Law and Ethics in Nursing

Introduction

Tingle and Cribb (2002) identify that one of the key areas that highlights the development and maturing of nursing practice within recent years is that there is more of a focus on developing nurses understanding and knowledge surrounding the concept of ethics and law.

The NMC (2008) provides strict guidance about the nursing practitioners code of practice and the accountability that members of the profession should have towards patients in their care; it is in light of this that nursing professionals have a responsibility to develop their knowledge about the law relating to clinical practice and the ethical frameworks surrounding why decisions and judgements are made when delivering patient care.

This assignment will focus on the clinical issue of the covert use of medication in clinical practice, exploring the ethical and legal dimensions that may be faced by nursing professionals when faced by the question of what actions should be taken or withheld when a patient under their care refuses to accept prescribed medication or when they decline to adhere to a pharmacological treatment plan.

The aim will be for this assignment to explore what the legal and professional perspectives are if this situation were to arise in clinical practice and to address the ethical concepts that should be taken into consideration.

This assignment is based on an experience I had whilst on placement where an elderly gentleman refused to take his medications and adhere to his pharmacological treatment plan; this one decision placed his health and wellbeing at significant risk and presented a considerable legal and ethical debate to the team providing his care. In light of this it will be the underpinning theme referred to throughout this assignment with specific reference being made to the issue of what ethical and legal frameworks could be utilised to support the clinical decision to covertly administer medication; as the gentleman in question had a severe dementia.

Covert Use of Medication – Definitions

Covertly administering medication is described as being a complex issue (NMC, 2007); however it is suggested that it is a process where medication is administered either disguised in food or drink to a patient who resists accepting it when it is offered openly (Royal College of Psychiatrists, 2005).

Welsh and Deahl (2002) suggest that covert medication use may be perceived as a primitive institutional practice from the past where medication was either accepted or covertly administered without the individual’s rights, choice and freedoms being acknowledged.

Administering medication covertly means that the patient is absorbing an agent into their body without having given their agreement that this is what they want to take place; to covertly administer medication is reported to be not only ethically sensitive but a pervasive practice in many healthcare settings (Royal College of Psychiatrists, 2011). Health and social care professionals often resort to this method where the patient has refused to take medication when it is offered but treatment is necessary for the person’s physical or mental health (Griffith, 2007).

The decision to administer medication covertly should not be taken lightly as it is important that considerations are made in relation to the benefits of the and the necessity of the treatment versus the practice of deception; any benefits of giving medication covertly should be weighed up against the risks relating to giving medication covertly (NHS Tayside, 2008).

Covertly administering medication has led to disciplinary action being taken against medical and nursing staff (Kellett, 1996) however the NMC (2007) and the Mental Health Act Commission (Treloar et al., 2000) have indicated the practice is permissible in special situations.

Covert Use of Medication – Legal Implications

It is clearly indicated in the literature that prior to administering treatment, performing a clinical intervention, undertaking an investigation or assisting with care that healthcare professionals must obtain the patient’s valid consent (Department of Health, 2009; Tweddle, 2009; Royal College of Psychiatry, 2003; GMC, 2008).

The law holds bodily integrity in high regard (Griffith, 2004); which means that individuals have the right to determine what happens to their body and to be involved in all elements of the decision making process. In the context of healthcare this translates into the patient giving their agreement or consent to all elements of their care and treatment before any intervention or treatment is given, their choices and wishes are identified and respected and collaborative approaches to care are achieved.

The Department of Health (2009) suggests that for healthcare providers it is important for them to obtain consent before any activity so that there is no uncertainty about the wishes of the patient. If an individual is touched without their consent then there is the risk that the patient may take up their right to sue for trespass or to seek advice from the authorities such as the police regarding assault. If consent has been obtained from the patient then the healthcare professional does have protection to avoid any legal penalty (Dimond, 2008).

For the healthcare professional to maintain legal protection the consent of the patient needs to be obtained; this process must ensure the patient understands the nature of the decision and has all the information in order to make an informed choice; the patient must be able to consent freely without coercion or pressure and finally the patient must agree to all elements of the proposed treatment or intervention (Griffith, 2004).

If there are any issues or concerns regarding the patient’s ability to give their consent then consideration needs to be made by the healthcare team to whether the patient has the capacity to consent to treatment. Any mentally competent person has the right to give or withhold consent to treatment (Haxby and Shuldham, 2008) and by having mental capacity this ensures the individual makes decisions regarding consent in a reasoned manner.

