Ethical, Legal, and Economic Foundations of the Educational Process

Ethical, Legal, and Economic Foundations of the Educational Process

M. Janice Nelson

Melissa F. Alt

Approximately 45 years ago, the field of modern Western bioethics arose in response to the increasing complexity of medical care and decision making. Novel challenges in health care continually stem from such influences as technological advances, changes in laws, and public awareness of scientific endeavors. The field of bioethics provides systematic theoretical and practical approaches for handling such complex issues and the dilemmas that ensue from them. As a result, programs of study for health professionals, including nursing, now provide formal ethics education—some by mandate. Healthcare providers who commit ethical infractions while in training or practice may be referred for ethics remediation by their programs or specialty licensing boards, or may risk professional sanctions.

In the popular media, bioethics translates into stem cell research, organ transplantation, genetic testing, and other sensational innovations. But every day, far from the spotlight, nursing students, nursing staff, and clinical instructors confront commonplace and vexing ethical dilemmas. Consider a patient who refuses a routine but lifesaving blood transfusion. Should he or she be allowed to refuse this treatment, or should the nursing staff persuade the patient otherwise? Or suppose a nurse witnesses a confused patient signing a consent form for a procedure: Should he or she ask whether the patient has enough decisional capacity to agree to having the procedure? Dilemmas also arise in educational contexts. Suppose a surgeon misleads a family by indicating that a surgical error was really a “complication.” Should the nurse practitioner who observed the error speak up to a superior in the healthcare hierarchy? What about a clinical nursing instructor who habitually introduces a nursing student to patients as a nurse, implying that the student has completed his or her program of study? Should the nursing student correct the faculty member, and if so, when, where, and how?

These scenarios describe not only practice issues, but also moral problems. They arise so frequently that convening the ethics committee is impractical. Increasingly, staff nurses, clinical educators, and nursing students are being called upon to reason through both medical and ethical issues. However, knowledge of basic ethical principles and concepts does not always suffice. As the healthcare field has developed, so has a critical consciousness of individual rights stemming from both natural and constitutional law. Healthcare organizations are laden with laws and regulations ensuring clients’ rights to a high-quality standard of care, to informed consent, and subsequently to self-determination. Further, in the interest of justice, it is worthwhile to acknowledge the relationship between costs to the healthcare facility and the provision of health services. Consequently, it is crucial that the providers of care be equally proficient in educating the public and educating the nursing students and staff who are or will be the practitioner educators of tomorrow.

Although the physician is primarily held legally accountable for the medical regimen, it is a known fact that patient education generally falls to the nurse. Indeed, given the close relationship of the nurse to the client, the role of the nurse in this educational process is absolutely essential and mandated as such through each state nurse practice act.

Today’s enlightened public is aware of and demands recognition of individual constitutional rights regarding freedom of choice and rights to self-determination. In fact, it may seem curious to some that federal and state governments, accrediting bodies, and professional organizations find it necessary to legislate, regulate, or provide standards and guidelines to ensure the protection of human rights when it comes to matters of health care. The answer, of course, is that the federal government has abandoned its historical hands-off policy toward physicians and other health professionals in the wake of serious breaches of public confidence and shocking revelations of abuses of human rights in the name of biomedical research.

These issues of human rights are fundamental to the delivery of high-quality healthcare services. They are equally fundamental to the education process, in that the intent of the educator should be to empower the client to identify and articulate his or her values and preferences; acknowledge his or her role in a family, community, or other relationship; and make well-informed choices, reasonably aware of the consequences of those choices. Thus an explication of the role of the nurse in the teaching-learning process must include the ethical and legal foundations of that process. Teaching and learning principles, with their inherent legal and ethical dimensions, apply to any situation in which the educational process occurs.

The purpose of this chapter is to provide the ethical, legal, and economic foundations that underpin the patient education initiative, on the one hand, and the rights and responsibilities of the provider, on the other hand. This chapter describes the differences between and among ethical, moral, and legal concepts. It explores the ethical and legal foundations of human rights, and it reviews the ethical and legal dimensions of health care. Furthermore, this chapter examines the importance of documentation of patient teaching while highlighting the economic factors that must be considered in the delivery of patient education in healthcare settings. An additional section provides a brief discussion of evidence-based practice and its relationship to quality and evaluation of patient education programs.


