Clinical Ethics Issues and Discussion and A Framework for Thinking Ethically, assignment help
InstructionsAssignment#4The final project for thiscourse is an analysis of the legal and or ethical issues involved in the belowhealth care scenario. See questions to beanswered at end of this factual scenario below. I have also provided, after theformatting requirements for the paper, two articles that will aid you in youranalyzing the scenario and writing your paper. Thetwo articles to base the analysis of your paper are entitled:Clinical Ethics Issues andDiscussion andA Framework for ThinkingEthicallyThisis the final paper for the class and must be doublespaced and beapproximately 4-5 pages in 12 point New Times Roman font. NOTE:For this paper it is unnecessary to do any research beyond the two articles Ifurnished with this assignment. Both are after the specific paper requirements. To do internet research would only be wasting your valuable time.Case ScenarioA72 year old woman was admitted to the Neurological Intensive Care Unitfollowing a cerebral hemorrhage which left her with severe brain damage andventilator dependent. One year before this event, the patient and her husbandhad drawn up "living wills" with an attorney. She was diagnosed byher treating physician as being in a permanent unconscious condition. Thepatient's living will specified that the patient did not want ventilator supportor other artificial life support in the event of a permanent unconsciouscondition or terminal condition.Thepatient's husband is her legal next of kin and the person with surrogatedecision-making authority. When the living will was discussed with him, heinsisted that the patient had not intended for the document to be used in asituation like the present one. Further discussion with him revealed that heunderstood that the patient would not be able to recover any meaningful brainfunction but he argued that the living will did not apply because her conditionwas not imminently terminal. He further indicated that he did not consider hiswife to be in a permanent unconscious condition. The immediate familymembers (the couples adult children) disagreed with their fathers refusal towithdraw life support.Thetreatment team allowed a week to pass to allow the husband more time to besupported in his grief and to appreciate the gravity of his wifes situation.Nevertheless, at the end of this time, the husband was unwilling toauthorize withdrawal of life support measures consistent with the patient'swishes as expressed in her living will. End of scenario.You paper should have3 major sections. Each is numbered 1, 2 and 3.Questionsto be discussed based on the facts above.You must weave into yourdiscussion the relevant facts from above scenario to support your discussion indiscussion areas 2 and 3 below. And for discussion area 3 you must weave intoyour discussion the ethics philosophy you pick for each issue from the articleA Framework for Thinking Ethically.-5% penalty in grading rubric iffail to use appropriate underlined headings in your paper.1. Three Legal/Ethical Issues. Justlist the three most importantlegal/ethics issuesin this scenario that you will discuss.They must be three separate, different and distinct issues.Payparticular attention to the article I furnished with this assignment. Noexplanation needed, just state them 1, 2, 3.2. Discussion of Three Legal/Ethical Issues.Discuss thethree most importantethical/legal issues you listed above. Must use the relevant factsin the scenario to support your discussion of the legal/ethical issues. Must useunderlined headingsbelow.Headingswill be: Legal/Ethical issue 1[state the issue] then discussion Legal/Ethical issue 2[state the issue] then discussion Legal/Ethical issue 3[state the issue] then discussion For each legal/ethical issue above discuss a. Why each is a legal /ethical issue? b. Discuss each issue in the context of thescenario facts and c. Define the concepts you use3. How I would Handle Each Issue.First,in this sectionand for each issue, as a health care provider,how would you handle eachof the three issues discussed above and why?Must use the relevantfacts in the scenario to support your positions.Secondlyfor eachissue, using the article in these requirements, entitled "A Framework ofThinking Ethically"fully discuss the specific ethics philosophy thatwould epitomize your handling of each issue. Fully define the specific ethicsphilosophy used and weave the ethics philosophy into your discussion. Seearticle below entitled A Framework for Thinking Ethically. Must use underlinedheadingsbelow.Headings will be:Handlingof Legal/ethical issue #1[then discussion]Handlingof Legal/ethical issue #2[then discussion]Handlingof Legal/ethical issue #3[then discussion][-5% in grading rubric fail touse appropriate headings in your paper. ]All you need to read to analyzethe questions for this paper are the two articles below entitled:Clinical Ethics Issues andDiscussion andA Framework for ThinkingEthicallyThepaper must be:.Papermust be in narrative format not outline or bullets.Double spaced and be4-5 pages in 12 point New Times Roman font. [No deduction if paper exceeds