Health Discussion HSCI 410

THIRD EDITION

Legal and Ethical Issues

for Health Professionals

George D. Pozgar, MBA, CHE

Consultant

GP Health Care Consulting

Annapolis, Maryland

Legal Review

Nina Santucci, JD

Medical Review

John W. Pinnella, MD, DDS, FICS

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Library of Congress Cataloging-in-Publication Data

Pozgar, George D.

Legal and ethical issues for health professionals / George D. Pozgar. — 3rd ed. p. cm.

Includes bibliographical references and index.

ISBN 978-1-4496-4775-9

I. Title.

[DNLM: 1. Ethics—United States. 2. Legislation, Medical—United States. 3. Ethics, Clinical— United States. 4. Patient Rights—United States. W 32.5 AA1]

KF3821.P68 2010

174.2—dc23 2011051293

6048

Printed in the United States of America

16 15 14 13 12 10 9 8 7 6 5 4 3 2 1

What lies behind us and what lies before us are tiny matters

compared to what lies within us.

Henry S. Haskins

Contents

Foreword

Preface

Acknowledgments

Chapter One Introduction to Ethics

Introduction

Ethics

Morality

Ethical Theories

Principles of Ethics

Virtue Ethics and Values

Religious Ethics

Secular Ethics

Atheism

Situational Ethics

The Final Analysis

The Moral Compass

Summary Thought

Chapter Review

Test Your Understanding

Chapter Two Contemporary Ethical Dilemmas

Introduction

Noteworthy Historical Events

Abortion

Acquired Immune Deficiency Syndrome

Artificial Insemination

Organ Donations

Research, Experimentation, and Clinical Trials

Sterilization

Wrongful Birth, Life, and Conception

Surrogacy

Human Genetics

Chapter Review

Test Your Understanding

Notes

Chapter Three End-of-Life Dilemmas

Introduction

Euthanasia

Advance Directives

Futility of Treatment

Withdrawal of Treatment

Do-Not-Resuscitate Orders

Chapter Review

Test Your Understanding

Notes

Chapter Four Health Care Ethics Committee

Introduction

Committee Structure

Goals of the Ethics Committee

Committee Functions

Requests for Consultations

Expanding Role of the Ethics Committee

Convening the Ethics Committee

Reasoning and Decision Making

Helpful Hints

Chapter Review

Test Your Understanding

Notes

Chapter Five Development of Law

Introduction

Sources of Law

Government Organization

Administrative Departments and Agencies

Chapter Review

Test Your Understanding

Notes

Chapter Six Introduction to Law

Introduction

Tort Law

Negligence

Intentional Torts

Criminal Law

Contracts

Trial Procedures and the Courtroom

Chapter Review

Test Your Understanding

Notes

Chapter Seven Government, Ethics, and the Law

Introduction

United States Office of Government Ethics

Public Policy as a Principle of Law

14 th

Amendment to the U.S. Constitution (1868)

Civil Rights Act (1964)

Sherman Antitrust Act (1890)

Privacy Act (1974)

Health Insurance Portability and Accountability Act (1996)

Emergency Medical Treatment and Active Labor Act (1986)

Health Care Quality Improvement Act (1986)

Agency for Healthcare Research And Quality

Ethics in Patient Referral Act (1989)

Patient Self-Determination Act (1990)

Sarbanes-Oxley Act (2002)

Patient Protection and Affordable Care Act (2010)

Political Malpractice

Ethics in Public Service

Chapter Review

Test Your Understanding

Notes

Chapter Eight Organizational Ethics and the Law

Introduction

Code of Ethics for Organizations

Organizational Conduct Under Scrutiny

Doctrine of Respondeat Superior

Corporate Negligence

Corporate Duties and Responsibilities

Avoid Conflicts of Interest

Provide for Effective Communications

Chapter Review

Test Your Understanding

Notes

Chapter Nine Health Care Professionals’ Ethical and Legal Issues Introduction

Chiropractor

Dentist

Dental Hygienist

Dieticians

Emergency Department Staff

Emergency Medical Technician

Medical Technologist

Medical Assistant

Medical Records

Nurse

Pharmacist

Physical Therapist

Physician Assistant

Psychologist

Respiratory Therapist

Radiology Technologist

Social Worker

Certification of Health Care Professionals

Licensing Health Care Professionals

Helpful Advice for Caregivers

Chapter Review

Notes

Chapter Ten Physicians’ Ethical and Legal Issues Introduction

Principles of Medical Ethics

Credentialing Professionals

Hospital’s Duty to Ensure Competency Honoring a Patient’s Right to Autonomy Failure to Provide Informed Consent

Abandonment

Aggravation of a Preexisting Condition

Alternative Procedures: Two Schools of Thought

Confidential Communications

Falsification of Records

Failure to Respond: Emergency Department Call

Failure to Read Nurses’ Notes Failure to Refer for Consultation

Failure to Obtain Adequate History and Physical

Infection Control Issues

Medications

Misdiagnosis

Obstetrics and Gynecology

Physician–Patient Relationship Chapter Review

Notes

Chapter Eleven Employee Rights and Responsibilities

Introduction

Employee Rights

Employee Responsibilities

Helpful Advice

The Caregiver’s Pledge Chapter Review

Notes

Chapter Twelve Patient Consent

Introduction

Informed Consent

Consent and Ethical Codes

Assessing Decision-Making Capacity

Adequacy of Consent

Proof of Consent

Who May Authorize Consent?