Although ethics as a branch of classical philosophy has been studied throughout the centuries, by and large these studies were left to the domains of philosophical and religious thinkers. More recently, because of the complexities of modern-day living and the heightened awareness of an educated public, ethical issues related to health care have surfaced as a major concern of both healthcare providers and recipients of these services. It is now a widely held belief that the patient has the right to know his or her medical diagnosis, the treatments available, and the expected outcomes. This information is necessary so that patients can make informed choices relative to their respective diagnoses and treatments in concert with advice offered by health professionals.

Ethical principles that pertain to human rights are rooted in natural laws, which, in the absence of any other guidelines, are binding on human society. Inherent in these natural laws are, for example, the principles of respect for others, truth telling, honesty, and respect for life. Ethics as a discipline interprets these basic principles of behavior in broad terms that guide moral decision making in all realms of human activity (Tong, 2007).

Although multiple perspectives on the rightness or wrongness of human acts exist, among the most commonly referenced are the writings of the 16th-century German philosopher, Immanuel Kant, and those of the 19th-century English scholar and philosopher, John Stuart Mill (Edward, 1967). Kant proposed that individual rights prevail and openly proclaimed the deontological notion of the “Golden Rule.” Deontology (from the Greek word deon, which means “duty”) is the ethical belief system that stresses the importance of doing one’s duty and following the rules. Thus respect for individual rights is key, and one person should never be treated merely as a means to another person’s benefit or a group’s well-being (Tong, 2007). Mill, in contrast, proposed the teleological notion or utilitarian approach to ethical decision making that allows for the sacrifice of one or more individuals so that a group of people can benefit in some important way. He believed that given the alternatives, choices should be made that result in the greatest good for the greatest number of people.

Likewise, the legal system and its laws are based on ethical and moral principles that, through experience and over time, society has accepted as behavioral norms (Hall, 1996; Lesnick & Anderson, 1962). In fact, the terms ethical, moral, and legal are often used in synchrony. It should be made clear, however, that although these terms are certainly interrelated, they are not necessarily synonymous.

Ethics refers to the guiding principles of behavior, and ethical refers to norms or standards of behavior. Although the terms moral and morality are generally used interchangeably with the terms ethics and ethical, nurses can differentiate the notion of moral rights and duties from the notion
of ethical rights and duties. Moral refers to an internal value system (the moral fabric of one’s being); this value system, defined as morality, is expressed externally through ethical behavior. Ethical principles deal with intangible moral values, so they are not enforceable by law, and neither are these principles laws in and of themselves. Legal rights and duties, in contrast, refer to rules governing behavior or conduct that are enforceable under threat of punishment or penalty, such as a fine, imprisonment, or both.

The intricate relationship between ethics and the law explains why ethics terminology, such as informed consent, confidentiality, nonmaleficence, and justice, can be found within the language of the legal system. In keeping with this practice, nurses may cite professional commitment or moral obligation to justify the education of clients as one dimension of their role. In reality, the legitimacy of this role stems from the nurse practice act that exists in the particular state where the nurse resides, is licensed, and is employed.

Practice acts are documents that define a profession, describe that profession’s scope of practice, and provide guidelines for state professional boards regarding entry into a profession via licensure and disciplinary actions that can be taken when necessary. Practice acts were developed to protect the public from unqualified practitioners and to protect the professional title (e.g., RN, OT, RT). A model practice act serves as a template for individual states to follow, with the ultimate goal being to minimize variability from state to state within a profession. From the model, a state or other jurisdiction can develop its own practice act that addresses its particular needs in addition to including the basic information regarding scope of practice, licensure requirements, and so forth (Flook, 2003). In essence, a professional practice act is not only legally binding, but also protected by the police authority of the state in the interest of protecting the public (Brent, 2001; Mikos, 2004).


