Autonomy

The principle of autonomy acknowledges the personal liberty of patients and their right to decide their own course of treatment and follow through a plan on which they freely agree. It is from this principle that rules about informed consent are derived. Under the principle of autonomy, the use by an RT of deceit or coercion to get a patient to reverse the decision to refuse a treatment is considered unethical. Likewise, it is unethical and illegal to threaten a patient who is unwilling to sign a consent form.

Veracity

The principle of veracity is often linked to autonomy, especially in the area of informed consent. Generally, veracity binds the health care provider and the patient to tell the truth. The nature of the health care delivery process is such that both parties involved are best served in an environment of trust and mutual sharing of all information. Problems with the veracity principle revolve around such issues as benevolent deception. In actions of benevolent deception, the truth is withheld from the patient for his or her own good.

When the physician decides to withhold the truth from a conscious, well-oriented adult, the decision affects the interactions between health care providers and the patient and has a chilling effect on the rapport that is so necessary for good care. In a poll conducted by the Louis Harris group, 94% of Americans surveyed indicated that they wanted to know everything about their cases, even the dismal facts. Other than with pediatrics and rare cases in which there is evidence that the truth would lead to a harm (e.g., suicide), the truth, provided in as pleasant a manner as possible, is probably the best policy.⁷

Truth telling can also involve documentation and medical recordkeeping. This type of dilemma is occurring more frequently under strict managed care reimbursement protocols. The accompanying Mini Clini provides a good example of this type of dilemma.

Nonmaleficence

The principle of nonmaleficence obligates health care providers to avoid harming patients and to prevent harm actively where possible. It is sometimes difficult to uphold this principle in modern medicine because in many cases drugs and procedures have secondary effects that may be harmful in varying degrees. For example, an RT might ask whether it is ethical to give a high dose of steroids to an asthmatic patient, knowing the many harmful consequences of these drugs. One solution to these dilemmas is based on the understanding that many helping actions inevitably have both a good and a bad effect, or double effect. The key is the first intent. If the first intent is good, the harmful effect is viewed as an unintended result. The double effect brings us to the essence of the definition of the word dilemma. The word comes from the Greek terms di, meaning “two,” and lemma, meaning “assumption” or “proposition.”⁸

Beneficence

The principle of beneficence raises the “do no harm” requirement to an even higher level. Beneficence requires that health care providers go beyond doing no harm and contribute actively to the health and well-being of their patients. Many quality-of-life issues are included within this dictum. Practitioners of medicine today possess the technology to keep some individuals alive well beyond any likelihood of meaningful recovery. This technology presents dilemmas for practitioners who have the ability to prolong life but not the ability to restore any uniquely human qualities.

In these cases, some individuals interpret the principle of beneficence to mean that they must do everything to promote a patient’s life, regardless of how useful the life might be to that individual. Other professionals in the same situation might believe they are allowing the principle to be better served by doing nothing and allowing death to occur without taking heroic measures to prevent it. In an attempt to allow patients to participate in resolving this dilemma, legal avenues, called advance directives, have been developed.⁹ Advance directives allow a patient to give direction to health care providers about treatment choices in circumstances in which the patient may no longer be able to provide that direction. The two types of advance directives available at the present time and widely used are the living will and the durable power of attorney for health care. A durable power of attorney for health care allows the patient to identify another person to carry out his or her wishes with respect to health care, whereas a living will states a patient’s health care preferences in writing. As a result of the Patient Self-Determination Act of 1990, most states require that all health care agencies receiving federal reimbursement under Medicare/Medicaid legislation provide adult clients with information on advance directives.^9,10

Confidentiality

The principle of confidentiality is founded in the Hippocratic Oath; it was later reiterated by the World Medical Association in 1949. It obliges health care providers to “respect the secrets which are confided even after the patient has died.”¹¹ Confidentiality, as with the other axioms of ethics, must often be balanced against other principles, such as beneficence.

