THE DIFFERENCE BETWEEN ETHICS AND LAW

Some nurses believe that when their legal obligation is clear their ethical obligation is also clear. Some nurses even claim that their legal obligation always coincides with or determines their ethical obligation. In other words, these nurses hold that when a nurse knows that a physician’s orders call for a code to be initiated, this fact alone ends any deliberation about whether it is ethical to code the patient in question. Although this may sometimes be true, it is certainly not always true. Several crucial distinctions must be made between ethical and legal decisions.

First of all, ethics and law are not the same thing. The former deals with moral behavior and the latter deals with legal behavior. Admittedly, ethical choices are often reduced by pressures of the moment to worries about legal risk, but compliance with the law does not guarantee ethical behavior, nor is it an excuse for ignoring the ethical aspects of a decision.¹ For example, slavery was once legal in parts of the United States, but even at that time many persons questioned its morality, and most of us would agree today that slavery is ethically unacceptable. Similarly, abortion is now a legal alternative for pregnant women, but many persons question the morality of abortion. Laws themselves are not necessarily ethically sound. In fact, laws themselves are properly the subjects of ethical appraisal and evaluation. Therefore, the assumption that if nurses do their legal duty and follow physician’s orders they will also be performing their ethical duty is not necessarily correct.

Another difference between law and ethics is evident in the fact that existing laws do not always give direction for particular ethical problems. The law often lags behind current ethical questions. For example, it took years for legislatures to enact statutes accepting brain death criteria as part of the legal definition of biologic death, yet nurses were faced with ethical decisions about the care of such patients long before these laws were enacted. Currently, the legal status of living wills (one kind of advance directive) is another issue that remains unresolved in some states, but ethical questions about the care of people who express their wishes in living wills must be addressed now in practice. Ethics, then, is broader and more inclusive than law, and the nurse is not always able to gain direction for current ethical difficulties by consulting the law.

On the other hand, law is not irrelevant to ethics. Difficult ethical decisions can often be clarified by referring to the reasoning used by courts and legal scholars on the issue in question or related issues. This is true because legal reasoning reflects our society’s perceptions on a subject and because the law has its roots in public acceptance and its adherence to fair and reasonable procedures for decisions on issues. Some ethicists also claim that knowledge of one’s legal obligations, although not decisive for answering ethical questions, is necessary for discerning one’s ethical obligation.² Such obligations are often taken to be limited by the risks of legal liability or financial loss that an agent might incur as a result of a particular choice. For example, should nurses consider the legal risks they would be taking if they do not act consistently with their legal obligation to follow a physician’s orders to code a patient? This is certainly not the only information they should consider, but it is information that is clearly relevant to whether they should code their patients.

So, legal risks are relevant data to consider when making moral decisions, but more analysis of a case is needed before moral decisions can be reached. To approach such situations properly, nurses need more knowledge. Compliance with the law is not enough to guarantee morally correct decisions, so many nurses look for guidance to the ethical code proposed by their professional association. The next section discusses this document for nurses.

THE CODE OF ETHICS FOR NURSES

In 1950 the American Nurses’ Association (ANA) adopted a code of ethics to guide professional nursing practice.³ This document codifies nursing’s traditional involvement with the obligations that health care workers owe to those under their care.⁴ After several revisions, the code is now known as the Code of Ethics for Nurses With Interpretive Statements.⁵ (Hereafter it is referred to as the Code of Ethics for Nurses, or simply the Code.) The Code serves as a public declaration of the standards and values by which all professional nurses are expected to practice. The Code has “performative force” because of its influence on nursing licensure, institutional accreditation, and curricula and its use in court cases as the document representing accepted professional values and standards.⁶

Professional codes of ethics are always mixtures of creed and commandments (beliefs and rules). The belief aspects of the Code of Ethics for Nurses can be found in the preface, and the rule aspects are delineated in the nine provision statements and the interpretations that follow them. Although the ethical codes of some health professions have been criticized as paternalistic and limited, the nursing code has garnered much praise for its comprehensiveness and the emphasis it places on the autonomy of the patient.⁷ In addition, the Code provides protection for patients by explicitly prohibiting behaviors that Jameton and others have called “the dark side of nursing,” such as the labeling, stereotyping, or stigmatizing of patients by word or deed.⁸ Every professional nurse should familiarize herself with the Code of Ethics for Nurses because its ideals are those deemed by the profession as essential for ethical nursing practice.

