Within this essay the author will explore the concepts / issues in the specific case study and recognise the legal, ethical and professional dimensions of the Operating Department Practitioner (ODP).
Shane Wood
D4013839
Student ODP
Diploma in HE in Operating Department Practice
Developing Understanding of the
Legal, Ethical
And
Professional Concepts in Health Care
CCH 1002 - N - T2 - 3 - 2004
Case study for Operating Department Practitioners
(Word count 3847)
Within this essay the author will explore the concepts / issues in the specific case study and recognise the legal, ethical and professional dimensions of the Operating Department Practitioner (ODP).
The concepts that the author will look at are confidentiality, informed consent, autonomy, restraint, advocacy and accountability in regard to the mental health act (1983), the children act (1991) and the Association of Operating Department Practitioners code of conduct (2003). The author will also look at these concepts in the conclusion from a professional and student practitioners view point in response to maintaining professional practice
The case study referred to in this essay is about a thirteen-year-old boy named Alan who has learning disabilities and has come to theatre for a Zadex procedure. This procedure is performed for the removal of the toe nail bed, to stop recurrent ingrown toenails.
According to the AODP code of conduct, (2003) (clause 4) the ODP should "maintain currency of knowledge and practice in line with AODP policy for continuing professional development".
As all health practitioners hold a responsibility to their patients and colleagues, therefore teamwork and communication between health care professionals is essential in patient care.
According to Tschudin, (1992) "healthcare should be unrestricted by nationality, race, colour, age, sex or social status" as healthcare practitioners provide health services to the individual, the family and the community. It is therefore essential that the healthcare practitioners constantly improve their knowledge, experience and skills as they could often be faced with difficult and complex situations throughout their care.
Within the scenario the student is asked to admit the patient under supervision. As the case study mentions, Alan shows signs of distress on admission, the student should direct his questions to the patient as well as to the patient's mother; as by talking to Alan and explaining what is about to happen, in a way that he may understand could help to calm him down.
Whilst checking the patient's consent and other relevant details, confidentiality must be maintained at all times. As it states in the AODP code of conduct, (2003) clause 3 " (see appendix)
Confidentiality is an important ethical principle, which can be justified on both consequentialist and deontological grounds on the basis of autonomy and privacy (American Medical Association, 1998), but neither in law or ethics is confidentiality regarded as an absolute principle as it can be divulged, but only when it involves a criminal act or where the disclosure could be justified in the wider public interest and with the patient's consent (NMC, 2002).
In reference to the case study the UKCC guidelines for mental health and learning difficulties, (1998) cited in Hendrick, (2000) states in the section on confidentiality, that professional practice is based upon developing a relationship between the health practitioner and the patient, and that confidentiality within this relationship, should only be disclosed in exceptional circumstances, and only after careful consideration leading to a conclusion that this can be justified.
Whilst in the anaesthetic room the case study mentions that the student's mentor discusses the patient's mothers lack of concern openly.
The mentor should not do this as it is a breach of the ODP Code of Conduct (2003), clause 1, which states " that the professional ODP shall uphold public trust and confidence, by maintaining appropriate personal and professional standards of behaviour"; and by doing this the mentor is not only being disrespectful to the patients mother, but they are setting a bad example to the student.
The concept of informed consent is also an important issue within healthcare, informed consent stems from the 1947 Nuremberg trials where twenty-three doctors were accused of committing inhumane acts on human subjects without their consent (Tschudin, 1992).
According to Beauchamp, (1997) informed consent should entail those facts or descriptions that the patient may need, when deciding whether to refuse or consent to the proposed intervention. This should include any information that the professional believes to be material, the professional's recommendation and the purpose of seeking consent.
Janke et al, (2002) states that informed consent should be carried out by a surgeon who is capable of performing the procedure, and is able to answer any questions with authority.
The Department of Health, (1999) suggests that when seeking informed consent, the professional should disclose the nature of the patient's condition, what would happen if no treatment was provided, any other treatment available and their respective benefits, and any risks or side effects associated with each option.
How in depth the information given to the patient is down to the doctor giving it, under the long accepted Bolam test (Bolam v. Friern Hospital Management Committee 1957), the standard by which disclosure to patients is judged, is that which would be endorsed by a reasonable or responsible body of medical opinion. The test therefore was whether, what a doctor told the patient met the standards expected of itself by the medical profession (Tay Swee Kian, 2001).
