Nurse Accountability – Consent for Catheterisation, Professional Law and Ethics

An elderly lady, 78 year old Mrs Jones was admitted to the unit from a local nursing home following an acute myocardial infarction. In order to gain in my clinical skills experience I was asked to accompany and observe the staff nurse who was to carry out the catheterisation. The nurse told Mrs Jones that she was just going to pop a catheter in. There were no explanatory details towards Mrs Jones about what the procedure precisely entailed, and she was not informed of the risks or benefits. Therefore Mrs Jones was unable to ask any questions, or express any fears or anxieties. On commencement of the catheterisation Mrs Jones was quite clearly very distressed by what was happening to her. She was lashing out at the staff nurse, shouting “no get off me”, and with great force tried to keep her own legs shut, but the nurse continued to proceed until after several attempts the catheter was in place. This was a procedure that was carried out without the patient’s consent.

Based on a case actually experienced by the author, this assignment considers how the concept of informed consent is articulated in nursing care, by exploring the legal, ethical and professional issues surrounding the subject.

To give the reader an insight surrounding the issue of consent, definitions and different types of consent will be considered.

A nurse could find herself in court under a charge of battery or negligence if a patient makes a complaint that the nurse did not gain consent or that insufficient information was given. The issues surrounding the importance of gaining patients consent will be discussed together with the legal implications for the nurse. Alongside the discussion will be real life cases that have already been to court and the author hopes to relate these to the case experienced.

Ethical dilemmas such as consent force nurses to decide on possible actions to take.

By discussing the ethical principles of autonomy, beneficence and non-maleficence and applying the ethical theories of consequentialism and deontology the author hopes to make it clear how nurses justify their actions.

Nurses are advised on their standards of practice through the professional code of conduct. The advice the code gives surrounding the issues of consent, accountability, advocacy and record keeping will be explored, together with the relevant clauses outlined, as these are all important factors in gaining consent.

For the sake of confidentiality as outlined in the UKCC (1992) the patients name in the case experienced by the author has been changed and will therefore be referred to as Mrs Jones.

LEGAL ISSUESThere are two types of consent, which can be given: implied and expressed. Dimond (1995) Suggests that Implied consent is non-verbal; this is related to the behaviour of the patient, which could be a nod of the head instead of responding by saying “yes” to the question. The nodding conveys to the nurse that the patient is agreeing to the procedure. However this non-verbal consent may lead to a misunderstanding regarding the intended procedure. Therefore, the healthcare professional would be advised to obtain oral consent (Dimond, 1995). Expressed consent can be given in writing or verbally. Dimond (1995) suggests that,Written consent is by far the best form of consent. However, Green (1999) says that the law does not support it and that the document is only regarded as evidence that the patient agreed to the procedure. Nonetheless it may be an advantage in any future dispute or lawsuit relating to what it was the patient consented to.

Consent has been defined as “a voluntary and continuing permission to receive a particular treatment by a competent adult, based on an adequate knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it.” This would then allow an individual to make an informed decision about whether or not to have treatment. (Department of health and welsh office 1994). Equally a patient has the right to withdraw or refuse consent at any time (UKCC, 1996). A statement was made in the case of Schloendorff v. Society of New York Hospital (1914) in that “every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without a patient’s consent commits a battery”. Consent therefore ensures respect for the patient’s autonomy.

The nurse catheterising Mrs Jones clearly took away any right that Mrs Jones had to determine what should be done to her own body. Mrs Jones specifically refused the proposed procedure and there was no consent at all, yet the catheterisation still went ahead. As long as the patient is deemed competent and understands what risks she runs, she has a legal right to refuse treatment, even if that refusal will result in her death (Re T 1992). One possibility that the nurse did not gain Mrs Jones’s consent could have been that she deemed Mrs Jones incompetent. If this was the case the nurse should not have carried out the catheterisation and consulted the doctor who would have taken the three-stage test laid down in the case of R C. (1994) in order to ensure competence of Mrs Jones.

Mrs Jones was never given the opportunity to understand the risks or benefits, as these were never disclosed. Maybe if they had been explained to her, she might willingly have consented to the procedure. Consequently, Fletcher et al (1995) says that the nurse’s contact with Mrs Jones constitutes the tort of battery, whether or not any damage results from that contact. The act of touch alone can warrant prosecution.

The relevance of battery in health care is that many forms of treatment, involve direct contact with the body of the patient, therefore a patient can sue in the civil courts for compensation if a valid consent for that contact has not been obtained (Brazier 1992). The patient need only show that the treatment given was not consented to, as in the case of Devi v. West Midlands AHA (1980).

In order for a nurse to avoid a charge of battery, Green (1999) states they must have explained in at least broad terms, the intended procedure. As in the case of Chatterton v. Gearson (1981), Miss Chatterton claimed that Dr Gerson had failed to tell her enough prior to surgery. The risks were not disclosed which she consequently suffered post operatively. Her claim in battery failed. Judge Bristow stated, “In my opinion a consent to surgery was valid providing that The patient was informed in broad terms of the nature of the procedure, unless there has been misrepresentation or fraud to secure that consent” [and that] “A failure to disclose the, attendant risks however serious, should go to negligence rather than battery” This decision set a standard, which has been followed since. Thus when the patient complains about inadequate information, the complainant can only pursue that complaint in negligence.