In the past, ethics was relegated almost exclusively to the philosophical and religious domains. Likewise, from a historical vantage point, medical and nursing care was considered a humanitarian, if not charitable, endeavor. Often it was provided by members of religious communities and others considered to be generous of spirit, caring in nature, courageous, dedicated, and self-sacrificing in their service to others. Public sentiment was so strong in this regard that for many years healthcare organizations, which were considered to be charitable institutions, were largely immune from legal action “because it would compel the charity to divert its funds for a purpose never intended” (Lesnik & Anderson, 1962, p. 211). In the same manner, healthcare practitioners in the past—who were primarily physicians and nurses—were usually regarded as Good Samaritans who acted in good faith.

Although numerous court records of lawsuits involving hospitals, physicians, and nurses can be found dating back to the early 1900s, their numbers pale in comparison with the volumes being generated on a daily basis in today’s world (Reising & Allen, 2007). Further, despite the horror stories that have been handed down through the years regarding inhumane and often torturous treatment of prisoners, the mentally infirmed, the disabled, and the poor, in the past there was only limited focus on ethical aspects of that care. In turn, little thought was given to legal protection of the rights of such mentally, physically, or socioeconomically challenged people.

Clearly, this situation has changed dramatically. For example, informed consent—a basic tenet of the ethical practice of health care—was established in the courts as early as 1914 by Justice Benjamin Cardozo. Cardozo determined that
every adult of sound mind has a right to protect his or her own body and to determine how it shall be treated (Hall, 1992; Schloendorff v. Society of New York Hospitals, 1914). Although the Cardozo decision has considerable magnitude in its scope, governmental interest in the bioethical underpinnings of human rights in the delivery of healthcare services did not really surface until after World War II.

Over the years, legal authorities such as federal and state governments had maintained a handso ff posture when it came to issues of biomedical research or physician-patient relationships. The human atrocities committed by the Nazis in the name of biomedical research during World War II, however, shocked the world into critical awareness of gross violations of human rights. Unfortunately, such abuses were not confined to wartime Europe. On U.S. soil, for example, the nontreatment of syphilitic African Americans in Tuskegee, Alabama; the injection of live cancer cells into uninformed, nonconsenting older adults at the Brooklyn Chronic Disease Hospital; and the use of institutionalized mentally retarded children to study hepatitis at the Willowbrook State School on Staten Island, New York, shocked the nation and raised a public awareness of disturbing breaches in the physician-patient relationship (Brent, 2001; Centers for Disease Control and Prevention, 2005; Rivera, 1972; Thomas & Quinn, 1991; Weisbard & Arras, 1984).

Stirred to action by these disturbing phenomena, in 1974 Congress moved with all due deliberation to create the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (U.S. Department of Health and Human Services [USDHHS], 1983). As an outcome of this unprecedented act, an institutional review board for the protection of human subjects (IRBPHS) was rapidly established at the local level by any hospital, academic medical center, agency, or organization where research on human subjects was being conducted. To this day, the primary function of these review boards is to safeguard all human study subjects by insisting that research protocols include voluntary participation and withdrawal, confidentiality, truth telling, and informed consent, and that they address additional specific concerns for vulnerable populations such as infants, children, prisoners, and persons with mental illnesses. Every proposal for biomedical research that involves human subjects must be submitted to a local IRBPHS for intensive review and approval before the proposed study proceeds (USDHHS, 1983). Further, in response to concerns about the range of ethical issues associated with medical practice and a perceived need to regulate biomedical research, in 1978 Congress established the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (Brent, 2001; Thomas & Quinn, 1991; USDHHS, 1983).

In addition, in 1975, the American Hospital Association (AHA) disseminated a document titled A Patient’s Bill of Rights, which was revised in 1992 (Association of American Physicians and Surgeons, 1995). A copy of these patient rights is framed and posted in a public place in every healthcare facility across the United States. In addition, federal standards developed by the Centers for Medicare & Medicaid Services (CMS)—an arm of the Health Care Financing Administration (HCFA)—require that each patient be provided with a personal copy of these rights either at the time of admission to the hospital or long-term care facility or prior to the initiation of care or treatment when admitted to a surgery center, health maintenance organization (HMO), home care, or hospice. In fact, many states have adopted the statement of patient rights as part of their state health code. Thus these rights fall under the jurisdiction of the law, rendering them legally enforceable by threat of penalty.

