Legal & Ethical
Considerations
In the Practice of
Respiratory Care
Philosophical Foundations
• Ethics has its origins in philosophy - the love of
wisdom & the pursuit of knowledge
• Ethics is primarily concerned with the question,
“How should we act?”
• Ethics represents commitment to “respect
humanity in persons.”
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Ethical Viewpoints
• Formalism
– Ethical standards of right and wrong are determined
by rules or principles
Ethical Viewpoints
• Consequentialism
– Ethical standards are judged based upon the
consequences, the relative amount of good that
an action will bring into being
Ethical Viewpoints
• Virtue Ethics
– Ethical standards are based in personal attributes
of character or virtue
– The profession has a history of character standards
– Action is based upon the answer to the question
“How would a good RCP act?”
Ethical Viewpoints
• Intuitionism
– Ethical standard based upon self-evident truths
such as “Treat others fairly”
Ethics and Respiratory Care
• AARC Code of Ethics – revised in July, 2004
• General principles and rules ensuring safe,
effective, and caring administration of care
• Good Samaritan Law
Legal Terminology
• Tort – civil wrong committed against an individual
or property for which the court provides a remedy
in the form of an action for damages
– Negligent tort
– Intentional tort
– Difference is intent
Negligence
• Failure to perform one’s duties competently
• Failure to take reasonable and prudent action
• Res ipsa loquitur – “the thing speaks for itself”
Negligence
• May involve acts of omission or commission
• Based upon what is reasonable and prudent
action as determined by established guidelines
(AARC), direct expert testimony, or by
circumstantial evidence
Negligence
 Four “D”s of negligence
• Practitioner owes a duty to the patient
• Practitioner was derelict with the duty
• Breach of duty was the direct cause of damages
• Damage or harm came to the patient
Role Duty
• Practitioners have duty to understand limits of role
& to practice w/ fidelity
• Respiratory therapists must not perform duties
outside defined role
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Negligence
• Respondeat superior – “let the master answer”
o Physician assumes responsibility for the RT actions
 The act was within the scope of practice of the RT
 The injury to the patient was the result of an act of
negligence
o If RT acted outside the scope of practice, court will
decide if physician retains liability; hospital may still be
held liable
Malpractice
• Form of negligence which involves professional
misconduct, an unreasonable lack of skill, an evil
practice, or unethical conduct
• “Intentional Tort”
Malpractice
• Criminal Malpractice
– Includes assault, battery, and euthanasia (criminal court)
• Civil Malpractice
– Negligence or practice below a reasonable standard (civil
court)
• Ethical Malpractice
– Violations of professional ethics (licensing board)
Slander
• Verbal defamation of an individual by false
words by which reputation is damaged
Libel
• Printed defamation of an individual by written
words, cartoons, and such representations to
cause an individual to be avoided or held in
contempt
Licensure
• Regulated by the Respiratory Care Board of
the state of California
• RCB Wall of Shame
Respiratory Care Board
• Sets requirements for initial licensure
• Determines educational requirement for continued
licensure (continuing education)
• Undertakes administrative action for inappropriate
care and/or unauthorized practice
Code of Ethics
• Code of ethics : Essential part of any profession
claiming to be self-regulating
• AARC has Statement of Ethics & Professional
Conduct
– This code seeks to establish parameters of behavior for
members of profession.
• Moral obligations impose ethical duties on
therapists
http://www.aarc.org/resources/position_statements/
ethics.html
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Confidentiality
• The maintenance of privacy by not sharing or
divulging to a third party privileged or entrusted
information
Confidentiality
• Qualified rather than absolute principle; may
reveal information in specific instances
– When required to so by law, e.g., incidents of child
or elder abuse
– Protect the welfare of the community at large, e.g.,
communicable diseases
– Protect a vulnerable individual, e.g., spouse of an
HIV positive patient
Confidentiality
• Most instances of violations occur due to
careless slips of the tongue
– Discuss patients only with caregivers who have a
need to know
– Discuss patients only in secure areas – most
common areas for breach: elevator, cafeteria
Confidentiality
• Record Keeping
– Common way to breach confidentiality
– Never give out password for electronic charting to
anyone
– Only review patients’
administering care
charts to whom
you are
HIPAA
• Health Insurance Portability and Accountability
Act (HIPAA) of 1996
• Privacy Rule
– Designed to strike a balance between protecting
information and not impeding the exchange of
information necessary for quality care
HIPAA
• Protects all “individually identifiable health
information”
– Individual’s past, present, or future physical or mental
health
– Provision of health care to the individual
– Past, present, and future payment for provision of
health care
Confidentiality
• When doing case studies
– Never use patient’s name or medical record number
– Never
divulge
any
of
the
patient’s
personal
information other than that necessary for the
establishment of the case study
Advance Directives
• Definition – document in which an individual
specifies what medical care is desired in the
future should the patient be unable to make
decisions about medical treatment
Advance Directives
• Durable Power of Attorney – allows patient to
identify another person to carry out the wishes
of the patient with respect to health care
Advance Directives
• Living will – document which states the
patient’s health care preferences in writing
Ethical Dilemmas
• Presence of two or more right choices which
are incompatible
• Different priorities
• Limited resources
Ethical Dilemmas
• Presence of two or more right choices which
are incompatible
• Different priorities
• Limited resources
Examples of Ethical Dilemmas
• A certified technician wants to pass himself off as
a registered therapist in order to move up in the
department. After considering falsifying
documents for a period of time, he decided not to
because he feared sanctions and the loss of his
position. Has the technician done anything
unethical? Is this an example of an ethical
dilemma?
