Legal and Ethical Context of Psychiatric Nursing Care



Legal and Ethical Context of Psychiatric Nursing Care


Gail W. Stuart





The relationship between psychiatry and the law reflects the tension between individual rights and social needs. Both psychiatry and the law deal with human behavior and the relationships and responsibilities that exist among people. Both also play a role in controlling socially undesirable behavior, and together they analyze whether the care psychiatric patients receive is therapeutic, custodial, repressive, or punitive.


Differences also exist between psychiatry and the law. For example, psychiatry is concerned with the meaning of behavior and the life satisfaction of the individual. In contrast, the law addresses the outcome of behavior and the enforcement of a system of rules to encourage orderly functioning among groups of people.


The legal and ethical context of care is important for all psychiatric nurses because it focuses concern on the rights of patients and the quality of care they receive. However, laws vary from state to state, and psychiatric nurses must become familiar with the laws of the state in which they practice. This knowledge enhances the freedom of both the nurse and the patient, informs ethical decision making, and ultimately results in better care.



Ethical Standards


Psychiatric nurses may encounter complex ethical situations in caring for patients and families with mental illness. As professionals they are held to the highest standards of ethical accountability in their clinical practice (Murray, 2007). A number of essential ethics skills are listed in Box 8-1. These allow the nurse to provide care that is socially responsible and personally accountable.



An ethic is a standard of behavior or a belief valued by an individual or group. It describes what ought to be, rather than what is—a goal to which an individual aspires. These standards are learned through socialization, growth, and experience. They are not static but evolve with social change. Ethical standards, guidelines, and principles are not legally enforceable unless they have been incorporated into the law.



Ethical Decision Making


Ethical decision making involves trying to distinguish right from wrong in situations without clear guidelines. A decision-making model can help identify factors and principles that affect a decision. A model for critical ethical analysis that describes steps or factors that the nurse should consider in resolving an ethical dilemma is shown in Figure 8-1.




1. The first step is gathering background information to obtain a clear picture of the problem. This includes finding available information to clarify the underlying issues.


2. The next step is identifying the ethical components or the nature of the dilemma, such as freedom versus coercion or treating versus accepting the right to refuse treatment.


3. The third step is the clarification of the rights and responsibilities of all ethical agents, or those involved in the decision making. This can include the patient, the nurse, and possibly many others, including the patient’s family, physician, health care institution, clergy, social worker, and perhaps even the courts. Those involved may not agree on how to handle the situation, but their rights and duties can be clarified.


4. All possible options must then be explored in light of everyone’s responsibilities, as well as the purpose and potential result of each option. This step eliminates alternatives that violate rights or seem harmful.


5. The nurse then engages in the application of principles, which stem from the nurse’s philosophy of life and nursing, scientific knowledge, and ethical theory. Ethical theories suggest ways to structure ethical dilemmas and judge potential solutions. Four possible approaches include the following:



6. The final step is resolution into action. Within the context of social expectations and legal requirements, the nurse decides on the goals and methods of implementation. Table 8-1 summarizes these steps and suggests questions nurses can ask themselves in making complex ethical choices in psychiatric nursing practice.





Ethical Dilemmas


An ethical dilemma exists when moral claims conflict with one another. It can be defined as follows:



Ethical dilemmas pose questions such as “What should I do?” and “What is the right thing to do?” They can occur both at the nurse-patient-family level of daily nursing care and at the policymaking level of institutions and communities.


Although ethical dilemmas arise in all areas of nursing practice, some are unique to psychiatric and mental health nursing. Many of these dilemmas fall under the umbrella issue of behavior control. It might seem that behavior control is a simple issue: Behavior is a personal choice, and any behavior that does not violate the rights of others is acceptable. Unfortunately, this does not address complex situations.


For example, a severely depressed person may choose suicide as an alternative to an intolerable existence. On one level this is an individual choice not directly harming others, yet suicide is forbidden in U.S. society. In many states it is a crime that can be prosecuted. Another example is that in some states it is illegal for consenting adults of the same sex to have sexual relations, although it is not illegal for a man to rape his wife.


These examples raise difficult questions: When is it appropriate for society to regulate personal behavior? Who will make this decision? Is its goal personal adjustment, personal growth, or adaptation to social norms? And finally, how do we measure the costs and benefits of attempting to control personal freedom in a free society?


The growing knowledge about the genetic basis of psychiatric disorders will present even more ethical issues. Current evidence suggests that the etiology of most psychiatric disorders is a result of a combination of genes and environmental factors.


As tests for genes become more easily available, pressures will grow for prenatal testing, screening of children and adults, selection of potential adoptees, and premarital screening. Ethical issues here will relate to knowledge about genetics, the impact of this information on one’s sense of self, the boundaries of personal choice, as well as the potential discriminatory use of genetic information to deny people access to insurance and employment (Cheung, 2009; Appelbaum, 2010).