apage or so. Thus 3 and half page paper will be penalized.]Must cite to source ofall your facts in the text of your paper in APA format.You can cite directlyto the original source. Here are the links to the sources where the Universityreceived copyright permissions for the materials:A Framework forEthical Decision Making:http://www.scu.edu/ethics/practicing/decision/framework.htmiInclude a cover page[not counted as a page] which should have student name and title of your paper[Provide a short name for the legal responsibility the specific health careorganizationhas for one type of patient right in a specific setting ]A the end of the papera list of references [not counted as a page] Be prepared usingword-processing software and saved with a .doc, .docx, or .rtf extension. Nopdf.Background articles to supportthe issues you will discuss in the paper.Article One of TwoClinical Ethics Issues andDiscussion ArticleRelationships: I. clinicalethics, law & risk management1. Definitions and sources of authorityInthe course of practicing medicine, a range of issues may arise that lead toconsultation with a medical ethicist, a lawyer, and/or a risk manager. Thefollowing discussion will outline key distinctions between these roles.Clinicalethicsmay be definedas: a discipline or methodology for considering the ethical implicationsof medical technologies, policies, and treatments, with special attention todetermining what ought to be done (or not done) in the delivery of health care.Lawmay be defined as: established andenforceable social rules for conduct or non-conduct; a violation of a legalstandard may create criminal or civil liability.RiskManagementmay be definedas: a method of reducing risk of liability through institutionalpolicies/practices.Manyhealth care facilities have in-house or on-call trained ethicists to assisthealth care practitioners, caregivers and patients with difficult issues arisingin medical care, and some facilities have formally constituted institutionalethics committees. In the hospital setting, this ethics consultation or reviewprocess dates back to at least 1992 with the formulation of accreditationrequirements that mandated that hospitals establish a mechanism to considerclinical ethics issues.Ethicshas been described as beginning where the law ends. The moral conscience is aprecursor to the development of legal rules for social order. Ethics andlaw thus share the goal of creating and maintaining social good and have asymbiotic relationship as expressed in this quote:[C]onscience is theguardian in the individual of the rules which the community has evolved for itsown preservation.William Somerset MaughamTherole of lawyers and risk managers are closely linked in many health carefacilities. Indeed, in some hospitals, the administrator with the title of RiskManager is an attorney with a clinical background. There are, however,important distinctions between law and risk management. Risk management isguided by legal parameters but has a broader institution-specific mission toreduce liability risks. It is not uncommon for a hospital policy to go beyondthe minimum requirements set by a legal standard. When legal and riskmanagement issues arise in the delivery of health care, ethics issues may alsoexist. Similarly, an issue originally identified as falling within the clinicalethics domain may also raise legal and risk management concerns.Tobetter understand the significant overlap among these disciplines in the healthcare setting, consider the sources of authority and expression for each.Ethical norms may be derivedfrom:LawInstitutionalpolicies/practicesPolicies ofprofessional organizationsProfessional standardsof care, fiduciary obligationsNote:If a health care facility is also a religious facility, it may adhere toreligious tenets. In general, however, clinical ethics is predominantly asecular professional analytic approach to clinical issues and choices.Law may be derived from:Federal and stateconstitutions (fundamental laws of a nation or state establishing the role ofgovernment in relation to the governed)Federal and statestatutes (laws written or enacted by elected officials in legislative bodies,and in some states, such as Washington and California, laws created by amajority of voters through an initiative process) Federal and stateregulations (written by government agencies as permitted by statutorydelegation, having the force and effect of law consistent with the enablinglegislation)Federal and state caselaw (written published opinions of appellate-level courts regarding decisionsin individual lawsuits)City or townordinances, when relevantRisk Management may be derivedfromlaw,professional standards and individual institutions mission and publicrelations strategies and is expressed through institutional policies andpractices.1. Conceptual ModelsAnother way to consider therelationship among the three disciplines is through conceptual models:1. Linear2. Distinctions3. Interconnectedness4. Orientation to law for non-lawyers5. Potential legal actions against health careprovidersThere are two primarytypes of potential civil actions against health care providers for