The main ethical issue surrounding confidentiality is whether more harm is done by occasionally violating its mandate or by always upholding it, regardless of the consequences. This limitation to confidentiality is known as the harm principle. This principle requires that practitioners refrain from acts or omissions in which foreseeable harm to others could result, especially when the others are vulnerable to risk. This principle would require that confidentiality be maintained for a patient with AIDS in matters involving his or her landlord. In this case, confidentiality is justified because the landlord is not particularly vulnerable. However, if the patient was planning to marry, the harm principle would require that confidentiality be broken because of the special vulnerability of the spouse.

Confidentiality is usually considered a qualified, rather than an absolute, ethical principle in most health care provider–patient relationships. These qualifications are often written into codes of ethics. The American Medical Association Code of Ethics, Section 9, provides the following guidelines: “A physician may not reveal the confidences entrusted to him in the course of medical attendance or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the community or a vulnerable individual.” Under the requirements of public health and community welfare, there is often a legal requirement to report such things as child abuse, poisonings, industrial accidents, communicable diseases, blood transfusion reactions, narcotic use, and injuries caused with knives or guns.¹² In many states, child abuse statutes protect the health care practitioner from liability in reporting even if the report should prove false as long as the report was made in good faith. Failure to report a case of child abuse can leave the practitioner legally liable for additional injuries that the child may sustain after being returned to the hostile environment.

Breaches of confidentiality more often result from careless slips of the tongue than from rational decision making. Such social trading in gossip about patients is unprofessional, unethical, and, in certain cases, illegal. Risks of inadvertent disclosure increase exponentially with membership on social networking sites such as Facebook where RTs may exchange information that sometimes violates the rights of individual patients.

Because of the widespread use of computerized databases, confidential information, previously highly protected, is now relatively easy to obtain. Clinical data are available for close scrutiny by the clerical staff, laboratory personnel, and other health care providers. The widespread use of these data systems is a threat to patient confidentiality. In an attempt to reduce this threat, most clinical databases are restricted to use by only the health care workers who have a need to know. In addition to being unethical, an RT who reads the file of a patient whom he or she is not treating would likely be in violation of institutional policy. The accompanying Mini Clini below provides an example.

Despite medical and sociologic advances, potential violations of the individual’s right to privacy in certain populations, such as patients with AIDS, pose a special risk because disclosure may result in economic, psychologic, or physical harm to the patient. RTs would do well to adhere to the dictum found in the Hippocratic Oath: “What I may see or hear in the course of the treatment or even outside of treatment of the patient in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things to be shameful to be spoken about.”¹³

Justice

The principle of justice involves the fair distribution of care. Rising health care expectations, coupled with the decreased availability of care because of cost, is making this principle an important one for health care workers. Population trends and the financial shortfalls in programs such as Medicaid and Medicare will contribute to the continuing importance of this principle.

The United States is rapidly approaching the point at which a balance must be found between health care expenses and the revenue available to pay for them. Efforts to achieve this balance will inevitably lead to some form of rationing of the delivery of health care services. This type of justice is properly referred to as distributive justice.

A second form of justice seen in health care is compensatory justice. This form of justice calls for the recovery for damages that were incurred as a result of the action of others. Damage awards in civil cases of medical malpractice or negligence are examples of compensatory justice. Compensatory justice has often been cited as playing a major role in increasing the cost of health care. However, the Congressional Budget Office estimates that less than 2% of the cost of health care is related to medical malpractice. Studies by Zurich Insurance Company,¹⁴ Harvard University, and Dartmouth University showed little to no impact on the cost of health care and generally debunk the myth that physicians always practice defensive medicine. The Harvard study showed that patients were uncompensated in the presence of actual malpractice more frequently than physicians were held accountable in the absence of actual malpractice. Other studies generally confirm that the civil justice system does a good job of protecting the rights of health care workers and patients in negligence litigation.

Role Duty

Because no single individual can be solely responsible for providing all of a patient’s health care needs, modern health care is a team effort by necessity. There are more than 100 allied health professions, and allied health workers (excluding nursing and physicians) provide about 60% of all patient care. Each of the allied health professions has its own practice niche, defined by tradition or by licensure law. Practitioners have a duty to understand the limits of their role and to practice with fidelity. For example, because of differences in role duty, an RT might be ethically obliged not to tell a patient’s family how critical the situation is, instead having the attending physician do so.³ The previous Mini Clinis addressed role duty, and the accompanying Mini Clini presents another example of the ethics of role duty.