Examples of Ethical Dilemmas
• A patient has been diagnosed with end-stage lung
cancer and has been told by the physician that his
condition is terminal. The patient is due to be
discharged through hospice care in two days. As
the therapist administers routine therapy, the
patient begins to ask questions regarding the pain
medication that will be prescribed upon discharge.
Questions include the normal dosage of the
medication and the unsafe levels of the drug.
Should the therapist answer these questions?
Examples of Ethical Dilemmas
• A day shift therapist receives report in the department from
the outgoing night shift therapist regarding a patient on life
support. The incoming therapist proceeds to the ICU
twenty minutes later to begin the shift and perform the first
inspections. Upon arrival, the therapist notes that the
alarms on the ventilator are in the “off” position and that the
patient is apneic and in cardiac arrest. A Code Blue is
called. The patient is successfully resuscitated, but dies
later in the shift. The therapist charts the events as he
found them. The next day, the department director meets
with both the night shift therapist and the day shift therapist
and tells the day shift therapist to modify the patient chart,
removing references to the alarm being turned off.
Ethical Conflict
• Conflict between patient’s rights and
professional obligation
•
•
•
•
•
•
•
Autonomy
Veracity
Nonmaleficence
Beneficence
Beneficent deception
Justice
Role duty
Autonomy
• The right and the ability to govern one’s
self. It allows patients to make decisions
about the medical treatment they will
receive and decide which treatments they
do not wish to receive.
– Principle acknowledges patients’ personal
liberty & their right to decide their own course
of treatment
– Basis for “informed consent”
– Under this principle, any use of deceit to get
patient to reverse decision to refuse treatment
is considered unethical
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Veracity
• Truth. This principle implies that practitioners
should tell patients the truth at all times.
– Principle binds health care provider & patient to be
truthful
– Problems w/ veracity center around issues w/
benevolent deception (withholding truth from patient for
his or her own good)
– In most cases, telling truth is best policy
– What is “benevolent deception”?
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Nonmaleficence
• The principle that requires therapists to avoid or
refrain from harm and is often viewed as the
opposite of beneficence.
– Principle obligates health care providers to avoid
harming patient & to actively prevent harm when
possible
– Problems occur when treatment has serious side effects
or “double effect”
Beneficence
• Charity or mercy and imposes the responsibility to
seek good for the patient under all circumstances.
– Raises “do-no-harm” requirement to higher level
– Requires health care workers to contribute to health &
well-being of their patients
– Dilemmas in this domain have led to development of
“advanced directives”
– The debate over prolongation of life versus relief of
suffering in elderly patients mainly involves differing
opinions of beneficence
Beneficent deception
• Not disclosing information to a patient in their best
interest
Justice
• The principle that deals with fairness
and equity in the distribution of scarce
resources, such as time, services,
equipment, and money.
– Involves fair distribution of care
– Balance must be found between health
care expenses & ability to pay
Fidelity
• Implies an obligation or faithfulness to duty.
• Each practitioner has a duty to practice within a
scope of practice (specific tasks and
responsibilities), that is usually set by tradition or
by the state legislature that regulates healthcare
practice.
Ethical Issues
• Human experimentation
Ethical Issues
• Abortion for reasons of gender
Ethical Issues
• Medical care of prisoners
Ethical Issues
• Assisted suicide
Ethical Issues
• Payments to physicians from pharmaceutical
companies and other sources
Ethical Issues
• Cloning
Ethical Issues
• Medical student on call. The resident decided that
there was an opportunity for the student to perform
a femoral arterial stick. The patient was in a
vegetative state and was not expected to recover.
The stick was not medically necessary and was
not able to understand or consent to the
procedure.
Ethical Issues
• Student saw physician constantly “putting off”
adequate pain relief for a patient without giving
any explanation to the patient or to the staff.
Ethical Issues
• Medical student told to perform pelvic exams on
patients under general anesthesia even though
there was not medical justification for it and the
patients had not signed a prior consent.
Ethical Issues
• Student observed physician giving a women in the
delivery room narcotics without informing her and
after she had requested a natural delivery be done
without use of narcotics.
Ethical Issues
• Student assigned patient. In the course of the
shift, the patient became unstable. When
requested to help, the preceptor told the student to
handle it and would not assess patient.