injuriesresulting from health care: (1) lack of informed consent,and (2)violation of the standard of care. Medical treatmentand malpractice laws are specific to each state.1. Informed Consent. Before a health careprovider delivers care, ethical and legal standards require that the patientprovide informed consent. If the patient cannot provide informed consent, then,for most treatments, a legally authorized surrogate decision-maker may do so.In an emergency situation when the patient is not legally competent togive informed consent and no surrogate decision-maker is readily available, thelaw implies consent on behalf of the patient, assuming that the patient wouldconsent to treatment if he or she were capable of doing so.Informationthat must be conveyed to and consented to by the patient includes: thetreatments nature and character and anticipated results, alternativetreatments (including non-treatment), and the potential risks and benefits oftreatment and alternatives. The information must be presented in a form thatthe patient can comprehend (i.e., in a language and at a level which thepatient can understand) and that the consent must be voluntary given. Aninjured patient may bring an informed consent action against a provider whofails to obtain the patients informed consent in accordance with state law.From a clinical ethicsperspective, informed consent is a communicationprocess,and should not simply be treated as arequiredformfor the patients signature. Similarly, thelegal concept of informed consent refers to a state of mind, i.e.,understanding the information provided to make an informed choice. Healthcare facilities and providers use consent forms to document the communicationprocess. From a providers perspective, a signed consent form can be valuableevidence the communication occurred and legal protection in defending against apatients claim of a lack of informed consent. Initiatives at the federallevel (i.e., the Affordable Care Act) and state level (e.g., Revised Code ofWashington 7.70.060) reflect approaches that support shareddecision-making and the use of patient decision aids in order to ensure theprovision of complete information for medical decision-making.2. Failure to follow standard of care.Apatient who is injured during medical treatment may also be able to bring asuccessful claim against a health care provider if the patient can prove thatthe injury resulted from the providers failure to follow the accepted standardof care. The duty of care generally requires that the provider use reasonablyexpected knowledge and judgment in the treatment of the patient, and typicallywould also require the adept use of the facilities at hand and options fortreatment. The standard of care emerges from a variety of sources,including professional publications, interactions of professional leaders,presentations and exchanges at professional meetings, and among networks ofcolleagues. Experts are hired by the litigating parties to assist the court indetermining the applicable standard of care.Many states measurethe providers actions against a national standard of care (rather than a localone) but with accommodation for practice limitations, such as the reasonableavailability of medical facilities, services, equipment and the like. Statesmay also apply different standards to specialists and to general practitioners.As an example of a statutory description of the standard of care, WashingtonState currently specifies that a health care provider must exercise thatdegree of care, skill, and learning expected of a reasonably prudent healthcare provider at that time in the profession or class to which he belongs, inthe State of Washington, acting in the same or similar circumstances.III.Common clinical ethics issues: medical decision-making andprovider-patient communicationThereare a number of common ethical issues that also implicate legal and riskmanagement issues. Briefly discussed below are common issues that concernmedical decision-making and provider-patient communication.Ifa patient is capable of providing informed consent, then the patients choicesabout treatment, including non-treatment, should be followed. This is anestablished and enforceable legal standard and also consistent with the ethicalprinciple of respecting the autonomy of the patient. The next two sections(Surrogate decision-making; Advance directives) discuss how this principle isrespected from a legal perspective if a patient lacks capacity, temporarily orpermanently, to make medical decisions. The third section briefly introducesthe issue of provider-patient communication, and highlights a contemporary dilemmaraised in decisions regarding the disclosure of medical error to patients.1. Surrogate decision-makingThe determination asto whether a patient has thecapacitytoprovide informed consent is generally a professional judgment made anddocumented by the treating health care provider. The provider can make adetermination of temporary or permanent incapacity, and that determinationshould be linked to a specific decision. The legal termcompetency(orincompetency) may beused to describe a judicial determination of decision-making