But did the professions themselves speak up in the face of the outrageous violations of human rights in the name of research? Indeed,
two professional groups acted well before the 1970s to establish uniform standards for professional education and conduct. The first was the American Medical Association (AMA), which wrote and published its Code of Medical Ethics in 1847. Renamed The Principles of Medical Ethics in 1903, the code is currently in its fifth revision (AMA, 2001). All five versions address the precedence of patients’ welfare and physicians’ moral rectitude over scientific accomplishment and professional gain. Despite such regular attention to the values to which physicians commit themselves individually and collectively, the preceding historical examples attest to a disconnect between espoused values and actual practice, a failure of widespread individual and collective professional accountability.

In 1950, the American Nurses Association (ANA) developed and adopted an ethical code for professional practice that has since been revised and updated several times (ANA, 1976, 1985, 2001). The latest revision of the ANA’s code, now titled the Code of Ethics for Nurses with Interpretive Statements, was released in 2001 for implementation in the new millennium. This code of ethics represents an articulation of nine provisions for professional values and moral obligations in relation to the nurse-patient relationship and in support of the profession and its mission. Lachman (2009a, 2009b) outlines these provisions and further clarifies the nursing role in each provision:

1. Honor the human dignity of all patients and coworkers.

2. Establish appropriate nurse-patient boundaries, and focus on interdisciplinary collaboration.

3. The nurse-patient relationship is grounded in privacy and confidentiality.

4. The nurse is accountable for the personal actions and the behaviors of those persons to whom the nurse has delegated responsibilities.

5. The nurse is responsible for maintaining competence, preserving integrity and safety, and continuing personal growth.

6. The nurse has a responsibility to deliver quality care to patients.

7. The nurse contributes to the advancement of the profession.

8. The nurse participates in global efforts for health promotion and disease prevention.

9. Involvement in professional nursing organizations supports the development of social policy.

Although other health professions have adopted their own codes of ethics, the nursing profession’s code has been recognized as exemplary and has been used as a template by other health discipline organizations in crafting their own ethics documents. Health professional organizations have accepted the responsibility for establishing standards of ethical behavior for members of their disciplines in the context of healthcare practice. In the end, however, it is up to the individual healthcare provider to take his or her professional ethics code to heart. The next section of this chapter addresses the application of ethical and legal principles and concepts by nurses to their clients.


Various theories and traditions can frame a health professional’s understanding of the ethical dimensions in the healthcare setting. In considering the ethical and legal responsibilities inherent in the process of patient education, nurses and nursing students can turn to a framework of six major ethical principles—including the so-called big four principles initially proposed by Beauchamp and Childress (1977)—that are intricately woven throughout the ANA’s Code of Ethics (2001), the
AHA’s A Patient’s Bill of Rights (1992), and similar documents promulgated by other healthcare organizations as well as the federal government. These principles, which encompass the very issues that precipitated federal intervention into healthcare affairs, are autonomy, veracity, confidentiality, nonmaleficence, beneficence, and justice.


The term autonomy is derived from the Greek words auto (“self”) and nomos (“law”) and refers to the right of self-determination (Tong, 2007). Laws have been enacted to protect the patient’s right to make choices independently. Federal mandates, such as those dealing with informed consent, must be evident in every application for federal funding to support biomedical research. The local IRBPHS assumes the role of judge and jury to ascertain adherence to this enforceable regulation (Dickey, 2006).

The Patient Self-Determination Act (PSDA), which was passed by Congress in 1991 (Ulrich, 1999), is a clear example of the principle of autonomy enacted into law. Any healthcare facility, including acute- and long-term care institutions, surgery centers, HMOs, hospices, or home care, that receives Medicare and/or Medicaid funds, must comply with the PSDA. This law requires that, either at the time of hospital admission or prior to the initiation of care or treatment in a community health setting, “every individual receiving health care be informed in writing of the right under state law to make decisions about his or her health care, including the right to refuse medical and surgical care and the right to initiate advance directives” (Mezey, Evans, Golob, Murphy, & White, 1994, p. 30). Although ultimate responsibility for discussing treatment options and a plan of care and obtaining informed consent rests with the physician, these authors readily acknowledge the nurse’s responsibility to ensure informed decision making by patients, which includes but is certainly not limited to advance directives (e.g., living wills, durable power of attorney for health care, and designation of a healthcare agent). Evidence of such instruction must appear in the patient’s record, which is the legal document validating that informed consent took place.

