Legal, ethical and professional concepts within the operating department.
Abstract: There are a number of desirable healthcare practices, such as the requirement for consent and confidentiality, and a respect for the patient, that are ethically sound and legally required (Staunton & Chiarella 2008). The purpose of the law is to provide a deterrent to malpractice, and compensation when things go wrong. All health professionals should be actively aware of the law and its various key concepts. These are primarily negligence, consent, accountability, confidentiality and advocacy (Watson & Tilley 2004). This article is designed to identify the concepts that are important within the operating department. Legal, ethical and professional perspectives that underpin these concepts will be discussed along with relevant case law, ethical theory and the Health Professions Council's (HPC) code of conduct.

KEYWORDS Legal / Ethics / Ethical theory / Consent / Accountability / Advocacy / Confidentiality
Article Type: Report
Subject: Negligence (Laws, regulations and rules)
Medical ethics (Laws, regulations and rules)
Medical personnel (Laws, regulations and rules)
Author: Wilson, Rachel
Pub Date: 03/01/2012
Publication: Name: Journal of Perioperative Practice Publisher: Association for Perioperative Practice Audience: Academic Format: Magazine/Journal Subject: Health; Health care industry Copyright: COPYRIGHT 2012 Association for Perioperative Practice ISSN: 1750-4589
Issue: Date: March, 2012 Source Volume: 22 Source Issue: 3
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Product: Product Code: 8010000 Medical Personnel NAICS Code: 62 Health Care and Social Assistance
Geographic: Geographic Scope: United Kingdom Geographic Code: 4EUUK United Kingdom
Accession Number: 283274424
Full Text: History and the law

Healthcare professionals throughout history have been trusted because of their competence, caring abilities and the skills to treat and cure. Even today this is still true, but professional autonomy and authority are now being challenged from different viewpoints. The role of the patient has changed considerably as they are now more empowered and have the right to know everything about their condition, participating more actively in the decision making process of their treatment. Professional values and ethics underline just how a patient is treated, but as the increasing number of medical negligence court cases shows certain health professionals out there are doing something amiss (Paulsen 2011.) As a result, healthcare issues have frequently grabbed front page news.

Within the last few years situations and dilemmas have occurred which have caused public outrage and a concern for health. New technologies and miracle drugs explain the expanding interest but it is the stories of life and death that grab the public's attention the most. In 2001, the death of 29 babies at Bristol Royal Infirmary led to a cardiac surgeon being found guilty of serious professional misconduct, and more recent was the inquiry into Harold Shipman, a doctor who was convicted of murdering 15 of his patients.

These situations raise legal and ethical issues (Hendrick 2004). However, law and ethics are not the same. The law is in place to protect people from harm and can best be described as a sum of the rules and regulations by which society is governed. The law reflects current standards and values that support, rather than challenge professional decisions on ethical issues (Carson & Montgomery 1989). Ethics on the other hand is a system of moral principles which defines what is good or bad, and affects how people make decisions and live their lives. It is to be noted however that ethical decision making will always involve certain aspects of the law (Matzo & Sherman 2010).

Ethics

Ethics are concerned with the actions of individuals and the consequences of those actions. Ethical values can materialise through an individual's upbringing, their religious beliefs, their education and their past experiences (Hind & Wicker 2000). According to Hendrick (2000) ethical theories and principles are the viewpoints from which guidance can be obtained when making a decision. Each theory highlights different points, such as predicting certain outcomes, and follows the duties to others in order to reach a decision that is ethically correct. For an ethical theory to be beneficial it must be directed towards a set of common goals that include beneficence, least harm, and respect for autonomy and justice.

Possibly the most well-known ethical theory is deontology. This theory was devised by Immanuel Kant (1724-1804) and it works on promoting the principles of beneficence, meaning to do good, and non-maleficence, meaning to do no harm. In healthcare however there is rarely a situation where there is not a risk of harm. Kant believed that duty is the foundation of morality and telling the truth should always be promoted. The ten commandments are seen to be an early code of conduct for deontologists and the important aspect of this theory is not the consequences of acts but the moral obligations that cause a person to do such acts (Hendrick 2000). White & Baldwin (2004) argue that the good point about this theory is that it is consistent and concerned for justice, but the rules may conflict and it is indifferent to the consequences.

