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Ethical Guidelines and Advanced Practice Law
ETHICAL CONCEPTS
Beneficence
The obligation to help the patient—to remove harm, prevent harm, and promote good (“do no harm”). Acting in the patient’s best interest. Compassionate patient care. The core principle in patient advocacy.
Examples:
Educating patient with a new prescription about how to take the medication
Encouraging a patient to stop smoking and enroll in smoking cessation program
Calling the surgeon to get a prescription for stronger pain medications (a narcotic) for a postsurgical patient who complains of severe pain
Nonmaleficence
The obligation to avoid harm. Protecting a patient from harm.
Example: A middle-aged woman with osteoporosis wants to be treated with bisphosphonates. The nurse practitioner (NP) advises that the patient is not a good candidate for these drugs because of her past medical history of GI bleeding and peptic ulcer disease (PUD). The NP decides not to prescribe bisphosphonates.
Utilitarianism
The obligation to act in a way that is useful to or benefits the majority. The outcome of the action is what matters with utilitarianism. It also means to use a resource (e.g., tax money) for the benefit of most. It may resemble justice (see next definition), but it is not the same concept.
Example: The Special Supplemental Nutrition Program for Women, Infants, and Children food (WIC) are only for pregnant women and children, not other adults and elderly men. The reason may be that it would cost society more if women (and their fetuses), infants, and children are harmed by inadequate food intake (affects the brain growth, etc.).
Justice
The quality of being fair and acting with a lack of bias. The fair and equitable distribution of societal resources.
Example: A homeless alcoholic man without health insurance presents to the ED with abdominal pain. The patient is triaged and treated in the same manner as the other patients who have health insurance.
464Dignity
The quality or state of being worthy of ethical and respectful treatment. Respect for human dignity is an important aspect of medical ethics. A person’s religious, personal, and cultural beliefs can influence greatly what a person considers “dignified” treatment.
Examples:
Hospital gowns should be secured correctly so that when patients get up to walk, their backs are not visible.
Foley catheter urine bags should not be visible to visitors so patients are not embarrassed. NPs should move urine bags to the opposite bed rail so that they are not visible to outsiders.
Fidelity
The obligation to maintain trust in relationships. Dedication and loyalty to one’s patients. Keeping one’s promise.
Example: The relationship between a patient and her health care team is important. The primary care NP should try his or her best to develop a trusting relationship with a patient.
Confidentiality
The obligation to protect the patient’s identity, personal information, test results, medical records, conversations, and other health information. This “right” is also protected by the Health Insurance Portability and Accountability Act (HIPAA; which restricts release of patient information). Psychiatric and mental health medical records are protected information and require separate consent.
Example: The HIPAA Privacy Rule protects most “individually identifiable health information” in any format (oral, paper, electronic). It is known as “protected health information” (PHI). The PHI includes demographic information (name, address, date of birth, Social Security number) as well as the individual’s past, present, or future physical/mental health and provision of care.
Autonomy
The obligation to ensure that mentally competent adult patients have the right to make their own health decisions and express treatment preferences. If the patient is mentally incapacitated (dementia, coma), the designated surrogate’s choices are respected. See later discussion on advance health care directives A mentally competent patient can decline or refuse treatment even if his or her adult children disagree.
Example: An alert elderly woman who has breast cancer decides to have a lumpectomy after discussing the treatment options with her oncologist. The woman’s daughter tells the NP that she does not want her mother to have the surgery because she thinks her mother is too old. The NP has a duty to respect the patient’s decision. This case is also a good example of the NP acting as the patient advocate.
Accountability
Health care providers are responsible for their own choices and actions and do not blame others for their mistakes.
Example: An NP has an adult male patient with acute bronchitis who complains of acute onset of chest pain. He is diagnosed with pleurisy. The patient goes to the ED and is diagnosed with an acute MI. The NP made an error in diagnosis; she is held accountable for her decision and actions in a court of law.
Veracity
The obligation to present information honestly and truthfully. In order for patients to make an informed and rational decision about their health care, pertinent information (including “bad” news) should not be withheld or omitted.