Implied Consent

Right to Refuse Treatment

Statutory Consent

Chapter Review

Test Your Understanding

Notes

Chapter Thirteen Patient Abuse

Introduction

Child Abuse

Senior Abuse

Look Closer, See ME

Chapter Review

Notes

Chapter Fourteen Patient Rights and Responsibilities

Introduction

Patient Rights

Patient Responsibilities

Chapter Review

Notes

Chapter Fifteen Summary Case—Star Chamber Characters

Settings

Events of Sunday, October 2

Events of Wednesday Afternoon, October 5

Events of Thursday Morning, October 6

Events of Thursday Luncheon, October 6

Events of Thursday, Late Afternoon, October 6

Events of Thursday Evening, October 6

Events of December 27–29 Educational Conference Discussion

Note

Appendix A Pillars of Moral Strength

Appendix B Websites

Ethics Websites

Government and Government-Related Websites

Legal Websites

Best Practices Websites

Health Care Resources

Hospital and Physician Finders

International Medical Websites

Reference Websites

Glossary

Index

Foreword

Health care is personal. It is perhaps the most personal of any service any

of us will receive in our lifetime. We all need it and recognize its

importance. And we need to know that our health care delivery system has

ethical and legal integrity as well as scientific validity. Sometimes correct

choices are not always obvious. There are gray areas. That is why health

care administrators and providers need a resource such as this book to help

clarify their responsibilities and to help guide them through the tough

choices that inevitably occur. Intuition and good intentions are laudable but

are not enough when it comes to health care. There are specific criteria that

our society requires in this very sensitive area. Awareness of those criteria

is crucial. That information, however, comes from a variety of sources that

are not always readily accessible. This book concentrates much of that

information into one convenient volume. It provides the reader with the

proper foundation to make good decisions in the delivery of patient care.

That is the ultimate goal of this book.

John W. Pinnella, MD, DDS, FICS

Preface

How far you go in life depends on your being tender with the young,

compassionate with the aged, sympathetic with the striving, and tolerant

of the weak and strong. Because someday in life you will have been all

of these.

GEORGE WASHINGTON CARVER

Legal and Ethical Issues for Health Professionals, Third Edition provides

the reader with a clear understanding of the law and ethics as they relate to

health care dilemmas. The practical application of ethics in the health care

setting is accomplished by interspersing the thoughts of great minds

through Quotes, events in the world through Newspaper Clippings,

provider and organizational experiences through Reality Checks, patient

experiences through People Stories, and legal rulings and summaries

through Cases. The book ends with a closet drama that illustrates the real

world of human behavior and ties together the elements of the book in one

case.

The reader is presented in the Third Edition with real-world life

experiences that bring the reader through a journey of learning that

provides an effective transitional stage from the classroom to the reality of

the everyday work environment.

This book is a comprehensive reference dealing with the questions of

right and wrong. The reader will learn how to evaluate and distinguish

between the rightness and wrongness of alternative courses of action when

faced with complicated ethical problems. Ethics in the health care setting

are about doing the right thing for both patients and caregivers. It involves

recognizing ethical dilemmas and effectively addressing them. This book

provides the reader with:

• Basic principles of ethics and the law in an easily understood format.

• Insight into how ethics and the law are intertwined. • Features such as Newspaper Clippings, Reality Checks, People Stories,

and Cases to illustrate real-life issues.

• The tools to help guide the reader to additional resources in the study of ethics and the law.

• An understanding of how ethics and the law assist the reader in resolving ethical conflicts and dilemmas.

• A better understanding of the application of ethical principles and values in the health care setting.

• A clearer understanding of the rights of patients and caregivers.

When people consider matters of ethics they are usually considering

matters of freedom in regard to personal choices, one’s obligations to other sentient beings, or judgments about human character and the right to

choose.

This book, as with the first and second editions, starts with the premise

that to act in an ethical manner means to engage in conduct according to

accepted principles of right and wrong. The author’s objective is to provide the reader with the background knowledge necessary to understand that

ethical behavior begins with understanding that we have alternatives and

choices in our behavior regarding how we treat ourselves and how we treat

others. To make good decisions, we must first understand that they will be

only as good as our knowledge of what is “right” and what is “wrong.” Thus, it is important to study ethics and apply the principles learned when

addressing common health care dilemmas.