Formalism

Formalist thought asserts that certain features of an act itself determine its moral rightness. In this framework, ethical standards of right and wrong are described in terms of rules or principles. These rules function apart from the consequences of a particular act. An act is considered morally justifiable only if it upholds the rules or principles that apply.

The major objection to this duty-oriented approach lies in its potential for inconsistency. Critics of formalist reasoning insist that no principle or rule can be framed that does not have exceptions. These critics claim that no principle or rule can be framed that does not conflict with other rules.

Consequentialism

For the consequentialist, an act is judged to be right or wrong based on its consequences. Each possible act is assessed in terms of the relative amount of good (over evil) that it would bring into being. The most common application of consequentialism judges acts according to the principle of utility. The principle of utility, in its simplest form, aims to promote the greatest general good for most people.

Critics of this approach claim that it has two fundamental flaws. First, the “calculus” involved in projecting and weighing the amount of good over evil that might occur is not always possible. Second, reliance on the principle of utility to the exclusion of all else can result in actions that are incompatible with ordinary judgments about right and wrong. A classic example of this problem can be seen in the true World War II case of the battle for North Africa. In this scenario, there were two groups of soldiers but only enough antibiotics for one group. One group required the medication for syphilis contracted in the local brothels; the other group needed antibiotics for wounds sustained in battle. The dilemma arose as to who should receive the antibiotics. Formalist or duty-oriented reasoning would base the decision about who should receive the antibiotics on some concept of justice, such as giving priority to the sickest or to the individuals most in need. However, the actual decision in this case was a consequentialist one, based not on the desire to distribute the drug justly but rather on the need to obtain a quick victory with as few casualties as possible. The scarce medication was given to the soldiers who were “wounded” in the brothels rather than in battle because these soldiers could be restored quickly and returned to the frontlines to aid the war effort.

Mixed Approaches

Mixed approaches to moral reasoning try to capitalize on the strengths inherent in these two major lines of ethical thought. One approach, called rule utilitarianism, is a variation of consequentialism. Under this framework, the question is not which act has the greatest utility but which rule would promote the greatest good if it were generally followed.

The rule utilitarian would agree with the formalist that truth telling is a necessary ethical principle but for a different reason. To the rule utilitarian, truth telling is a needed principle not because it has any underlying moral rightness but because it promotes the greatest good in professional-patient relationships. Specifically, if truth telling were not followed consistently, trusting relationships between patients and health care professionals would be impossible.

The rule utilitarian approach is probably the most appealing and useful to health care professionals. This approach is appealing because it addresses both human rights and obligations and the consequences of actions. Rule utilitarianism seems best able to account for the modern realities of human experience that so often affect the day-to-day practice of health care. However, although it has some value as an ethical framework, it has the disadvantage of being quite variable among caregivers. Where caregivers have different values and different educational levels, ethical decision making using this tool frequently is inconsistent.

Virtue Ethics

A theory of virtue ethics has evolved based in part on the limits of both formalism and consequentialism. Virtue ethics is founded not in rules or consequences but in personal attributes of character or virtue. Under this formulation, the first question is not, “How do I act in this situation?” but rather, “How should I carry out my life if I am to live well?” or “How would the good RT act?”

Virtue-oriented theory holds that professions have historical traditions. Individuals entering a profession enter into a relationship not only with current practitioners but also with the practitioners who have come before them. With these traditions comes a history of character standards set by the individuals who have previously distinguished themselves in that profession.

According to this perspective, the established practices of a profession can give guidance, without an appeal to either the specific moral principles or the consequences of an act.³ When the professional is faced with an ethical dilemma, he or she need only envision what the “good practitioner” would do in a similar circumstance. It is hard to imagine the good RT stealing from the patient, charging for services not provided, or smothering a patient with a pillow.

Rapidly changing fields such as respiratory care pose some problems for virtue ethics. What might be considered good ethical conduct at one time might be deemed wrong the next time. An example of this change over time is an RT who is asked not only to disconnect a brain-dead patient from a ventilator but also to remove the feeding tubes and intravenous lines.

