Read scenario and complete the following questions. use the articles at the end for relevant resources

Case Scenario

A 67 year old patient was admitted to the Neurological Intensive Care Unit following a cerebral hemorrhage which left the patient with severe brain damage and ventilator dependent. The patient was presented in a life-or-death status for emergency care by the spouse.

One year before this event, the patient and the spouse had drawn up "living wills" with an attorney.

After initial emergency care, the patient was diagnosed by the treating physician as being in a permanent unconscious condition. The patient's Advanced Directive specified that the patient did not want ventilator support or other artificial life support in the event of a permanent unconscious condition or terminal condition.

The patient's spouse is the legal next of kin and the person with surrogate decision-making authority. When the living will was discussed with the surrogate/spouse insisted that the patient had not intended for the document to be used in a situation like the present one.

Further discussion with the surrogate revealed an understanding that the patient would not be able to recover any meaningful brain function. The surrogate argued that the living will did not apply because the patient's condition was not imminently terminal. The surrogate further indicated that the spouse was not in a permanent unconscious condition. The immediate family members (the couple's adult children) disagreed with the surrogate's refusal to withdraw life support.

The treatment team allowed a week to pass to allow the spouse more time to be supported in grief and to appreciate the gravity of the patient's situation. Nevertheless, at the end of this time, the surrogate was unwilling to authorize withdrawal of life support measures consistent with the patient's wishes as expressed in the living will.

-----------------End of scenario--------------------------------

What are the key legal/ethical issues in this case scenario? Think carefully about what the law requires and where ethics must cover.

Questions to be discussed based on the facts above. You must weave into your discussion the relevant facts from above scenario to support your discussion of legal responsibilities in areas 2 and 3 below. And for discussion area 3 you must weave into your discussion the ethics philosophy you pick for each issue from the article A Framework for Thinking Ethically.

Just list the three most important legal/ethics issues (not just ethical) in this scenario that you will discuss.

2. Discussion of Three Legal/Ethical Issues. Discuss thethree most important ethical/legal issues you listed above. Must use the relevant facts in the scenario to support your discussion of the legal/ethical issues.

Must use headings below.Headings will be:

Legal/Ethical Issue 1[state the issue] then discussion

Legal/Ethical Issue 2 [state the issue] then discussion

Legal/Ethical Issue 3 [state the issue] then discussion

For each legal/ethical issue above discuss

a. Why each is a legal /ethical issue?

b. Discuss each issue in the context of the scenario facts and

c. Define the concepts you use

3. How to Handle Each Issue. First, as a knowledgeable professional (either clinical provider or administrator) how would you handle each of the three issues discussed above and why?Must identify experts or resources to draw upon for a legal and ethical decision in this case. Use the relevant facts in the scenario to support your positions. This is not your personal moral statement. Secondlyfor each issue, using the article in these requirements, entitled "A Framework of Thinking Ethically"fully discuss the specific ethics philosophy that would epitomize your handling of each issue. Fully define the specific ethics philosophy used and weave the ethics philosophy into your discussion. See article below entitled A Framework for Thinking Ethically.

Must use headings below.Headings will be:

Handling of Legal/Ethical Issue #1 (followed by the discussion)

Handling of Legal/Ethical Issue #2 (followed by the discussion)

Handling of Legal/Ethical Issue #3 (followed by the discussion)

Articles to use for discussion resource

Article One of Two

Clinical Ethics Issues and Discussion Article

Relationships: I. clinical ethics, law & risk management

1. Definitions and sources of authority

In the course of practicing medicine, a range of issues may arise that lead to consultation with a medical ethicist, a lawyer, and/or a risk manager. The following discussion will outline key distinctions between these roles.