Brock, (1993) argues that the health professional should disclose whatever information a reasonable person would want to know and whatever else the actual patient wants to know.
Many forms of consent apply to healthcare practice, these include verbal, written and implied. Evidence that consent has been given could be a signed document such as a consent form, which is widely used and most effective. It is a form of evidence that the patient has agreed to the procedure.
Consent provides lawful justification for treatment, if valid consent is not given any treatment, which involves touching the patient would amount to battery.
Verbal and non-verbal consent are used frequently in everyday healthcare practice, this allows the patient to understand and consent to the daily tasks of healthcare practice, which promotes autonomy and protects the healthcare practitioner.
However it can be easy for patients to misinterpret forms of verbal and non-verbal consent, implied by healthcare practitioners, so it is essential that care must be taken to ensure that patients have a clear understanding of the information.
In order for Alan to give valid consent he must firstly have a mental capacity to understand the information given to him. ...
This is a preview of the whole essay
Verbal and non-verbal consent are used frequently in everyday healthcare practice, this allows the patient to understand and consent to the daily tasks of healthcare practice, which promotes autonomy and protects the healthcare practitioner.
However it can be easy for patients to misinterpret forms of verbal and non-verbal consent, implied by healthcare practitioners, so it is essential that care must be taken to ensure that patients have a clear understanding of the information.
In order for Alan to give valid consent he must firstly have a mental capacity to understand the information given to him. Dimond, (2001) states "consent is the agreement by a mentally competent person, voluntary and without deceit or fraud, to an action which without consent would be a trespass to the person".
With reference to the case study it is important to establish whether Alan is mentally competent to make decisions, to understand the information given to him and to consent to the operation.
The children act, (1991) states that children with learning disabilities, can often communicate preferences if they are asked to do so in a way that they could understand; by people who understand their needs and have the relevant skills to listen to them. Assumptions should not be made about children with learning disabilities who cannot share in decision-making or give or refuse consent to treatment.
As the case study indicates that Alan is only thirteen and has learning disabilities, and shows obvious objection to the procedure, the student and professional ODP would have to consider whether Alan was competent enough to understand the information given to him.
Obtaining consent depends on the competency and capacity, of the person with learning disabilities to understand the information given to them, and to make an informed decision regarding their treatment or care (Department Of Health, 2001).
The capacity of people with learning disabilities to give valid consent, may be hampered by a range of intellectual, physical, sensory or communication difficulties. These may significantly impair their ability to consent to treatment or care.
According to the Department of Health guide to consent for treatment, (2001) it is good practice for practitioners to demonstrate that the child's welfare and best interests are paramount. This guide also states that care should be taken not to under estimate the capacity of a patient with learning disabilities to understand. People with learning disabilities often have the capacity to consent, if time is spent explaining to the individual the issues in simple language, signing and visual aids.
If Alan was found to be not competent, consent for treatment would have to come from his parents, as Hendrick, (2000) states children under the age of 16 who are not deemed Gillick competent cannot give consent, so permission must come from a parent or guardian.
For children under the age of 16 there is precedent in case law, governing consent to treatment, the law was set out in the case of Gillick v West Norfolk and Wisbech AHA and the DHSS (1985) cited in Tingle and Cribb (2002 p. 167).
This states that if a minor has sufficient intelligence and understanding, to enable them to understand the treatment and implications of treatment, then they can be classed as Gillick competent and can consent to treatment.
The law provides for parental consent for those under the age of 16 years because it assumes that the parent will act in the best interests of the child (Beesley et al, 2004).
The mental health act, (1989) states that the provisions of mental health legislation cover children. It favours sixteen years as the threshold for capacity to make treatment decisions, with a presumption of capacity in children from the age of ten or twelve.
Consent to treatment lies at the heart of the relationship between the patient and the health care professional.
The patient relies on the professional's expertise, knowledge and advice, but it is up to the patient to decide whether they will accept or reject the treatment, or in some circumstances request that the professional make the decision.
The focus on patient centred care and shared decision-making, highlights the importance of informed consent, and professional guidelines and the law reinforce this. However, the issue of consent to treatment is not quite as straightforward as it may seem on initial inspection.
