Professional and legal implications Essay

Custom Student Mr. Teacher ENG 1001-04 7 October 2016

Professional and legal implications

This assignment will explore the professional and legal implications of a scenario which took place within a healthcare setting during the last year. Health care is very complex and decisions about how services are provided can have a huge effect on people’s lives. Therefore it is imperative that the care offered has the best chance of benefiting a patient and not harming them. However, in the following scenario a decision made by a healthcare professional for the best interests of their patient is challenged by the patient’s mother. To protect confidentiality the real names of the individuals involved have been changed (NMC, 2008). Katie is a 24 year old woman who has been admitted to hospital with a severe chest infection. Katie suffers from recurring chest infections due to her condition and also has cerebral palsy, learning disabilities and epilepsy. Due to these conditions Katie is unable to communicate, requires a Naso Gastric Tube for feeding, is doubly incontinent and has one to one care from a Health Care Support Worker for all her personal and clinical needs.

Katie lives with her mother at home, who provides her care during the night. The medical team discovered that her chest infection is Pneumonia and begin the relevant treatment, however believe that due to Katie’s quality of life she should be Not for Resuscitation (NFR) in the event of a cardiac arrest. However, Katie’s mother argues that her daughter should be resuscitated and the decision should be made by her, because she is her mother and that the health care team are neglecting her daughter’s right to life and are acting illegally by making such a decision. Katie’s mum also believes that the health care team are basing their decision on Katie’s learning disability rather than her best interests. This essay will encompass the ethical considerations that need to be sought when a decision such as NFR is made. Taking into account the legal and professional implications this has on the health care team involved.

Before making any decision the health care professional will need to consider if the Katie has the mental capacity, what are in the her best interests and protecting the her human rights. All these topics will be included in this essay. This essay will also explain why it is important for a health care professional to take into account the Bolam Test and Section 4 of the Mental Capacity Act (2005), taking into consideration a patient’s best interest when they lack capacity, before they make any decision. The Medical Team must act in accordance with the practice that is accepted at that time and by a recognised professional body (Dimond 2008). All these issues are relevant in this scenario. Making a decision such as NFR is taken very seriously due to the known outcome in the event of a cardiac arrest.

A Not For Resuscitation (NFR) decision indicates that a decision has been made not to call the resuscitation team if in the future that patient, such as Katie, suddenly stops breathing or suffers cardiac arrest. Resuscitation decisions are very controversial and have been the subject of much media interest. Especially when that patient has a learning disability. There is evidence of this in the appendix at the back of this essay and it will be discussed further on in the essay.

A decision such as NFR is the responsibility of the most senior clinician for the specific patient, according to a revised guidance of cardiopulmonary resuscitation (2007). Every health board should have a resuscitation policy. The Local Health Board’s policy involved in this scenario can be found in the appendix of this essay. The policy, published in (2009) states that cardiopulmonary resuscitation (CPR) should be commenced unless; the patient has refused CPR; the patient is at the palliative stage of illness or the burdens of the treatment outweigh the benefit.

The Health Care Team are required, before they make any decision to determine if Katie has mental capacity and if she is able to understand and contribute to the decisions of her treatment. If Katie had capacity and was not consulted about the decision then the heath care professional could be seen as acting unlawfully and the decision maker would be legally and professionally accountable (B v An NHS Trust [2002]). The Mental Capacity Act (2005) describes capacity as an individual’s ability to make a certain decision at a specific time and not on their ability to make decisions generally. Legal capacity depends on the patients understanding rather than their wisdom. They should be able to retain and understand the information that they are given and then communicate their decision with the appropriate professional (Simpson, 2011). A patient’s competency to capacity should not be presumed.

An assessment of capacity should be made before a person can be said to be incapacitated (NMC, 2008). Nurses have the ability to assess capacity, if they feel that it is needed. However, they do not have the authority to make a decision such as NFR (Hawley 2007). Therefore, they must refer to a doctor or psychologist to assess the patient’s capacity and make such a decision (Hutchison, 2005). Katie’s mental capacity, following the Mental Health Act (2005), will need to be assessed by a doctor or a psychologist due to the significance of the decision. The Case of Re C (1994) helped produce the 3 stage test of capacity and this has proved to be a suitable test used in the assessing process of capacity. However, the introduction of the Mental Capacity Act resulted in a 4th Stage being added (Section 3 MCA).

