What are the legal, ethical and professionals implications of this case? Throughout a nurse's career they have to consider the legal, ethical and professional implications of every action they do. The people that will be named in this assignment have been given a pseudonym, to protect their identity in accordance with the section 5 of the Nursing Midwifery Council Code of Professional Conduct (2002). I will also reflect on my essay using Gibbs (1988) theory of reflection. To be able to address this case I feel it is important to know what a law is.
This can be divided in to two areas; Criminal law which relates to the conduct of an individual which is punished by the state and Civil law which relates to a relationship between individuals (Fletcher et al, 1995). In the law it states that a childrens nurse must take into consideration;
The Children Act 1989 which states that the welfare of the child is paramount, Article 8 of the Human Right Act 1998 ('child or minors right to refuse medical treatment') and every Child Matters 2003. As a professional nurse you are bound by The Professional Code of Conduct which is produced by the Nursing and Midwifery Council (NMC) (2004). Another aspect when addressing this case study would be to look at the ethical implications. Ethics is a series of moral behaviour whether it is right or wrong or ethical or unethical (Icheku, 2012). Icheku's (2012) (pg20) definition states that 'Ethics is a branch of moral philosophy which examines what is good (ethical) or bad (unethical) in ones decision or action' (pg20).
Beauchamp and Childress (2001) developed a set of principals that provide an analyitcal framework for the children's nurse to work from which represent general values which underlie rules in common morality. They describe these as moral prinicipals, moral obligations or commitments, which are respect for autonomy - which means they have the cognitive ability to make informed choices; justice means to act in away that is fair to everyone; beneficence means to act in ways that promote the welfare of others, and non-maleficence which means not to inflict harm on others (Beauchamp & Childress, 2001).
The case study I will be exploring relates to a 15 year old girl, Teesha who comes into A & E after an asthma attack, and informs the nurse looking after her that she is pregnant and that she consumes 20 units of alcohol a day. Her parents are not aware of the pregnancy and Teesha is threatening to discharge herself if the nurse informs them. The Nurse in charge has stated because she is a minor she must inform the parents and does so. Teesha's mother has arrived at hospital very distressed and has told Teesha to have an abortion.
Teesha is now very distressed. The first issue of this case is whether Teesha has autonomy. If a child has autonomy which has to be verified by a doctor, and they do not wish their parents to know it would be a breach of confidentiality to inform them, which would be a breach of the Nursing Midwifery Council Code which carries consequences in the form of a professional conduct comittee.
They then would have complete autonomous rights when it comes to consenting to treatment, refusing treatment or informing the primary carers of information relating to treating the minor. What has to be decided first is whether Teesha has autonomy. To confirm if Teesha has autonomy, a doctor would have to assess her as 'Gillick competent'. This means that Teesha has emotional and intellectual maturity and understanding, and that she understands the possible complications and or side effects of the proposed treatment. If she is found to have 'Gillick Competence' then she has the right that her parents are not given the information regarding her pregnancy.
But if it is found that she does not have 'Gillick compentancy' her parents need to be informed as the are her primary carers and they will then be responsible for the welfare of both Teesha and her baby and giving them the support needed . The Children's Act 1989 states that 'a child or minor means any person under the age of eighteen years'. This means that the responsibilty for any treatment in relation to that child or minor is with the primary carer, a person with parental responsibility (Human Rights Act, 1998) who can be the parents or a guardian in the eyes of the law.
The case of Gillick v West Norfolk and Wisbech Health Authority (1997), challenged the Children's Act 1986 stating that children under the age of 16 years old were capable of understanding all aspects of advice given to them by a healthcare profesional relating to treatment, procedures and the risks and so were able to consent to treatment themselves and that they do not need their parents consent, these were known as 'Gillick Competent Teenagers'. The Human Rights Act (1998) Article 8 states that if the minor is found to be 'Gillick Competent' (i.e. mature) then they have complete autonomy, just like adults. It is then important that the nurse promotes and advocates the rights of the young person (DH, 2003).
Nurses face a dilemma when trying to act as the advocate for the child or minor when a child is refusing to inform the parent/carer. According to Lowden (2002) nurses often have to weigh up whether to follow their professional values (NMC, 2004) and to respect a young persons wishes or to risk breaking the law.
Unfortunately, according to the Department of Health (2004) this does not appear to have translated into practice with the regards to refusal of treatment. This may be down to the paternalistic approach of healthcare professionals who may impose their veiws on this subject (Miller, 2003). The main conflict issue in this case is whether the nurse in charge breached confidentiality. Confidentiality in healthcare is a legal requirement that comes from statutory and case law and forms part of the duty of care to a patient (NMC, 2008).
The Nursing Midwifery Council (2004) states that common law defines confidentiality as ' people having the right to expect that information given to a nurse or midwife is only used for the purpose for which it was given and will not be disclosed without permission', it covers information disclosed directly or obtained from others. The Nursing Midwifery Council Code of Conduct (2008) defines confidentiality as ' when one person discloses information to another in circumstances where it is reasonable to expect that the information will be held in confidence'.