Tingle and Cribb, (2002) states, for consent to treatment to be meaningful a person must be able to understand the information they have been given, this must be sufficient for the patient to evaluate the available choices, and they must feel free to make that choice without coercion.
Hendrick, (2000) states the legal aspect of informed consent serves two functions, firstly the clinical function is used by the health practitioner to gain the patients trust, cooperation and confidence and secondly the legal function is there to protect the practitioner from criminal charges and civil claims when they treat or care for patients.
Beauchamp and Childress, (2001) mention that the ethical aspect of informed consent, is just as important as the legal aspect because it demonstrates respect for autonomy, as it protects the autonomous individual from harm, and through participating in the consent process, the individual autonomy may be further enhanced.
Consent is not just a legal issue it is an ethical issue also. We should not therefore, limit ourselves to seeing consent as a form of legal protection.
We should see it rather, as a valid instrument for the defence of autonomy in decision-making and the freedom of the sick person.
Thompson et al, (1994) states that autonomy in health care requires the health professional to respect the choices patients make concerning their own lives.
The governing ethical principle in informed consent is the right to self-determination or autonomy (Sim, 1997).
Valid consent for treatment is underpinned by the deontological principle of respect for autonomy; this principle acknowledges the right of a person to determine, how his or her life should be lived, and to make choices that are consistent with his or her life's plan (Mason and Mc Call Smith, 1999).
Within the deontological theory we have duties and obligations to act in accordance with moral rules, so that the end does not justify the means whereas consequentialism would have us act in such a way that would produce the greatest balance of good over evil.
Respect for autonomy is often associated with deontological theories, but Utilitarian philosophers such as John Stuart Mill, (1806-1873) stress the importance of an individual's right to determine how they should live their life, free from coercion except when it is to prevent harm to others (Singer, 1994). Thompson et al, (1994) also states that autonomy means recognising patients as individuals, who are entitled to such basic human rights, as the right to know, the right to privacy and the right to receive care and treatment.
Beauchamp and Childress, (1994) cited in Hendrick, (2000) also maintain that the principle of autonomy means that people should not be subjected to controlling restraints by others, as long as their actions do not cause harm to others. In regard to the scenario we should use the deontological theory and treat Alan the same way we would if he were a relative.
However, when a child is involved the principle of autonomy takes a back seat to the point that this fundamental ethical principle, is undermined by what doctors see as the best interests of the child. In essence, children are treated paternalistically because doctors are making decisions for them (Singer, 1994).
There is a stark difference between the way in which adult's and children's autonomy is respected (Hendrick, 2000).
Minors unlike adults are denied the right to make well-informed decisions, about their own lives and instead other people's values are imposed on them, disguised as in their best interests.
The problem with this ethical dilemma was acknowledged by John Stuart Mill, (1806-1873) cited in Ethics Updates, (2004) who said: "'individuals are usually the best judges of what is in their interests and acting on the contrary presumption, that others may know better, is likely to lead to far worse outcomes".
Beauchamp and Childress devised four principles of medical ethics, these four principles are one of the most widely used frameworks, which offer a broad consideration of medical ethics issues generally. These four principles are respect for autonomy, beneficence, non-malificence and justice (Beauchamp and Childress, 1994).
Beneficence is the principle of doing good and that the patients interests always come first, non-malificence is the principle that nurses have a duty not to harm patients or clients (Rumbold, 1999 cited in Ethics Updates, 2004)
Utilitarians believe in the greatest happiness for the greatest number; but John Stuart Mill (1806-1873) cited in Ethics Updates, (2004) differed slightly from this, as he believed that cultural and spiritual happiness was of greater value than mere physical pleasure.
In reference to the case study, Thompson et al, (1994) mentions that respect for autonomy, also means the protection of those patients who are incapable of autonomy because of illness, injury, mental disorders or age.
Carpenter, (1992) also states that those who are immature or have learning disabilities need an advocate.
This means that to protect Alan the ODP would have to become his advocate during the procedure, as support for the idea of the practitioner acting as an advocate comes from the AODP code of conduct, (2003).