The test decides whether the individual is able to: Comprehend and retain information, Believe information given and weigh it up, balance the risks and needs, make a choice. The fourth stage is to communicate the decision. In this particular scenario, after an assessment of Katie’s Mental Capacity using this test, determined that Katie did not have the Mental Capacity to make decisions due to her inability to understand the information and communicate the decision. This enables the team to make this decision for her as long as it is in her best interests. Katie’s mother believes that she should be the one to make this decision for her daughter because she is her next of kin and Katie’s power of attorney. The Mental Capacity Act (2005) allows a person to legally set up a lasting power of attorney.

The chosen person or persons have the power to make decisions on the individual’s financial and personal behalf. The act does not allow enduring power of attorneys to be set up; however those already in existence can continue to be used. The lasting power of attorney has the power to give consent on behalf of a patient who is incapacitated if it is in their best interest (Thomson et al, 2006). However, the lasting power of attorney does not have the power to order a patient who is NFR or who is becoming NFR, as in this scenario, to be resuscitated if a health care professional has assessed that the outcome would not be in the best interest of the patient. There is no obligation to give treatment that is futile or burdensome as seen in the case of Re J (A Minor) (Wardship: Medical Treatment [1990]). As in the case of R (Burke v General Medical Council [2004]) no person has a legal right to insist on specific treatments either for themselves or relatives.

The health care professional is not obliged by law to resuscitate Katie irrelevant weather Katie’s mother is next of kin or has power of attorney. It was discovered afterwards that Katie’s mother was not her power of attorney because Katie had never had the capacity to appoint one. The health care professional will make their decision after assessing the patient and following the appropriate legal frameworks which are set to protect them and the patient and examining what decision would be in Katie’s best interests. Section 4 of the Mental Capacity Act (2005) sets out the legal framework for a best interest decision to be made, for people without mental capacity. This can be found in the appendix of the essay. The Act states that the health care professional making the decision must not make it simply on the basis of the patient’s age or appearance. The patient’s condition and aspects of behaviour must not affect the judgements of best interests and duty of care.

The health care professional making the decision must consider all the relevant circumstances and consider the possibility of the patient gaining capacity (MCA, 2005). However, if this is not possible then the health care professional must revise the past and present wishes of the patient, especially if an advance directive has been made. In relation to the scenario, it is crucial that this checklist is considered when making a decision such as NFR, due to Katie’s Learning disabilities’. Mencap (2007) published a report called ‘death by indifference’ which can be found in the appendix of this essay. The report examines cases where families believed that doctors used inappropriate use of Do Not Resuscitate Orders simply because the patient had a learning disability rather than assessing the best interest of the patient resulting in institutional discrimination. The Mental Capacity Act (2005) adds that the health care professional must consult anyone caring for the patient or who is concerned for their welfare and gain their views on the decision (Dimond, 2008).

In this scenario Katie’s mother was addressed and informed of the decision and her views were taken into account, despite the disagreement of the overall decision. Katie’s mum’s attitude and opinion towards the decision could be biased. She may genuinely not recognise that an NFR decision would be in the best interests of her daughter. Katie’s mother has her own values and beliefs that are likely to be factors that can influence her disapproval. The health care professional involved with Katie’s care will need to reassure Katie’s mum, show compassion and empathise with her situation. As stated earlier in the essay, the best interests of Katie can be determined via consideration of a checklist of circumstances within Section 4 of the MCA (2005). The benefits of treatment and the probability of them arising are considered (Griffiths and Tengnah 2008). In this scenario the benefits of resuscitation would be measured. If it was agreed that resuscitation would do more harm than good then it would be considered that NFR would be in Katie’s best interests (Re A (mental patient: sterilisation) [2001]).

Due to Katie’s quality of life, because of her cerebral palsy and epilepsy, it was considered by the health care professionals that it was in the best interest of Katie that she becomes NFR, as the outcome of resuscitation would not improve her quality of life. It was also agreed that resuscitation would do more harm to Katie than good, due to the probability of resuscitation being unsuccessful. However, Katie’s mum believes that the health care professionals are depriving her daughter of a right to life as was in the case of Airedale NHS Trust v Bland [1993]. The Human Rights Act (1998) is an Act of Parliament produced to protect the rights of individuals. The Act incorporates convention rights and protocols and is comprised of several articles. Schedule 1 Article 2, the Right to Life is of particular relevance in this scenario. The Article legally entitles every person’s individual’s right to life to be protected by law. It states that an individual’s life should not be deprived intentionally. Katie’s mum believes that the decision of NFR is infringing her daughter’s human rights.