• Clinical ethicsmay be defined as: a discipline or methodology for considering the ethical implications of medical technologies, policies, and treatments, with special attention to determining what ought to be done (or not done) in the delivery of health care.
• Lawmay be defined as: established and enforceable social rules for conduct or non-conduct; a violation of a legal standard may create criminal or civil liability.
• Risk Managementmay be defined as: a method of reducing risk of liability through institutional policies/practices.

Many health care facilities have in-house or on-call trained ethicists to assist health care practitioners, caregivers and patients with difficult issues arising in medical care, and some facilities have formally constituted institutional ethics committees. In the hospital setting, this ethics consultation or review process dates back to at least 1992 with the formulation of accreditation requirements that mandated that hospitals establish a "mechanism" to consider clinical ethics issues.

Ethics has been described as beginning where the law ends. The moral conscience is a precursor to the development of legal rules for social order. Ethics and law thus share the goal of creating and maintaining social good and have a symbiotic relationship as expressed in this quote:

[C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation. William Somerset Maugham

The role of lawyers and risk managers are closely linked in many health care facilities. Indeed, in some hospitals, the administrator with the title of Risk Manager is an attorney with a clinical background. There are, however, important distinctions between law and risk management. Risk management is guided by legal parameters but has a broader institution-specific mission to reduce liability risks. It is not uncommon for a hospital policy to go beyond the minimum requirements set by a legal standard. When legal and risk management issues arise in the delivery of health care, ethics issues may also exist. Similarly, an issue originally identified as falling within the clinical ethics domain may also raise legal and risk management concerns.

To better understand the significant overlap among these disciplines in the health care setting, consider the sources of authority and expression for each.

Ethical norms may be derived from:

• Law
• Institutional policies/practices
• Policies of professional organizations
• Professional standards of care, fiduciary obligations

Note: If a health care facility is also a religious facility, it may adhere to religious tenets. In general, however, clinical ethics is predominantly a secular professional analytic approach to clinical issues and choices.

Law may be derived from:

• Federal and state constitutions (fundamental laws of a nation or state establishing the role of government in relation to the governed)
• Federal and state statutes (laws written or enacted by elected officials in legislative bodies, and in some states, such as Washington and California, laws created by a majority of voters through an initiative process)
• Federal and state regulations (written by government agencies as permitted by statutory delegation, having the force and effect of law consistent with the enabling legislation)
• Federal and state case law (written published opinions of appellate-level courts regarding decisions in individual lawsuits)
• City or town ordinances, when relevant

Risk Management may be derived fromlaw, professional standards and individual institution's mission and public relations strategies and is expressed through institutional policies and practices.

1. Conceptual Models

Another way to consider the relationship among the three disciplines is through conceptual models:

1. Linear
2. Distinctions
3. Interconnectedness
4. Orientation to law for non-lawyers
5. Potential legal actions against health care providers

There are two primary types of potential civil actions against health care providers for injuries resulting from health care: (1) lack of informed consent, and (2)violation of the standard of care. Medical treatment and malpractice laws are specific to each state.

1. Informed Consent. Before a health care provider delivers care, ethical and legal standards require that the patient provide informed consent. If the patient cannot provide informed consent, then, for most treatments, a legally authorized surrogate decision-maker may do so. In an emergency situation when the patient is not legally competent to give informed consent and no surrogate decision-maker is readily available, the law implies consent on behalf of the patient, assuming that the patient would consent to treatment if he or she were capable of doing so.

Information that must be conveyed to and consented to by the patient includes: the treatment's nature and character and anticipated results, alternative treatments (including non-treatment), and the potential risks and benefits of treatment and alternatives. The information must be presented in a form that the patient can comprehend (i.e., in a language and at a level which the patient can understand) and that the consent must be voluntary given. An injured patient may bring an informed consent action against a provider who fails to obtain the patient's informed consent in accordance with state law.