Another ethical theory is consequentialism. This theory is to assess the consequences of performing an action and then decide whether it is the right thing to do. Consequences play a big role in this theory as a person will weigh up the different outcomes of a decision before making it (Fletcher et al 1995).

Although there are many versions of consequentialism the central other theory is unitarianism. This model was devised by Jeremy Bentham (1748-1832) and its basic principle is that an action can be thought of as morally correct if it brings about the greatest happiness and prevents pain (White & Baldwin 2004). Matzo & Sherman (2010) argue that consequentialism makes huge demand on the individual as they strive for the greatest possible happiness, even if it is at the expense of other individuals.

Ethics play a vital role in the decision making process within professional practice. The application of moral views is becoming increasingly more complex because of the multi-cultural, post-modern world in which we live today. Practitioners encounter patients from many different cultural backgrounds, which highlights the need for the practitioner to be knowledgeable about different values and beliefs (Buka 2008). For example there is much disagreement in today's day about ethical issues such as abortion or euthanasia. Within these areas decisions will be made that do not necessarily agree with some people's moral views. Some health professionals may disagree with the law due to their ethical viewpoints and on some occasions, such as the participation in abortions, they have the legal right to not be involved (Carson & Montgomery 1989).

Accountability and case law

There are various concepts present within the operating department; accountability is one of these. People are often asked to account for their actions in a legal, moral or completely neutral capacity (Dimond 2008). Accountability is in place to protect the public, and it means an individual is answerable to a higher authority for their actions. An operating department practitioner (ODP) is a qualified professional and they are accountable to their professional body, the Health Professions Council (HPC), and to the law which demands that qualified practitioners attain and maintain professional standards of practice (Fletcher et al 1995).

The HPC Standards of conduct, performance and ethics (HPC 2008 p12) states that, 'as an autonomous and accountable professional, you need to make informed and reasonable decisions about your practice to make sure that you meet the standards that are relevant to your practice'. Malpractice may lead to a criminal prosecution or civil action if a practitioner fails to give sufficient care or causes harm to a patient. If this occurs they will be held liable for negligence (Korgaonkar &Tribe 1995.) The aim of accountability is to ensure that the public and patients are not harmed by an individual's acts (Griffith & Tengnah 2008).

Case law is often referred to as common law and it is an important legal aspect when dealing with cases such as negligence because it is a body of law that is entirely developed by the courts through their written decision (Bopp & Smith 2011). A relevant case law which laid the foundation for the law of negligence was the Donoghue v Stevenson (1932) case, which involved a woman who suffered shock and gastroenteritis as a result of drinking a bottle of ginger beer before the remains of a snail floated out the bottle (Hendrick 2000). Case law has the advantage of being flexible, responding quickly to changes in society and to the needs of everyday life.

Student ODPs are often present in theatre, accompanied by their mentors. The student's mentor is morally, legally and professionally accountable for that student and also for their patients. This means that they are always to consider the concept of autonomy, the best interests of the patient, and the primacy of the practitioner's role as patient advocate (Woodhead & Wicker 2005). Even if the mentor leaves the student with a patient for whatever reason, they are still accountable for that student. The student does however have a measure of accountability and must be supervised in a minimum way at least.

Reeves & Orford (2002) state that the student is never professionally accountable in the same way as their professional mentor, and it is the mentor who is accountable for the consequences of the student's actions and omissions. The student can however be called to account by the law or by their university. The mentor is accountable to their employer and they must use all their care and skills to perform their duties. If the mentor as an employee has been grossly negligent, then their employer can take disciplinary action against them in the form of a warning, a demotion or even a dismissal (Dimond 2008). A health professional who is found guilty of negligence or professional misconduct may be struck off the HPC's register, ending their career (Reeves & Orford 2002).

Griffith & Tengnah (2008) state that the student can argue that they are unaccountable because of their lack of experience, but they must work within the spirit of the HPC code and they are still liable to be sued in a case of negligence. Failing to refer a matter for a more senior opinion could fall below an acceptable standard of care and could potentially harm the patient. Griffith &Tengnah (2008) also declare that when a mishap occurs in treatment, it is the health professional's duty of care to inform the patient immediately of the mishap. It states in the HPC's standards of conduct (HPC 2008 p3 no6) 'you must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner'.