If this is proved to be the situation then the professional could face legal action (Dimond, 2008). In this scenario the health care professionals are acting in Katie’s best interests and will not face any legal proceedings as long as they can justify their decision. This was illustrated in the cases of; National Health Service Trust A V D and others [2000], NHS Trust A v M [2001] and NHS Trust B V H [2001] indicates that decisions such as NFR, which are found to allow the individual to die with dignity and be in the best interests of the person, are not legally classed as infringing human rights. It could be implied that the decisions of NFR supports Katie’s human rights. If it is considered that Katie’s quality of life would remain poor or that resuscitation could potentially cause her harm and not be in Katie’s best interests then it could be implied that resuscitation in the event of Katie experiencing a cardiac arrest could prove a degrading treatment (Thompson et al, 2006).

In this particular scenario Katie’s mother is accusing the health care professionals of being negligent. The case of (Bolam v Friern Hospital Management Committee [1957]) initiated the Bolam test. The Bolam test is used to examine if a health care professional has been negligent. If the health care professional has acted in accordance with an accepted practice which is approved by a recognised professional body then they cannot be thought as negligent. However, it could be disputed that the health care professional could be assumed negligent if they resuscitated Katie since it is not in her best interests as the health care professionals have a legal duty of care to preclude acts or omissions which can potentially injure the patient (Donogue v Stevenson [1932]). If the health care professionals were to resuscitate Katie and it resulted in her becoming harmed then the health care professionals could be accused of being negligent under the Bolam test. Once a decision such as NFR has been justified and documented then if Katie was resuscitated in the event of a cardiac arrest then this treatment could been seen as battery and it is unlawful as in the case of (Airedale NHS Trust v Bland [1993]).

Such as in the case of Bland where the patient’s recovery was not going to happen due to him being in a Permanent Vegetative State, then the courts can decide that treatment can be withdrawn and not infringe the human rights of the individual (NHS Trust v M [2001]). In this scenario the health care team have decided, that due to Katie’s ongoing chest infections, the pain that she experiences from her conditions and her poor quality of life, it would not be in Katie’s best interests for her to be resuscitated in the event of a cardiac arrest. Consequently health professionals are not infringing her right to life and consequently not legally negligent. All health care professionals have a duty of care to their patients (Dimond, 2008). For this section of the essay the author will focus on how a decision such as NFR can have on a nurse and discuss the legal implications that may occur. Registered nurses are governed by The Code: Standards of conduct, performances and ethics for nurses and midwives (NMC, 2008). The code is not a legal document however, it sets a framework of standards that a nurse must adhere to within their practice and it enables them to act lawfully. Decisions such as NFR can cause professional issues for a nurse.

The nurse is the frontline provider of their patient’s care (Dimond, 2008). They have the most contact with the patient and their relatives. They often develop a therapeutic relationship with both. This could cause the nurse to face a dilemma of being criticised by the family and friends of the patient if they do not commence CPR or even face criticism from their colleges if they did proceed with CPR (Dimond, 2008). The nurse may feel duty-bound to commence CPR due to the relationship they have formed with the patient. However, the nurse must always act lawfully. Due to the nurse’s role as the care provider, they often have contact with the family members. This may provide difficulties for the nurse if the family, such as Katie’s mum, disagree with a decision that has been made. Therefore, the nurse may be faced with a possible confrontation from the family or friends of the patient due to their disapproval (Hughes and Baldwin, 2006).

The nurse has a responsibility to their patients to provide a high standard of care (NMC, 2008). However, at times they may feel as though they are being prevented from providing this standard when a decision such as NFR is issued and could cause them professional implications. However, it could also be argued that the nurse is fulfilling their role in such a situation as the nurse has a duty to alleviate the suffering of patients (Rumbold, 2002). The nurse would not be alleviating a patient’s suffering if they commenced CPR and it had been decided that it was not in the patients best interests. Nurses are accountable for their actions (NMC, 2008). The accountability of not providing CPR to a patient can present the nurse with a professional implication. Therefore, as the essay mentioned earlier, if the decision of NFR is legal then the nurse will not be held professionally accountable for not commencing CPR if their patient experiences a cardiac arrest.