One of the basic problems is the blurry line between science and ethics in the field of psychiatry. Theoretically, science and ethics are separate. Science is descriptive, deals with what is, and rests on validation. Ethics is predictive, deals with what ought to be, and relies on judgment. However, psychiatry is neither purely scientific nor value free.


Nurses must identify their own professional commitment. Are they committed to the happiness of the individual or to the smooth functioning of society? Ideally, these values should not conflict, but in reality they sometimes do.


The patient’s rights to treatment, to refuse treatment, and to informed consent highlight this conflict-of-interest question. Nurses must consider whether they are forcing the patient to be socially or politically acceptable at the expense of the patient’s personal happiness. Nurses may not be working for either the patient’s best interests or their own; they may be acting as agents of society and not be aware of it.


It is, therefore, critically important for each nurse to analyze ethical dilemmas such as freedom of choice versus coercion, helping versus imposing values, and focusing on cure versus prevention. The nurse also must become active in defining adequate treatment and deciding important resource allocations.



Hospitalizing the Patient


Hospitalization can be either traumatic or supportive for the patient, depending on the institution, attitude of family and friends, response of the staff, and type of admission (Newton-Howes and Mullen, 2011; Sheehan and Burns, 2011). The two major types of admission are voluntary and involuntary. Table 8-2 summarizes their distinct characteristics.





Voluntary Admission


Under voluntary admission any citizen of lawful age may apply in writing (usually on a standard admission form) for admission to a public or private psychiatric hospital. The person agrees to receive treatment and abide by hospital rules. People may seek help based on their personal decision or the advice of family or a health professional. If someone is too ill to apply but voluntarily seeks help, a parent or legal guardian may request admission. In most states children under the age of 16 years may be admitted if their parents sign the required application form.


Voluntary admission is preferred because it is similar to a medical hospitalization. It indicates that the patient acknowledges problems in living, seeks help in coping with them, and will participate in finding solutions. Most patients who enter psychiatric units do so voluntarily.


When voluntarily admitted, the patient retains all civil rights, including the right to vote, have a driver’s license, buy and sell property, manage personal affairs, hold office, practice a profession, and engage in a business. It is a common misconception that all admissions to a mental hospital involve the loss of civil rights.


Although voluntary admission is the most desirable, it is not always possible. Sometimes a patient may be acutely disturbed, suicidal, or dangerous to self or others yet rejects any therapeutic intervention. In these cases involuntary commitments are necessary.




Involuntary Admission (Commitment)


Involuntary admission or commitment means that the patient did not request hospitalization and may have opposed it or was indecisive and did not resist it. Most laws permit commitment of the mentally ill on one or more of the following three grounds:




The Commitment Process.


State laws vary, but they try to protect the person who is not mentally ill from being detained in a psychiatric hospital against his will for political, economic, family, or other nonmedical reasons. Certain procedures are standard. The process begins with a sworn petition by a relative, friend, public official, physician, or any interested citizen stating that the person is mentally ill and needs treatment. Some states allow only specific people to file such a petition. One or two physicians must then examine the patient’s mental status; some states require that at least one of the physicians be a psychiatrist.


The decision of whether to hospitalize the patient is made next. The person who makes this decision determines the nature of the commitment:



If treatment is necessary, the person is hospitalized. The length of hospital stay varies depending on the patient’s needs. Figure 8-2 presents a clinical algorithm of the involuntary commitment process. It identifies three types of involuntary hospitalization: emergency, short term, and long term.








Commitment Dilemma.


How ill does a person need to be to merit commitment? A person’s dangerousness to self or others is a major consideration. Psychiatric professionals consider hospitalization in this instance to be a humanitarian gesture that protects both the individual and society. However, dangerousness is a vague term.




Dangerousness

Interestingly, courts guard the freedom of people who are mentally healthy but dangerous. For example, after a prison sentence is served, the person is automatically released and can no longer be retained. However, someone who is mentally ill and dangerous can be confined indefinitely. The idea of preventive detention does not exist in most areas of the law. Only illegal acts result in prolonged confinement for most citizens, except the mentally ill.


Most mentally ill people are not dangerous to themselves or others. Studies show that the vast majority of people with serious mental illness, particularly women, are not violent, but rather are often the victims of violence. Research does suggest, however, that a subgroup of people with mental illness may be more dangerous and that they share sociodemographic features of violent offenders in the general population, including poverty (Elbogen and Johnson, 2009). Patients in this subgroup have one or more of the following:



These characteristics can serve as predictors of potential violence.


It is important that patients with severe psychiatric disorders be identified and appropriately treated. It also should be remembered that violent behavior by people with serious mental illness is only one part of a larger problem: the failure of public psychiatric services and the lack of adequate community support for the mentally ill (Chapter 34). This has resulted in large numbers of mentally ill people among the homeless, a large number of mentally ill people in jails and prisons, and a revolving door of psychiatric readmissions.


