ETHICAL ISSUES VERSUS LEGAL ISSUES
Before discussing a decisional framework for ethical issues, it is important to identify the difference between ethical and legal issues. Ethics can guide the development and enforcement of laws. However, ethics and legal issues can conflict. Some actions that are perfectly legal may be perceived as immoral or unethical (e.g., capital punishment). Other actions that are illegal in many states could be viewed as moral by some people (e.g., physician-assisted suicide or voluntary euthanasia for terminally ill patients). Ethical concepts or principles are not black and white and should not be approached as "taking sides." Ethics reflect social customs and rules and are influenced by them. Ethical principles may be applied differently as scientific advances, and social mores alter the way society views these norms.
APRNs should be aware of the legal rules that govern professional practice so that they can act in an ethical manner (Peirce & Smith, 2008).
For example, laws concerning patient referrals (the Stark Act) and whistle-blowing (False Claims Act of 1986) provide a legal basis or framework for professional behavior while clearly defining behavior that is fraudulent and illegal. APRNs should follow the laws on scope of professional practice within their state; know legal guidelines regarding professional courtesy, kickbacks, and noncompetition agreements; and understand the Health Insurance Portability and Accountability Act (HIPAA) (Peirce & Smith, 2008). Although laws guide professional ethical behavior, APRNs must recognize that there are situations in which an action is legally correct but still creates a moral conflict. If ethical issues are confused with legal issues, APRNs may only seek to understand the law and legal liability of a situation without fully identifying the ethical implications (see Cases 1 and 2). As these cases indicate, the APRN needs to resolve ethical conflicts. In case 1, the conflict is between confidentiality of patient information and the APRN's obligation for beneficence and protection of other vulnerable adults. In Case 2, the practice had addressed the legal aspects of billing; however, the APRN will need to resolve the ethical conflict between the obligation for beneficence for elderly clients and the financial accounting that is required to maintain the business aspects of the practice.
Nurses who are strongly influenced and focused on the legal aspects of an ethical conflict may come to a premature solution or conclusion about which actions to take. This approach may leave the underlying ethical conflict unresolved and create lingering internal misgivings.
KEYS TO APPLYING ETHICAL GUIDELINES
APRNs must have the foundation to understand, identify, and work through issues that affect all the aspects of practice. APRNs should embrace the reasoned, decision-making approaches, virtues, and relational guidelines that help them sort through the multitude of complex ethical issues that confront them in practice (Dubler, 2011; Ulrich & Hamric, 2008). Nurse ethicists have developed decisional tools to assist nurses in applying bioethical principles. One example of a decisional tool to assist nurses in applying bioethical principles was developed by Calabro and Tukoski (2003) to assist NPs in resolving ethical conflicts. They identify several steps to participative ethical decision making. These include (a) identifying the ethical dilemma, (b) delineating the variables in the dilemma (persons involved, time frame for decision), (c) assessing the NP's perspective, (d) assessing the patient's perspective, (e) sharing the assessment and exchanging goals in a participative way, (f) identifying a mutually acceptable ethical framework, and (g) identifying a potential solution.
Unfortunately, this decisional model has an underlying assumption that compromises its applicability to ethical dilemmas. The model assumes that there can be a shared style of analysis and problem solving to the ethical issue between health care professionals and patients (Botes, 2000). The real world of clinical care can be marked by cultural or educational differences and language barriers that can create huge gaps in comprehension, precluding any reasoned discussion. The idea that a "consensus" may be reached ignores the APRN's ethical obligation to remain a neutral mediator while exploring a patient's decision (Dubler, 2011). Calabro and Tukoski's model (2003) requires the professional and the patient to identify a mutually acceptable ethical framework, a challenging and onerous approach. There may be marked differences in socioeconomic, educational, and cultural backgrounds of patients and health care professionals facing these ethical situations. These underlying differences affect the patient's understanding of potential outcomes of treatment decisions.
A second problem with this decisional model is that it is based on an approach that values individual autonomy (a deeply embedded Western cultural principle). Gillon (2003) argues that autonomy is a necessary component of all of the basic biomedical principles and must be the guiding principle for all ethical decisions. However, this principle takes on far less importance in some cultures, where the good to the family or community may be more valued than individual autonomy (Gillon, 2003). Patients, who are limited in their ability to grasp the full implications of their "autonomous" decision, may insist on continuing treatment long after it is considered futile (Dubler, 2011). Principle-oriented frameworks ignore the role of individual character in ethical deliberations and leave out the texture of the lived experience of each of the individuals. The principle-oriented framework in its assumption of a rational, reasoned approach neglects the importance of the style of communication, personal attributes of the nurse, the nonverbal connections, and the interpretation of the meaning of the problem by the patient or family (Dierckx de Casterle, Roelens, & Gastmans, 1998; Gadow, 1989). Other critics of this principlist approach argue that the paradigm is limited in the range of moral considerations that can be accommodated. These critics argue that the use of principles cannot adequately address the complexity of ethical situations that arise in clinical care (Dubler, 2011; Fiester, 2007).
Third, these decisional models assume that there is some certainty regarding the treatment possibilities or outcomes in health care. NPs and clinical nurse specialists will continuously be faced with the uncertainties of treatments and outcomes. For example, will this cancer treatment put the patient into remission, or will it weaken the patient's immune system so that he or she cannot recover? Occasionally an APRN provides information to a patient as that person is sorting through tough treatment decisions, only to find that the patient responds physiologically completely differently than was expected. Fiester (2007) acknowledges the moral challenge of unexpected outcomes and offers a commonsense moral obligation to apologize when our professional guidance has led to unnecessary treatment or suffering.
Fourth, principled decision-making frameworks assume that ethical decision making is a reasoned process made within a structured group by participants who are well informed about ethical principles. It is just as likely that ethical dilemmas are resolved in a moment of uncertainty with less than adequate information, leaving APRNs and patients to sort through the process at a later date or not at all. Acute changes in patient status happen quickly; sometimes they are completely unanticipated. Clinical nurse specialists (CNSs) and NPs often deal with families who must struggle with making a decision for a sick family member who lacks decisional capacity for the first time in that family member's life. These families need a supportive presence and reminders of the personhood of the patient. Families often are afraid of making a "wrong" decision for a loved one and decide to do many things that the person may not have done (Dubler, 2011; Laabs, 2005). These overwhelming crises make reasoning through an ethical process unlikely or difficult at best.
Finally, the decisional frameworks assume that health care organizations or working conditions allow time and supportive resources for a logical, participatory, reasoned model of decision making (Botes, 2000; Dubler, 2011; Peirce & Smith, 2008). In some settings, APRNs may be left out of the decision-making loop at a critical time. Not all APRNs are able to quickly identify the process required for ethical decisions. In nonhospital care settings, ethics committees and ethics experts are less common. Practitioners with ethical concerns are more likely to get referred to a risk manager in a clinic setting (who will identify legal concerns, not ethical processes) for assistance with ethical conflicts.