In the case of Teesha told the nurse looking after her in confidence that she was pregnant, she did not expect the nurse to tell her parents. Hendrick (2010) states that children are entitled to confidentiality if the can 'form a relationship of confidence'.
If Teesha can show that she is Gillick competent which can only be decided by a registered Doctor, then she is entitled to confidentiality, in this case it could mean that the nurse in charge has breached confidentiality. However, there is no such thing as absolute confidentiality, as information can be passed on under a need to know basis. Information can be shared on a 'need to know' basis under the NMC Code of Conduct (2009). When using 'need to know' which means that only the people or professionals that are involved with the case are entitled to know about the care being given, this can include the primary carer.
But as soon as the patient is discharged or moved to another ward then they no longer have a right to know anything about the case. In this case that would include the medical professionals dealing with her case and her mother who would be her primary carer. The mother would need to know as she will be the primary carer looking after and supporting both Teesha and the baby financially.
As a professional, a nurse has a 'duty of care' which means that according to the Nursing Midwifery Council (2004) the main cause for concern would be the care of the patient. This also incorportates not causing harm to your patient, and disclosing the information. In the case of Teesha the nurse has informed Teesha's parents against her will, so has caused her harm by distressing her and giving her cause to lose her trust relationship with the nurse. Under the ethical principal of non-malficence we should do no harm to our patient either intentionallty or inadvertently (Hendrick, 2004).
In this case the nurse in charge has disclosed the fact that Teesha is pregnant to her parents, even though this was done with good intentions it has caused Teesha harm. On the other hand the nurse in charge or any other nurse has a duty to act in a way that benefits her patient according to ethical prinicipal of beneficence (Beauchamp & Childress, 2001).
In this case the ethical prinicpal of beneficence wasinforming Teesha's mum so that she could help with supporting and looking after Teesha and her baby. Nurses are within their rights to claim that they act in the best interest of the patient. Thus meaning the need to protect the child from physical or psychological harm. In the case of Teesha, you would have to take into consideration that she is pregnant and proper healthcare, such as regular checks with antenatal care would not benefit Teesha or her baby. According to the Nursing Midwifery Council Code of Conduct (2008) 'Every nurse must act in the best interest of the patient'.
This mirroring beneficence refered to earlier. Justification for all nurses actions are found under Nursing Midwifery Council Code of Conduct (2008) and the Data protection Act (1998) which allows the nurse to breach or disclose information when the patient poses a risk to themselves or any one else. If the nurse did not breach confidentiality she would then have to be aware of where she kept Teesha's notes or care plan so that the parents were not able to read them. Nurses are believed to be virtuous (NMC, 2008) which is based on the ethical theory of Virtue Ethics.
This theory is concerned with the whole of the person's life rather than a particular aspect of it. A core virtue of this theory is a caring character. Nurse's are considered to be of good character which includes trustworthy, empathethic, honest and caring (NMC, 2004). Another ethical theory is Deontology which means 'duty for duty's sake' and states that as long as your actions are guided by these principals you are ethically correct (Icheku, 2012, pg 63).
Meaning you might not be happy with the decision made but it is your duty to do it. So in the case of Teesha the nurse might not be happy to break confidentiality, but has done it in the best interest of the patient. Best interest means for both Teesha and the baby by ways of making it easier for Teesha to get proper antenatal care.
A nurse's duty is to follow the rules of the Nursing Midwifery Council Code of Conduct (2009). According to the ethical theory utilitarian any action that benefits the patient more with less harm is considered to be a good decision. Therfore disclosing the issue to Teeshas mum will do her more good as the mother is in a better position to support Teesha and her child even though it has caused distress to Teesha. Another important ethic issue to take into coinsideration is that Teesha is drinking 20 units of alcohol a day which according to the Royal College of Obstetricians and Gynaecologist (2006) 20 units is a heavy drinker.
It is important to consider is why she drinking? It could it be due to abuse, this could be parental or another person, and it could explain why does she not want to tell her parents. As a nurse you have a duty of care towards your patient and in the eyes of beneficence you must not do your patient harm, but under the Utilitarian theory if your actions are morally correct and will bring the greatest amount of happiness and it prevent pain, the consequences are important.
The consequences could be that you are having to report any suspicions of safeguarding which may harm Teesha by causing her upset and distress. Another issue to be considered is the harm she is doing to the baby with the drinking as it may cause Fetal alcohol syndrome which could leave the child with moderate to severe learning difficulties (Royal College of Obstetricians and Gynaecologist, 2006). Under beneficence the nurse has a moral obligation to act in the benefit of others because Teesha is doing harm to the baby by drinking alcohol. In conclusion, there are many legal, ethical and professional implications to consider within a nurse's role, particularly in the case of Teesha and her pregnancy. The over-riding issue must be the duty of care to the patients, Teesha and her baby.