Although it does not specifically mention advocacy, it does in clause 2 recognise the patients right to autonomy stating that, the ODP should carry out all roles and responsibilities in such a way as to promote and protect the rights and health of the patient.
The concept of advocacy differs from country to country; In the United Kingdom when health practitioners act as advocates for patients, they do so by attempting to influence a third party on behalf of their clients (Teesdale, 1998).
Advocacy is concerned with promoting and safeguarding the well being and interests of the patients and clients; it is not concerned with conflict for its own sake as it is a positive constructive activity (Singer, 1994).
Mozley and Whitley, (1988) cited in Wheeler, (2000) state that advocacy is the process of pleading for another person in court, but Herr, (1983) cited in Wheeler, (2000) states that it also encompasses other formal and informal activities aimed at upholding the legal and human rights of one or a group of clients at their respect.
This debate over the meaning of advocacy is of considerable importance as Mallik, (1997) argues that if the profession is unable to clarify the meaning of advocacy, practitioners will be ill prepared to promote advocacy as part of their professional role.
If the student and professional practitioner are to act as an advocate, they should support and protect the rights and privileges of the patient in their care, by following the required codes of conduct set out by the AODP. In reference to the AODP code of conduct to act as an advocate, clauses 1,2,3,4,5, and 7 should be followed.
In reference to the case study as the ODP is the patient's advocate; this also means that they are accountable. As it states in the opening paragraph of the ODP Code of Conduct, (2003) " each registered Operating Department Practitioner is accountable for his/ her practice and in the exercise of professional accountability".
Accountability is about justifying your actions and explaining why something was completed or not.
Operating Department Practitioners are accountable in four ways, firstly they are accountable to the patient they give care to under civil law, secondly they are accountable for their actions as members of the ODP profession under the ODP Code of Conduct, (2003), thirdly they are accountable to their employer under that they have an agreed contract of employment and finally they are accountable to the public/ society under criminal law (Jones, 1996).
Student Health Practitioners cannot be held professionally accountable, as they are not on the professional register (Hodgston and Simpson, 2002) so a qualified professional should supervise them at all times.
Accountability in health care means using your professional judgement and being accountable for it.
The UKCC, (1996) states that accountability is primarily concerned, with weighing up the interests of the patient/ client in complex situations, by using professional knowledge and judgement to make a decision, and enable the health care practitioner to account for the decision made.
In health care practice accountability and responsibility are two ideas that evidently link. However there is a clear difference between them; accountability implies assessing a situation, developing a plan of care, carrying out the plan and evaluating the results. Whereas responsibility refers to the task, and the responsibility to carry out the task in which the practitioner has become accountable in fulfilling (Pearson and Vaughen, 1986, cited in Hendrick, 1995).
As well as being accountable all professional health practitioners have a duty of care to the patients. This makes them responsible for their actions, as all practitioners should be sufficiently competent in carrying out their roles and responsibilities, within legal and ethical boundaries.
Within the case study it is mentioned that after the procedure Alan is taken to the recovery room, where he is still in distress also he now shows signs of postoperative pain; he has also started to make his feet bleed as a result of grabbing hold of them.
The student is asked by the anaesthetic nurse to restrain Alan, as Alan show signs that he does not want to be restrained physically, the qualified practitioner could approach the anaesthetist to inquire, about administering some sedative and pain relief to Alan.
The human rights act, (1998) states that everyone has the right to be free from the use of an unauthorized force to restrain their movements unless they are subject to legal detention.
However the mental health act, (1983) notes five reasons for the use of restraint, of which non-compliance to treatment, self-harm and risk of physical injury by an accident are the two that are most relevant to this case study, (Department of Health and Welsh Office, 1999).
Szasz, (1962) argues that restraint is only justified as a punishment for a crime already committed, or to prevent imminent violence.
In regard to the case study, the problem of restraining Alan is an ethical and a professional one, as by restraining him your actions could cause further harm, but by not restraining him in some way could allow Alan to harm himself by grabbing his feet; the ODP Code of Conduct, (2003) clause 5 states " at all times let no act or omission on his/ her part place at risk the care afforded to patients". The scenario could be justified from the consequentialist view point, in that the rightness or wrongness of restraining Alan would depend on the consequences of the outcome, this being stopping Alan from doing more harm to himself.