Despite all the guidance given in the HPC's code, rules may be broken, either deliberately, for example when someone takes a 'shortcut', or unintentionally (Reeves & Orford 2002). It is not a hypothetical question to ask whether a healthcare professional should inform a patient about the negligence of a colleague regarding that patient's care. If a mistake has been made then the health professional has a duty to the patient to correct the mistake. They should also ensure that steps are taken so that the same mistake does not happen again and should report the incident to a senior member of staff (Dimond 2008). Members of staff in the operating department would have to make an ethical decision about whether or not to inform a senior member of staff about a colleague's lack of professionalism, if the issue ever arose.

Confidentiality

According to Fletcher et al (1995) all health professionals have a duty to respect and uphold the confidentiality of the patient as part of their professional responsibility. The HPC's standards of conduct (HPC 2008 p3 no2) clearly states 'you must respect the confidentiality of service users'. Maintaining the confidentiality of a patient's health is a fundamental element of ethical practice and professional conduct for all health professionals (Griffith & Tengnah 2008). Patients pass on sensitive information regarding their health in confidence and the professionals within the operating department must respect their privacy by ensuring the confidentiality of this information. Korgaonkar & Tribe (1995) declare that the information a patient gives to a health professional must only be used for the purpose it was given and not released to others without the patient's consent.

Maintaining confidentiality is an important ethical principle. Hind and Wicker (2000) state that perioperative nurses have sensitive information regarding patients and that they have a duty to protect that information. The information should not be divulged without permission to anybody who does not have a right to it. Confidentiality is part of the system of common law and is expressed within the Human Rights Act (1998) which it states that everyone's life shall be protected by the law. Article 8 highlights the patient's right to confidentiality and 'right to respect for family and private life' (Dimond 2008).

Dimond (2008) states that it is the health professional's duty to ensure that patient information is not disclosed to anyone who does not have the right to it. Information regarding the health of a child under the age of sixteen can be given to their parents if it is in the best interest of the child. However, a mentally competent young person under the age of sixteen has a right to request the withholding of information from their parents. Carson & Montgomery (1989) state that a belief in different ethical standards is not a substantial legal defence if the law is broken.

Advocacy

Given that the perioperative experience renders the patient vulnerable, the practitioner must serve to uphold and promote the patient's rights. This is due to the fact that advocacy assumes that the interests and the rights of the patient remain vital. Practitioners at all times must remain ethically aware and must have respect for the principle of autonomy, even though their time with the patient remains brief (Woodhead & Wicker 2008).

A typical definition of advocacy is someone who pleads or speaks for another person. At times healthcare professionals will be required to use their skills of empathy and their own personal interaction with a patient to mediate between that patient and another health professional. However Reeves & Orford (2003) suggest that advocacy can cause disrupted relationships between colleagues from different disciplines, leading to a practitioner championing one patient but maybe not another, and this can lead to injustice. Schroeter (2000) states that the role of advocacy in a healthcare setting is for the professional to inform the patient of their treatment and treatment options. This empowers the patient to make their own decisions regarding their treatment and care. Health professionals at times may have to act as patient advocates. They must have an up to date knowledge base and must remain autonomous in order to deliver the information. However, Mardell (1996) highlights the danger of this knowledge being incorrect or even dangerous, possibly resulting in the professional being disciplined or even struck off.

Advocacy is vital in the perioperative environment, as the patient is vulnerable (Hind & Wicker 2000). From a legal prospective, an advocate would be required to act on behalf of the patient, supporting them in exercising their choices. It states also in the HPC's code of conduct (HPC 2008) that at all times the practitioner must 'act in the best interests of the service user'. Reeves & Orford (2003) state that advocacy is considered to be 'high-powered' because it is a role used in the courts. Boyle (2005) highlights that advocacy is a major issue for surgical patients because they are unconscious and unable to make decisions regarding their care. Due to this the practitioner needs to provide vital support during the perioperative care period, always acting in the patient's best interests. Wheeler (2000) argues however that, because the perioperative team usually does not meet a patient before they enter surgery, they do not have sufficiently intimate knowledge of that patient and their needs to act as their advocate. Ultimately though, the main consideration to be remembered for advocacy is that the advocate is pleading for the patient and expressing the patient's wishes, not their own personal wishes.