Besides giving guidance about the ethical approach nurses must have toward patients, the Code provides support for individual nurses to take care of themselves. For example, Rushton⁹ notes that the most recent revision of the Code “adds a bold new provision” that supports nurses, namely, Provision 5. It reads as follows: “The nurse owes the same self-regarding duties to self as to others, including the responsibility to preserve integrity and safety, to maintain competence and to continue personal and professional growth.” This has been interpreted as acknowledging “the importance of caring for oneself in order to care for others” and seems consistent with the push of many professional organizations for better work environments for nurses.

The Code of Ethics for Nurses also serves to inform the public that nurses acknowledge their unique position of care and assures the public of the standards and values by which all nurses are expected to function.⁶ Duties such as supporting patient autonomy and being a patient advocate are mentioned explicitly in the code. The preface states that the Code reflects all the approaches for addressing ethics, including ethical theories, ethical principles, and cultivating virtues. It also states that the Code “is the profession’s nonnegotiable ethical standard.” According to the ANA and state boards of nursing, all nurses in all nursing situations in the United States must adhere to the Code. This is true regardless of whether the nurse is a member of the ANA.

But, as impressive and important as the Code is, it cannot provide a specific answer to all the ethical questions that arise in nursing practice. Like other professional codes, the Code of Ethics for Nurses provides general guidelines that must be applied in specific situations. Making this deductive shift from the general to the specific is especially difficult in trauma settings, where treatment decisions often have to be made quite rapidly, where patients may be either upset or unresponsive, and where adequate information about the patient and the patient’s life situation is lacking.

For example, Section 1.4 of the Code of Ethics for Nurses states, “Patients have the moral and legal right to determine what will be done with their own person… to accept, refuse or terminate treatment….” How should a trauma nurse respond to a very anxious and despondent battered woman who insists, “Don’t you dare treat me. I just want to die”? Does this patient’s statement constitute a refusal of treatment? Should the trauma nurse abide by this woman’s expressed wishes? Can a trauma nurse always get permission to render necessary life-saving treatment? If the patient ends up in the trauma unit after a suicide attempt, does the suicide victim have the right to refuse emergency life-saving treatment? Clearly the Code for Nurses does not address these complex questions in which the nurse’s obligations and duties conflict and a resolution is not immediately apparent.

The same section of the Code states, “Patients have the moral and legal right… to be given accurate, complete and understandable information….” But should a trauma nurse tell a mother that her baby has just died if the nurse knows that the mother has stated that she will stop any life-saving treatment for herself if her baby dies? This is a case where there is a conflict of nursing obligations. The nurse has both the obligation to tell the truth and the obligation to do good for her patient. The Code of Ethics for Nurses expects nurses to fulfill both these obligations, but it is unclear in the preceding case whether the nurse can actually fulfill both in this situation. The Code does not completely address what the nurse should do when such conflicts arise.

Trauma nurses also must make decisions about triaging patients and distributing scarce resources. The Code of Ethics for Nurses simply does not provide much direction for these essential activities. In fact, Provision 1 of the Code states that “The nurse … practices … unrestricted by considerations of social or economic status, personal attributes, or the nature of the health problems.” Taken at face value, this requirement of basic respect for persons seems to undermine the very practice of nursing itself. Currently it is unquestionably understood that prognosis and illness are valid considerations for triage decisions, but obviously little guidance is provided by the Code of Ethics for Nurses about how this process should be carried out.

Admittedly, no professional ethical code could capture all the myriad of ethical questions that arise within the scope of that profession’s practice. The limits of the Code of Ethics for Nurses illustrate that strict adherence to it is not enough to guarantee ethical behavior on the part of professional nurses. Even adherence to published professional position papers and standards of care are not enough. To evaluate thorny ethical issues such as those involved in the situations discussed, the nurse needs to explore both moral principles and ethical theories.

ETHICS

Ethics can be defined as the philosophic study of moral conduct, whereas morals or morality is understood philosophically as dealing with what is right and what is wrong in a practical sense.¹⁰ In this chapter, as in common usage, the terms ethics and morals are used interchangeably. Likewise, theories about ethics are sometimes referred to as moral theories or as ethical theories. In addition, the morality of an action is explored by looking at the ethical or moral justifications for the action. Ethics, then, involves a systematic appraisal of moral situations by using moral principles and ethical theories to justify resolution of the question: “What, all things considered, ought to be done in this situation?”¹¹

Ethics is a human enterprise that requires a person to look at one’s own obligations and provide justification for one’s own actions. Nursing ethics requires nurses to look at their professional obligations and explore how these obligations coincide with or are justified by general ethical principles and theories.