In addition to the difficulty with changing values in virtue ethics, it provides no specific directions to aid decision making. The heavy reliance of virtue ethics on experience rather than on reason makes creative solutions less likely. Finally, practitioners often find themselves in conflicting role situations for which virtue ethics has no answers. A good example is an RT who practices the virtue of being a good team player but is confronted with the need to “blow the whistle” on a negligent or incompetent team member.³ Despite these limitations, virtue ethics is probably the way most practitioners make their ethical decisions.

Intuitionism

Intuitionism is an ethical viewpoint that holds that there are certain self-evident truths, usually based on moral maxims such as “treat others fairly.” The easiest way to understand intuitionism is to think of as many timeless maxims as you can, which form the basis for intuitionism. These maxims may range from “do not kill” to “look before you cross the street.”⁶ As a decision-making tool, intuitionism is unhelpful in large measure because it depends on the intuitional abilities of the specific caregiver.

Comprehensive Decision-Making Models

To aid in the process of decision making in bioethics, several comprehensive models have been developed. Figure 5-2 depicts one example of a comprehensive decision-making model that combines the best elements of formalism, consequentialism, and virtue ethics. As is evident in this approach, the ethical problem is framed in terms of the conditions and who is affected. Initially, an action is chosen based on its predicted consequences. The potential consequences of this decision are compared with the human values underlying the problem. The short test of this comparison is a simple restatement of the golden rule that is, “Would I be satisfied to have this action performed on me?” The initial decision is considered ethical if, and only if, it passes this test of human values. A simpler but nonetheless comprehensive model is used by many ethicists. The model uses eight key steps (Box 5-2).

With or without these models, RTs are often at a double disadvantage in ethical decision making because RTs not only must live with their own decisions but also must support (and act on) the decisions of their physician colleagues. Unless excellent communication exists, misunderstandings can occur. Such misunderstandings may be an essential factor in the high job stress, burnout, and attrition in respiratory care.

Classes in ethics, decision making, and communication skills are crucial components of the preparation of RTs for the often confusing and frustrating practice in today’s medical settings. The specialty requires practitioners who can go beyond simple assertions of right or wrong and provide justifications that are both right and reasoned. Many hospitals have ethics boards or committees to review and set policy and to assist in making informed ethical decisions. In addition to administrators and medical staff members, these committees may include a member of the lay public, a chaplain, and one or more experts in bioethics.

A major factor in the disciplinary decisions of professional boards is frequently whether the acts of the RT conformed to the ethical standards of the profession. Nearly every Respiratory Care Practice Act has ethical principles embedded in the statute and codified in state regulations. Every RT should be aware of what his particular state dictates in terms of ethical practice.

Systems of Law

Under our legal system, the law is divided into two broad classes: public law and civil law. Public law deals with the relationships of private parties and the government. Civil law is concerned with the recognition and enforcement of the rights and duties of private individuals and organizations.

Health Insurance Portability and Accountability Act of 1996

In August 1996, the U.S. Congress enacted HIPAA, which required, among other things, the establishment of Standards for Privacy of Individually Identifiable Health Information. These standards, which have become known as simply the Privacy Rule, added a major dimension to the need to treat medical records and information as confidential. The Privacy Rule was developed, with public comment and input, in the years following the enactment of HIPAA. The final rule was issued in March 2002. Updates to the Privacy Rule are likely to continue, making it imperative that the practitioner remain up-to-date with the latest requirements of the rule. The primary goal of the rule was to strike a balance between protecting individuals’ health information and not impeding the exchange of information needed to provide quality health care and protect the public’s health and well-being.¹⁶

The Privacy Rule applies to all health care providers, health plan providers (with some exceptions, such as small employer plans with <50 participants administered solely by the employer), and health care clearinghouses. An example of a health care clearinghouse is an entity that processes insurance claims for payment. Some of the exceptions are complex and are beyond the scope of this chapter. The practitioner in clinical practice need not be concerned with particular exceptions because, in most cases, basic patient confidentially requires a standard at least equal to the strictest interpretation of the Privacy Rule.¹⁶

