CHAPTER 47. Ethics and Ethical Decision Making in Forensic Nursing
Zug G. Standing Bear
The Challenge of Interdisciplinary Ethics
The study of ethics rests squarely within the academic discipline of philosophy. However, virtually every occupation fields a set of behavioral rules or code of ethics for its members. Many, if not most, organizations (associations, corporations, governmental agencies, etc.) structure their set of ethical rules on laws, regulations, or even those things that have caused them problems in the past. Some sets of rules are complex and occupy many pages of “dos and don’ts,” such those advanced by the American Psychological Association (American Psychological Association, 2002) where others are perfunctory and involve only a few terse sentences, as the code espoused by the American Academy of Forensic Sciences (AAFS, 1986). Regardless of this wide variation of prescriptions and the dire warnings proffered within each organization, the study of ethics requires an incisive, reflective, and educated look at the entire spectrum of this demanding and complex discipline. Accordingly, there is no convenient shortcut to understand and make informed decisions based on the trying and often troubling situations with which one may be faced in forensic nursing.
One immediate challenge facing the forensic nurse is the disparity of disciplines within which the forensic nurse operates. In many, if not most, areas of nursing, the nurse remains true to nursing ethics, which is a subset of the field known as biomedical ethics. However, once traveling out into the “forensic” aspect of social activity, the nurse finds that other rules of deportment come into play, such as legal ethics, criminal justice ethics, as well as a subset of rules known as police ethics. If those variances were not enough, one may factor in the continually evolving changes within the various professions. For example, is it now ethical to permit “waterboarding” (or other forms of torture) at Guantanamo Bay in the interests of “justice” or “national security”?
In an organized and deliberate way using time tested and established approaches, this chapter provides suggestions and guidelines concerning ethical conduct for forensic nurses.
Always a Nurse!
First, an individual needs to provide a primary identification and reference point from which that person may operate in a profession. With the emergence of forensic nursing over time, several allied disciplines (law enforcement, death investigation) have attempted to co-opt nurses into a different primary professional identification. Nurses have fought this co-optation over the years, and justifiably so. An honorable and time-tested profession that need take no secondary role to any other, nursing requires long-term dedication and study, examination, and licensure. It is, therefore, illogical that any nurse entering the field of forensic science, criminal justice, or law enforcement abandons or subordinates the primary obligations and role of the nurse to any other field or profession. It is the skill that the nurse brings to these allied fields that provides the richness and quality to make a genuine difference (Bandman, 2002). Duplicating the skills and efforts of those already present in a field does not appear to be a wise alternative.
Ethics and Its Place in Philosophy
Ethics is one of five major fields that makes up the discipline of philosophy. From the Greek term ethos, meaning manners, custom, disposition, ethics has come to mean the analysis of concepts such as ought, should, duty, moral rules, right, wrong, obligation, and responsibility. Ethics involves the inquiry into the nature of morality or moral acts. Professions, crafts, trades, and even minimally skilled vocations, as well as individual organizations, create and enforce ethical standards, codes, and rules for what is, in their view, correct deportment.
Ethics does not, however, exist as an island onto itself. It is inextricably bound to the other four philosophical disciplines, and this condition must be recognized and accepted from the outset.
Metaphysics
Of all the areas of philosophy, metaphysics is certainly the most complex and esoteric. The prefix meta implies the notion of after or beyond the suffix of the term—hence, beyond the physics. Metaphysical questions, therefore, address such imponderables as what is after forever, the meaning of life, the nature of the universe, the infinite and the infinitesimal. Many of these metaphysical questions are answered through attention to interpretations of introspection, nature, or the revelations of others. Regardless of the methods of trying to understand these monumental concepts, the majority of humans adopt some form of metaphysical understanding, an understanding generally defined as faith or religion. These adopted concepts, usually learned from childhood, invariably define the individual’s concepts of right and wrong.
Logic
The term logic, also derived from Greek (logikos), pertains to intelligent speech that is ordered and systematized ( Note: Are you getting the drift that this is all derived from the Greek? Perhaps this gives new meaning to the oft-used expression, “It’s all Greek to me”). Logic involves the study of the rules of exact reasoning and of the forms of sound or valid thought. Without studying logic, one cannot make much sense of the other areas of philosophy, including ethics.
Epistemology
Epistemology is a term (from the Greek epistome, meaning knowledge) that is frequently misunderstood. It is the study of the origins, nature, presuppositions, extent, and veracity of knowledge. This discipline asks, essentially, “How do we know what we think we know?” Of all of the disciplines of philosophy, often epistemology is the most intimidating because it questions the basic roots of our rationale for asserting what it is we think we know.
