is invalid: - When it is given out of fear - When it is given based on a misrepresentation - CCQ 1398: consent may be given only by a person who is capable of binding themselves - CCQ 1399: consent must be free and enlightened. It may be invalidated by error, fear, or lesion - Delegated consent: - CCQ 15: when it is determined that a person is incapable of giving consent, consent is given by their mandatory/tutor/curator. If the person is not represented, consent is given by their spouse. If there is no spouse, it is given by a close relative or a person who shows a special interest - Capacity is presumed, but if you have reason to believe that a person's capacity is affected, you can go to the delegated decision maker. **A court order is not needed** - CCQ 12: a person who gives consent for another person must act in the interest of that person, complying with any wishes that person may have expressed. They must ensure that the care is beneficial and that the risks incurred are not disproportionate to the benefit - Recap: - CCQ 11: pt has capacity to consent - CCQ 15: no capacity to consent and represented - CCQ 15: no capacity to consent and not represented - CCQ 16: unjustified refusal or impossible to reach representative/sub - CCQ 14, 17: minor 14+ - CCQ 18: minor \< 18 - CCQ 16: no capacity and refuses tx, regardless of consent by substitute Civil Liability --------------- - If a pt's rights are not being respected, they can pursue the health center and/or the medical professional under: - CCQ 1457: gives rise to an extracontractual claim in civil law stemming from the obligation not to cause harm - CCQ 1458: gives rise to a contractual claim in civil law stemming from the obligation to honour contractual undertakings ### Extracontractual Liability - CCQ 1457: one general "rule" in QC civil law every person has a duty to abide by the rules of conduct so as not to cause injury to another - When the person fails, they are responsible for any injury and is liable to reparation - CCQ 1458: every person has a duty to honor his contractual undertakings - When the person fails, they are liable for any injury caused and is liable for reparation. Neither party may avoid the rules by opting for something more favorable to them - Elements of liability under CCQ 1457: 1. **Fault**: conduct that falls short of what a reasonable person would do to protect another from foreseeable risks of harm 2. **Damages**: can be compensatory, pecuniary (lost wages, damage to property), non-pecuniary (pain, suffering) 3. **Causation**: a. Adequate causation: seeks to eliminate the mere circumstances of the damage and isolate its immediate cause i. Could the events have been caused by a situation's natural evolution? ii. Concept of reasonable foreseeability and "but for" tests are used 1. The plaintiff must prove on a balance of probabilities that, but for the conduct of the defendant, the plaintiff would not have sustained their injuries recognizes that compensation for negligent conduct should only be made where a substantial connection b/w injury and conduct is present iii. Causation often difficult to determine, though for gross fault, proof is less demanding Ethics Workshop 1: Learning Objectives ====================================== - Collaboratively discuss a clinical case through the lens of nursing ethics - Identify contrasting values at play in clinical situations related to organ donation and high technology treatments. - Discuss some of the main ethical dilemmas present in nursing in organ donation. - Apply an ethical analysis process to a particular case in transplant ethics. - Contribute to a larger group discussion as to the team's case analysis Ethics Workshop 1: Readings =========================== Reading 1 -- History of Medicine -- The Ethics of Organ Transplantation ----------------------------------------------------------------------- - Initial ethical problems with organ transplantation: - Invading a healthy body to obtain an organ for another - How were organs to be obtained? - If from a related living donor, how to get non-coerced consent? - If from an unrelated donor, should there be compensation? - If from a dead donor, with what clinical evidence of death? - How should recipients be selected? - How should enough organs be harvested to meet need? - When heart transplantation became possible, more questions arose - Definition of death - When could a heart be removed? - Commission on the Study of Ethics in Medicine - An individual who has sustained either (1) irreversible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead - Financial compensation (in the US) is prohibited and explicit consent must be obtained before death Reading 2 - Supporting ethical ICU nursing practice in organ donation: An analysis of personhood ------------------------------------------------------------------------------------------------ - GIFT: used to det when a reference should be made for organ donation - **G**rave prognosis or GCS 3 - **I**njured brain or non-recoverable injury/illness - **F**amily initiated discussion of donation - **T**reatment is limited and de-escalation/withdrawal of life-sustaining therapies planned - 3 circumstances in ICU when deceased organ donation can occur: - Neurological determination of death - irreversible loss of the capacity for consciousness combined with the irreversible loss of all brainstem function including the capacity to breathe - Donation after circulatory determination of death - Organ donation in the context of MAiD must die in hospital - The tenets central to palliative care (minimal equipment, no blood work, etc) can be in tension with organ donation requirements Reading 3 - Opinion: 242 reasons Canada should reform organ-donation laws ------------------------------------------------------------------------- - Canada currently operates under explicit-consent legislation (opt-in organ donation) Ethics Workshop 1: Transplant Primer Slides =========================================== - Ethical issues in transplant: - Consent w/o coercion - Definition of death - Beneficience - Scarcity and allocation looks at justice, utility, respect of person/autonomy - Altruism - Consent - Medical tourism - WHO guiding principles: - Principle \#1: Cells, tissues, and organs may be removed from the bodies of deceased persons for the purpose of transplantation if: - Any consent required by law is obtained - There is no reason to believe that the deceased person objected to such removal - Principle \#3: Donation from deceased persons should be developed to its maximum therapeutic potential, but adult living persons may donate organs as permitted by domestic regulations. In general, living donors should be genetically, legally, or emotionally r/t their recipients - Principle \#5: Cells, tissues, and organs should only be donated freely, w/o any monetary payment or other reward of monetary value. Purchasing, or offering to purchase, cells, tissues, or organs for transplantation, or their sale by living persons or by the next of kin for deceased persons, should be banned