Consent

Healthcare professionals are gaining greater independence clinically and are becoming more responsible. These days they are more involved in the law and being able to use it constructively. They should not just be aware of the legal requirement for consent to treatment, but they should be able to develop criteria for the existence of consent. By this they can use the law to aid the goals, ethics and values important to them (Carson & Montgomery 1989).

Within the operating room valid consent is central to the patient's surgical procedure (Wicker & O'Neil 2010). Consent is the voluntary and continuing permission of the patient to receive a particular treatment. Griffith & Tengnah (2008) state that, when a patient gives consent for a procedure, the patient is entitled to the information concerning their procedure and also expects that the health care professional is qualified to carry it out accordingly. To proceed with treatment that the patient is unaware of will result in a trespass to that patient. In law, physically touching a patient's body without permission or consent is considered to be assault. The consent must be adequately informed for it to satisfy legal and ethical standards. Failure to inform a patient of the procedure when they are deciding whether to give consent, constitutes legal negligence if injury occurs (Matson & McCall-Smith 1999).

For a successful claim of negligence the judge in a court of law must be satisfied that no other health professional would have behaved in that manner. The test used is that of the case of Bolam v Frien HMC (1957) otherwise referred to as the 'Bolam test.' Mr Bolam suffered fractures as a result of electroconvulsive therapy and sued the doctor involved for negligence. The case was lost however; because the judge was satisfied that any reasonable doctor would not have informed the patient of these risks at the time (AfPP 2007).

There are many ways in which a patient can give consent, all of which are legal. The best and preferred way is written consent, but there is also consent by word of mouth or implied consent. Implied consent is when a patient is implying, usually by body language, that they agree to treatment. An example of this is a patient holding out their arm for blood pressure to be taken. No words may be spoken patient to professional, but it is clear to the professional if the patient agrees (Dimond 2008). Point 9 in the HPC's code of conduct (HPC 2008 p3 no 9) states that 'you must get informed consent to give treatment (except in an emergency)'.

Common law has previously governed the law on consent but it is now partially governed by the Mental Capacity Act (2005). Valid consent is vital and proceeding with an operation when a patient has not given consent is illegal. Practitioners must ensure consent is only obtained when a full explanation of the procedure has been made and the law states that the patient, when signing the consent must have the mental capacity to comprehend the procedure (Bernat & Peterson 2006).

The Gillick decision defines competence as the ability to understand information about the treatment; this includes understanding of any risks involved. The term 'Gillick competent' comes from a case back in 1986 (Gillick v. West Norfolk and Wiisbech AHA) in which Mrs Victoria Gillick went to court to ask for the circumstances in which it would be lawful to give contraceptive advice to a young person under the age of sixteen without their parent's permission to be examined (McHale & Tingle 2007). Although this age has not been lowered, Bailey & Harbour (1999) suggest that it would be inappropriate for a patient under the age of thirteen to consent to treatment without their parent's involvement. In an emergency situation if a patient is unconscious and unable to give consent they would be given emergency treatment. The health professional providing the emergency treatment would be protected against an allegation of trespass in a court of law by the defence that they were acting in the patient's best interests and that it was an emergency situation (Dimond 2008).

Conclusion

To conclude, many legal and ethical areas have been explored within this paper. The concepts of consent, confidentiality, advocacy and accountability are all present in the operating department and must be continuously upheld by health professionals including mentors and their students, legally and ethically throughout their practice. Negligence claims, case laws or being struck off the professional register are examples of consequences that will follow if the concepts are broken or incorrectly followed. Highlighting the importance of the HPC's code of conduct, Quick (2010) states that a professional, regardless of their role, must practice and conduct themselves within the framework of the current code alongside that of the law to guide practice. In the end, professional practice demands moral courage to ensure that the focus of the care remains with the patient at all times. To care ethically demands patience from the practitioner and they must be willing to undertake actions to the best of their ability, not just because they have to, but because they believe it is ethically right to do so (Woodhead & Wicker 2005).

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Acknowledgement

I would like to thank my module tutor, Robert Hughes, for his support and guidance during the writing of this article

Correspondence address: c/o AfPP, Daisy Ayris House, 42 Freemans Way, Harrogate, HG3 1DH. Email: rach_wilson@msn.com

Provenance and Peer review: Unsolicited contribution; Peer reviewed; Accepted for publication January 2012.

About the author

Rachel Wilson 1st year ODP student

Teeside University

No competing interests declared
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