The basic goal of the Privacy Rule is to protect all “individually identifiable health information,” commonly referred to as protected health information (PHI). Protected information includes any record or information that would or could identify or reveal (1) an individual’s past, present, or future physical or mental health or condition; (2) the provision of health care to the individual; or (3) the past, present, or future payment for the provision of health care to the individual. PHI includes information in any format, which may include patient charts (electronic or paper), faxes, e-mails, or other records. The Privacy Rule provides avenues for the normal and appropriate conduct of health care treatment and business for all “covered entities” and individuals and organizations that have a legitimate need to access and use the information. Consent of the individual is not required for these covered entities.¹⁶

Medical Supervision

RTs are required by their scope of practice to work under competent medical supervision. This requirement creates not only a professional relationship but also a legal one. If the RT is employed by the physician, the physician is liable for the RT’s actions. If the RT is employed by the hospital, the hospital is liable for the RT’s actions. Under the laws of some states, the supervising physician may still be liable even if the RT is employed by the hospital where the legal theory involves a failure to supervise. The legal framework for this liability is rooted in centuries-old common law. When tradesmen had apprentices and masters had servants, the negligence of the apprentice or servant was imputed to the master who controlled the action of the servants. Under modern law, an employer is deemed a master, and an employee is deemed a servant. This principle, sometimes called vicarious liability, is premised on this centuries-old concept expressed in Latin as respondeat superior (“let the master answer”).

Under this doctrine, the physician assumes responsibility for the wrongful actions of the RT as long as such negligence occurred in the course of the employer-employee relationship. For this liability to be incurred, two conditions must be met: (1) The act must be within the scope of employment, and (2) the injury caused must be the result of an act of negligence. If the RT acted outside of his or her scope of practice, as outlined by licensure laws or by institutional regulations, the court would have to decide whether the physician would still be liable. If the RT, while in the patient’s room to deliver an aerosol treatment, went beyond the normal scope of practice and adjusted cervical traction, causing injury, it is doubtful that the physician could be held fully responsible. However, under the principle of respondeat superior, the hospital, as a corporate entity, could be held responsible for the actions of its employees.

Historically, RTs have not been named individually as defendants in malpractice cases because the law generally has not focused on their role as specialized health care providers separate from the health care facility. Either the hospital or the physician is usually named as the defendant for the acts of the practitioner. RTs in these cases have been viewed simply as employees, merely carrying out the orders of a superior. However, with the increased application of state licensure regulations governing respiratory care, and especially with the development of respiratory care protocols giving RTs more autonomy, this relative protection from liability is changing rapidly. As RTs are given more discretion and are permitted to exercise independent judgment, their decision making is likely to be more frequently called into question in court.

Licensure Statute

All RTs should know in detail the requirements of their Respiratory Care Practice Act. They should know what is expected of them in terms of obtaining licensure and in the requirements to remain licensed. After receiving licenses, many professionals never look at their statute and never evaluate what actions are mandated by the rules and regulations enacted by their board. Some states by statute require that RTs report certain behavior.

Understanding the Causes of Discipline

A review of professional discipline cases available from publicly available sources, including the California Board for Respiratory Care, reveals that the most frequent causes of professional discipline are as follows:

Even in cases where the cause of discipline is rooted in domestic violence or sexual abuse of another person, some form of substance abuse is a contributing factor. Alcohol violations (DWI [driving while impaired]) are often the most frequent violation that brings an RT face-to-face with his or her professional board. RTs with alcoholism or a significant drug habit are almost certain to come before their professional board. Sometimes employers and supervisors take the position that as long as such a problem does not affect a person’s work at the facility, they should not address it. However, even in cases where an RT does not use drugs or alcohol at work, the disease process is affecting their judgment and decision making and should be addressed. A supervisor who fails to report a substance abuser of any kind is asking for legal trouble, in the form of either a damages lawsuit or a visit from the professional board. Academic respiratory care practitioners should be especially vigilant with students and should insist on substance abuse counseling for any student who appears to have such a problem.

Sometimes human resources personnel and administrators do not see the value in addressing these kinds of problems and may counsel against discipline for impaired workers. Sometimes supervisors, needing a warm body to fill positions, ignore the behaviors that should be red flags. Sometimes the human resources department may have made exceptions for other workers and fears that these exceptions may permit an inference of discrimination. None of these excuses would sound good to a jury.

