Page 103 - ACCCN's Critical Care Nursing

80 S C O P E O F C R I T I C A L C A R E

Conditions of scarcity and competition result in the pre- documents can be accessed via the New Zealand Ministry
dominant problems associated with distributive justice. of Health (www.hon.govt.nz).
For example, a shortage of intensive care beds may result
in critically ill patients having to ‘compete’, in some way, PATIENTS’ RIGHTS
for access to the ICU. Considerable debate exists regard-
ing ICU access/admission criteria, that may vary across Patients’ rights are a subcategory of human rights. ‘State-
institutions. Resource limitations can potentially be seen ments of patients’ rights’ relate to particular moral inter-
to negatively affect distributive justice if decisions about ests that a person might have in healthcare contexts, and
access are influenced by economic factors, as distinct hence require special protection when a person assumes
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from clinical need. 9 the role of a patient. Institutional ‘position statements’
or ‘policies’ are useful to remind patients, laypersons and
ETHICS AND THE LAW health professionals that patients do have entitlements
and special interests that need to be respected. These
Ethics are quite distinct from legal law, although these do statements also emphasise to healthcare professionals
overlap in important ways. Moral rightness or wrongness that their relationships with patients are constrained ethi-
may be quite distinct from legal rightness or wrongness, cally and are bound by certain associated duties. In addi-
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and although ethical decision making will always require tion, the World Federation of Critical Care Nurses has
consideration of the law, there may be disagreement published a Position Statement on the rights of the criti-
about the morality of some law. Much ethically-desirable cally ill patient (see Appendix A3).
nursing practice, such as confidentiality, respect for
persons and consent, is also legally required. 4,10 Nursing codes of ethics incorporate such an understand-
ing of patient’s rights. For example, codes relevant to
Every country has its own sources and structures of law. nurses have been developed by the Australian Nursing
The terms ‘legislation’ and ‘law’ are used to refer generi- and Midwifery Council (2002) and the International
61
cally to statutes, regulation and other legal instruments Council of Nurses (2002) (see Box 5.1). In addition, the
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that may be the forms of law used in a particular country. Nursing Council of New Zealand has published a Code
Legal systems elaborate rights and responsibilities in a of Conduct for Nursing that incorporates ethical princi-
variety of ways. A general distinction can be made between ples (2004) (Box 5.2). These codes outline the generic
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civil law jurisdictions, which codify their laws, and obligation of nurses to accept the rights of individuals,
common law systems, where judge-made law is not con- and to respect individuals’ needs, values, culture and vul-
solidated. In some countries, religion informs the law nerability in the provision of nursing care. The New
based on scriptures. Zealand Code particularly notes that nurses need to prac-
In Australia, there are three broad sources of law. These tise in a manner that is ‘culturally safe’ and that they
are: should practise in compliance with the Treaty of Wait-
angi. (See Chapter 8 for further details on cultural aspects
● constitutional law; of care.) Furthermore, the codes acknowledge that nurses
● statute law or legislation (i.e. Acts of Parliament); accept the rights of individuals to make informed choices
● common law (i.e. decisions of judges). about their treatment and care.
Statute law has particular relevance to ethics in the
critical care context. Examples of statute law in Australia Consent
include: In principle, any procedure that involves intentional
contact by a healthcare practitioner with the body of a
● Consent to Medical Treatment and Palliative Care Act patient is considered an invasion of the patient’s bodily
1995 (SA); integrity, and as such requires the patient’s consent. A
● Medical Treatment Act 1988 (Vic.); healthcare practitioner must not assume that a patient
● Natural Death Act 1988 (NT); provides a valid consent on the basis that the individual
● Medical Treatment Act 1994 (ACT).
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has been admitted to a hospital. All treating staff (nurses,
Further details of these Australian Acts can be found in doctors, allied health etc) are required to facilitate discus-
the Relevant legislation section at the end of the chapter. sions about diagnosis, treatment options and care with
the patient, to enable the patient to provide informed
One example of how statute law is applied in practice consent. When specific treatment is to be undertaken by
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regards consent for life-sustaining measures; the Consent a medical practitioner, the responsibility for obtaining
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to Medical Treatment and Palliative Care Act 1995 (SA) consent rests with the medical practitioner; this respon-
states that:
sibility may not be delegated to a nurse. 16
… in the absence of an express direction by the patient or the Patients have the right, as autonomous individuals,
patient’s representative to the contrary, [the doctor is] under to discuss any concerns or raise questions, at any time,
no duty to use, or to continue to use, life sustaining measures with staff. Hospitals should provide detailed patient
… (S17 (2))
admission information, including information regarding
It should be noted that each Australian state and territory ‘patients’ rights and responsibilities’, that usually include
has differences in its Acts, which can cause confusion. The a broad explanation of the consent process within that
New Zealand Bill of Rights and the Health Act 1956 are institution. In many countries there is no distinction
currently under revision in New Zealand. 12,13 These between the obligation to obtain valid consent from the