One principle worth noting in the ANA’s Code of Ethics addresses collaboration “with members of the health professions and other citizens in promoting community and national efforts to meet the health needs of the public” (New York State Nurses Association, 2001, p. 6). This principle certainly provides a justification for patient education both within and outside the healthcare organization. It provides an ethical rationale for health education classes open to the community, such as childbirth education courses, smoking cessation classes, weight reduction sessions, discussions of women’s health issues, and positive interventions for preventing child abuse. Although health education per se is not an interpretive part of the principle of autonomy, it certainly lends credence to the ethical notion of assisting the public to attain greater autonomy when it comes to matters of health promotion and high-level wellness. In fact, consistent with the Model Nurse Practice Act (ANA, 1978), all contemporary nurse practice acts contain some type of statements identifying health education as a legal duty and responsibility of the registered nurse.

An additional moral framework through which to view the practice of patient education is a framework of expansion of patient capabilities (Redman, 2008). The reason to view expansion of capabilities as a moral enterprise is that capabilities of, say, healthfulness, self-care, and engaging in life, relationships, and pursuits, “have value in themselves and are of special importance in making possible any choice of a way of life” (p. 815).

Another example of autonomy is the development and use of patient decision aid interventions that are designed to assist clients to make
informed treatment choices (Bekker, 2010). These patient decision aids, which include printed materials, videos, and interactive Web-based tutorials, provide clients with information about specific health issues, particular diagnoses, treatment risks and benefits, and questionnaires to determine whether clients need more information. “The emphasis on collaboration between providers and patients on decision making has, in turn, stimulated the development of tools to help patients and their families participate in clinical discussions and reach decisions that incorporate personal values and goals” (Wittmann-Price & Fisher, 2009).


Veracity, or truth telling, is closely linked to informed decision making and informed consent. The landmark decision by Justice Benjamin Cardozo (Schloendorff v. Society of New York Hospitals, 1914) identified an individual’s fundamental right to make decisions about his or her own body. This ruling provides a basis in law for patient education or instruction regarding invasive medical procedures. Nurses are often confronted with issues of truth telling, as was exemplified in the Tuma vs. Board of Nursing case (Rankin & Stallings, 1990). In the interest of full disclosure of information, the nurse (Tuma) had advised a patient with cancer of alternative treatments without consulting the client’s physician. Tuma was sued by the physician for interfering with the medical regimen that he had prescribed for care of this particular patient. Although Tuma was eventually exonerated from professional misconduct charges, the case emphasizes a significant point of law to be found in the New York State Nurse Practice Act (New York State Nurses Association, 1972): “A nursing regimen shall be consistent with and shall not vary from any existing medical regimen.” However, others insist that failure to instruct the patient properly relative to invasive procedures is tantamount to battery (Creighton, 1986). Therefore, in some instances, the nurse may find himself or herself in a double bind. If in such a dilemma, the nurse has a variety of actions available. Two possibilities would be to inform the physician of the professional double bind and engage with him or her in achieving a course of action that best meets the patient’s medical needs while respecting the patient’s autonomy; and to seek out the institutional ethics committee or an ethics consultant for assistance in negotiating interactions with both the physician and the patient.

Cisar and Bell (1995) address this concept of battery related to medical treatment and offer the following explanation of the four elements making up the notion of informed consent that are such vital aspects of patient education:

1. Competence, which refers to the capacity of the patient to make a reasonable decision.

2. Disclosure of information, which requires that sufficient information regarding risks and alternative treatments—including no treatment at all—be provided to the patient to enable him or her to make a rational decision.

3. Comprehension, which speaks to the individual’s ability to understand or to grasp intellectually the information being provided. A child, for example, may not yet be of an age to understand any ramifications of medical treatment and must, therefore, depend on his or her parents to make a decision that will be in the child’s best interest. Similarly, for an adequate informed consent conversation, all options must be expressed in a language the patient can understand and in lay terms.