From a clinical ethics perspective, informed consent is a communicationprocess,and should not simply be treated as a requiredformfor the patient's signature. Similarly, the legal concept of informed consent refers to a state of mind, i.e., understanding the information provided to make an informed choice. Health care facilities and providers use consent forms to document the communication process. From a provider's perspective, a signed consent form can be valuable evidence the communication occurred and legal protection in defending against a patient's claim of a lack of informed consent. Initiatives at the federal level (i.e., the Affordable Care Act) and state level (e.g., Revised Code of Washington 7.70.060) reflect approaches that support shared decision-making and the use of patient decision aids in order to ensure the provision of complete information for medical decision-making.

1. Failure to follow standard of care.A patient who is injured during medical treatment may also be able to bring a successful claim against a health care provider if the patient can prove that the injury resulted from the provider's failure to follow the accepted standard of care. The duty of care generally requires that the provider use reasonably expected knowledge and judgment in the treatment of the patient, and typically would also require the adept use of the facilities at hand and options for treatment. The standard of care emerges from a variety of sources, including professional publications, interactions of professional leaders, presentations and exchanges at professional meetings, and among networks of colleagues. Experts are hired by the litigating parties to assist the court in determining the applicable standard of care.

Many states measure the provider's actions against a national standard of care (rather than a local one) but with accommodation for practice limitations, such as the reasonable availability of medical facilities, services, equipment and the like. States may also apply different standards to specialists and to general practitioners. As an example of a statutory description of the standard of care, Washington State currently specifies that a health care provider must "exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the State of Washington, acting in the same or similar circumstances."

III. Common clinical ethics issues: medical decision-making and provider-patient communication

There are a number of common ethical issues that also implicate legal and risk management issues. Briefly discussed below are common issues that concern medical decision-making and provider-patient communication.

If a patient is capable of providing informed consent, then the patient's choices about treatment, including non-treatment, should be followed. This is an established and enforceable legal standard and also consistent with the ethical principle of respecting the autonomy of the patient. The next two sections (Surrogate decision-making; Advance directives) discuss how this principle is respected from a legal perspective if a patient lacks capacity, temporarily or permanently, to make medical decisions. The third section briefly introduces the issue of provider-patient communication, and highlights a contemporary dilemma raised in decisions regarding the disclosure of medical error to patients.

1. Surrogate decision-making

The determination as to whether a patient has thecapacityto provide informed consent is generally a professional judgment made and documented by the treating health care provider. The provider can make a determination of temporary or permanent incapacity, and that determination should be linked to a specific decision. The legal termcompetency(orincompetency) may be used to describe a judicial determination of decision-making capacity. The designation of a specificsurrogate decision-makermay either be authorized by court order or is specified in state statutes.

If a court has determined that a patient is incompetent, a health care provider must obtain informed consent from the court-appointed decision-maker. For example, where a guardian has been appointed by the court in a guardianship action, a health care provider would seek the informed consent of the guardian, provided that the relevant court order covers personal or health care decision-making.

If, however, a physician determines that a patient lacks the capacity to provide informed consent, for example, due to dementia or lack of consciousness, or because the patient is a minor and the minor is legally proscribed from consenting, then a legally authorized surrogate decision-maker may be able to provide consent on the patient's behalf. Most states have specific laws that delineate, in order of priority, who can be a legally authorized surrogate decision-maker for another person. While these laws may vary, they generally assume that legal relatives are the most appropriate surrogate decision-makers. If, however, a patient has previously, while capable of consenting, selected a person to act as her decision-maker and executed a legal document known as adurable power of attorney for health careorhealth care proxy,then that designated individual should provide informed consent.