Example: The mammogram result of a 64-year-old female patient is highly indicative of breast cancer. The patient’s son does not want his mother to know about the results. The NP has a duty to discuss the mammogram results with the patient and to refer her to a breast surgeon.
EXAM TIPS
Become familiar with some of the ethical concepts (e.g., beneficence, veracity, nonmaleficence, justice) and how they are applied (look at the examples provided here).
The American Nurses Association (ANA) Code of Ethics for Nurses
The new ANA Code of Ethics for Nurses with Interpretive Statements (2015) contains “the goals, values and ethical precepts that direct the profession of nursing.” According to the ANA, the Code “is nonnegotiable.” Each nurse “has an obligation to uphold and adhere to the code of ethics.”
For example, under Provision 4.4, “Nurses may not delegate responsibilities such as assessment and evaluation; they may delegate selected interventions according to state nurse practice acts” (ANA, 2015).
LEGAL TERMS
Ombudsman
A person who acts as an intermediary (or as a liaison) between the patient and an organization (long-term care facilities or nursing homes, hospitals, governmental agencies, courts). The ombudsman investigates and mediates the complaint from both sides and attempts to reach a fair conclusion.
Guardian Ad Litem
An individual who is assigned by a court (and has the legal authority) to act in the best interest of the ward. The ward is usually a person who is a child, or someone who is frail or vulnerable.
Advance Health Care Directives
Living Will
A document that contains the patient’s instructions and preferences regarding health care if the patient becomes seriously ill or is dying. It contains the patient’s preferences (or not) for aggressive life-support measures. Health care providers should ensure that there is a copy of the document in the patient’s chart.
466Health Care Power of Attorney
A document that indicates that if a patient becomes incapacitated (physical and/or mental) in the future, his or her preferences for medical care (including life-prolonging procedures) are listed. Also known as an “advance directive for medical decisions,” “health care proxy,” “durable medical power of attorney,” or “health care surrogate.” The patient designates a person (family member or a close friend) who has the legal authority to make future health care decisions for the patient in the event that the patient becomes mentally incompetent or incapacitated (i.e., comatose).
It goes into effect when the patient’s doctor has determined that he or she is physically or mentally unable to communicate in a willful manner. The patient designates a person (family, close friend) to be his or her health care surrogate (or health care proxy). To be legal, the advance directive must be signed in the presence of two adult witnesses who must also sign the document (the designated surrogate cannot act as a witness). Power is only for health care decisions (not financial assets).
Power of Attorney
A document whereby the patient designates a person (the “agent”) who has the legal authority to make all decisions for the incapacitated patient. The document should be signed and notarized. Also known as the “durable power of attorney.” This role is broader and encompasses not only health care decisions but also other areas of the patient’s life, such as those relating to financial affairs.
Health Insurance Portability and Accountability Act (HIPAA)
Also known as the “HIPAA Privacy Rule” (or Public Law 104–191). The law was passed by the U.S. Congress and enacted in August, 1996. The law provides protections for “the use and disclosure of individuals’ health information”—called “protected health information” by organizations subject to the Privacy Rule, which are called “covered entities.”
Covered Entities
All health care providers, health insurance companies, health care plans, laboratories, hospitals, skilled nursing facilities (SNFs), and third-party administrators (TPAs) who electronically transmit health information must follow the HIPAA regulations.
What Is a TPA?
A TPA is the organization that does the processing of claims and administrative work for another company (health insurer, health plan, retirement plan).
HIPAA Requirements (Not Inclusive)
Health providers are required to provide each patient with a copy of their office’s HIPAA policy (patient to sign the form).
The HIPAA form must be reviewed and signed annually by the patient.
Patients have the right to review their medical files.
A mental health provider has the right to refuse patients’ requests to view their psychiatric and mental health records.
When patients request to review their medical records, the health provider has up to 30 days to comply.
Patients are allowed (under HIPAA) to correct errors in their medical records.
Providers must keep identifying information (name, date of birth, address, Social Security number) and any diagnosis/disease or health concerns private except under certain conditions (see list that follows).