This book is not an indictment of any profession or organization. It

does, however, illustrate how a minority of people can often cast a dark

shadow on all the good that occurs by so many for so many. It is about

learning how the system can break down and how we can so easily fix it

simply by good people doing good things. The book is a “call to arms” to do good things, to stand out from the crowd, because acts of caring,

compassion, and kindness often go unnoticed.

GP

A study titled “Does Ethics Education Influence the Moral Action of Practicing Nurses and Social Workers?” published in the American Journal of Bioethics in July 2008 showed that “Ethics education has a significant positive influence on moral confidence, moral action, and use of ethics

resources.”1 There is a deluge of ethical issues in every aspect of human existence.

Although cultural differences, politics, and religion influence who we are,

it is all of life’s experiences that affect who we become. If we are compassionate, for example, it is most likely because we have been

influenced by the compassionate.

The headlines presented here and noted throughout the book are but a

few of the many reminders of how governments, organizations, the media,

and people from all walks of life have somehow become desensitized,

ethically complacent, and unwilling to accept responsibility for

wrongdoing.

NEWSPAPER CLIPPINGS: Executive’s Medicare Scheme Had Lobbying Effort to Support It

HE FRANCHISED FRAUD WITH ADVOCACY GROUP

Prosecutors say he pushed for policies to aid sham clinics

Miami health-care executive Larry Duran orchestrated one of the

largest Medicare frauds in U.S. history, submitting more than $205

million in phony claims and landing a record-breaking 50-year prison

sentence for his crimes.

But another piece of the Duran’s scheme also caught the eye of prosecutors. They say he extended his fraud through his lobbying

efforts, all aimed at getting official Washington to make it easier for

mental health centers such as his to make money.

Patients often suffered from Alzheimer’s disease, dementia or other conditions unsuited for therapy and were frequently left to urinate or

defecate on themselves as they waited for treatment that never came,

testimony showed.

“The people that were there were just kept there and run through like cattle,” the judge in the case said.

Dan Eggen, The Washington Post, October 5, 2011

Trek of tears describes many horrible historic events, from broken treaties

with American Indians to an African Journey of horror, where people

would flee together as a village to escape the barbaric slaughter of men,

women, and children as the remainder of the world stood cowardly by

watching the death and starvation of hundreds of thousands of people.

Human atrocities committed by humans. Is it not time to stand up and be

counted upon to do what is right and leave all excuses behind for our

complacency towards the genocide that continues throughout the world?

GP

Even the news media, whom we depend upon to report the truth, has failed

to provide a balanced view of right and wrong and good and bad. Views are

often slanted by even the best of journalists. For instance, “In the Footsteps of bin Laden” is a two-hour televised documentary on the life of Osama bin Laden produced by CNN. The documentary portrays him as a glamorous

terrorist leader. With some creative editing, it could be used as a powerful

visual tool for recruiting terrorists. Today, the news media also:

• Describes the nation’s vulnerabilities to terrorists (infrastructure, ports, and food supply chain).

• Describes how easy it is to make a bomb as well as where to find more information about the subject.

• Reports and dramatizes the failures of medicine, not the successes.

Cases containing a multitude of legal and ethical issues are included

throughout the book. The reader will be asked a series of questions after

each case, requiring legal and ethical logic in order to answer them.

Caregivers who have a clear grasp of the ethical and legal concepts

discussed in this book will be better equipped to make health care decisions

that are ethically sound and legally correct. The following case is an

example of how legal and ethical principles can be intertwined.

CASE: PATIENT AUTONOMY

Several months after having stomach surgery (2002), Vicki Marsingill, in

Marsingill v. O’Malley, 58 P.3d 495, called her surgeon, Dr. O’Malley, complaining of abdominal pain and nausea. O’Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill

said she felt better and declined to go.

O’Malley left it up to Marsingill whether to seek emergency room treatment. O’Malley informed Marsingill that the doctors in the emergency room would probably take X-rays and insert a nasogastric tube to relieve

the pressure in her stomach. After hearing that she would likely need to

have a nasogastric tube inserted if she went to the emergency room,

Marsingill ended the call, telling O’Malley that she was feeling better. Later that night, Marsingill’s husband found her unconscious on the

bathroom floor. Paramedics rushed her to the hospital, where an

emergency operation later revealed that she had experienced an intestinal

blockage, but by then the obstruction had caused Marsingill to go into

shock. She suffered brain damage and partial paralysis.

Marsingill sued O’Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her

over the telephone did not allow her to make an intelligent treatment

decision.

Section 8.08 of the AMA Code of Medical Ethics addresses the duty of

disclosure, providing, “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to

enable an intelligent choice.” Marsingill’s experts maintained that O’Malley had violated Section 8.08 by failing to give her enough information to make an intelligent choice about whether to seek

emergency room treatment. O’Malley acknowledged that Section 8.08 applied to his conduct—that he did have an obligation to give Marsingill

enough information so that she could make an intelligent choice as to

whether she should go to the emergency room.