The real underlying issue may be nonconformity in ways that offend others. For example, before the law all men and women are equal, but it is also true that most committed patients are members of lower socioeconomic groups.


This raises questions regarding the sociocultural context of psychiatric care (Chapter 7) and the role of mental health professionals as enforcers of social rules and norms. Thus the behavioral standard of dangerousness can change the function of the psychiatric hospital from a place of therapy for mental illness to a place of confinement for offensive behavior.




Freedom of Choice

The legal and ethical question thus raised is freedom of choice. Some professionals believe that at certain times the individual cannot be self-responsible. To protect both the patient and society, it is necessary to confine the patient and make decisions for him.


An example is the suicidal patient. In most states suicide is against the law, so law and psychiatry join to protect the person and help individuals resolve personal conflicts. How does this compare with patients who have cancer or cardiac disease and decide to reject medical advice and the prescribed treatment? Should society, through law and medicine, attempt to cure these patients against their will?


Some clinicians view civil commitment as basically a benevolent system that makes treatment available. They disagree with the assumption that mentally ill people are competent to exercise free will and make decisions in their own best interest, such as whether to take medications or remain outside a hospital. They believe that some mentally ill people may not be physically dangerous but may still endanger their own prospects for a normal life.


Others oppose commitment. They favor responsibility for self and the right to choose or reject treatment. If a person is not dangerous then they believe that a person should not be coerced into treatment. If a person’s actions violate criminal law, they suggest that the person be punished through the penal system. Currently a middle ground is being sought between meeting the needs of the severely mentally ill and preserving their legal rights and freedom of choice.




Discharge


The patient who is voluntarily admitted to the hospital can leave at any time. The voluntarily admitted patient can be discharged by the staff when maximum benefit has been received from the treatment. Voluntary patients also may request discharge.


Most states require written notice of patients’ desire to leave and also require that patients sign a form that states they are leaving against medical advice (AMA). This form then becomes part of the patient’s permanent record.


Research has shown that discharge AMA was most commonly predicted by patient factors such as young age, single marital status, male gender, co-morbid diagnosis of personality or substance use disorders, disruptive behavior, and history of many hospitalizations ending AMA. Provider variables included failure to orient patients to hospitalization and failure to establish therapeutic provider-patient relationships. Clinical outcomes included reduced benefit from treatment; poorer psychiatric, medical, psychosocial, and socioeconomic functioning; overused emergency care; underused outpatient services; and more frequent rehospitalizations (Brook et al, 2006).


Documentation of AMA patient requests should include the following:



In some states voluntarily admitted patients can be released immediately; in others they can be detained 24 to 72 hours after submitting a discharge request. This allows hospital staff time to confer with the patient and family members and decide whether additional inpatient treatment is indicated. If additional treatment is needed and the patient will not withdraw the request for discharge, the family may begin involuntary commitment proceedings, thereby changing the patient’s status.


An involuntarily committed patient has lost the right to leave the hospital at his own request. If a committed patient leaves before discharge, the staff has the legal obligation to notify the police and committing courts. Often these patients return home or visit family or friends and can be easily located. The legal authorities then return the patient to the hospital. Additional steps are not necessary because the original commitment is still in effect.



Ethical Considerations


Nurses must analyze their beliefs regarding the voluntary and involuntary hospitalization of psychiatric patients. What should be done if the nonconformist does not wish to change behavior? Do nonconformists maintain freedom to choose even if their thinking appears to be irrational or abnormal? Is coercion fair or justified? Can social interests be served by less restrictive methods, such as outpatient therapy?


Nurses are responsible for reviewing commitment procedures in their state and working for needed clinical, ethical, and legal reforms. The commitment dilemma exposes current practices and reveals controversial issues that will benefit from closer examination. For example, studies show that more than half of the homeless population have psychiatric or substance abuse disorders. Homeless mentally ill people have more service needs than homeless people who use only social services.


Many seriously mentally ill people cannot obtain or maintain access to community resources such as housing, a stable source of income, or treatment and rehabilitative services. Homeless people lack supportive social networks and underuse psychiatric, medical, and welfare programs. Many avoid the mental health system entirely, often because they are too confused to respond to offers of help. As a consequence they are often admitted into acute psychiatric hospitals or jailed because of their lack of shelter and other resources, even though such restrictive environments may not best address their psychiatric needs.


Unfortunately, many local communities deny the problem by resisting halfway houses or sheltered homes in their neighborhoods. Third-party insurance often does not cover extended outpatient psychiatric care. In today’s mobile society, family and friends may be unable to care for the newly discharged patient, who can then end up in a boarding house with little to do but watch television. Psychiatric nurses, patients, families, and citizens must address these issues across the United States. The value of commitment, goals of hospitalization, quality of life, and rights of patients must be preserved through the judicial, legislative, and health care systems.

Feb 25, 2017 | Posted by in NURSING | Comments Off on Legal and Ethical Context of Psychiatric Nursing Care
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