Legal and ethical aspects of the perioperative phase

The perioperative period refers to the time before commencing a surgical procedure and extends to slightly after the procedure. The period is divided into three distinct phases namely; the perioperative, the intaraoperative and the very last period also called the post operative period. Perioperative is the term used to sum up for all the three phases. This phase is marked with special medical care provided by the nursing team. All the three phases are thus marked with various nursing activities.

For any surgical procedure to be done there must be an agreement between the doctor and the patient . In the medical fraternity the procedure involved in agreeing on whether to pursue or not to pursue an operation is called obtaining consent. This paper gives a critical analysis of the legal and ethical parameters of the perioperative period, a description of the events in each of the three phases, examples of cases where the recommendations have been applied and few where the recommendations have not been adhered to hence the consequences.

During the perioperative phase, a patient’s informed consent is sought before any attempt to relocate the patient from the ward to the operation room. For patients who may not be in a position to consent for themselves, approval is sought from their close relatives present or reference made to any advanced directives if the patient had any. This period is marked with psychological and physical preparation of the patient for the procedure headed for in the operation room. Different operations will need varying lengths of time for this period with some being shorter while others being lengthy.

Normally this period entails stringent diagnosis of the patient’s condition and the reports from these findings are used for subsequent patient care. In the same period, it is the nurses’ responsibility to provide information that may include counseling and physical support. (Keffer L, 2000, p23) The perioperative period is then followed by the intraoperative where the patient is moved from the ward into the theatre. The period ends on moving the patient from the operation room to any other facility in which the patient can undergo recovery from the anesthetic effect.

In the intraoperative period, the patient undergoes the operation while under anesthesia and the nursing activities at the same time are geared towards enhancing the procedure, ensuring the absolute safety of the patient which entails ensuring that the procedure is done under sterile conditions and ensuring the efficacy of the anesthesia with regard to the patient’s response to the procedure. (Stoelting K and Miller D, 1994, p 456). The postoperative period ensues on relocating the patient from the post surgical recovery facilities into the facilities meant for surgical recovery .

This period unlike all the rest is bound to end in other facilities that are outside the theatre. It is expected that nursing services be provided by nurses trained in post anesthesia especially for cases where the patient is bound to remain hospitalized for some time before going back home. The nursing services offered in this period are geared towards enhancing the patient’s psychological recovery alongside physical recovery in readiness for departure from the hospital. All the nursing activities in all the three phases of the perioperative period are geared towards ensuring the survival of the patient through the entire procedure.

Other important nursing activities in the postoperative period include ascertaining the patient’s response to the surgery that may call for aided recovery procedure (Federation of Nurse Anesthetists). The preoperative period is such a sensitive period in medical practice that is marked with high skill in surgery and the use of a wide range of anesthetics. Medical practioners in this field are thus expected to perform their duties within limits of their best ability, responsibility and accountability as expected by their professional ethics. An individual’s ability to perform a duty is marked by his expertise and level of skill in the same.

Doctors are thus expected to exhibit utmost skill especially when handling sensitive procedures like operations in the theatre or before subjecting a patient to the entire operation period. The ability to perform the task skillfully will determine a doctor’s responsibility and accountability. A doctor who does not abide to these ethical regulations is bound to be questioned by the legal framework. With the legal framework implicated, doctors involved in any periopearative procedure are subjected to both the criminal and the civil law (Lawrence et al, 1998, p562).

The criminal law measures the doctor’s entire responsibility and accountability to the general public while the civil law measures the same towards the patient. Studies indicate that it is quite rare for a doctor or a medical expert to be criminalized on charges related to the general public. Majority of cases point to civil charges that encompasses offences towards the patient. A large number of the offences committed by doctors in the preoperative period are attributed to negligence which is a likely indication of a doctor’s unethical conduct while handling a medical procedure in the perioperative period.

The doctor’s unethical conduct that amounts to negligence is summarized by the legal framework in three perspectives including; causation, standard of care and the duty of care. With regard to negligence in the preoperative period, the duty of care was incorporated in to the legal framework not in relation to any type of medical related case but as result of any acts aimed at other human beings. (Spry, 2005, p784). With reference to the legal and ethical parameters of the perioperative period, a number of similarities and differences exist between the expected standards.

For instance with regard to aspects of both the legal and professional ethics, the there exists a difference between doctor’s advocacy towards the patient an aspect fostered by the professional ethics and not the legal framework. The legal framework thus fosters minimal accountability with regard to the standards of the practice while the professional ethics demands for the utmost standards in the practice. This thus explains why a doctor stands to be questioned for not adhering to the professional code of ethics even if he or she may be practicing within the provisions of the legal framework. (Woodhead, 2005 p45).