Consideration for her legal rights as 'Gillick Competence' is, of course, of utmost importance regarding the confidentiality and thus, enabling trust. However, the nurse's professionalism and experience will ensure that the correct practice will guarantee that the necessary legal and ethical laws are abided by and the patient's rights are adhered to, and appropriate care is provided to both the Teesha and the baby.
Bibliography Allen, N. (2005) Making Sense of the Children Act 1989. 4th ed. Chichester: JohnWiley & sons Beauchamp, T.L., Childress, J.F. (2001) Principals of Biomedical Ethics 5th ed. Oxford: Oxford University Press.
British Medical Association (2001) Consent, rights and choices in health care for children and young people. London BMJ Books
Children’s Act (England and Wales) (1989) Edinburgh: HMSO
Department of Health (2001) Consent- What you have a right to expect. A guide for children and young people. London: TSO
Department of Health (2003) National Service Framework for Children, Young People and Maternity Services: Standards for Hospital Services. London:DH
Department of Health (2004) National Service Framework for Children, Young People and Maternity Services. London: DH
Dimond, B., (2011) Legal Aspects of Nursing 6th ed. Harlow: Pearson Education Ltd
Fletcher,N., Holt, J., (1995) Ethics, Law and Nursing. Manchester: Manchester University Press. pg. 152-164
'Gillick vs West Norfolk and Wisbech AHA (1986) 1 AC 112 (HL) (Lord Fraser) 112' in: Parekh SA (2007) Child consent and the law: an insight and discussion into the law relating to consent and competence. Child: care and Development.33;1 pg 78-82
Glasper, A. Richardson, R., Eds (2006) A textbook of children and young people's nursing. London: Elsevier
Hendrick,J. (2010) Law and Ethics in Children's Nursing. Chichester: Wiley blackwell
Icheku, V. Ph.D, (2012) Understanding Ethics and Ethical Descision-Making: Case Studies and discussions. London: SG Williams Publishing UK Company Ltd.
Kings College London. (2012) Article 8 and Minors 'Right to refuse Medical treatment'. Available: www.kslr.org.uk/blogs/humanrights/2012/01/20/article-8-and-minors-right-to-refuse-treatment. Last accessed 25th May 2012
Lowden,J. (2002). Children's rights a decade of dispute, Journal or advanced Nursing 37:100-7
Miller, R.B. (2003) Children, Ethics and Modern Medicine. USA: Indiana University Press
Nursing Midwifery Council (2004). Professional Code of Conduct: Standards for Conduct, performance and ethics. Nursing Midwifery Council, London Nursing Midwifery Council. (2008). Make the care of people your first concern, treating them as individuals and respecting their dignity. In: Nursing Midwifery Council The code: Standards of conduct, performance and ethics for nurses and midwives. London: Nursing Midwifery Council. section 5.
Royal College of Obstetricians and Gynaecologist. (2006). Alcohol and Pregnancy. Available: www.rcogworg.uk/womens-health/clinical-guidance/alcoholandpregnancy-info. Last accessed 9th June 2012
Reflective Practice DESCRIPTION (What Happened) I have an ethics and law essay to complete by 25th June 2012. The case study has a number of conflict issues and you have to decided what professional Values, Ethical issues and laws are required. |
FEELINGS (What were you thinking & feeling) At first I thought this essay was going to be very intense and slightly uninteresting, due to the fact that I had the answer straight away, But did not know how I was going to put it into 2500 words. But as I got more involved I found that I was enjoying reading about the cases, some of the professional values were a little hard to work out but I got it slowly after I re-reading the chapters from different books and also reading the lecture notes. I did not enjoy looking up the Children's Act as I found that it was difficult to understand as you could perceive it in different ways. |
EVALUATION (What was good and bad about the experience) I understand the reasons for doing this subject and essay. I found I enjoyed looking up relevant case studies and laws, but getting the books out of the library at times was challenging as so many of us wanted the same book. I would have liked a little more time to do the essay so that I could have explored a few more books. I would have liked a book that went through the Children's Act in way that you could understand with examples, I did eventually find a book that explained the Children's Act simply so I was able to apply it to my essay.
I found that I was able to relate a lot of the ethics, laws to day to day living which I found very interesting and found that the Code of conduct was easier to understand than I thought. The only bad experience I found was writing the essay and putting it together until we had the assignment tutorial. Also another bad experience was that Caxton House was not available, but the lecturers and personal tutors were very supportive |
DESCRIPTION (What sense can you make of the situation) I understand that doing this subject and essay will make me a better nurse as it will help me through out my career when faced with conflict issues, and hopefully help me make better decisions both clinically and morally. |
CONCLUSION I found this module quite hard to understand at first and thought that all it was going to be about was the Mental Health Act and based a lot on adults. But it was equally based around children and adult. I found it very interesting to look and review laws relating to children. I also found it very interesting to find out that a person I know has been involved in a case study (Mrs Victoria Gillick). I have found this module very interesting and relevant to my career to make me a better nurse. |
ACTION PLAN (If it arose again what would I do) At start of year plan every module so that I know when the assignment deadlines are due. |