467When Patient Consent Is Not Required
To contact the health plan/insurance company that is paying for the medical care
To contact a third party or business associate (e.g., accounting, legal, administrative) that the insurance company or doctor’s office hires to assist in payment of their services (e.g., medical billing services)
To perform certain health care operations (medical services review, sale of health care plan, audits)
To contact collection agency for unpaid bills
To report abuse/neglect or domestic violence
To consult with other health care providers
HIPAA Case Scenarios (Table 26.1)
Examples
If a staff member (who is not involved in the patient’s care) calls the attending NP and wants to discuss a patient’s progress, the NP cannot release information to the staff member.
How to communicate results of lab tests or procedures? Ask the patient how he or she would like this to be handled. If the patient advises the health care provider to “leave it on my voice mail” and gives a phone number, then it is not a HIPAA violation to do so rather than relaying this information directly to the patient. Unless the patient has directed the clinician to leave the results on the voicemail, the clinician cannot assume that the voicemail is private and restricted to that individual (Buppert, 2012).
HIPAA, Psychotherapy, and Mental Health Records
Psychotherapy records made by a mental health professional are treated differently under HIPAA. They should be separated from the patient’s other medical records. A separate consent form is needed to release psychotherapy records. The exceptions are mandatory reporting of abuse and “duty to warn” when the patient threatens serious and imminent harm to others. “In situations where the patient is given an opportunity and does not object, HIPAA allows the provider to share or discuss the patient’s mental health information with family members or other persons involved in the patient’s care or payment for care” (HHS, 2017).
Table 26.1 HIPAA and Patient Care
Situation | Description | Notes |
Putting patient charts on door box | Place the chart so that the front of the chart is facing the door (so that patient name is hidden). | Nonstaff members are in the hallways. |
Having sign-in sheets on front desk | This is allowed if it does not list patient’s diagnosis. | Attendance list can show names, dates, and time. |
Calling a patient in the waiting room to go inside the clinic exam room | Use only first name. If more than one person with same first name, use the first letter of last name. | If you have two patients named “Ann” (e.g., Ann Lee and Ann Smith), use Ann L. and Ann S. |
Leaving messages on voicemail | When calling, first provide your name and contact information. Be concise. Limit to 60 seconds. Maximum of three calls per week. | When a patient lists a phone number as a contact, it constitutes express consent for telephone calls to be made, subject to certain HIPAA restrictions. |
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| Information that can be given may includes appointment reminders, notifications about prescriptions, and preoperative and postoperative instructions. | Text messages should be restricted to 160 characters. There should be a limit of one text message per day. |
Having a colleague who works in same clinic or hospital call, wanting information about a patient’s progress | If staff member is not part of the health care team, no patient information can be released to that person. | HIPAA also does not allow such a person to access a friend’s or family member’s records without permission. |
Having a family member call, wanting information about a patient’s progress | Put on hold, and tell patient about the call. If patient gives permission, you can speak with the family member. | If patient does not consent, then advise the family member about the patient’s decision. Do not release patient information. |
Having inappropriate access of health information on the computer | Viewing the records of your relatives, friends, or coworkers information is a HIPAA violation. | Do not allow someone to use your computer password, or leave a computer terminal with the patient’s information displayed on the screen (log out first). |
Using personal devices (smart phones, laptops, tablets) | Ideally, it is best to avoid using personal devices at work. Requirements: secure WiFi with passwords, regular encrypted backups, antivirus software, policies, etc. | If you want to use a personal device, discuss it with your manager and/or consult information technology. Best practice is to use the facility’s or clinic’s devices. |
Discussing a patient’s drugs and other instructions with a health aide who is with the patient | Discussing information is allowable. | If patient has the capacity to make health care decisions, discussing information is allowable. |
Discussing patient’s treatment in front of a patient’s friend who is visiting | Discussing treatment with the patients’ friend if the patient gives consent or requests that the friend come inside the treatment room. | Discussing patient information with others is allowable if patient agrees to it. |
HIPAA, Health Insurance Portability and Accountability Act. Source: HIPAA Journal. FCC Confirms Rules Regarding HIPAA and Patient Telephone Calls (2015). | ||
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