4. Voluntariness, which indicates that the patient has made a decision without coercion or force from others.

Although all four of these elements might be satisfied, the patient might still choose to reject the regimen of care suggested by healthcare providers. This decision could be the result of the exorbitant cost of a treatment or it might reflect certain personal or religious beliefs. Whatever the underlying motivation, it must be recognized by all concerned that a competent, informed client cannot be forced to accept treatment as long as he or she is aware of the alternatives as well as the consequences of any decision (Cisar & Bell, 1995).

Finally, a dimension of the legality of truth telling relates to the role of the nurse as expert witness. Professional nurses who are recognized for their skill or expertise in a particular area of nursing practice may be called on to testify in court on behalf of either the plaintiff (the one who initiates the litigation) or the defendant (the one being sued). In any case, the concept of expert testimony speaks for itself. Regardless of the situation, the nurse must always tell the truth and the patient (or his or her healthcare agent) is always entitled to the truth (Hall, 1996).


Confidentiality refers to personal information that is entrusted and protected as privileged information via a social contract, healthcare standard or code, or legal covenant. When this information is acquired in a professional capacity from a patient, healthcare providers may not disclose it without consent of that patient. If sensitive information were not to be protected, patients would lose trust in their providers and would be reluctant to openly share problems with them or even seek medical care at all.

A distinction must be made between the terms anonymous and confidential. Information is anonymous, for example, when researchers are unable to link any subject’s identity in the medical record of that person. Information is confidential when identifying materials appear on subjects’ records but can be accessed only by the researchers (Tong, 2007).

Only under special circumstances may secrecy be ethically broken, such as when a patient has been the victim or subject of a crime to which the nurse or doctor is a witness (Lesnick & Anderson, 1962). Other exceptions to confidentiality occur when nurses or other health professionals suspect or are aware of child or elder abuse, narcotic use, legally reportable communicable diseases, gunshot or knife wounds, or the threat of violence toward someone. To protect others from bodily harm, health professionals are legally permitted to breach confidentiality.

In the case of communicable diseases, patients should not be forced or coerced to name their contacts, again because respecting confidentiality maintains trust between the patient and the nurse. But is it fair to deprive a vulnerable spouse or other contact of this important health information? Is it morally acceptable to put one person’s rights above those of another? In some situations, yes, although these decisions are best considered after much deliberation with the patient and other trusted health professionals. Of course, if a patient discloses the identity of his or her contacts, health professionals are mandated to inform them in accordance with applicable state laws. If a patient tests positive for HIV/AIDS, for example, and has no intention of telling his or her spouse about this diagnosis, the physician has an obligation to warn the spouse directly or indirectly (i.e., through anonymous lab reporting) of the risk of potential harm (Tong, 2007).

Adequate deliberation with the patient and others can reveal circumstances in which the reality is even more complex. For example, if the physician or other primary healthcare provider explores the patient’s rationale for not wanting to inform his or her spouse of the infectious disease status, it may be out of fear of inciting domestic violence. According to Brent (2001), “this area of legislation concerned with health care privacy and disclosure reveals the tension between what is good for the individual vis-à-vis what is good for society” (p. 141).

The 2003 updated Health Insurance Portability and Accountability Act (HIPAA) ensures nearly absolute confidentiality related to dissemination of patient information, unless the patient himself or herself authorizes release of such information (Kohlenberg, 2006). One goal of the HIPAA policy, first enacted by Congress in 1996, is to limit disclosure of patient healthcare information to third parties, such as insurance companies or employers. This law, which requires patients’ prior written consent for release of their health information, was never meant to interfere with consultation between professionals but is intended to prevent, for example, “elevator conversations” about private matters of individuals entrusted to the care of health professionals. In a technologically advanced society such as exists in the United States today, this law is a must to ensure confidentiality (Tong, 2007). Currently, in some states and under certain conditions, such as death or impending death, a spouse or members of the immediate family can be apprised of the patient’s condition if this information was previously unknown to them. Despite federal and state legislation protecting the confidentiality rights of individuals, the issue of the ethical/moral obligation of the patient with HIV/AIDS or genetic disease, for example, to voluntarily divulge his or her condition to others who may be at risk remains largely unresolved (Legal Action Center, 2001).

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Sep 9, 2016 | Posted by in NURSING | Comments Off on Ethical, Legal, and Economic Foundations of the Educational Process

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