Marsingill’s proposed instruction by the judge to the jury would have required the jury to decide the sufficiency of O’Malley’s communications from the standpoint of a reasonable patient in Marsingill’s position. The trial court rejected the proposed “reasonable patient” instruction.

O’Malley acquiesced in Marsingill’s decision not to go to the emergency room. In the context of a preexisting patient–physician relationship involving postoperative care, a physician’s recommendation to do nothing in the face of threatening symptoms is the equivalent of a

treatment recommendation and should be accompanied by a duty of

disclosure.

A physician’s acquiescence in a patient’s decision not to seek treatment in the same circumstances should likewise be regarded as

equivalent to a treatment recommendation subject to the same duty.

The superior court deprived Marsingill of her right to have the jury

decide the issue directly from the standpoint of a reasonable patient, and

the case was remanded for a new trial on Marsingill’s claim for breach of the duty to provide sufficient information to allow her to make an

intelligent treatment choice.

The appellate court ruled that the jury should have been instructed to

use the reasonable patient standard to determine whether O’Malley gave Marsingill sufficient information about her condition and treatment

choices. On remand, the jury must be instructed to decide the claim from

the standpoint of a reasonable patient.

There will always be an endless number of “what-if” scenarios. In the end, this question remains: What should one do, knowing that whatever

decision is made there will always be some doubt as to whether the

decision made was the right one? Armed with the knowledge in this book,

the reader will be a more effective caregiver and better able to make

critical health care decisions. The reader will make better choices with

fewer doubts.

Ethical and Legal Issues

1. Does the decision involve the principle of autonomy? If so, in what

way?

2. Is this an issue of professional ethics?

3. How did the physician’s actions involve the principles of beneficence and nonmaleficence?

4. Considering a patient’s rights and responsibilities, what rights were violated, if any? What responsibilities, if any, did the patient not

assume?

5. Do you agree with the court’s decision that the jury should have been instructed to use the reasonable patient standard? Discuss your answer.

ABOUT THE BOOK LAYOUT

Legal and Ethical Issues for Health Professionals, Third Edition begins

with an introduction to ethics and progresses to contemporary ethical

dilemmas, as well as end-of-life issues and health care ethics committees.

There are chapters describing the development of law and an introduction

to those aspects of the law that may have an impact on the careers of health

care professionals. The book continues with a discussion of government

ethics and the law, organizational ethics and the law, and the ethical–legal issues that health care professionals face. The book goes on to describe

employee rights and responsibilities, patient consent, patient abuse, and

patient rights and responsibilities. There is a summary case written as a

closet drama, as well as an appendix of suggested websites that includes a

brief description of what can be found on each website to help the reader

conduct further research into the legal and ethical issues of health care. The

text also provides a glossary of ethics and legal terminology

Newspaper Clippings are dispersed throughout the book. Because many

high-profile cases are settled out of the courtroom due to the negative

impact they can have on a health care provider, secondary sources such as

newspaper articles and personal experiences by those who wish to retain

their anonymity have been digested and adapted into a variety of formats to

encourage the learning process.

Reality Checks present ethical dilemmas that can occur in the health

care setting. These examples illustrate the dilemmas and problems health

care providers may face. The reader should note that any one Reality

Check involving a particular profession generally can be applied to other

health care professions. There are questions at the end of each example and

readers should be able to use the knowledge they have gained from the

information in the book and their practical experiences to answer these

questions.

People Stories were written by patients, family members, and

caregivers and describe real-life experiences. The People Stories are but a

small sample of the wide range of ethical and legal issues in health care.

Cases provide the reader with an understanding of a vast number of

legal and ethical issues, some of which he or she will face in his or her

career. It is anticipated that the reader will learn from these experiences and

apply their lessons when faced with health care dilemmas. When reviewing

the various cases in this book, consider both the ethical and the legal

implications of a dilemma and how they intertwine with one another.

Presented here is a sampling of the numerous questions that can be asked

when analyzing an ethical dilemma.

1. What are the relevant ethical and legal issues in the case?

2. What could have been done to bring more clarity to the ethical

dilemma?

3. How should the legal issues of the case be addressed?

4. How might one’s professional code of ethics be violated in the case? 5. Describe how the principles of patient autonomy, beneficence,

nonmaleficence, and justice may have been violated in the case.

6. Discuss the issues that may impact the people involved (e.g., family

members, physicians, other caregivers including nurses, chaplains,

and/or ethics committee members).

7. If you were friendly with the patient, would it affect your ability to give

an objective opinion?

8. Explain how moral values, religious beliefs, education, and life

experiences of both caregivers and patients complicate the resolution of

health care dilemmas.

9. Describe how financial concerns can affect the decision-making

process.

10. Describe how corporate culture can affect the decision-making process.

It should be noted that the book is designed to introduce the student to

various ethical–legal issues and should not be considered an in-depth or comprehensive review of a particular ethical–legal issue.