The deontologist theory of duty of care could also justify restraint, as they believe that the rightness or wrongness of an act is determined by duty.
In conclusion the author has identified the relevant concepts / issues within the case study, and has recognised some of the legal, ethical and professional dimensions of practice. The author will now look at these concepts from a professional and student practitioners view point in response to maintaining professional practice.
With regard to professional practice the student and the professional ODP, would need to check that the consent form was correctly filled in and signed by the patient's mother and the surgeon; they would also have to check that the mother had been fully informed about the surgical procedure, regarding the benefits and risks involved with the operation.
If consent is not given any treatment which involves touching the patient, such as physical examination, surgery, or even dressing a wound, would amount to battery.
The student and the professional ODP would also have to ensure that confidentiality was maintained at all times (AODP Code of Conduct, 2003, clause 3).
In regard to advocacy and accountability the student and professional ODP, would have to promote and protect the rights and health of the patient by being, ever vigilant whilst the patient is under their care (AODP Code of Conduct, 2003, clauses 2 and 5); patients will turn to nurses and operating department practitioners, to advise them and to interpret the information they have received, or to give guidance about treatment or care and what other alternatives, may exist that the patient and their family may consider.
Accountability is the extent of the duty of care, which is provided by the ODP, and the degree to which an ODP can be called to account. In order to be held accountable for actions and decisions, the practitioner needs to be capable of discerning morally correct acts.
The student ODP should recognise their own limitation, within their knowledge and competency when dealing with patients, and never undertake any role or responsibility unless they are able to do so in a skilled and safe manner (AODP Code of Conduct, 2003, clause 7).
The mentors attitude and behaviour within the anaesthetic room could be taken as a lack of professionalism. The mentor should not be voicing their own opinion about the patient's mother openly, as they could be accused of being lacking in professional attitude, and they are not teaching the student to be confidential about patient and carers details.
Restraints are any physical or pharmacological means used to restrict a patient's movement, activity, or access to their body, or to prevent patients from harming themselves or others Szasz, (1962).
References
American Medical Association, (1998), Patient confidentiality, [online], http://www.ama-assn.org/ama/pub/category/4610.htm, accessed 19/06/05.
Association of Operating Department Practitioners, (2003), Code of Conduct, [online], http://www.aodp, accessed 29/05/05.
Beauchamp, T, L, (1997), Informed Consent in Medical Ethics, 2nd edition, London, Jones and Bartlett.
Beauchamp, T, L, and Childress, J, F, (1994), Principles of Biomedical Ethics, Oxford, Oxford University Press, cited in Hendrick, J, (2000), Law and Ethics in Nursing and Healthcare, Cheltenham, Stanley Thornes.
Beauchamp, T, L, and Childress, J, F, (2001), Principles of Biomedical Ethics,
5th edition, Oxford, Oxford University Press.
Beesley, J, and Pirie, S, (2004), NATN Standards and Recommendations for Safe Peri-operative Practice, Harrowgate, NATN.
Brock, D, W, (1993), Life and Death; Philosophical Essays in Biomedical Ethics, New York, Cambridge University Press.
Carpenter, D, (1992), ADVOCACY, Nursing Times, 88 pp 26-27.
References cont.
Dimond, B, (2001), Legal Aspects of Consent 2: the different forms of consent. British Journal of Nursing, vol 10, 6, pp 400- 401.
Department of health, (2001), A guide to consent for treatment, [online], [http://www.dh.gov.uk/assetRoot/04/01/90/79/04019079.pdf] accessed 23/09/05
Department of Health and Welsh Office, (1999), Consent to Treatment HSC 1999/031, London, HMSO.
Department of Health and Welsh Office, (1999), Mental Health Act 1983 Code of Practice, London, HMSO.
Department of Health and Welsh Office, (2001), Seeking Consent: Working with people with Learning Disabilities, London, HMSO.
Hendrick, J, (2000), Law and Ethics in Nursing and Healthcare, Cheltenham, Stanley Thornes.
Herr, s, (1983), Rights and advocacy for Retarded People, California, Lexington Books, cited in Wheeler, P, (2000), Is Advocacy at the heart of practice, Nursing Standard, 14, 36, pp 39-41.
References cont.