All Health care professionals are responsible for maintaining standards set in the code of professional conduct. The NMC (2008) governs nurses to ‘Adhere to the laws of the country in which you are practicing’. This implies that nurses are required to act lawfully. They are required to follow orders such as NFR regardless of their own values and beliefs. A decision such as NFR creates the question of: who has the right to decide what is in the best interests of a patient. Even though the person making the decision is professionally qualified to do so they may find it complicated in proving that it is in the best interests of a patient without capacity (Runciman et al, 2007). The professional has a duty to act lawfully and be able to sustain this when making such an important decision. The attitudes of a nurse can offer professional implications for a decision such as NFR. Attitudes are governed by personal values and beliefs. If the nurse did not agree that it is in the best interests of the patient to become NFR this could create some difficulties. The nurse may decide to vocalise what they consider is in the best interests of their patient and this could conflict with the NFR decision made by the health care professional resulting in an ethical dilemma (Thompson et al, 2006).

According to Schlutz (1998), there is considerable evidence that many nurses experience the feeling of powerlessness when confronted with an ethical dilemma and fear conflict with other professionals such as consultants and doctors. Due to this they may abide by instructions regardless of it conflicting with their own professional values and beliefs. This could imply that the nurse involved with Katie’s care could follow an instruction as NFR despite it being against their own professional opinion. However, the nurse must be accountable for their actions and must indicate a satisfactory reason for their conduct (NMC, 2008) therefore potentially resulting in a professional implication. Rundell (1992) claims that the nursing of a palliative patient and providing them with a dignified death, uncomplicated or uncompromised by CPR could prove to be more complex than simply intervening and commencing CPR. Therefore not intervening when a patient is suffering a cardiac arrest can result in a professional implication of the NFR decision.

The nurse could find it very difficult to watch a patient suffer a cardiac arrest and not be allowed to intervene because of an NFR decision made by a health care professional who may not even have had a therapeutic relationship with the patient or their family. Doctors and nurses are professionally responsible to perform beneficently, justifying and respecting the rights of others (Thompson et al, 2006). Beneficence can be defined as an action taken that will benefit others and prevent and remove harm. Examples of harm are suffering and death (Herbert, 1998). If a health care professional fails to act beneficently it violates social, moral and professional standards (Beauchamp and Childress, 1989). This principle implies that the health care professional would be acting unprofessional by not commencing CPR. However, Casteldine (1993) implies that it is of greater beneficence for the health care professional to acknowledge end of life on certain occasions rather than using CPR, which could potentially cause harm, to prevent death. This implication is seen within the scenario.

However it is imperative that the staff perform lawfully. Health care professionals are often faced with the dilemma as to whether a certified decision has been made morally and legally accepted. This could result in disputes due to differentiating values and beliefs (Herbert, 1998). The NMC (2008) states that a patient, who does not possess capacity, should be protected. This may cause conflict in role responsibility in an NFR decision, as a health care professional not commencing resuscitation in the event of a cardiac arrest could potentially cause the issue of passive non-voluntary euthanasia. This is a further professional implication that the nurse may experience when a decision such as NFR is initiated. Passive non-voluntary Euthanasia can be defined as when the individual who dies is unable to give their consent and the individuals competent requests concerning euthanasia are not known, such as Katie’s wishes are not know due to her not having the mental capacity.

In effect it involves not providing or discontinuing treatments that would be relatively successful in preventing the patient’s death because death is considered to be kind to the patient by the health care professional making the decision. Therefore, this type of euthanasia depends on other factors for its achievement in causing death, such as Katie’s underlying pneumonia which if left untreated could kill her or promote her inability to breathe satisfactorily without oxygen or respiratory assistance. By withdrawing treatment or as in Katie’s case creating an NFR that would normally be done for a patient with this condition, with the objective of causing the patient’s death out of compassion could be regarded as passive euthanasia and be interpreted as allowing the patient to die rather than killing them. Again when faced with such a situation the nurse must always abide by the NMC Code (2008) and act lawfully in their practice and they will not be accountable for breaching their professional duties. In conclusion, this essay has contained numerous reasons why legal implications could arise due to Katie’s mother disagreeing with the NFR decision.

When a health care professional makes a decision such as NFR, it is taken very seriously and as this essay has explained the health care professional has a legal obligation to justify their decision. They are required to follow the appropriate assessments and procedures before making their decision. The health care professional has a duty of care to their patient and they must ensure that they are considering the overall outcome and quality of life if CPR was performed and if it would be in their patient’s best interests or potentially cause harm. It is imperative that they discuss all decisions with the immediate family and reassure the family that they are acting in the best interest of the patient (Hawley, 2007). Decisions such as NFR need to be regularly reassessed because a patient’s condition may improve or they may regain their capacity to make decisions. There are many legal and professional implications that the health care professional could encounter due to such a decision. Therefore it is essential that they are aware of the law because they will be accountable for their actions.

