Unit II examines ethical, legal, and legislative issues affecting leadership and management as well as professional advocacy. This chapter focuses on applied ethical decision making as a critical leadership role for managers. Chapter 5 examines the impact of legislation and the law on leadership and management, and Chapter 6 focuses on advocacy for patients and subordinates and for the nursing profession in general.
Ethics is the systematic study of what a person’s conduct and actions should be with regard to self, other human beings, and the environment; it is the justification of what is right or good and the study of what a person’s life and relationships should be, not necessarily what they are. Ethics is a system of moral conduct and principles that guide a person’s actions in regard to right and wrong and in regard to oneself and society at large.
Ethics is concerned with doing the right thing, although it is not always clear what that is.
Applied ethics requires application of normative ethical theory to everyday problems. The normative ethical theory for each profession arises from the purpose of the profession. The values and norms of the nursing profession, therefore, provide the foundation and filter from which ethical decisions are made. The nurse-manager, however, has a different ethical responsibility than the clinical nurse and does not have as clearly defined a foundation to use as a base for ethical reasoning.
In addition, because management is a discipline and not a profession, its purpose is not as clearly defined as medicine or law; therefore, the norms that guide ethical decision making are less clear. Instead, the organization reflects norms and values to the manager, and the personal values of managers are reflected through the organization. The manager’s ethical obligation is tied to the organization’s purpose, and the purpose of the organization is linked to the function that it fills in society and the constraints society places on it. So, the responsibilities of the nurse-manager emerge from a complex set of interactions.
Society helps define the purposes of various institutions, and the purposes, in turn, help ensure that the institution fulfills specific functions. However, the specific values and norms in any institution determine the focus of its resources and shape its organizational life. The values of people within institutions influence actual management practice. In reviewing this set of complex interactions, it becomes evident that arriving at appropriate ethical management decisions can be a difficult task.
In addition, nursing management ethics are distinct from clinical nursing ethics. Although significant research exists regarding ethical dilemmas and moral distress experienced by staff nurses in clinical roles, less research exists regarding the ethical distress experienced by nursing managers.
Nursing management ethics are also distinct from other areas of management. Although there are many similar areas of responsibility between nurse-managers and non–nurse-managers, many leadership roles and management functions are specific to nursing. These differences require the nurse-manager to deal with unique obligations and ethical dilemmas that are not encountered in nonnursing management.
In addition, because personal, organizational, subordinate, and consumer responsibilities differ, there is great potential for nursing managers to experience intrapersonal conflict about the appropriate course of action. Multiple advocacy roles and accountability to the profession further increase the likelihood that all nurse-managers will be faced with ethical dilemmas in their practice. Nurses often find themselves viewed simultaneously as advocates for physicians, patients, and the organization—all of whose needs and goals may be dissimilar.
Nurses are often placed in situations where they are expected to be agents for patients, physicians, and the organization simultaneously, all of which may have conflicting needs, wants, and goals.
To make appropriate ethical decisions then, the manager must have knowledge of ethical principles and frameworks, use a professional approach that eliminates trial and error and focuses on proven decision-making models, and use available organizational processes to assist in making such decisions. Such organizational processes include institutional review boards (IRBs), ethics committees, and professional codes of ethics. Using both a systematic approach and proven ethical tools and technology allows managers to make better decisions and increases the probability that they will feel confident about the decisions they have made. Leadership roles and management functions associated with ethics are shown in Display 4.1.