Hewitt, J, (2002), A critical review of the arguments debating the role of the nurse advocate, Journal of Advanced Nursing, 37, 5, pp 439-445.
Hodgston, R, and Simpson, P, M, (1999), Foundations in Nursing Practice, Hampshire, Palgrave Macmillan.
Human Rights Act, (1998), London, HMSO.
Janke, E, Chalk, V, and Kinley, H, (2002), Pre-Operative Assessment Setting a Standard Through learning, Southampton, University of Southampton.
Jones, M, (1996), Accountability in practice, Wiltshire, Mark Allen publishing ltd.
Mallik, M, (1997), Advocacy in Nursing Perceptions and Attitudes in the UK, Journal of Advanced Nursing, 28, 5, pp 1001- 1011.
Mason, J, K and McCall Smith, R, A, (1999), Law and Medical Ethics, 5th edition, London, Butterworths.
McCall Smith
Mill, J, S, (1806- 1873), Utilitarianism, cited in Ethics Updates, (2004), [online], http://ethics.acusd.edu/, accessed 24/06/05.
References cont.
Mozley and Whitley, (1988), Mozley and Whitley's law dictionary, 10th edition, London, Butterworths, cited in Wheeler, P, (2000), Is Advocacy at the heart of practice, Nursing Standard, 14, 36, pp 39-41.
NMC, (2002), Code of Professional Conduct, London, NMC.
Pearson, A, and Vaughen, B, (1986), Nursing Models for Practice, cited in Kendrick, K, (1995), Professional Nurse, 10, 5, p1.
Rumbold, G, (1999), Beneficence and non-malificence, cited in Ethics Updates, (2004), [online], http://ethics.acusd.edu/, accessed 24/06/05.
Sim, J, (1997) Ethical Decision Making in Therapy Practice, Oxford, Butterworth Heinemann.
Szasz, T, (1962), The Myth of Mental Illness, London, Secker and Warburg.
Tay Swee Kian, C, (2001), Informed Consent to Medical Treatment - What Needs to be Disclosed, [online], http://www.med.nus.edu.sg/sur/lecture3/Informed%20Consent.htm accessed 20 09 05.
Teesdale, K, (1998), Advocacy in healthcare, Oxford, Blackwell Science.
References cont.
Thompson, I, E, Melia, K, M, and Boyd, K, M, (1994), Nursing Ethics, 3rd edition, Edinburgh, Churchill Livingstone.
Tingle, J, and Cribb, A, (2002), Nursing Law and Ethics, 2nd edition, Oxford, Blackwell Science.
Tschudin, V, (1992), Ethics in Nursing, 2nd edition, Oxford, Butterworth Heinmann.
UKCC, (1998), Guidelines for Mental Health and Learning Disabilities, London, United Kingdom Central Council, cited in Hendrick, J, (2000), Law and Ethics in Nursing and Healthcare, Cheltenham, Stanley Thornes.
Appendix: AODP code of conduct.
Uphold the public trust & confidence in the profession by maintaining appropriate personal and profession standards of behaviour.
2 Carry out all roles and responsibilities in such a way as to promote & protect the rights & health of patients.
3 Maintain the confidentiality of information related to the delivery of patient care.
4 Maintain currency of knowledge & practice in line with AODP policy for continuing professional development.
5 At all times let no act or omission on his/ her part place at risk the care afforded to patients.
6 Recognise the contribution of the members of the multi-disciplinary team involved in the provision of patient care.
7 Acknowledge any limitations in his/ her knowledge & competence & never undertake any roles or responsibility unless able to perform them in a safe & skilled manner.
8 Recognise his/ her responsibilities in delegating duties & tasks.
9 Support the development of colleague's competence in accordance with their needs & in the context of the registered ODP's knowledge.
0 Avoid the use of his/ her professional qualifications to be associated with the promotion of commercial products, thereby compromising the impartiality of professional judgement on which patients rely.
1 Inform the appropriate person or authority of any conscientious objections, which may be relevant to professional practice.
2 Decline any offers of gifts, favours or hospitality, which might be seen as an attempt to obtain preferential consideration.
3 Report to the appropriate authorities any incidences or instances of irregular or unsafe practice.
Association of Operating Department Practitioners, (2003)
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