capacity. Thedesignation of a specificsurrogate decision-makermayeither be authorized by court order or is specified in state statutes.Ifa court has determined that a patient is incompetent, a health care providermust obtain informed consent from the court-appointed decision-maker. Forexample, where a guardian has been appointed by the court in a guardianshipaction, a health care provider would seek the informed consent of the guardian,provided that the relevant court order covers personal or health caredecision-making.If, however, aphysician determines that a patient lacks the capacity to provide informedconsent, for example, due to dementia or lack of consciousness, or because thepatient is a minor and the minor is legally proscribed from consenting, then alegally authorized surrogate decision-maker may be able to provide consent onthe patients behalf. Most states have specific laws that delineate, inorder of priority, who can be a legally authorized surrogate decision-maker foranother person. While these laws may vary, they generally assume that legalrelatives are the most appropriate surrogate decision-makers. If, however, apatient has previously, while capable of consenting, selected a person to actas her decision-maker and executed a legal document known as adurable power of attorney for health careorhealth care proxy,then that designatedindividual should provide informed consent.In Washington State, astatute specifies the order of priority of authorized decision-makers asfollows: guardian, holder of durable power of attorney; spouse or stateregistered partner; adult children; parents; and adult brothers and sisters. Ifthe patient is a minor, other consent provisions may apply, such as: courtauthorization for a person with whom the child is in out-of-home placement; theperson(s) that the childs parent(s) have given a signed authorization toprovide consent; or, a competent adult who represents that s/he is a relativeresponsible for the childs care and signs a sworn declaration statingso. Health care providers are required to make reasonable efforts tolocate a person in the highest possible category to provide informed consent.If there are two or more persons in the same category, e.g., adult children,then the medical treatment decision must be unanimous among those persons.A surrogate decision-maker is required to make the choice she believesthe patient would have wanted, which may not be the choice the decision-makerwould have chosen for herself in the same circumstance. This decision-makingstandard is known assubstituted judgment.Ifthe surrogate is unable to ascertain what the patient would have wanted, thenthe surrogate may consent to medical treatment or non-treatment based on whatis in the patient'sbest interest.Laws on surrogatedecision-making are slowly catching up with social changes. Non-married couples(whether heterosexual or same sex) have not traditionally been recognized instate law as legally authorized surrogate decision-makers. This lack ofrecognition has left providers in a difficult legal position, encouraging themto defer to the decision-making of a distant relative over a spouse-equivalentunless the relative concurs. Washington law, for example, now recognizesspouses and domestic partners registered with the state as having the samepriority status.Parental decision-making andminor children.A parent may notbe permitted in certain situations to consent to non-treatment of his or herminor child, particularly where the decision would significantly impact andperhaps result in death if the minor child did not receive treatment. Examplesinclude parents who refuse medical treatment on behalf of their minor childrenbecause of the parents social or religious views, such as Jehovahs Witnessesand Christian Scientists. The decision-making standard that generallyapplies to minor patients in such cases is known as thebest intereststandard. The substitutedjudgment standard may not apply because the minor patient never haddecision-making capacity and therefore substituted judgment based on theminors informed choices is not able to be determined. It is important to notethat minors may have greater authority to direct their own care depending ontheir age, maturity, nature of medical treatment or non-treatment, and may haveauthority to consent to specific types of treatment. For example, in WashingtonState, a minor may provide his or her own informed consent for treatment ofmental health conditions, sexually transmitted diseases, and birth control,among others. Depending on the specific facts, a health care provider workingwith the providers institutional representatives could potentially legallyprovide treatment of a minor under implied consent for emergency withdocumentation of that determination,assumetemporary protective custody of the child under child neglect laws, or if thesituation is non-urgent, the provider could seek a court order to authorizetreatment.1. Advance directivesThe termadvance directiverefers to several differenttypes of legal documents that may be used by a patient while competent torecord future wishes in the event the patient lacks decision-making capacity.The