Ethical and Legal Implications of Respiratory Care Practice

Foundations of Civil Law and Professional Standards

The force behind civil law is established through three primary channels as described on page $82$:

• State Statutes for Individual Conduct: These regulate how individuals behave by imposing both criminal penalties and, in certain instances, civil penalties.
• State Statutes and Professional Boards: These entities regulate the specific practice of therapists. They establish the minimum standards for competent practice and dictate requirements for continuing professional education.
• Common Law of Civil Liability: This covers negligent and intentional acts. It imposes a legal duty upon practitioners to pay financial compensation to individuals who suffer injuries due to the practitioner's actions.

Distinguishing Between Illegal Acts and Ethical Misconduct

It is critical to differentiate between violations of law and violations of professional ethics:

• Illegal Acts: These involve a violation of the standards of conduct set down for all citizens. A specific example includes domestic assault.
• Ethical Misconduct: This typically relates to violations of professional and ethical norms that have been established by the profession as a whole. Page $71$ provides further reading on specific ethical dilemmas in this area.

Philosophical Foundations of Ethics

• Origin: Ethics originates in philosophy, defined as the love of wisdom and the pursuit of knowledge.
• Primary Question: Ethics is fundamentally concerned with the inquiry: ‘‘How should we act?’’
• Core Principle: Ethics represents a commitment to the principle of ‘‘Respect humanity in persons.’’

Ethical Dilemmas in Contemporary Respiratory Care Practice

Respiratory Therapists (RTs) face an array of complex ethical and legal issues in modern practice:

• Rationing of Care: Determining how to distribute limited resources among patients.
• Third-Party Conflicts: Dealing with standards of care imposed by third-party payers (insurance companies) that may conflict with clinical judgment.
• Cost Constraints and Corporate Influence: Delivering an appropriate standard of care while facing financial limitations and the influence of corporate entities.
• Staffing Issues: Managing patient care safely during periods of understaffing.
• Regulatory Compliance: Navigating the Health Insurance Portability and Accountability Act (HIPAA) and the Patient Protection and Affordable Care Act of $2010$ (PPACA).

The Impact of Managed Care

Over the past decade, the healthcare system has transitioned from a fee-for-service model to managed care:

• Restrictive Gatekeeping: Patients are required to obtain approval from their third-party payer (usually an insurance provider) before they can receive hospitalization or specific procedures.
• The Dilemma: This creates a conflict when a Respiratory Therapist believes a patient requires a level of care that exceeds what the insurance provider is willing to authorize.

Staffing and Ethical Neglect

Ethical dilemmas often arise in understaffed departments. For instance, if an RT decides a patient can skip a treatment because their condition is not improving, this may appear as neglect. Without an established clinical protocol, such a decision may violate professional norms. It is considered unethical to prefer one patient over another based on factors that are beyond the control of the patient.

Professional Code of Ethics

• Self-Regulation: A code of ethics is an essential component for any profession that claims to be self-regulating.
• The AARC Statement of Ethics and Professional Conduct: This code establishes the parameters of behavior for all members of the profession.
• Legal Implications: These moral obligations impose ethical duties on therapists. They are frequently used as tools for cross-examination during legal proceedings.
• Practical Application: Page $84$ contains a Mini Clini regarding ethical problem-solving and discussion questions that reflect real-life professional growth opportunities.

Core Ethical Theories and Principles

Ethical practice is built upon the interaction between professional obligations and patient rights. Key principles include:

• Autonomy: This principle acknowledges the personal liberty of patients and their right to decide their own course of treatment. It serves as the basis for ‘‘informed consent.’’ Any use of deceit to convince a patient to reverse their decision to refuse treatment is deemed unethical. Detailed reading on the right to refuse treatment is available on page $72$.
• Veracity (Truthfulness): This binds the healthcare provider and the patient to be truthful.
  • Benevolent Deception: This occurs when a provider withholds the truth from a patient supposedly for their own good. This is generally discouraged.
  • Public Preference: A survey found that $94\%$ of Americans want to know the full truth regarding their medical case, even if the facts are dismal.
• Nonmaleficence: This principle obligates providers to avoid harming the patient and to actively prevent harm when possible.
  • Double Effect: This allows for an action that has a good intent but results in an unintended harmful side effect (e.g., placing a patient on a ventilator to save their life, despite the risk of secondary infection).
• Beneficence: This requires healthcare workers to contribute to the health and well-being of their patients, a higher standard than simply avoiding harm. This principle has driven the development of advanced directives.
• Confidentiality: Healthcare workers must respect the patient's right to privacy, even after the patient has died. (Refer to page $74$ for more details).
  • Exceptions: Privacy may be breached in specific legal scenarios, such as cases of child abuse, elder abuse, or gunshot wounds.
  • Social Media Risk: The risk of inadvertent disclosure of Protected Health Information (PHI) has increased due to social networking.
• Justice: This involves the fair distribution of care.
  • Distributive Justice: Focuses on the rationing of healthcare services.
  • Compensatory Justice: Focuses on the recovery of damages from medical malpractice. Notably, less than $2\%$ of healthcare costs are related to malpractice or negligence lawsuits.
• Role Duty: Practitioners must understand the limits of their role and practice with fidelity. For example, it is the role of the doctor, not the RT, to inform family members of a patient's critical prognosis. RTs must not perform tasks outside their defined role (see pages $75$ and $76$).