An aspect that exists in both the legal and the professional ethics is the need to ascertain a patient’s informed consent. This in the professional ethics is fostered for the purpose of respecting the patient’s own right over his or her life. (Kathleen, 2001). Any procedure done on the patient without his or her approval is considered as a crime especially when the patient is in perfect position to approve or differ by him or herself. It is recommended that for cases where the patient is not in a position to consent, a close family member be sought for the approval of the procedure before it is carried on by the medical team.

The regulations regarding the need for informed consent in any medical procedure are covered in the patient charter which recognizes the need to have the patient approve or differ with the need to have any medical procedure . The contents of an informed consent as per the patients charter regulations thus include; disclosure which entails the doctor’s attempt to make known the expected medical remedy to the patient, understanding which is an opportunity for the doctor to discuss in details the implications of the disclosed report and perhaps give the patient an opportunity to seek clarity on a number of issues that may not be common to them.

This is followed by voluntariness which is a measure of the patient’s willingness to undergo or not to undergo the procedure, competence which measures the patient’s ability to make proper decisions and finally consent which marks the patient’s approval or disapproval and has to be put in written before the procedure is started. For any delicate procedure to be performed especially with regard to organ transplant both the donor and recipient need to be fully in formed of the benefits and the risks associated with the procedure. (Sven T, 2007, p67).

It is necessary for a patient’s consent to be made by him/her self if a physical examination proves that the patient is capable of consenting for himself. For patients who may not be in apposition to consent for themselves, it is recommended that a family member for instance a parent is sought to consent on patient’s behalf. Seeking a patient’s consent is necessary since there a number of risks associated with the procedure that one is bound to regret. However there situations that may appear delicate and very serious that not even the patient on the verge of death or a close relative will consent.

In such a case if the doctors is sure of saving the patient’s life with the procedure, then it may not be very important to obtain consent, the benefit of the procedure can then be explained when the patient is out of danger. Most of the procedures involved are delicate and many people may not easily consent especially on knowing the risks involved. It is thus necessary that a critical evaluation of both the risks and the benefits is done before a assessing the need to obtain or not obtain consent. (Transplant Ethics).

Yet another aspect recognized by both the legal and the professional ethics is the need to have proper record keeping for all data and information pertaining any preoperative procedure. This aspect has been fostered in particular as a result of the increased cases of civil crimes where a number of patients are out to sue doctors for common cases of negligence while performing any procedure in the perioperative phase. Both the legal and professional framework recognizes the need to have change of responsibility in a number of perioperative procedures and demands that any changes be documented and responsibility enhanced.

Responsibility is held upon all parties involved in the perioperative procedure including learners whose negligence is punishable and blamed on their inability to learn or seek guidance. (Woodhead, 2005). The boundaries between the legal and professional ethics may differ to the extend that a doctor finds him or self meeting the provisions in one aspect and at the same time not acting within the expectations of the other. All records in perioperative procedures should be written in the most legible and unaltered manner and both the legal and professional ethics demand that any alteration made in the documents be accounted for.

(Miller R, 2005, p784). With regard to terminally ill patients who may have Do Not Resuscitate Orders (DNR). There exists varying perspectives as to whether to acknowledge or not to the orders when a doctor is performing a perioperative procedure. However the American Society of Anesthetics (ASA) recognizes and outlines situations where adhering to a DNR order may be necessary or not necessary in relation to the use of anesthetics in a perioperative procedure (Keffer M, 2000, p52).

Some patients approve the need to have their DNR orders altered while majority especially for those with bravely borne terminal illness may not consider having their DNR orders altered. Regulations regarding the adherence to DNR orders for a number of patients with terminal illness are complicated owing to the fact that unlike other forms of surgery, their ability to survive the medical procedure in surgery is not related to their age, nutrition, sex and body size that are factors determining the ability to attain recovery in a number of surgical procedures (Townsend, 2004, p90).

With regard to the legal and ethical aspects surrounding DNR orders, the Royal College of Nursing and the UK Resuscitation Society in the 2002 act acknowledges the need to have resuscitation in emergency cases with emphasis that the reality of a recovery promised with any resuscitation be made known and recommends that in any perioperative procedure, resuscitation can be done in accordance to the patient’s wish and forbids the same in the event that; the risk outweighs the benefit, the cost of meeting the procedure is far beyond the patient’s ability to meet and in the event that the patient refuses to be resuscitated (White et al, 2004, p453).

With regard to a number of infectious conditions that may call for a number of ethical regulations especially with the advent of HIV/AIDS. The use of anesthesia with regard to elective surgeries that may be needed to circumvent deformities linked to the compromised immunity is controversial. The doctor is bound to be challenged with the risk of coming into direct contact with the disease pathogen and both the legal and professional regulations may differ. In this regard it is required of the doctor to act in the best of his or her ability in the surgery to correct the morphological mishap and at the same time downgrade the chances of spreading the infection.