We study ethics because we need to know right from wrong and

maintain order in a society that would otherwise be lawless. Ethics

distinguishes good from evil. Ethics and the law are inseparable, for it is

ethics that describes our values and morality. An unethical person helps

create a world of fear, distrust, and tyranny. It is the law that describes our

commonly accepted behavior and provides punishment for those who fail

to adhere to the laws of the land. The law describes what is accepted

behavior.

Each life is like a novel. Filled with moments of happiness, sadness, crisis,

defeat, and triumph. When the last page has been written, will you be

happy or saddened by what you read?

AUTHOR UNKNOWN

*Author’s Note: this text is educational in nature and should not be considered a substitute for legal advice on any particular issue. Moreover, each chapter presents an overview, rather than an

exhaustive treatment, of the various topics. The author, legal reviewers, and/or publisher cannot be

responsible for any errors or omissions, including additions to, interpretation of, and/or changes in

the materials presented in this book.

NOTES

1. http://www.informaworld.com/smpp/content~content5a794428472~db5all.

Acknowledgments

I am grateful to the very special people in the more than 1,000 hospitals

and ambulatory sites in 40 states with whom I have consulted, surveyed,

and provided education to over the past 15 years. Their shared experiences

have served to remind me of the importance of making this book more

valuable in the classroom and as a reference for practicing health care

professionals.

This is for my students in ethics and health care law classes at the New

School for Social Research, Molloy College, Saint Francis College, and St.

Joseph’s College as well as my residents while I was an onsite faculty member for George Washington University and those I have instructed

through the years at various seminars, including at the C.W. Post Campus

of Long Island University. I will always be indebted to you for your

inspiration.

The author especially acknowledges the staff at Jones & Bartlett

Learning whose guidance and assistance was so important in making this

publication a reality.

chapter one

Introduction to Ethics

I expect to pass through this world but once. Any good therefore that I

can do, or any kindness I can show to any creature, let me do it now. Let

me not defer it, for I shall not pass this way again.

STEPHEN GRELLET

LEARNING OBJECTIVES

The reader upon completion of this chapter will be able to:

• Explain what ethics is, its importance, and its application to ethical dilemmas.

• Describe the concepts of morality, codes of conduct, and moral judgments.

• Understand relevant “ethical theories and principles.” • Describe virtue ethics and values and how they more clearly describe

one’s moral character. • Explain why courage is often considered to be the “ladder on which

all other virtues mount.” • Describe why there is a declining trust in the politics of health care. • Understand how religious ethics can affect one’s moral character. • Explain the concept of “situational ethics” and how changes in

circumstances can alter one’s behavior. • Describe the concepts of “ethical relativism” and one’s “moral

compass.”

INTRODUCTION

Good can triumph over evil.

AUTHOR UNKNOWN

This chapter provides the reader with an overview of ethics, moral

principles, virtues, and values. Ethics and morals are derivatives from the

Greek and Latin terms (roots) for custom. The intent here is not to burden

the reader with the philosophical arguments surrounding ethical theories,

morals, principles, virtues, and values; however, as with the study of any

new subject, “words are the tools of thought.” Therefore, some new vocabulary is necessary for the reader to learn in order to establish a

foundation and apply the abstract theories and principles of ethics in order

to make practical use of them.

ETHICS

How we perceive right and wrong is influenced by what we feed on.

AUTHOR UNKNOWN

Ethics is the branch of philosophy that seeks to understand the nature,

purposes, justification, and founding principles of moral rules and the

systems they comprise. Ethics deals with values relating to human conduct.

It focuses on the rightness and wrongness of actions, as well as the

goodness and badness of motives and ends. Ethics encompasses the

decision-making process of determining ultimate actions—what should I do, and is it the right thing to do. It involves how individuals decide to live

within accepted boundaries, principles, and values and how we live in

harmony with the environment and one another.

Ethics, also referred to as moral philosophy, is the discipline concerned

with what is morally good and bad, right and wrong. The term is also

applied to any theoretical system of moral values or principles. Ethics is

less concerned with factual knowledge than with virtues and values— namely, human conduct, as it ought to be, as opposed to what it actually is.

Microethics involves an individual’s view of what is right and wrong based on personal life experiences. Macroethics involves a more global

view of right and wrong. Although no person lives in a vacuum, solving

ethical dilemmas involves consideration of ethical issues from both a micro

and macro perspective.

The world is a dangerous place. Not because of the people who are evil;

but because of the people who don’t do anything about it. ALBERT EINSTEIN

The term ethics is used in three distinct but related ways, signifying (1)

philosophical ethics, which involves inquiry about ways of life and rules of

conduct; (2) a general pattern or “way of life,” such as religious ethics (e.g., Judeo-Christian ethics); and (3) a set of rules of conduct or “moral code,” which involves professional ethics and unethical behavior. The scope of health care ethics encompasses numerous issues, including the

right to choose or refuse treatment and the right to limit the suffering one

will endure. Incredible advances in technology and the resulting capability

to extend life beyond what would be considered a reasonable quality of life

have complicated the process of health care decision making. The scope of

health care ethics is not limited to philosophical issues but embraces

economic, medical, political, social, and legal dilemmas.