Trauma nurses deal with a myriad of ethical issues in their everyday practice. Some of these issues are clear and easily answered by referring to the Code of Ethics for Nurses; however, many issues are ambiguous and difficult to answer. An ethical dilemma occurs either when there is no obvious answer to the issue at hand or the available alternative actions are each somewhat morally justifiable or are all morally undesirable. Olesinski and Stannard¹² conclude that the overall nature of the ethical dilemmas confronted by critical care and emergency department nurses lies in the disparity between actual and ideal nursing practice. Gaul¹³ clarified the nature of such ethical dilemmas by analyzing responses of 270 nurses from 39 different states. She identified what she called the “four major causes of ethical suffering” in these nurses. These include situations in which (1) the patient’s interests conflict with the treatment plan, (2) the nurse’s responsibility to the family conflicts with those owed to the patient, (3) the nurse has opposing moral responsibilities, or (4) the nurse experiences a sense of powerlessness and lack of control over the elements of the ethical dilemma. The Code of Ethics for Nurses cannot and should not be expected to resolve all these kinds of cases. Each one has numerous facets and considerations to take into account. Despite the complexity and uniqueness of each individual case, however, there are some commonalties on which the nurse can and should base his or her ethical decisions. These are the general moral principles that provide the foundation for ethical nursing practice.

MORAL PRINCIPLES

Ethicists discuss the basic moral principles that affect nursing practice. One of the principles is that of beneficence, which requires that the nurse “ought to do good for and prevent or avoid doing harm to” the patient.¹⁴ This latter obligation, that of avoiding harm, is called nonmaleficence, and in general ethics it is usually considered more binding than the duty to do good.¹⁴ However, given the nurse’s specialized education and training, coupled with the reasonable expectation by the public that nurses can resolve or ameliorate many health care problems, professional nurses do have responsibilities of beneficence and nonmaleficence to their patients. Sometimes a nurse cannot avoid causing some harm to a patient while properly performing his or her professional responsibilities. For example, nurses give injections or deliver other types of painful treatments such as debriding burn wounds or inserting a nasogastric tube. These treatments are considered ethically acceptable only if the harm is minimized as much as possible and the benefit to be gained is worth the pain. One great difficulty with the principle of beneficence involves determining just what constitutes good or worthwhile gain for a particular patient. For example, is it beneficent to withhold food and water from a patient who has no likely chance of recovering from a terrible head injury and remains comatose? Withholding food clearly does constitute some harm, but does the good of allowing nature to take its course and letting the patient die outweigh the harm of not feeding him or her? Some nurses and ethicists reason that it does, whereas others claim that it does not. How should this issue be resolved? Investigating other moral principles will provide some guidance.

Autonomy is another moral principle that has gained prominence in health care settings as patients’ rights and informed consent issues have arisen.¹⁵ Autonomy refers to the freedom to rule oneself. It includes the right of informed consent, the right to accept or refuse treatment, and the right to confidentiality. The principle of beneficence often conflicts with the principle of autonomy. For example, when a patient chooses not to have a recommended treatment needed to save his life, the nurse must decide whether to override the patient’s decision to do the beneficent thing and administer the treatment or abide by the patient’s refusal. Which principle should have the most weight for the trauma nurse in such a situation, the principle of autonomy or the principle of beneficence? Most ethicists today agree that autonomy has more weight in moral decision making than beneficence, but despite this, nurses often take a paternalistic stance vis-à-vis their patients.

Benjamin and Curtis¹⁶ point out how difficult it is to justify taking any paternalistic actions toward adults. They list three criteria that must be met to decide ethically to carry out any paternalistic action:

These are strong criteria, and they require much justification to warrant any overriding of a patient’s autonomy. Often trauma nurses restrain patients against their wishes for safety reasons or out of legal or medical concerns. In cases in which patients are awake and alert enough to make decisions and refuse to be restrained, if the nurse continues with the restraining, he or she clearly is choosing to override the patient’s own autonomous wishes. The more difficult case is one in which the patient is refusing, but the nurse has reason to think that his or her capacity to decide is impaired. The criteria listed above require more than this to justify overriding the patient’s wishes such as knowing that the harm is significant and that there is reason to assume that the patient would authorize the restraining if he or she could reason better. If these conditions are met, the restraining is justified. Use of placebos also can be contrary to a patient’s autonomy rights, and yet some health care workers continue to try to justify the use of placebos solely on the basis of beneficence.