Any good attorney would tell you that it is far better to defend a wrongful termination lawsuit than a wrongful death lawsuit. If you are wrong about the termination, the employee can be rehired. There is no remedy for the patient when an employee’s substance abuse leads to that patient’s death.

Engaging Counsel

If approached by the professional board, an RT should never talk to investigators without an attorney present. Every investigation is by its nature oppressive and burdensome, and an attorney ensures that the RT’s rights are respected and protected. Often in cases in which an RT has violated the professional code or engaged in conduct that merits discipline, an attorney can help negotiate a better resolution than the RT could without the help of a professional.

Patient Protection and Affordable Care Act

In 2010, Congress passed the Patient Protection and Affordable Care Act (PPACA) in an attempt to reform health care. Challenges to the PPACA are still finding their way through the state and federal courts, and results to date have been mixed. One thing that the statute did was improve whistleblower protections for hospital workers. Section 1558 of the PPACA amends the Fair Labor Standards Act of 1938 (FLSA) by adding Section 18C, which provides that an employer cannot discriminate “against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment” because the employee, among other things:

Any employee who believes that he or she has been discharged or discriminated against in violation of Section 18C of the FLSA is entitled to seek relief using the same procedures provided in 15 U.S.C. §2087(b), which contains the extensive whistleblower protections contained in the Consumer Product Safety Improvement Act of 2008. These procedures include filing a complaint concerning discrimination or retaliation with the Department of Labor, going through an administrative process to determine whether the employee’s conduct protected by Section 18C was “a contributing factor in the unfavorable personnel action” alleged by the employee, and providing for the filing of a civil action in federal court after exhaustion of the administrative remedies provided by the statute.

Section 1558 explicitly limits application of Section 18C only to violations of the statute’s central provisions related to medical care in hospital and clinic settings. Employees who report fraud, waste, or violations in traditional health care settings fall under the protections afforded by Section 1558. In most cases, an employee needs legal advice to pursue remedies under this section of the FLSA.

National Labor Relations Act

Although the National Labor Relations Act (NLRA) is usually thought of as a “union” statute, the NLRA provides protections to hospital workers whether they are organized into a union or not. Specifically, the NLRA provides for protection where a worker engages in actions for the benefit of all employees. For example, when an RT approaches the supervisor on behalf of all the workers on the second shift to request that shift differentials be increased, that RT—who is engaged in what is called “protected concerted activity”—cannot be discharged for acting on behalf of the other RTs in the department. When an RT is discharged for such an offense, the RT has 180 days in which to make a complaint to the local office of the National Labor Relations Board. No attorney is necessary to make such a complaint.

False Claims Act

Buried in the banking section of the United States Code is a little-known statute called the False Claims Act (FCA) (31 USC § 3729). The statute forbids making false claims against the government and provides for severe sanctions for people who do. Someone making a false claim against a government health care program can be made to repay three times the amount of the false claim plus a civil penalty of $5500 to $11,000 per false claim. Similar to the whistleblower protections built into the PPACA, the FCA contains language that prevents retaliation against an employee who gathers information or supports a government case against his or her employer. Remedies may include reinstatement and back pay.

Perhaps the most powerful part of the statute is the part that permits an employee with knowledge of fraud or false billing to file a lawsuit against the company or organization engaging in fraud. For example, when an emergency medical technician (EMT) knows that his employer is giving away free ambulance services to nursing homes in exchange for the Medicare business of the nursing homes, the EMT could file an FCA case against the employer.

The government investigates such lawsuits and frequently intervenes in them. Where the government intervenes, the employee who blows the whistle stands to receive an award of up to 25% of the amount the government recovers. In recent years, the United States has recovered greater than $3 billion in fraudulently paid claims, most of which came from employees who blew the whistle on the fraud of their employers or competitors.

Health Care Advance Directives

In recognition of the right of competent adults to exercise choices concerning their health care, all 50 states and the District of Columbia have adopted some form of health care advance directives. Although the federal government acknowledged the need for advance directives with the 1991 Patient Self-Determination Act by requiring that all hospitals receiving Medicaid or Medicare funds ascertain whether patients have or wish to have advance directives, the advance directive instruments are state regulated.