Bioethics addresses such difficult issues as the nature of life, the nature

of death, what sort of life is worth living, what constitutes murder, how we

should treat people who are especially vulnerable, and the responsibilities

that we have to other human beings. It is about making the right judgments

in difficult situations.

Why Do We Study Ethics?

We study ethics to aid us in making sound judgments, good decisions, and

right choices. If not right choices, then better ones. To those in the health

care industry, it is about anticipating and recognizing health care dilemmas

and making good judgments and decisions based on universal values that

work in unison with the laws of the land and our Constitution, and where

the law remains silent, we rely on the ability of caregivers to make right

judgments as guided by the wisdom of Solomon to do good. Doing the

right thing by applying the universal morals and values described in this

text (e.g., the 10 Commandments) will help shield and protect all from

harm.

MORALITY

Aim above morality. Be not simply good; be good for something.

HENRY DAVID THOREAU

NEWSPAPER CLIPPINGS: Elderly Patient Hit by Motorcycle

Dies in Japan After Being Rejected by 14 Hospitals

After getting struck by a motorcycle, an elderly Japanese man with

head injuries waited in an ambulance as paramedics phoned 14

hospitals, each refusing to treat him.

He died 90 minutes later at the facility that finally relented—one of thousands of victims repeatedly turned away in recent years by

understaffed and overcrowded hospitals in Japan.

Maria Yamaguchi, Associated Press, February 5, 2009

NEWSPAPER CLIPPINGS: Vietnam—Terror of War

Fire rained down on civilians. Women and children ran screaming. Ut

snapped pictures. A little girl ran toward him, arms outstretched, eyes

shut in pain, clothes burned off by Napalm. She said, “Too hot, please help me!”

1973 Spot News, Newseum, Washington, DC

NEWSPAPER CLIPPINGS: Ethiopian Famine (1985 Feature)

People searched everywhere for food. Some 30,000 tons of it, from the

United States, had been held up by an Ethiopian government

determined to starve the countryside into submission. And starve the

people it did—half a million Ethiopians, many of them children so hungry their bodies actually consumed themselves.

I’ll never forget the sounds of kids dying of starvation.

Newseum, Washington, DC

NEWSPAPER CLIPPINGS: Waiting Game for Sudanese Child

(and a Pulitzer-Winning Photographer’s Suicide)

Carter’s winning photo shows a heartbreaking scene of a starving child collapsed on the ground, struggling to get to a food center during a

famine in the Sudan in 1993. In the background, a vulture stalks the

emaciated child.

Carter was part of a group of four fearless photojournalists known

as the “Bang Bang Club” who traveled throughout South Africa capturing the atrocities committed during apartheid.

Haunted by the horrific images from Sudan, Carter committed

suicide in 1994 soon after receiving the award.

A Pulitzer-Winning Photographer’s Suicide, National Public Radio, (NPR), March 2, 2006

Trek of tears describes many horrible historic events, from broken treaties

with American Indians to an African Journey of horror, where people

would flee together as a village to escape the barbaric slaughter of men,

women, and children as the remainder of the world stood cowardly by

watching the death and starvation of hundreds of thousands of people.

Human atrocities committed by humans. Is it not time to stand up and be

counted to do what is right and leave all excuses behind for our

complacency toward the genocide that continues throughout the world?

GP

There are those who have been brainwashed into believing, in the name of

religion, that if they blow themselves up in public places, killing innocent

people, that they will be rewarded in the afterlife. This is not religion and

it is not culture; it is evil people brainwashing young minds to do evil

things.

GP

Morality describes a class of rules held by society to govern the

conduct of its individual members. It implies the quality of being in accord

with standards of right and good conduct. Morality is a code of conduct. It

is a guide to behavior that all rational persons should put forward for

governing their behavior. Morality requires us to reach a decision as to the

rightness or wrongness of an action. Morals are ideas about what is right

and what is wrong; for example, killing is wrong, whereas helping the poor

is right, and causing pain is wrong, whereas easing pain is right. Morals are

deeply ingrained in culture and religion and are often part of its identity.

Morals should not be confused with cultural habits or customs, such as

wearing a certain style of clothing. What rules are considered right varies

from nation to nation, culture to culture, religion to religion, and one

person to the next. In other words, there is no universal morality that is

recognized by all people in all cultures at all times.

Code of Conduct

A code of conduct generally prescribes standards of conduct, states

principles expressing responsibilities, and defines the rules expressing

duties of professionals to whom they apply. Most members of a profession

subscribe to certain “values” and moral standards written into a formal document called a code of ethics. Codes of conduct often require

interpretation by caregivers as they apply to the specific circumstances

surrounding each dilemma.