The Mental Capacity Act (2005) is a legislative framework which supports healthcare practitioners in deciding if patients in their care have the capacity to make decisions for themselves regarding medical treatment. The Framework of the Mental Capacity Act (2005) became legally operational in October 2007 and since this time the principles have been mandatorily adopted into health care.

The statutory principles of the Mental Capacity Act (2005) identify that healthcare practitioners must assume that individuals in their care have capacity to make decisions regarding their care and treatment and if there is any debate over an individual’s ability to give their consent or to withhold their consent it is up to the professionals involved in their care to prove lack of capacity. The professionals have a duty to ensure every opportunity has been offered for an individual to engage in the decision making process and an example of this would be for medication with sedative properties to be briefly omitted, if appropriate, so that the patient could be more alert and responsive to information; another example would be for an individual toxic through infection to receive treatment for the acute illness before discussions are held regarding other elements of their treatment such as surgery or other procedures.

A key element of the Mental Capacity Act (2005) is for there to be an understanding that individuals who have capacity have the legal right to make unwise decisions or decisions that may go against the opinion of the healthcare professional; an example of this could be the patient who is deemed to have capacity and discharges themselves against medical advice or the patient with capacity who refuses to take their prescribed medication as they do not wish to experience the side effects. Both of these examples highlight that although perceived to be unwise decisions from the perspective of the healthcare provider; it is supported legally for these decisions to be made and for healthcare professionals not to face penalty.

The individuals decision not to consent to care or treatment is legally binding if they are deemed to have capacity and the healthcare professional should respect the patients choices even if it is not perhaps a choice advocated by the care team; making an unwise decision or choice does not mean the patient lacks capacity, the patients’ rights should be respected and the NMC (2008) suggest that nurses and midwives would be in breach of professional duty if they refuse to accept the patients decision.

The Mental Capacity Act (2005) applies to adults (for the act age 16 and over is classed as an adult) and if there is debate as to the patients capacity to consent to treatment and intervention then it is the responsibility of a member of the health care team; or a professional person who knows the patient best, to assess and test the capacity of the patient.

Assessing mental capacity occurs in two stages; firstly it needs to be identified if the patient is experiencing an impairment of, or a disturbance in the functioning of, the mind or brain (MCA, 2005) and secondly whether the person lacks the ability to make decisions as a result of this impairment or disturbance. In essence the healthcare professional legally has to identify if the patient understands the nature of the decision being made, if they can retain the information being given to them and that they can communicate their wishes in a reasoned manner; if this is not conveyed by the patient then it may be because they lack capacity to make a decision.

It is important to note that a capacity decision has to be decision specific and if an individual lacks capacity to decide if they should take their medication or not it should not be automatically assumed they cannot make decisions about other elements of the health and welfare.

If mental capacity is assessed to be lacking in relation to the particular decision to be made then action must be taken in their best interests (Dimond, 2007). This process should ensure the patient’s wishes are considered, family views and advocacy occurs in addition to the outcome being as beneficial and as least restrictive for the patient as possible.

Instances where an individual may lack capacity may include the patient with severe dementia or learning disability, the patient under the influence of drugs or alcohol, the patient who is toxic or delirious due to acute illness or infection, the patient who is in severe pain or distress or the patient who is unconscious or comatose.

Another legal framework that can provide both patients and health professionals with legal guidance regarding rights, choice and freedoms is the Mental Health Act 1983(Department of Health, 2008).

The Mental Health Act 1983 (DOH, 2008)) is designed to protect the rights of people in England and Wales who are assessed as having a ‘mental disorder’ and the act provides different sections which provide structure and guidance as to how individuals are treated. Section 3 of the Mental Health Act is described as a treatment order and it is under this section that individuals may be given medication covertly particularly if two doctors confirm that

the patient is suffering from a mental disorder of a nature or degree that makes it appropriate for him or her to receive medical treatment in hospital; and appropriate medical treatment is available for him or her; and it is necessary for his or her own health or safety, or for the protection of others that he or she receives such treatment and it cannot be provided unless he or she is detained under this section (MIND, 2010).