choice and meaning of specific advance directive terminology isdependent on state law. Generally, aliving willexpressesa persons desires concerning medical treatment in the event of incapacity dueto terminal illness or permanent unconsciousness. Adurable power of attorney for health careorhealth care proxyappoints a legal decision- makerfor health care decisions in the event of incapacity. Anadvance health care directiveorhealth care directivemay combine the functions ofa living will and durable power of attorney for health care into one documentin one state, but may be equivalent to aliving willinanother state. ThePhysician Orders for LifeSustaining Treatment(POLST) formisa document that is signed by a physician and patient which summarizes thepatients wishes concerning medical treatment at the end of life, such asresuscitation, antibiotics, other medical interventions and artificial feeding,and translates them into medical orders that follow patients regardless of caresetting. It is especially helpful in effectuating a patients wishes outsidethe hospital setting, for example, in a nursing care facility or emergencymedical response context. This relatively new approach is available inabout a dozen states, although the programs may operate under different names:POST (Physician Orders for Scope of Treatment), MOST (Medical Orders for Scopeof Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and COLST(Clinician Orders for Life-Sustaining Treatment). The simple one pagetreatment orders follow patients regardless of care setting. Thus it differsfrom an advance directive because it is written up by the clinician inconsultation with the patient and is a portable, actionable medical order.The POLST form is intended to complement other forms of advancedirectives. For example, Washington State recognizes the following types ofadvance directives: the health care directive (living will), the durable powerof attorney for health care, and the POLST form. Washington also recognizesanother legal document known as amental health advance directive,which can be prepared by individuals with mental illness who fluctuate betweencapacity and incapacity for use during times when they are incapacitated.Statelaws may also differ on the conditions that can be covered by an individual inan advance directive, the procedural requirements to ensure that the documentis effective (such as the number of required witnesses) and the conditionsunder which it can be implemented (such as invalidity during pregnancy).Advancedirectives can be very helpful in choosing appropriate treatment based upon thepatients expressed wishes. There are situations, however, in which the advancedirectives veracity is questioned or in which a legally authorized surrogatebelieves the advance directive does not apply to the particular care decisionat issue. Such conflicts implicate clinical ethics, law and risk management.1. Provider-patient communications: disclosingmedical errorHonestcommunication to patients by health care providers is an ethical imperative.Excellent communication eliminates or reduces the likelihood ofmisunderstandings and conflict in the health care setting, and also may affectthe likelihood that a patient will sue.Oneof the more contentious issues that has arisen in the context of communicationis whether providers should disclose medical errors to patients, and if so, howand when to do so. Disclosure of medical error creates a potential conflictamong clinical ethics, law and risk management. Despite a professional ethicalcommitment to honest communication, providers cite a fear of litigation as areason for non-disclosure. Specifically, the fear is that those statements willstimulate malpractice lawsuits or otherwise be used in support of a claimagainst the provider. An increase in malpractice claims could thennegatively affect the providers claims history and malpractice insurancecoverage. Thereis some evidence in closed systems (one institution, one state with onemalpractice insurer) that an apology coupled with disclosure and prompt paymentmay decrease either the likelihood or amount of legal claim. In addition,a number of state legislatures have recently acted to protect providerapologies, or provider apologies coupled with disclosures, from being used by apatient as evidence of a providers liability in any ensuing malpracticelitigation. It is currently too early to know whether these legal protectionswill have any impact on the size or frequency of medical malpractice claims.For this reason and others, it is advisable to involve risk management andlegal counsel in decision-making regarding error disclosure. Article Two of TwoA Framework for ThinkingEthically ArticleThisdocument is designed as an introduction to thinking ethically. We all have animage of our better selves-of how we are when we act ethically or are "atour best." We probably also have an image of what an ethical community, anethical business, an ethical government, or an ethical society should be.Ethics really has to do with all these levels-acting ethically as individuals,creating ethical organizations and governments, and making our society as