Michael D. Bayles, a famous author and teacher, describes the

differences between standards, principles, and rules:

• Standards (e.g., honesty, respect for others, conscientiousness) are used to guide human conduct by stating desirable traits to be exhibited and

undesirable ones (dishonesty, deceitfulness, self-interest) to be avoided.

• Principles describe responsibilities that do not specify what the required conduct should be. Professionals need to make a judgment about what is

desirable in a particular situation based on accepted principles.

• Rules specify specific conduct; they do not allow for individual professional judgment.

Moral Judgments

Moral judgments are those judgments concerned with what an individual or

group believes to be the right or proper behavior in a given situation.

Making a moral judgment is being able to choose an option from among

choices. It involves assessing another person’s moral character based on how he or she conforms to the moral convictions established by the

individual and/or group. A lack of conformity can result in moral

disapproval and possibly ridicule of one’s character.

Morality Legislated

When it is important that disagreements be settled, morality is often

legislated. Law is distinguished from morality by having explicit rules and

penalties, as well as officials who interpret the laws and apply penalties

when laws are broken. There is often considerable overlap in the conduct

governed by morality and that governed by law. Laws are created to set

boundaries for societal behavior. They are enforced to ensure that the

expected behavior happens.

Moral Dilemmas

Moral dilemmas arise when values, rights, duties, and loyalties conflict,

and, consequently, not everyone is satisfied with a particular decision. An

understanding of the concepts presented here will help the caregiver in

conflict resolution when addressing ethical dilemmas. Caregivers often find

that there seems to be no right or wrong answer. The best answer when

attempting to resolve an ethical dilemma is based on the wishes known and

the information available at the time a decision must be made. The answer

is often elusive.

ETHICAL THEORIES

Ethics, too, are nothing but reverence for life. This is what gives me the

fundamental principle of morality, namely, that good consists in

maintaining, promoting, and enhancing life, and that destroying, injuring,

and limiting life are evil.

ALBERT SCHWEITZER

Be careful how you judge others. . . . As Scottish author J.M. Barrie said,

“Never ascribe to an opponent motives meaner than your own.” We tend to judge others based on their behavior, and ours based on our intent. In

almost all situations, we would do well to recognize the possibility—even probability—of good intent in others . . . sometimes despite their observable behavior.

STEPHEN M. R. COVEY, THE SPEED OF TRUST (FREE PRESS)

Ethics seeks to understand and to determine how human actions can be

judged as right or wrong. Ethical judgments can be made based on our own

experiences or based upon the nature of or principles of reason.

Ethical theories and principles introduce order into the way people

think about life. They are the foundations of ethical analysis and provide

guidance in the decision-making process. Various theories present varying

viewpoints that assist caregivers in making difficult decisions that impact

the lives of others. Ethical theories help caregivers to predict the outcome

of alternative choices, when following their duties to others, in order to

reach an ethically correct decision. The paragraphs following provide a

review of the more commonly discussed ethical theories.

Normative Ethics

Normative ethics is the attempt to determine what moral standards should

be followed so that human behavior and conduct may be morally right.

Normative ethics is primarily concerned with establishing standards or

norms for conduct and is commonly associated with general theories about

how one ought to live. One of the central questions of modern normative

ethics is whether human actions are to be judged right or wrong solely

according to their consequences.

General normative ethics is the critical study of major moral precepts

of such matters as what things are right, what things are good, and what

things are genuine. General normative ethics is the determination of correct

moral principles for all autonomous rational beings.

Applied ethics is the application of normative theories to practical

moral problems. It attempts to explain and justify specific moral problems

such as abortion, euthanasia, and assisted suicide.

Descriptive ethics, also known as comparative ethics, deals with what

people believe to be right and wrong, whereas normative prescribes how

people ought to act.

Meta-ethics seeks to understand ethical terms and theories and their

application.

Consequential Ethics

The consequential theory of ethics emphasizes that the morally right action

is whatever action leads to the maximum balance of good over evil. From a

contemporary standpoint, theories that judge actions by their consequences

have been referred to as consequential ethics. Consequential ethical

theories revolve around the premise that the rightness or wrongness of an

action depends on the consequences or effects of an action. The theory of

consequential ethics is based on the view that the value of an action derives

solely from the value of its consequences. The goal of a consequentialist is

to achieve the greatest good for the greatest number. It involves asking

these questions:

• What will be the effects of each course of action? • Will they be positive or negative? • Who will benefit? • What will do the least harm?

Utilitarian Ethics

Happiness often sneaks in a door you did not think was open.

AUTHOR UNKNOWN

The utilitarian approach to ethics involves the concept that the moral worth

of an action is determined solely by its contribution to overall usefulness. It

describes doing the greatest good for the most people. It is thus a form of

consequential ethics, meaning that the moral worth of an action is

determined by its outcome, and, thus, the ends justify the means.