In Washington State, a statute specifies the order of priority of authorized decision-makers as follows: guardian, holder of durable power of attorney; spouse or state registered partner; adult children; parents; and adult brothers and sisters. If the patient is a minor, other consent provisions may apply, such as: court authorization for a person with whom the child is in out-of-home placement; the person(s) that the child's parent(s) have given a signed authorization to provide consent; or, a competent adult who represents that s/he is a relative responsible for the child's care and signs a sworn declaration stating so. Health care providers are required to make reasonable efforts to locate a person in the highest possible category to provide informed consent. If there are two or more persons in the same category, e.g., adult children, then the medical treatment decision must be unanimous among those persons. A surrogate decision-maker is required to make the choice she believes the patient would have wanted, which may not be the choice the decision-maker would have chosen for herself in the same circumstance. This decision-making standard is known assubstituted judgment.If the surrogate is unable to ascertain what the patient would have wanted, then the surrogate may consent to medical treatment or non-treatment based on what is in the patient'sbest interest.

Laws on surrogate decision-making are slowly catching up with social changes. Non-married couples (whether heterosexual or same sex) have not traditionally been recognized in state law as legally authorized surrogate decision-makers. This lack of recognition has left providers in a difficult legal position, encouraging them to defer to the decision-making of a distant relative over a spouse-equivalent unless the relative concurs. Washington law, for example, now recognizes spouses and domestic partners registered with the state as having the same priority status.

Parental decision-making and minor children.A parent may not be permitted in certain situations to consent to non-treatment of his or her minor child, particularly where the decision would significantly impact and perhaps result in death if the minor child did not receive treatment. Examples include parents who refuse medical treatment on behalf of their minor children because of the parents' social or religious views, such as Jehovah's Witnesses and Christian Scientists. The decision-making standard that generally applies to minor patients in such cases is known as thebest intereststandard. The substituted judgment standard may not apply because the minor patient never had decision-making capacity and therefore substituted judgment based on the minor's informed choices is not able to be determined. It is important to note that minors may have greater authority to direct their own care depending on their age, maturity, nature of medical treatment or non-treatment, and may have authority to consent to specific types of treatment. For example, in Washington State, a minor may provide his or her own informed consent for treatment of mental health conditions, sexually transmitted diseases, and birth control, among others. Depending on the specific facts, a health care provider working with the provider's institutional representatives could potentially legally provide treatment of a minor under implied consent for emergency with documentation of that determination,assume temporary protective custody of the child under child neglect laws, or if the situation is non-urgent, the provider could seek a court order to authorize treatment.

1. Advance directives

The termadvance directiverefers to several different types of legal documents that may be used by a patient while competent to record future wishes in the event the patient lacks decision-making capacity. The choice and meaning of specific advance directive terminology is dependent on state law. Generally, aliving willexpresses a person's desires concerning medical treatment in the event of incapacity due to terminal illness or permanent unconsciousness. Adurable power of attorney for health careorhealth care proxyappoints a legal decision- maker for health care decisions in the event of incapacity. Anadvance health care directiveorhealth care directivemay combine the functions of a living will and durable power of attorney for health care into one document in one state, but may be equivalent to aliving willin another state. ThePhysician Orders for Life Sustaining Treatment(POLST) formis a document that is signed by a physician and patient which summarizes the patient's wishes concerning medical treatment at the end of life, such as resuscitation, antibiotics, other medical interventions and artificial feeding, and translates them into medical orders that follow patients regardless of care setting. It is especially helpful in effectuating a patient's wishes outside the hospital setting, for example, in a nursing care facility or emergency medical response context. This relatively new approach is available in about a dozen states, although the programs may operate under different names: POST (Physician Orders for Scope of Treatment), MOST (Medical Orders for Scope of Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and COLST (Clinician Orders for Life-Sustaining Treatment). The simple one page treatment orders follow patients regardless of care setting. Thus it differs from an advance directive because it is written up by the clinician in consultation with the patient and is a portable, actionable medical order. The POLST form is intended to complement other forms of advance directives. For example, Washington State recognizes the following types of advance directives: the health care directive (living will), the durable power of attorney for health care, and the POLST form. Washington also recognizes another legal document known as amental health advance directive, which can be prepared by individuals with mental illness who fluctuate between capacity and incapacity for use during times when they are incapacitated.