DISPLAY 4.1 LEADERSHIP ROLES AND MANAGEMENT FUNCTIONS ASSOCIATED WITH ETHICS
1. Is self-aware regarding own values and basic beliefs about the rights, duties, and goals of human beings
2. Accepts that some ambiguity and uncertainty must be a part of all ethical decision making
3. Accepts that negative outcomes occur in ethical decision making despite high-quality problem solving and decision making
4. Demonstrates risk taking in ethical decision making
5. Role models ethical decision making, which is congruent with the American Nurses Association (ANA) Code of Ethics for Nurses With Interpretive Statements (ANA, 2015), the ANA Nursing Administration: Scope and Standards of Practice (2016), and professional standards
6. Clearly communicates expected ethical standards of behavior
7. Role models behavior that eliminates theory–practice–ethics gaps and promotes ethical behavior as the norm
8. Promotes patients’ self-determination and informed decision making
9. Collaborates with others to protect human rights and promote social justice
10. Assures that nurses are represented on interprofessional teams addressing ethical risks, benefits, and outcomes
1. Uses a systematic approach to problem solving and decision making when faced with management problems with ethical ramifications
2. Identifies outcomes in ethical decision making that should always be sought or avoided
3. Uses established ethical frameworks to clarify values and beliefs
4. Applies principles of ethical reasoning to define what beliefs or values form the basis for decision making
5. Is aware of legal precedents that may guide ethical decision making and is accountable for possible liabilities should they go against the legal precedent
6. Continually reevaluates the quality of personal ethical decision making based on the process of decision making or problem solving used
7. Constantly assesses levels of moral uncertainty, moral distress, and moral outrage in subordinates and intervenes as necessary to protect quality patient care and worker’s well-being
8. Establishes systems whereby ethical issues impacting stakeholders (health-care consumers, workers, community, etc.) can be addressed and resolved
9. Recognizes and rewards ethical conduct of subordinates
10. Takes appropriate action when subordinates demonstrate unethical conduct
Despite 2017 Gallup poll findings that show Americans have ranked nursing as the most honest ethical profession for the 16th consecutive year (Jimenez, 2018), ethical issues are commonplace in nursing. Peter (2018) agrees, noting that “nurses’ moral lives are growing in complexity given rapid changes that are the result of scientific advances, a growing business ethos, and technological processes aimed at standardizing patient care. At times, nurses believe that they cannot respond adequately to the ethical issues that they encounter because of their enormity and nurses’ responsibility to continue to care for patients despite the obstacles” (para. 1).
There are many terms used to describe these moral issues including moral indifference, moral uncertainty, moral conflict, moral distress, moral outrage, and ethical dilemmas. Moral indifference occurs when an individual questions why morality in practice is even necessary. Moral uncertainty or moral conflict occurs when an individual is unsure which moral principles or values apply and may even include uncertainty as to what the moral problem is.
On the other hand, moral distress occurs when the individual knows the right thing to do, but organizational constraints make it difficult to take the right course of action. Thus, morally distressed nurses often demonstrate biological, emotional, and moral stress because of this intrapersonal conflict (Edmonson, 2015). Indeed, morally distressed nurses often experience anger, loneliness, depression, guilt, powerlessness, anxiety, and even emotional withdrawal. This then leads to turnover as the nurse leaves the stressful situation for a less stressful environment (Edmonson, 2015). Barlem and Ramos (2015) suggest that moral distress is one of the main ethical problems affecting nurses in all health systems and thus is a threat to nurses’ integrity and to the very essence of quality of patient care.
Moral outrage occurs when an individual witnesses the immoral act of another but feels powerless to stop it. Lastly, the most difficult of all moral issues is termed a moral or ethical dilemma, which is being forced to choose between two or more undesirable alternatives. For example, a nurse might experience a moral or ethical dilemma if he or she was required to provide care or treatments that conflicted with his or her own religious beliefs. In this case, the nurse would likely experience an intrapersonal moral conflict about whether his or her values, needs, and wants can or should supersede those of the patient. Because ethical dilemmas are so difficult to resolve, many of the learning exercises in this chapter are devoted to addressing this type of moral issue.
Individual values, beliefs, and personal philosophy play a major role in the moral or ethical decision making that is part of the daily routine of all nurses as well as managers.
How do managers decide what is right and what is wrong? What does the manager do if no right or wrong answer exists? What if all solutions generated seem to be wrong? Remember that the way managers approach and solve ethical issues is influenced by their values and basic beliefs about the rights, duties, and goals of all human beings. Self-awareness, then, is a vital leadership role in ethical decision making, just as it is in so many other aspects of management.