Deontological Ethics

Act in such a way that you always treat humanity, whether in your own

person or in the person of any other, never simply as a means, but always

at the same time as an end.

IMMANUEL KANT

Deontological ethics is commonly attributed to the German philosopher

Immanuel Kant (1724–1804). Kant believed that although doing the right thing is good, it might not always lead to or increase the good and right

thing sought after. It focuses on one’s duties to others and others’ rights. It includes telling the truth and keeping your promises. Deontology ethics is

often referred to as duty-based ethics. It involves ethical analysis according

to a moral code or rules, religious or secular. Deon is derived from the

Greek word meaning “duty.” Kant’s theory differs from consequentialism in that consequences are not the determinant of what is right; therefore,

doing the right thing may not always lead to an increase in what is good.

Nonconsequential Ethics

The nonconsequential ethical theory denies that the consequences of an

action or rule are the only criteria for determining the morality of an action

or rule. In this theory, the rightness or wrongness of an action is based on

properties intrinsic to the action, not on its consequences.

Applying this theory to health care decision making, each situation may

have a different fact pattern, thus resulting in moral decisions being made

on a case-by-case basis. The values held ever so strongly in one situation

may conflict with the same values given a different set of facts. For

example, if your plane crashed high in the Andes mountains and the only

source of food for survival would be the flesh of those who did not survive,

you may, if you wish to survive, have to give up your belief that it is

morally wrong to eat the flesh of another human being. Given a different

set of circumstances, given an abundance of food, you would most likely

find it reprehensible to eat human flesh. Thus, there are no effective hard-

and-fast rules or guidelines to govern ethical behavior.

Ethical Relativism

The theory of ethical relativism holds that morality is relative to the norms

of the culture in which an individual lives. In other words, right or wrong

depends on the moral norms of the society in which it is practiced. A

particular action by an individual may be morally right in one society or

culture and wrong in another. What is acceptable in one society may not be

considered as such in another. Slavery may be considered an acceptable

practice in one society and unacceptable and unconscionable in another.

The administration of blood may be acceptable as to one’s religious beliefs and not acceptable to another within the same society. The legal rights of

patients vary from state to state, as is well borne out, for example, by

Oregon’s Death with Dignity Act. Caregivers must be aware of cultural, religious, and legal issues that can affect the boundaries of what is

acceptable and what is unacceptable practice, especially when delivering

health care to persons with beliefs different from their own. As the various

cultures of the world merge together in common communities, the

education and training of caregivers become more complex. The caregiver

must not only grasp the clinical skills of his or her profession but also have

a basic understanding of what is right and what is wrong from both a legal

and ethical point of view. Although decision making is not always perfect,

the knowledge gained from this text will assist the caregiver in making

better decisions.

PRINCIPLES OF ETHICS

You cannot by tying an opinion to a man’s tongue, make him the representative of that opinion; and at the close of any battle for principles,

his name will be found neither among the dead, nor the wounded, but the

missing.

E. P. WHIPPLE (1819–1886)

Ethical principles are universal rules of conduct, derived from ethical

theories that provide a practical basis for identifying what kinds of actions,

intentions, and motives are valued. Ethical principles assist caregivers in

making choices based on moral principles that have been identified as

standards considered worthwhile in addressing health care–related ethical dilemmas. Ethical principles provide a generalized framework within

which particular ethical dilemmas can be analyzed and decisions made.

Caregivers will find that difficult decisions often involve choices between

conflicting ethical principles, as described in the following sections.

Beneficence

Beneficence describes the principle of doing good, demonstrating kindness,

showing compassion, and helping others. In the health care setting,

caregivers demonstrate beneficence by providing benefits and balancing

benefits against risks. Beneficence requires one to do good. Doing good

requires knowledge of the beliefs, culture, values, and preferences of the

patient—what one person may believe to be good for a patient may in reality be harmful. For example, a caregiver may decide to tell a patient

frankly, “There is nothing else that I can do for you.” But what if the patient really wants encouragement and information about care options

from the caregiver? Compassion here requires the caregiver to tell the

patient, “I am not aware of new treatments for your illness; however, I have some ideas about how I can help treat your symptoms and make you more

comfortable. In addition, I will keep you informed as to any significant

research that may be helpful in treating your disease processes.” Paternalism is a form of beneficence. It occurs when individuals and/or

institutions (e.g., political, military, organizational, religious) believe they

know what is best for others, thus making decisions for others. Paternalism

may involve, for example, prohibiting or requiring certain actions.

Medical paternalism can involve making choices for a patient by

withholding medical information, preventing the patient from making an

informed decision. Justification for such actions can occur because of one’s age, cognitive ability, or level of dependency. Physicians are often in

situations in which they can influence a patient’s health care decision simply by selectively telling the patient what they believe to be in the