It is important to remember that the Mental Capacity Act (2005) and the Mental Health Act 1983 (DOH, 2008) are two pieces of legislation that protects healthcare professionals and the patient only if there is evidence of either mental disorder or lack of mental capacity; it is important to stress individuals without experiencing either difficulty i.e. they are believed to have capacity and not to be suffering from any mental disorder, are free to make their decisions about their care and treatment whether wise or not should be respected and adhered to.

Covert use of medication should not be confused with administration of medication against a competent patient’s wishes as this is unlawful and may signify a tort or civil wrong of trespass to the patient (NICE, 2007; Griffith, 2003). It is, however, acceptable under the provisions of the Human Rights Act 1998 that medication can be administered covertly to an incapacitated adult and would not contravene their human rights is the medication can be shown to have a therapeutic necessity (Griffith, 2007).

Covert Use of Medication – Ethical Implications

When a patient refuses medical treatment, or in this instance refuses to take medication that is deemed to be necessary to sustain healthy living and reduce health complications, it may be difficult for the nurse to remain objective and free from internal conflict. The issue of conflict may arise due to an ethical dilemma where the nurse may be placed in a position to make decisions and judgements about what the right and wrong course of action may be.

Seedhouse (2005) suggests that rules and principles are necessary and often conflict; because of this actions must be placed in context to see which are the most appropriate in a given situation; any course chosen must be justified and this may be done by appealing to principles and by emphasising the benefit of the expected outcome.

The work of Beauchamp and Childress (2001) is referred to frequently in contemporary literature for medical ethics (Seedhouse, 2005) and their ‘four principles approach to medical ethics’ supports clinicians who may not have firm or advanced knowledge on the topic of ethics and ethical reasoning.

The four principles comprise of beneficence, non-maleficence, respect for autonomy and justice and each one of these principles will be explored further in the context of the covert use of medication.

Beneficence

The principle of beneficence is based on the obligation to provide benefits and to balance benefits against risk (Seedhouse, 2005), this means that the nurse has a professional duty and moral obligation to undertake positive actions aimed at safeguarding the health and welfare of patients (Tweddle, 2009).

Beneficent acts are thought to encourage physical and psychological benefit and included in this are actions that are taken to prevent disease, promote health and reduce pain and suffering (Hendrick, 2000).

The ethical principle of beneficence requires nursing staff to help others to further their important and legitimate interests, often by preventing and removing harms (Pellegrino and Thomasma, 1988).

In the context of using medication covertly it may be ethically reasoned that by giving the patient their medication covertly they are acting in a manner that ensures the patients health and welfare is maximised.

The elderly gentleman which has been used as a clinical example from practice was refusing to take his medication and lacked capacity to consent to accepting treatment. The medications which he was prescribed included; warfarin for vascular problems, a statin for hypotension and an anti depressant. It would be harmful for the gentleman not to continue to take his prescribed medications and for the nurse to covertly give the prescribed treatment this would ensure that any further health complications are minimised and also improve his current health status.

Non-Maleficence

This ethical principle is based on the principle primum non nocere; which is Latin for ‘to do no harm’. The concept of non-maleficence is an obligation for the nurse not to inflict harm; however it is important to recognise that all treatments involves some element of harm even if this is minimal; the harm should not be disproportionate to the benefits of treatment (Beauchamp and Childress,2001).

With the covert administration of medication it is important to acknowledge that medications have side effects that may impact on the patients health and wellbeing; however in the case example of the elderly gentleman the risks to his health and wellbeing would be far more significant by not having his regular medication in comparison to the medication side effects that may occur from the treatment.

Tweddle (2009) highlights the concept that beneficence and non-maleficence are principles that are closely linked and in nursing practice these ethical viewpoints may often present frequently as the moral objective is for nurses to help those who are sick and prevent harm. There are times when this mandate is difficult to achieve particularly when for example a particular treatment or intervention may help those who are sick (for example giving an injection of an anti emetic for a vomiting and nauseous patient) but may also cause harm (pain and inflammation at the injection site).

Respect for Autonomy

Autonomy is the principle that relates to the respect of the patients decision making capabilities; the principle acknowledges the right of a person to determine how his or her life should be lived and to make choices that are consistent with his/her life’s plan; there must also be acknowledgement of the importance of an individual’s right to determine how he/she lives his/her life, free from coercion (UK Clinical Ethics Network, 2010).