LEARNING EXERCISE 4.10 PART 1:
The Untruthful Employee (Marquis & Huston, 2012)
You are the registered nurse on duty at a skilled nursing facility. Judy, a 35-year-old, full-time nurse’s aide on the day shift, has been with the skilled nursing facility for 10 years. You have worked with Judy on numerous occasions and have found her work to be marginal at best. She tries to be extra friendly with the staff and occasionally brings them small treats that she bakes. She also makes a point of telling everyone how much she needs this job to support her family and how she loves working here. She has a disabled daughter who relies on her hospital-provided health insurance to have her health-care needs met.
Most of the other staff seem willing to put up with Judy’s poor work habits, but lately, you have felt that her work has shown many serious errors. Things are not reported to you that should have been—intake and output volumes that are in error, strange recordings for vital signs, and so on. She has tried to cover up such errors, with what you suspect are outright lies. She claims to have bathed patients when this does not appear to be the case, and has said some patients have refused to eat when you have found that they were willing to eat for you. Although the chief nursing officer acknowledges that Judy is only a marginally adequate employee, she has been unable to observe directly any of the behaviors that would require disciplinary action and has told you that you must have real evidence of her wrongdoing in order to for her to take action.
During morning report, you made a specific request to Judy that a confused patient, Mr. Brown, assigned to her, be assisted to the bathroom, and you told her that someone must remain in the room to assist him when he is up, as he fell last evening. You also told Judy that when in bed, Mr. Brown’s side rails were always to be up. Later in the morning, you take Mr. Brown his medication and notice that his side rails are down and after pulling them up and giving him his medicine, you find Judy and talk with her. She denies leaving the side rails down and insisted someone else must have done it. You caution her again about Mr. Brown’s needs. Thirty minutes later, you go by Mr. Brown’s room and find his bed empty and discover he is in the bathroom unattended. As you are assisting Mr. Brown back to bed, Judy bursts into the room and pales when she sees you with her patient. At first, she denies that she had gotten Mr. Brown up, but when you express your disbelief, she tearfully admits that she left him unattended but stated that this was an isolated incident and asked you to forget it. When you said that it was her lying about the incident that most disturbed you, she promised never to lie about anything again. She begged you not to report her to the chief nursing officer and said she needed her job.
You are torn between wanting to report Judy for her lying because of concerns about patient safety and also not wanting to be responsible for getting her fired. To reduce the emotionalism of the event and to give yourself time to think, you decide to take a break and think over the possible actions you should take.
ASSIGNMENT PART 1: 4.10
Evaluate this problem. Is this just a simple leadership–management problem that requires some problem solving and a decision or does the problem have ethical dimensions? Using one of the problem-solving models in this chapter, solve this problem.
Another area of the law that nurses must understand is the right to confidentiality. Efforts to preserve patient confidentiality increased tremendously with the passage of the HIPAA of 1996 (also known as the Kassebaum–Kennedy Act). Unauthorized release of information or photographs in medical records may make the person who discloses the information civilly liable for invasion of privacy, defamation, or slander. Written authorization by the patient to release information is needed to allow such disclosure.
Many nurses have been caught unaware by the telephone call requesting information about a patient’s condition. It is extremely important that the nurse does not give out unauthorized information, regardless of the urgency of the person making the request. In addition, nurses must be careful not to discuss patient information in venues where it can be inadvertently overheard, read, transmitted, or otherwise unintentionally disclosed. For example, nurses talking in elevators, the hospital gift shop, or in a restaurant for lunch need to be aware of their surroundings and remain alert about not revealing any patient information in a public place.
HIPAA essentially represents two areas for implementation. The first is the Administrative Simplification plan, and the second area includes the Privacy Rule. The Administrative Simplification plan is directed at restructuring the coding of health information to simplify the digital exchange of information among health-care providers and to improve the efficiency of health-care delivery. The privacy rules are directed at ensuring strong privacy protections for patient without threatening access to care.