Ultimately they must be able to prove that they are acting in the best interests of the patient and be able to provide relevant evidence to support this. In this particular scenario, Katie’s mother was made fully aware of the NFR decision and what it meant if Katie was to have a cardiac arrest. She was involved in the decision making process and consulted regarding her daughters condition. Soon after the health care professional made the NFR decision Katie’s health deteriorated due to the Pneumonia and subsequently her quality of life was poorer than previously. It was at this point that Katie’s mum finally accepted the NFR decision and realised that it was in the best interests of her daughter that she should not be resuscitated.

As the essay has shown, in the event that Katie’s mother pursued a clinical negligence claim against the Health Board, on the grounds that she believed the health care professionals in charge of Katie’s care were neglecting her daughters right to life, the likelihood of a ruling that Katie be for resuscitation in the event of a cardiac arrest would be unlikely due to Katie’s mental capacity, overall outcome, quality of life and the evidence supporting the health care professional’s decision that it would be in Katie’s best interest.

In conclusion, the essay draws on the fact that all health care professionals, when making a decision such as NFR are required by law to assess patients mental capacity, follow a code of practice and always act in the best interest of the patients regardless of the patients families views and a patients disability. In order for this to be achieved, the Bolam Test and Section 4 of the MCA (2005) should be considered. The health care professional in this scenario conducted their decision process accordingly, following the correct assessments and legal frameworks, basing their decision on Katie’s best interests due to her ill health rather than her learning disability. Word Count 4,268

* Airedale NHS Trust v Bland [1993] 1 ALL ER 449
* B v An NHS Trust [2002]2 ALL ER 449
* Beauchamp TL and Childress JF, (1989), Principles of biomedical ethics, third edition, Oxford University Press * Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 * British Medical Association (2007) Resuscitation Council (UK) and the Royal College of Nursing, Decisions relating to cardiopulmonary resuscitation, BMA. * Campbell A, Grant G and Jones G, (2005) Medical Ethics, Fourth Addition, Oxford publishers * Castledine G, (1993), The Nursing Way of Death, British Journal of Nursing, 16: 138-146. * Degrazia D, (1999), Advanced Directives, Dementia and the ‘Someone else problem’ Journal of bioethics, 13 (5): 373. * Dimond B, (2008) Legal aspects of Nursing, Fifth edition, Pearson education publishers. * Donogue v Stevenson [1932] AC 562 599

* Grifiths R and Tengnah C, (2008), Mental Capacity Act; determining best interest, British Journal of Community Nursing, 13 (7): 335-340 * Hawley G (2007) Ethics in clinical practice: an interpersonal approach. Pearson Education. * Herbert C L, (1998), ‘To be or not to be’ an ethical debate on the not for resuscitation status of a stoke patient, Journal of Clinical Nursing, 6: 99-105 * Hughes JC and Baldwin C, (2006), Ethical issues in dementia care; making difficult decisions, Jessica Kingley Publishers * Hutchinson C, (2005), Addressing issues related to the adult patient who lack the capacity to give consent, Nursing Standard, 19 (23): 47-53 *

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* Note on Leslie Burke * National Health Service Trust A v D and others [2000] Lloyds rep med 411 * NHS Trust A v M [2001] 1 ALL ER 801

* NHS Trust B v H [2001] 1 ALL ER 801
* Nursing and Midwifery Council (2008) Code of Professional Conduct: Standards for Conduct, performance and ethics, NMC * R (on the application of Burke) v General Medical Council and Disability rights commission and the official solicitor of the Supreme Court [2004] Lloyds Rep Med 451 * Re A (Mental Patient: Sterilisation) [2001]) 1 FLR 594

* Re C (Adult refusal of treatment) [1994] 1 ALL ER 819
* Re J (a Minor) (Wardship: Medical treatment) (1991) Fam 33; [1990] 3 All ER 930; [1991] 2 WLR 140; Times, 03 October 1990; [1992] 1 FLR * Rumbold G, (2002) Ethics in nursing practice, Third edition, Bailere Tindall Publishing * Rundell s and Rundell L, The Nursing Contribution of the resuscitation debate, Journal of clinical nursing, 1: 195-198 * Runicman B, Merry A and Walton M (2007), Safety and ethics in healthcare; a guide to getting it right, Ashgate publishers * Schluzt L, (1998), Not for Resuscitation; two decades of challenge for nursing ethics and practice, nursing ethics, 4 (3): 227-240 * Thomson IE, Melia KM, Boyd KM and Horsburgh D, (2006) Nursing ethics, Fifth edition, Churchill Livingstone.

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