Aesthetics
Finally, aesthetics (Greek, aesthetikos, which means one who is perceptive of things through sensations, feelings, intuitions), is the study of beauty and related concepts such as the sublime, tragic, ugly, humorous, drab, and pretty. This discipline involves the analysis of values, tastes, attitudes, and standards involved in experiences and judgments made about things made by humans or found in nature. Where epistemology is potentially the most daunting of the disciplines of philosophy, aesthetics is often the most ignored or misunderstood. Yet aesthetics influences everything we do in life where, because of our socialization, we are attracted or repelled by the appearances of things around us. Moreover, “appearances” include not only the visual but all of the senses, including sound, touch, taste, and scent. Numerous studies about reactions to aesthetic issues, including first impressions, abound in the literature in an astonishing array of contexts (Bateman & Mawby, 2004; Fiore, 1992; Fiore & Kim, 1997; Kazumi, Takafumi, & Kenji, 2001). The forensic nurse in daily practice is inundated continually with all manners of “appearances,” a fact that requires the practitioner to pay close attention to her or his preferences when interacting with those that are involved as patient, victim, suspect, witness, family, acquaintance, colleague, or in some other related capacity. How any of these individuals look, dress, speak, walk, and even smell will form an impression that may dictate how they are treated or given credibility.
Universality—Ethical Frameworks
A great challenge is often an attempt to define the seemingly simplest of terms, such as the word good. After all, the pursuit of ethics is nothing more than the study of what is good. Dictionaries are of little help, where the best definition of good often uses the word to define itself or reads: “Something that conforms to the moral order of the universe.” All of the terms in that definition were plausibly understandable except one (moral) and maybe another (universe). Because we, as humans, cannot presume knowledge of “the universe,” we must make do with the widest parameters we can know about, and for right now it seems to be the planet earth. The word moral effectively brings us back to the original word good, except with this definition we now include the universe of our planet. To do this, the subject may be explored using a series of frameworks, in this case defining the term framework as frames of reference that move from narrow (as in individual preferences) to broad (the planet), or vice versa.
Universality addresses the viability of using the widest possible ethical framework when considering dilemmas. This is not problematic as long as there is no conflict between narrower and broader frameworks. However, when there is conflict, then it could be argued that the broader ethical framework takes precedence. Six ethical frameworks appear next, from the broad to the most narrow.
Metaethics
Metaethics is the study of the nature of ethics, the reasoning used to arrive and justify moral knowledge and decisions. Like metaphysics, metaethics refers to broad and often imponderable questions such as “What is moral?” This framework transcends all other levels of ethics and, accordingly, poses the most difficult questions.
Global ethics
Although not often included as an ethical framework, for the purposes of this discussion, this category is included to differentiate it from the next category, normative ethics, because it appears that there are ethical values that transcend those of a particular society, and that those values, by and large, would be recognized and honored by most people on the planet. In some societies and in certain times, such as in Nazi Germany, extermination of millions of people was carried out by the state, and in the normative ethic of the “master race,” such killing was considered ethical from a normative point of view. A global ethic, however (i.e., the view of most of the peoples of the earth), would condemn such practices as unethical. In contemporary times, certain countries consider it to be normal to perform female genital mutilation as a rite of cultural passage. This practice is considered unethical by a majority of people, and well-respected international organizations, such as the World Health Organization and the International Council of Nurses, condemn the practice.
Normative ethics
In a general sense, normative ethics provide the moral philosophy that gives members of a society the rules for living a good (ethical) life by defining what is right and wrong and what should be pursued in life. As societies differ widely, so do normative ethics from society to society (hence the need for the wider global ethics). As a discrete entity, normative ethics may encompass a large population, such as the 300 million or so living in the United States of America or a small extended family living on the Kalahari Desert in Africa.
Descriptive ethics
Descriptive ethics operationalizes normative ethics to a certain degree and seeks to describe what ethical rules are common to achieve the normative ethical ideal. Some descriptive ethical applications of normative ethical principles in the United States, as espoused by its people and government, for example, are such notions as “equal justice for all” and “freedom of speech.” Although such descriptive notions may generally personify the wider normative ethical field, they may be limiting in application. For example, “freedom of speech” may exemplify a descriptive ethical principle in the United States, but wider normative ethical rules are deemed as unethical, such as yelling “fire” in a crowded theater if no fire is present, or in issuing libelous statements.
Professional ethics
Professional ethics espouses codes or standards for a particular work group or profession. These include the Hippocratic oath for physicians, bar association canons or rules, and police codes of ethics. Professional codes of ethics are more narrowly framed than descriptive ethics, which pertains to the wider society as a whole. Generally, professional ethics embrace most of the ethical principles found in wider frameworks, such as descriptive or normative ethics, but not always. In these cases of conflict, ethical dilemmas often occur, and it is left to debate (and consequences) as to what would dictate which ethical framework would prevail in the case of dispute. For example, in the legal profession it is considered ethical for an attorney to take a case on a contingency fee basis (the attorney gets a percentage of a court award as compensation), where in forensic science, it is generally considered unethical for an expert to accept this form of compensation.
Applied ethics
This involves the study of codes or standards of behavior for a particular organization. This narrow framework attempts to derive an ethical code from all of the preceding categories and seeks to fashion an acceptable ethical code for an organization. Often such efforts simply mimic applicable laws and regulations or endeavor to “cover bases” where an organization has had difficulties in the past.