State laws may also differ on the conditions that can be covered by an individual in an advance directive, the procedural requirements to ensure that the document is effective (such as the number of required witnesses) and the conditions under which it can be implemented (such as invalidity during pregnancy).

Advance directives can be very helpful in choosing appropriate treatment based upon the patient's expressed wishes. There are situations, however, in which the advance directive's veracity is questioned or in which a legally authorized surrogate believes the advance directive does not apply to the particular care decision at issue. Such conflicts implicate clinical ethics, law and risk management.

1. Provider-patient communications: disclosing medical error

Honest communication to patients by health care providers is an ethical imperative. Excellent communication eliminates or reduces the likelihood of misunderstandings and conflict in the health care setting, and also may affect the likelihood that a patient will sue.

One of the more contentious issues that has arisen in the context of communication is whether providers should disclose medical errors to patients, and if so, how and when to do so. Disclosure of medical error creates a potential conflict among clinical ethics, law and risk management. Despite a professional ethical commitment to honest communication, providers cite a fear of litigation as a reason for non-disclosure. Specifically, the fear is that those statements will stimulate malpractice lawsuits or otherwise be used in support of a claim against the provider. An increase in malpractice claims could then negatively affect the provider's claims history and malpractice insurance coverage.

There is some evidence in closed systems (one institution, one state with one malpractice insurer) that an apology coupled with disclosure and prompt payment may decrease either the likelihood or amount of legal claim. In addition, a number of state legislatures have recently acted to protect provider apologies, or provider apologies coupled with disclosures, from being used by a patient as evidence of a provider's liability in any ensuing malpractice litigation. It is currently too early to know whether these legal protections will have any impact on the size or frequency of medical malpractice claims. For this reason and others, it is advisable to involve risk management and legal counsel in decision-making regarding error disclosure.

Article Two of Two

A Framework for Thinking Ethically Article

This document is designed as an introduction to thinking ethically. We all have an image of our better selves-of how we are when we act ethically or are "at our best." We probably also have an image of what an ethical community, an ethical business, an ethical government, or an ethical society should be. Ethics really has to do with all these levels-acting ethically as individuals, creating ethical organizations and governments, and making our society as a whole ethical in the way it treats everyone.

What is Ethics?

Simply stated, ethics refers to standards of behavior that tell us how human beings ought to act in the many situations in which they find themselves-as friends, parents, children, citizens, businesspeople, teachers, professionals, and so on.

It is helpful to identify what ethics is NOT:

• Ethics is not the same as feelings. Feelings provide important information for our ethical choices. Some people have highly developed habits that make them feel bad when they do something wrong, but many people feel good even though they are doing something wrong. And often our feelings will tell us it is uncomfortable to do the right thing if it is hard.
• Ethics is not religion. Many people are not religious, but ethics applies to everyone. Most religions do advocate high ethical standards but sometimes do not address all the types of problems we face.
• Ethics is not following the law. A good system of law does incorporate many ethical standards, but law can deviate from what is ethical. Law can become ethically corrupt, as some totalitarian regimes have made it. Law can be a function of power alone and designed to serve the interests of narrow groups. Law may have a difficult time designing or enforcing standards in some important areas, and may be slow to address new problems.
• Ethics is not following culturally accepted norms. Some cultures are quite ethical, but others become corrupt -or blind to certain ethical concerns (as the United States was to slavery before the Civil War). "When in Rome, do as the Romans do" is not a satisfactory ethical standard.
• Ethics is not science. Social and natural science can provide important data to help us make better ethical choices. But science alone does not tell us what we ought to do. Science may provide an explanation for what humans are like. But ethics provides reasons for how humans ought to act. And just because something is scientifically or technologically possible, it may not be ethical to do it.

Why Identifying Ethical Standards is Hard

There are two fundamental problems in identifying the ethical standards we are to follow: 1. On what do we base our ethical standards? 2. How do those standards get applied to specific situations we face?