Most ethicists agree that the autonomy rights of a patient override the professional’s beneficence obligations in usual cases.^17–20 For example, the moral and constitutional legitimacy for withholding or withdrawing life-sustaining treatment at the request of the patient appears well settled in the United States.²¹ Even when a patient is in a coma and the question is whether to continue nutrients and water, many think the issue is resolved if a living will made by the patient requests such withdrawal. This is because most regard living wills as akin to the patient exercising his or her autonomy, and they agree that such autonomy should be respected. Unfortunately, many people do not have a living will or the document itself may be unclear on this issue. In such cases the nurse is in a difficult position in trying to determine what action beneficence requires because the patient’s autonomous wishes are unclear. In such cases decisions regarding whether to withdraw certain forms of treatment often fall to the family, to a legal guardian, or to the person the patient designated as the decision maker through another type of advanced directive (i.e., a durable power of attorney for health care).

Ozuna²² encourages nurses to be knowledgeable about aspects of the patient that the family may be most interested in such as whether the patient can experience pain or suffering or whether the patient is capable of responding meaningfully to stimuli. Sharing such information with families repeatedly and with compassion helps them to accept the realities of the patient’s current status. Unfortunately, sometimes this precise information cannot be determined by current technology, in which case the nurse is unable to meet the family needs and is left with ambiguity about how to maximize the beneficent interests of the patient.

Another ethical principle is justice, which requires that nurses treat all their patients fairly. This does not necessarily mean that every patient is treated exactly alike, but rather that equals are treated equally and that those who are unequal should be treated differently according to their differences.^23,24 This means that patients with similar health care problems deserve the same care and those who have different needs should be attended to according to those needs. It also means that the nurse should take into consideration a patient’s cultural and religious preferences. However, when one looks at the way the general principle of justice functions in mainstream ethics, a possible problem does arise for the nurse.

General ethics requires everyone to be fair to everyone. When justice is limited in scope to a particular nurse’s patients, duty to those patients may conflict with general ethical duty to everyone at large. This issue rears its head vociferously when scarcity of resources comes into play. Consider a case in which a trauma nurse is to receive a large number of patients from a disaster site. Does the nurse owe a duty to the patients he or she already has, to the ones he or she might get, or to both?²⁵ What if the duties seem to conflict? This difficult issue will occur more and more as health care resources become increasingly scarce. Can the trauma nurse justify using current resources on patients who have a lower chance of recovery rather than saving those resources for potential patients who will have a better chance to recover? What if the latter patients never arrive? The answers to these questions remain unclear, especially when one acknowledges the special obligation nurses have to patients already in their care.²⁶ Furthermore, if the public decides that nurses have obligations of justice to persons not included in the nurses’ current patient load, this would have profound implications for the principle of fairness in future health care decisions. It is unclear whether the nurse could ethically function under such a requirement because of the traditional nursing commitment of special duties owed to current patients. These issues are only part of the conundrum of gray areas currently under consideration in the arena of public and professional ethics.

Finally, the moral principle of fidelity may shed some light on the appropriate actions of a nurse in promise-making situations. Fidelity involves being faithful to one’s promises. What are the promises nurses implicitly make to patients in their care? Minimally, nurses promise that they will do no harm to that person, and it is hoped that they will do as much good for their patients as they can. This includes the promise that the nurse is capable of delivering the care the patient needs (i.e., that the nurse is competent). Note that these promises are made implicitly to patients already under the nurse’s care. However, the principle of fidelity does not provide very clear directions for what obligations (if any) the nurse owes to any potential or future patients.

What is clear is that if a nurse makes an individual promise to a patient, then he or she has an obligation to follow through on it. The proper content of any promise a nurse should make to a patient, however, is still a gray area. Should a nurse remain faithful to a promise not to code a patient even if a physician has ordered such a procedure? What if this nurse needs her job to feed her five children and has reason to believe that if she resists the order she could be fired? Considerations about the nurse’s own risks in making certain choices seem relevant to the moral weight of her promise, but to what extent should they prevail? Should the trauma nurse withhold pain medication from a patient because of persistent low blood pressure readings, despite the nurse’s explicit promise to try to relieve the patient’s pain? These complex questions are not entirely resolvable using only moral principles as guidelines. A review of ethical theories will help to clarify the nurse’s obligations in these complex cases.