Survival
When considering ethical decision making, the notion of survival is, perhaps, the most difficult to understand and describe. This notion acknowledges that survival is a basic human (and other animal) need. Accordingly, it is advanced that a model for ethical human behavior must take this into consideration, even though it may cause us to wrestle with difficult problems. We may harken back to early British law, where the crew of a sunken ship, now on life rafts, contemplated their survival based on the killing of their weakest member (or one of their members by drawing straws) so the others may dine upon the crewmember’s flesh and live. In the final judicial decision, cannibalism was not allowed, no matter how desperate the situation. Few of us are faced with genuine life-or-death situations, but many must confront lesser survival questions that ring with practical ethical conflicts. Let us go from the most obvious to the more subtle, so as to get a feel for the range of issues in this contentious arena.
The most obvious cases of survival cover those recently investigated situations of the killing of many people by Serbian soldiers. It is similar, in some ways, to the Nazi excuses at the Nuremberg trials of “just following orders.” One soldier, who had been ordered to shoot dozens of unarmed civilians, supposedly balked at doing so. He reported that he was informed by his commanding officer, “Well, if you feel so sorry for these people, you can join them.” The soldier carried out the orders, and killed the civilians. Later, however, he reported his actions and those of his superiors. Should the outcome of his trial for murder be significantly different from that of Nazi General Field Marshal Wilhelm Keitel, ordered to hang at Nuremberg, who also alleged he was “just following orders?”
It may be that the solution to this sort of complex ethical dilemma rests with an incisive investigation of the motives and actions of the actor. Each case must be investigated on its own merits. What, for example, did the Serb soldier do once the atrocities were accomplished? Did he, for example, desert his unit and seek refuge or asylum? At the very least, did he do something that attempted to “right” this wrong? If this man is then brought before an international court and tried for genocidal crimes, what defense has he? It seems to look a lot better for the man if he, after killing the victims, fled his military unit, escaped across an international border, and agreed to testify to the atrocities. It looks far bleaker if this soldier is picked out of a lineup of Serbian troops who committed the executions, identified by a chance survivor. His objections to the killings now ring hollow as he tries to save his own neck.
The ordinary citizen seldom has to confront such life- or-death matters. But the concept embracing the dilemma of the Serbian soldier may be used in less serious ethical conflicts. Interestingly enough, what may be a minor matter for a forensic scientist (testifying in court) may, indeed, be a life-or-death matter for a criminal defendant. Many in the criminal justice field have witnessed police investigators and commanders, as well as prosecutors hell-bent to convict a defendant, regardless of evidence to the contrary. In a case in which the author was personally involved, a medical examiner casually tossed out an incredibly outrageous “finding” supposedly (the author could not determine a malicious motive) to either accommodate police or get them off his back. This “finding” that a high-powered rifle had been fired from a distance of 3 to 5 feet from the face of the decedent, was enough evidence to have the decedent’s husband jailed in pretrial confinement for a year on a charge of murder. He was later acquitted. This semiliterate indigent man was not represented by any legal dream team but rather by a young court-appointed attorney recently out of law school. This young attorney asked for advice from a former forensic science professor. His subsequent investigation literally blew apart the prosecution’s case and caused the state medical examiner to agree on the stand with the defense expert witnesses. Throughout this drama, the prosecution had complete discovery of the correspondence from the forensic scientists participating on the part of the defense. Perhaps it is part of the survival instinct of the prosecutor that she or he “never give up,” even in the face of evidence. This attitude is unconscionable and not ethically supportable, even in the light of the survival business of keeping one’s job as a prosecutor.
The following case study allows a look at a situation that is more subtle and closer to the practice arena of a forensic nurse.
You are a sexual assault nurse examiner under contract with a public hospital to be on call to conduct sexual assault examinations, and you are paid by the case. You learn that a person reporting she had been raped had been treated at the hospital emergency department and released, but that you had not been notified to examine the complainant. Upon your inquiry about the non-notification, you are informed that the emergency department director and the police investigator agreed not to call you in on the case because the person reporting the incident was a prostitute, continuously intoxicated on drugs, reported rape nearly every week, and was especially prone to report rape when one of her johns failed to pay her what she demanded for sexual services. What would be your action, if any, in this matter?
This case is more complex than it initially appears. Let’s explore some of the alternatives for the contract nurse examiner. First, the matter could be dropped, as you agree with the emergency department director and the police investigator that this “revolving door” case does not require the continuous services of a specialist in sexual assault investigation. Second, you could drop the matter because your notification in instances of this type is a management decision of the hospital administration that engages your services. Third, you could insist on notification of all sexual assault cases because it is called for in the contract. However, this may not bode well for your continued employment as a contractor with this hospital. Fourth, you could insist on being paid for all reported sexual assault cases, whether or not you are notified, because the agreement stipulates you will be on call for services and the availability factor interferes with your personal life and, therefore, part of the compensation must take into account this inconvenience. Fifth, you could insist on being notified in all reported sexual assault cases, as the occupation or personal problems of the victim should not determine the level of care.
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