The Privacy Rule applies to health plans, health-care clearinghouses, and health-care providers. It also covers all patient records and other individually identifiable health information. Although there are many components to HIPAA, key components of the Privacy Rule are that direct treatment providers must make a good faith effort to obtain written acknowledgment of the notice of privacy rights and practices from patients. In addition, health-care providers must disclose protected health information to patients requesting their own information or when oversight agencies request the data. Reasonable efforts must be taken, however, to limit the disclosure of personal health information to the minimum information necessary to complete the transaction. There are situations, however, when limiting the information is not required. For example, a minimum of information is not required for treatment purposes because it is clearly better to have too much information than too little. The HIPAA Privacy Rule and Common Rule also require that individuals participating in research studies should be assured privacy, particularly regarding personal health information.
The Privacy Rule attempts to balance the need for the protection of personal health information with the need to disclose that information for patient care.
Because of the complexity of the HIPAA regulations, it is not expected that a nurse-manager would be responsible for compliance alone. Instead, it is most important that the manager work with the administrative team to develop compliance procedures. For example, managers must ensure that unauthorized people do not have access to patient charts or medical records and that unauthorized people are not allowed to observe procedures.
It is equally important that managers remain cognizant of ongoing changes to the guidelines and are aware of how rules governing these issues may differ in the state in which they are employed. Some provisions of the Privacy Rules mention “reasonable efforts” toward achieving compliance, but being reasonable is provision specific. The American Recovery and Reinvestment Act applies several of HIPAA’s security and privacy requirements to business associates and changes data restrictions, disclosure, and reporting requirements.
Diversity has been defined as the differences among groups or between individuals and comes in many forms, including age, gender, religion, customs, sexual orientation, physical size, physical and mental capabilities, beliefs, culture, ethnicity, and skin color (Huston, 2020b). Demographic data from the United States Census Bureau continue to show increased diversification of the US population, a trend that began almost 40 years ago.
As discussed in later chapters, a primary area of diversity is language, including word meanings, accents, and dialects. Problems arising from this could be misunderstanding or reluctance to ask questions. Staff from cultures in which assertiveness is not promoted may find it difficult to disagree with or question others. How the manager handles these manifestations of cultural diversity is of major importance. If the manager’s response is seen as discriminatory, the employee may file a complaint with one of the state or federal agencies that oversee civil rights or equal opportunity enforcement. Such things as overt or subtle discrimination are prohibited by Title VII (Civil Rights Act of 1964). Managers have a responsibility to be fair and just. Lack of promotions and unfair assignments may occur with minority employees just because they are different and this is illegal.
In addition, English-only rules in the workplace may be viewed as discriminatory under Title VII. Such rules may not violate Title VII if employers require English only during certain periods of time. Even in these circumstances, the employees must be notified of the rules and how they are to be enforced.
Clearly, managers should be taught how to deal sensitively and appropriately with an increasingly diverse workforce. Enhancing self-awareness and staff awareness of personal cultural biases, developing a comprehensive cultural diversity program, and role modeling cultural sensitivity are some of the ways that managers can effectively avoid many legal problems associated with discriminatory issues. However, it is hoped that future goals for the manager would go beyond compliance with Title VII and move toward understanding of and respect for other cultures.
In general, a license is a legal document that permits a person to offer special skills and knowledge to the public in a particular jurisdiction when such practice would otherwise be unlawful. Licensure establishes standards for entry into practice, defines a scope of practice, and allows for disciplinary action. Currently, licensing for nurses is a responsibility of State Boards of Nursing or State Boards of Nurse Examiners, which also provide discipline as necessary. The manager, however, is responsible for monitoring that all licensed subordinates have a valid, appropriate, and current license to practice.
Professional licensure is a privilege and not a right.
All nurses must safeguard the privilege of licensure by knowing the standards of care applicable to their work setting. Deviation from that standard should be undertaken only when nurses are prepared to accept the consequences of their actions, in terms of both liability and loss of licensure.