In nursing practice this would mean that patients have the right to be respected, that they should be given the opportunity to understand and evaluate what is being asked of them and that they are provided with all the relevant information to support their decision making process.

In the clinical example, the gentleman in question was unable to act autonomously when making a decision about his medication as he was unable to retain the information or evaluate the risks associated with the decision not to accept his medication. Discussions held with family members by the ward sister identified it was only within recent months that the patients adherence to medication had become an issue (this ran parallel with the decline in the patients dementia and subsequent mental capacity issues), the inference and evidence would suggest that the patients choices had deviated from his previous behavior and life plan.

An important consideration is that nurses should continue to respect a patients autonomy regardless of the outcome of certain decisions; for example by declining to take the prescribed medication the patient had made a decision that should be respected even if in this clinical case it was decided to contradict his wishes in his best interests to ensure he had his medication. Just because he was unable to give his consent and be autonomous in decision making in relation to the medication does not mean that all decisions should be made without discussions; for example the patient may be able to make autonomous decisions about what he would like for his breakfast, if he would prefer a bath or a shower or if he would want to go back to bed in the afternoon for a rest. The patient should be supported to make an autonomous decision on each matter by the nursing staff unless it becomes evident that he lacks capacity to do so.

Justice

The ethical principle of justice is difficult to define suggests Seedhouse (2005) however there are two common approaches considered in the literature; justice can be viewed as fairness or justice can be perceived as appropriate punishment for wrongdoing.

In the context of health care it is the principle of fairness that is of most importance and it is suggested that justice in fairness means that patients have their rights achieved, receive what they deserve, and have their needs met (Miller, 1976). The UK Clinical Ethics network (2011) suggest that a working definition of justice is that there is a distribution of benefit, risk and cost fairly and the notion that patients in similar situations should be treated in a similar manner.

Gillon (1994) suggests that health care workers need to tread warily as they should not feel they have justification to impose personal or professional views about justice on others; it is advised that nurses and other healthcare professionals become aware of competing moral concerns (the view and ethical perspective of the nurse may not correspond with those of the patient). For example; family members may demand an expensive treatment for their relative that has no evidence base of efficacy for the patients clinical needs, the patient may request immediate help from nurses to assist with a shower when another patient requires urgent medical intervention or; a doctor may not prescribe a certain medication with proven benefit due to cost implications.

In the clinical example of covert medication administration; fairness and justice is considered as the decision could be taken that as the patient is old, physically frail and demented that they should not be afforded the same opportunity to improve their health as other patients with less complex issues. This would not be ethically fair or just therefore steps and intervention should be taken to attempt to improve the patients heath status in the same was any other patient would be treated.

Covert Use of Medication Vs Truth Telling

The NMC (2004) clearly identifies that the nurse has a duty to ensure all patients receive information about their condition and it should be accurate, truthful and easily understood; the code of practice also states that as a nurse you must be trustworthy. In contrast however Collis (2006) highlights that it is widely accepted that deception occurs in healthcare and that there is some belief that deception is justifiable if it results in the patient being protected from harm.

As previously identified from a legal perspective nurses need only give certain elements of information to those able to make a competent decision and as the patient in the clinical example was deemed to lack capacity; therefore not competent to make a decision about the importance of adhering to his medication regime, it was decided in his best interests to have the medication covertly by proceeding in a manner that is termed by Beauchamp and Childress (2001) as ‘benevolent deception’.

Literature supports the use of covert medication in clinical care, but only if the patient lacks capacity (and all the assessments have taken place to support this) and only if it is absolutely necessary that the medication is for maximising their health (Blythe, 2000; Sommerville et al., 2002; Griffith et al., 2003).

Conclusion

The covert use of medication presents both a legal and ethical challenge for nursing staff as there requires balance to be sought between respecting a patients’ rights, freedoms and choices against what is the most beneficial and health maximizing approach that would improve the patients healthcare status.

What is of paramount importance for the nursing team is to be familiar with the legal frameworks relating to mental capacity as it is this is what sets the course for how care is delivered and how clinical decisions are made. The capacity of the patient should be assessed and defined before any interventions planned and implemented with the ethical reasoning process working in parallel to ensure the care and treatment of the patient is not only ethical but legal.

The decision making process of covertly using medication is challenging; however judgment about using this practice should only be made following discussions within the care team and should be made collectively.