If our ethics are not based on feelings, religion, law, accepted social practice, or science, what are they based on? Many philosophers and ethicists have helped us answer this critical question. They have suggested at least five different sources of ethical standards we should use.

Five Sources of Ethical Standards

The Utilitarian Approach Some ethicists emphasize that the ethical action is the one that provides the most good or does the least harm, or, to put it another way, produces the greatest balance of good over harm. The ethical corporate action, then, is the one that produces the greatest good and does the least harm for all who are affected-customers, employees, shareholders, the community, and the environment. Ethical warfare balances the good achieved in ending terrorism with the harm done to all parties through death, injuries, and destruction. The utilitarian approach deals with consequences; it tries both to increase the good done and to reduce the harm done.

The Rights Approach Other philosophers and ethicists suggest that the ethical action is the one that best protects and respects the moral rights of those affected. This approach starts from the belief that humans have a dignity based on their human nature per se or on their ability to choose freely what they do with their lives. On the basis of such dignity, they have a right to be treated as ends and not merely as means to other ends. The list of moral rights -including the rights to make one's own choices about what kind of life to lead, to be told the truth, not to be injured, to a degree of privacy, and so on-is widely debated; some now argue that non-humans have rights, too. Also, it is often said that rights imply duties-in particular, the duty to respect others' rights.

The Fairness or Justice Approach Aristotle and other Greek philosophers have contributed the idea that all equals should be treated equally. Today we use this idea to say that ethical actions treat all human beings equally-or if unequally, then fairly based on some standard that is defensible. We pay people more based on their harder work or the greater amount that they contribute to an organization, and say that is fair. But there is a debate over CEO salaries that are hundreds of times larger than the pay of others; many ask whether the huge disparity is based on a defensible standard or whether it is the result of an imbalance of power and hence is unfair.

The Common Good Approach The Greek philosophers have also contributed the notion that life in community is a good in itself and our actions should contribute to that life. This approach suggests that the interlocking relationships of society are the basis of ethical reasoning and that respect and compassion for all others-especially the vulnerable-are requirements of such reasoning. This approach also calls attention to the common conditions that are important to the welfare of everyone. This may be a system of laws, effective police and fire departments, health care, a public educational system, or even public recreational areas.

The Virtue Approach A very ancient approach to ethics is that ethical actions ought to be consistent with certain ideal virtues that provide for the full development of our humanity. These virtues are dispositions and habits that enable us to act according to the highest potential of our character and on behalf of values like truth and beauty. Honesty, courage, compassion, generosity, tolerance, love, fidelity, integrity, fairness, self-control, and prudence are all examples of virtues. Virtue ethics asks of any action, "What kind of person will I become if I fulfill this?" or "Is this action consistent with my acting at my best?"

Putting the Approaches Together

Each of the approaches helps us determine what standards of behavior can be considered ethical. There are still problems to be solved, however.

The first problem is that we may not agree on the content of some of these specific approaches. We may not all agree to the same set of human and civil rights.

We may not agree on what constitutes the common good. We may not even agree on what is a good and what is a harm.

The second problem is that the different approaches may not all answer the question "What is ethical?" in the same way. Nonetheless, each approach gives us important information with which to determine what is ethical in a particular circumstance. And much more often than not, the different approaches do lead to similar answers.

Making Decisions

Making good ethical decisions requires a trained sensitivity to ethical issues and a practiced method for exploring the ethical aspects of a decision and weighing the considerations that should impact our choice of a course of action. Having a method for ethical decision making is absolutely essential. When practiced regularly, the method becomes so familiar that we work through it automatically without consulting the specific steps.

The more novel and difficult the ethical choice we face, the more we need to rely on discussion and dialogue with others about the dilemma. Only by careful exploration of the problem, aided by the insights and different perspectives of others, can we make good ethical choices in such situations.