Ethical Decision-Making Frameworks

• Formalism: This viewpoint relies strictly on rules and principles. Right and wrong are determined by adherence to these rules.
• Consequentialism: Acts are judged as right or wrong based on their outcomes. It often employs the principle of utility, aiming for the greatest general good.
  • WWII Case Study (Page $89$): When choosing between treating soldiers with syphilis from brothels versus those with battle wounds, formalists (duty-oriented) would prioritize the sickest first. Consequentialists chose to treat the soldiers from brothels first so they could return to the battle and ensure a military victory.
• Mixed Approaches (Rule Utilitarianism): A variation of consequentialism that asks which ‘‘rule’’ promotes the greatest good rather than which ‘‘act.’’ This approach can lead to inconsistent ethical decision-making due to variability in caregiver values and education.
• Virtue Ethics: This is based on personal attributes of character or virtue. It asks, ‘‘How would the good RT act?’’ and relies on following the example of good practitioners.
• Intuitionism: This viewpoint holds that there are self-evident truths (e.g., ‘‘treat others fairly’’). When formal tools fail, decisions depend on the intuitional abilities of the caregiver.

Legal Systems and Respiratory Care

• Public Law: Includes Criminal Law (acts against public safety, punishable by fines or imprisonment) and Administrative Law (regulations set by government agencies that RTs must follow).
• Civil Law: Concerned with the enforcement of rights and duties between private individuals/organizations. The plaintiff files the complaint, and the court decides the level of reparation.
• Tort Law: A civil wrong. Its functions are to keep the peace and provide a compensatory remedy for injury instead of vengeance.
  • Negligent Torts: Failure to perform duties competently.
  • Intentional Torts: A willful act violating another’s interest.
  • Liability Regardless of Fault: Applied to manufacturers of defective products.

Negligence and Malpractice

• Elements of Negligence: To prove negligence, four things must be established: the practitioner owed a duty, the practitioner breached that duty, the breach caused damages, and harm actually came to the patient.
• Classifications of Malpractice:
  • Criminal Malpractice: e.g., assault and battery.
  • Civil Malpractice: e.g., negligence.
  • Ethical Malpractice: e.g., violations resulting in professional censure.
• Damages in Lawsuits:
  • Economic: For financial loss.
  • Noneconomic: For pain, suffering, disability, and loss of enjoyment of life.
  • Punitive: To punish wrongful conduct and deter future behavior.
• Defenses: General defenses against intentional torts include a lack of intent to harm or that the patient gave consent while knowing the risks.

Medical Supervision and Liability

RTs work under medical supervision. The employer (physician or hospital) is liable for the RT's actions under the theory of Respondeat Superior (‘‘Let the master answer’’). Physicians may also be liable under the theory of ‘‘failure to supervise.’’

Critical Health Legislation

• HIPAA ($1996$): Established standards for the privacy of individually identifiable health information to protect patients without impeding quality care.
• Patient Protection and Affordable Care Act of $2010$ (PPACA): Improved whistleblower protections for hospital workers.
• National Labor Relations Act (NLRA): Protects workers who engage in acts for the benefit of all employees, such as an RT requesting a shift differential increase for all staff on that shift.
• False Claims Act: Forbids making false claims against the government (e.g., Medicare/Medicaid). Violators may be forced to repay up to $3$ times the amount of the false claim plus other civil penalties.
• Patient Self-Determination Act ($1991$): Requires hospitals receiving Federal funds to determine if patients have or want advance directives.

Advance Directives

Advance directives allow patients to make choices before an adverse event occurs. All $50$ states have adopted some form of these:

• Living Will: The patient specifies their own wishes.
• Durable Power of Attorney (POA): The patient assigns someone else to make decisions on their behalf.

Professional Licensure Issues

RTs must be intimately familiar with the Respiratory Care Practice Act. They must also understand therapist-driven protocols, which allow for independent judgment. Causes for discipline include substance abuse, domestic violence, sexual abuse, and gross incompetence.