Nurses who violate specific norms of conduct, such as securing a license by fraud, performing specific actions prohibited by the Nurse Practice Act, exhibiting unprofessional or illegal conduct, performing malpractice, and abusing alcohol or drugs, may have their licenses suspended or revoked by the licensing boards in all states. Frequent causes of license revocation are shown in Display 5.4.
DISPLAY 5.4 COMMON CAUSES OF PROFESSIONAL NURSING LICENSE SUSPENSION OR REVOCATION
Practicing medicine or nursing without a license
Obtaining a nursing license by fraud or allowing others to use your license
Felony conviction for any offense substantially related to the function or duties of a registered nurse
Participating professionally in criminal abortions
Failing to follow accepted standards of care
Not reporting substandard medical or nursing care
Providing patient care while under the influence of drugs or alcohol
Giving narcotic drugs without an order
Falsely holding oneself out to the public or to any health-care practitioner as a “nurse practitioner”
Failing to use equipment safely and responsibly
Typically, suspension and revocation proceedings are administrative. Following a complaint, the Board of Nursing completes an investigation. Most of these investigations reveal no grounds for discipline; however, there are things a nurse should do if he or she becomes aware they are being investigated by the board. These are shown in Display 5.5.
DISPLAY 5.5 ACTIONS A NURSE SHOULD TAKE WHEN BEING INVESTIGATED BY THE BOARD OF NURSING
1. Do not ignore the Board’s notification. It won’t go away.
2. Do not unnecessarily share news of the complaint with friends and colleagues as it may undermine your credibility.
3. Read employee handbooks/contracts/policy and procedures to determine if must report the investigation to your employer.
4. Consider contacting an attorney.
5. If a lawyer is needed, hire an experienced one.
6. Carefully consider anything you put in writing.
7. Contact your malpractice insurance provider.
8. If the investigation involves a patient, do not violate HIPAA by copying the patient’s medical record.
9. Do not alter the patient’s medical record.
10. Be prepared for a lengthy process of investigation.
Source: Extracted from Mackay, T. R. (2018). What do you mean there’s a complaint?! Texas Nursing, 92(1), 20–22.
If the investigation supports the need for discipline, nurses are notified of the charges and can prepare a defense. At the hearing, which is very similar to a trial, the nurse can present evidence. Based on the evidence, an administrative law judge makes a recommendation to the
LEARNING EXERCISE 5.8: PART 2:
Legal Ramifications for Exceeding One’s Duties
You have been the evening charge nurse in the emergency department at Memorial Hospital for the last 2 years. Besides yourself, you have two licensed vocational nurses (LVNs) and four registered nurses (RNs) working in your department. Your normal staffing is to have two RNs and one LVN on duty Monday to Thursday and one LVN and three RNs on duty during the weekend.
It has become apparent that one of the LVNs, Maggie, resents the recently imposed limitations of LVN duties because she has had 10 years of experience in nursing, including a tour of duty as a medic in the first Gulf War. The emergency department physicians admire her and are always asking her to assist them with any minor wound repair. Occasionally, she has exceeded her job description as an LVN in the hospital, although she has done nothing illegal of which you are aware. You have given her satisfactory performance evaluations in the past, even though everyone is aware that she sometimes pretends to be a “junior physician.” You also suspect that the physicians sometimes allow her to perform duties outside her licensure, but you have not investigated this or seen it yourself.
Tonight, you come back from supper and find Maggie suturing a deep laceration while the physician looks on. They both realize that you are upset, and the physician takes over the suturing. Later, the doctor comes to you and says, “Don’t worry! She does a great job, and I’ll take the responsibility for her actions.” You are not sure what you should do. Maggie is a good employee, and taking any action will result in unit conflict.
ASSIGNMENT PART 2: 5.08
What are the legal ramifications of this case? Discuss what you should do, if anything. What responsibility and liability exist for the physician, Maggie, and yourself? Use appropriate rationale to support your decision.