Both the legal and the professional frameworks recognizes that provided the patient meets the criteria for the therapy then the rest lies with the doctor’s responsibility in the entire perioperative period. (Stevenson et al, 2008, p456) Studies indicate that a large number of terminally ill patients have advanced directives that may take the form of a living will or a durable power of the attorney. The US congress in 1990 passed the patient self determination act which further explains the need for any patient who wishes to have any of the advanced directives adhered to advised on the same. Advanced directives are recognized by the legal framework and may be used to pursue civil crimes committed by the doctors in a perioperative period (Michael F et al, 2006, p90).

Diabetes for instance may be challenging with regard to the choice of the most appropriate perioperative care which calls for critical analysis of the condition before and after surgery as the recovery process is complicated and may in turn result in to other serious complications that the doctor may be held accountable for. It is thus advisable for the doctor to skillfully ascertain the impact of the condition on a number of body tissues and organs especially with reference to the level of an individual’s immunity. It is very important that a patient has his views respected in order that he or she may not be in any way disturbed psychologically by the effects of any medical procedure.

The process of decision making in most life threatening situations is devastating and advanced directives not only ensures that the patient’s will is upheld hence according him his dignity but also saves the family the agony of deciding as decisions made by others however close may greatly differ with the patients own view. Advanced directives are a form of upholding the patient’s right over their lives and thus should be respected (Transplant Ethics). With regard to the ethical and legal aspects of perioperative procedures, a case is implicated in the Cleveland clinic where in the process of correcting a dislocated spinal cord. , the doctor who happened to know of the possibility of their being a severe damage to the neck of the patient sought for the patient’s consent on the same and failed to disclose the risk of developing the neck deformity with the surgery.

The patient Army Sideway on going through the surgery succumbed to a serious neck injury and thus sued the surgeon for not disclosing all the risks inherent in the surgical procedure. In a Philadelphia clinic a surgeon on performing a procedure on a female patient discovered a tumorous growth on the stomach walls which he excised without having sought for the patients consent. The patient on recovery sued the doctor for litigation (White et al . 2004, p47). Perioperative procedures are delicate and the advent of various anesthetic technologies calls for the need to have proper professionalism and legal protection geared at protecting the patient whose chances of survival are determined by the doctor’s skill, responsibility and ethical obligation.

Any negligence is punishable and thus the legal and professional ethics are geared at enhancing good medical practices and saving human subjects. Patients on anesthetic management may not be aware of what is done on them and this should not be used for the abuse of medical practice but as a test for the same. Some aspects may call for critical assessment to ascertain the need to uphold or not to uphold with regard to the risk and the benefit involved. Bibliography: Transplant Ethics, information, comprehension, voluntariness: the keys to informed consent. Retrieved on 5th May 2009 from http://www. transplantethics. com/beinformed. Stuart White, Timothy J. Baldwin. Legal and Ethical Aspects of Anesthesia, Critical Care and Perioperative Medicine, Cambridge university press. 2004.

Stoelting RK, Miller RD: Basics of Anesthesia, 3rd edition, 1994. Michael F et al. Medical management of the surgical patient: a textbook of perioperative medicine. Cambridge University Press, 2006 Cynthia Spry. Essentials of perioperative nursing Jones & Bartlett Publishers, 2005 Stevenson et al. Perioperative Guidelines for Elective Surgery in the Human Immunodeficiency Virus-Positive Patient. Plastic & Reconstructive Surgery. American society of public surgeons121(5):1831-1840, May 2008 Woodhead et al. A textbook of perioperative care. Elsevier Health Sciences, 2005 Laurence B et al. surgical ethics. Oxford University Press US, 1998

International Federation of Nurse Anesthetists Nurse anesthesia worldwide: practice, education and regulation retrieved on May 6, 2009. From http://www. Nurseanesthisiaworlwide. org. Townsend, Courtney. Sabiston Textbook of Surgery. Philadelphia: Saunders . 2000 Miller, Ronald. Miller’s Anesthesia. New York: Elsevier/Churchill Livingstone. 2005 Sven Med Tidskr. From barber to surgeon- the process of professionalization. 2007 Keffer Mj, HL Do Not Resuscitate in the operating room; moral obligations of anesthesiologists. Anesth Analgh 2000 Kathleen Ouimet Perrin, James McGhee, Ethics and Conflict, Jones& Bartlett, 2001. NYS Department of Health, DNR guide book for patients and families. Retrieved on 5th May 2009 from http://www. wings. buffalo. edu/faculty/research. bioethics