awhole ethical in the way it treats everyone.What is Ethics?Simplystated, ethics refers to standards of behavior that tell us how human beingsought to act in the many situations in which they find themselves-as friends,parents, children, citizens, businesspeople, teachers, professionals, and soon.Itis helpful to identify what ethics is NOT: Ethics is not thesame as feelings. Feelings provide important information for our ethicalchoices. Some people have highly developed habits that make them feel bad whenthey do something wrong, but many people feel good even though they are doingsomething wrong. And often our feelings will tell us it is uncomfortable to dothe right thing if it is hard. Ethics is notreligion. Many people are not religious, but ethics applies to everyone. Mostreligions do advocate high ethical standards but sometimes do not address allthe types of problems we face. Ethics is notfollowing the law. A good system of law does incorporate many ethicalstandards, but law can deviate from what is ethical. Law can become ethicallycorrupt, as some totalitarian regimes have made it. Law can be a function ofpower alone and designed to serve the interests of narrow groups. Law may havea difficult time designing or enforcing standards in some important areas, andmay be slow to address new problems. Ethics is notfollowing culturally accepted norms. Some cultures are quite ethical, butothers become corrupt -or blind to certain ethical concerns (as the UnitedStates was to slavery before the Civil War). "When in Rome, do as theRomans do" is not a satisfactory ethical standard. Ethics is notscience. Social and natural science can provide important data to help us makebetter ethical choices. But science alone does not tell us what we ought to do.Science may provide an explanation for what humans are like. But ethicsprovides reasons for how humans ought to act. And just because something isscientifically or technologically possible, it may not be ethical to do it.Why Identifying EthicalStandards is HardThereare two fundamental problems in identifying the ethical standards we are tofollow:1. On what do we base our ethical standards?2. How do those standards get applied to specific situations we face?Ifour ethics are not based on feelings, religion, law, accepted social practice,or science, what are they based on? Many philosophers and ethicists have helpedus answer this critical question. They have suggested at least five differentsources of ethical standards we should use.Five Sources of EthicalStandardsThe Utilitarian ApproachSome ethicists emphasize that the ethical action is the one that provides themost good or does the least harm, or, to put it another way, produces thegreatest balance of good over harm. The ethical corporate action, then, is theone that produces the greatest good and does the least harm for all who areaffected-customers, employees, shareholders, the community, and theenvironment. Ethical warfare balances the good achieved in ending terrorismwith the harm done to all parties through death, injuries, and destruction. Theutilitarian approach deals with consequences; it tries both to increase thegood done and to reduce the harm done.The Rights ApproachOther philosophers and ethicists suggest that the ethical action is the onethat best protects and respects the moral rights of those affected. Thisapproach starts from the belief that humans have a dignity based on their humannature per se or on their ability to choose freely what they do with theirlives. On the basis of such dignity, they have a right to be treated as endsand not merely as means to other ends. The list of moral rights -including therights to make one's own choices about what kind of life to lead, to be toldthe truth, not to be injured, to a degree of privacy, and so on-is widelydebated; some now argue that non-humans have rights, too. Also, it is often saidthat rights imply duties-in particular, the duty to respect others' rights.The Fairness or JusticeApproachAristotle and other Greek philosophers have contributed the idea that allequals should be treated equally. Today we use this idea to say that ethicalactions treat all human beings equally-or if unequally, then fairly based onsome standard that is defensible. We pay people more based on their harder workor the greater amount that they contribute to an organization, and say that isfair. But there is a debate over CEO salaries that are hundreds of times largerthan the pay of others; many ask whether the huge disparity is based on adefensible standard or whether it is the result of an imbalance of power andhence is unfair.The Common Good ApproachThe Greek philosophers have also contributed the notion that life in communityis a good in itself and our actions should contribute to that life. Thisapproach suggests that the interlocking relationships of society are the basisof ethical reasoning and that respect and compassion for all others-especiallythe vulnerable-are requirements of such reasoning. This approach also callsattention to the common conditions that are important to the welfare ofeveryone. Th
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