Moreover in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital (1984) Lord Scarman stated that a health care professional may lawfully withhold information that the professional believes may damage the patients mental or emotional well-being, and not be in breach of duty to the patient. The Judges ruling set a standard for determining how much information a patient should receive. Would it then be legally justified for the nurse catheterising Mrs Jones to take it upon herself to withhold all available information on the grounds that her mental and emotional well being would be damaged and thus not be in breach of her duty. Additionally, from the Sidaway case the judge stated that the test from the case of (Bolam v. Feirn Hospital Management committee, 1957) was to be applied. Ruling that a health care professional acting in accordance with a standard of practice recognised by a responsible body of opinion was not guilty of negligence.

The nurse in the case of Mrs Jones could argue that her actions were in accordance to her duty to care, and that her actions were reasonable.

The duty of care in legal terms generally arises when a person can see that careless conduct is likely to cause physical injury or damage to another person (Furlong 1998). The legal test of duty is based on the neighbour principle that arose in the case of Donoghue v. Stevenson (1932) where Lord Aitkin concluded that “you must take reasonable care to avoid acts or omissions which you can foresee would be likely to injure your neighbour.

The nurses justification for her actions was to prevent suffering from constantly being soaked in urine and that Mrs Joneses continence needed to be managed, but, as was stated during the telephone handover Mrs Jones was only occasionally incontinent. Therefore Mrs Jones could have contested that the actions taken by the nurse were not for her benefit but for the benefit of the nursing staff and would therefore be unethical.

ETHICAL ISSUESA health care professional faced with an ethical dilemma has to decide which possible action is the right action to take and how choice of this action over any others can be justified. (Singleton and Mclaren 1995). Fletcher et al (1995) state that actions can then be explained by demonstrating the ethical principles, which justify them. Principles are fundamental moral rules, with the main ones applicable to nursing ethics being, respect for autonomy, justice, benificence, and non-maleficence.

Rumbold (1996) says that respect for a person’s autonomy is one of the crucial principles in nursing ethics. The word autonomy is derived from Greek and means self rule. Gillon (1986) has defined autonomy as “the capacity to think, decide, and act on the basis of such thought and decision, freely and independently and without let or hindrance”. Therefore it can be said that patients can expect to be fully informed of any methods of treatment available to them, in order to exercise their rights to consent to or refuse such treatment. In order for a nurse to fully respect patients autonomy, she must respect whatever decision the patient makes, and to act otherwise is to disregard the patient as an autonomous being (Fletcher et al 1995).

In the case study of Mrs Jones, her right to self-governing and her right to think about and to decide what she would like to happen to her was not exercised so therefore the principle of Mrs Jones’s autonomy was not respected.

Edwards S (11996) says that different people have put forward a variety of theories determining whether particular actions are right. There are two schools of thought, which have been influential and which in many ways work in opposition to each other. Theories of this thought are consequentialism and deontology.

Singleton and Mclaren (1995) state that the consiquentialist theory by mills will try to decide if an action is the right thing to do or not and examine the consequences of performing that action. Although several types of this theory exist the most famous version is utilitarianism. The principle of utility works on the basis that actions can only be judged by their consequences and are decided on the basis of the greatest good for the greatest number.

With regard to autonomy, the utilitarian argument is that such respect would maximise happiness. If individuals are allowed the freedom to act autonomously they will be happier. However they argue that the obligation to respect people’s autonomy holds only as long as it does no harm to others (Singleton and Mclaren 1995)Rumbold (1999) says the theory of deontology by Kant, believes duty is the foundation of morality and that an act can be judged as either morally right or wrong in itself irrespective of the consequences that are produced. Kant (1973) says that, individuals should act in a way that could be made a law for everyone else and should treat human beings as an end in themselves, not just means to an end.

With regard to autonomy Kant (1973) argues that respect for autonomy is a universal law, and is supported by the concept of respect for persons. However Kant suggests that respect for autonomy of any individual has to be seen within the context of respect for the autonomy of all.

Fletcher et al (1995) say that when considering the well being of patients, the health care professional may demonstrate paternalism towards their patients. They say that paternalism means to believe that it is right to make a decision for someone without taking into consideration those persons wishes, or even to override their express wishes. Therefore overriding autonomy.

The nurse in the case of Mrs Jones may have acted in this way believing that Mrs Jones had insufficient knowledge to make an informed decision. Therefore the nurse may have assumed that Mrs Jones wanted to leave the decision to her.

Singleton and Mclaren (1995) suggest that the justification for such interventions rests on the concept that the principle of beneficence and non-maleficence takes precedence over considerations of respect for the patient’s autonomy. Rumbold (1996) says that in terms of health care beneficence is the idea that one should always do what is best for the patient, and that the good of the patient should be put before ones own needs. Rumbold (1996) also states that non-maleficence has the idea that nurses have a duty not to harm patients.

In many medical and nursing interventions aimed at doing good, there is an element of doing harm. Sometimes the harm is unavoidable, even intentional, as in surgery. At other times it is unintended and unexpected and also unintended, but known (Rumbold 1999).

The majority of nursing interventions carry a degree of risks. Catheterising a patient can cause tissue damage, introduce infection, and less common, the risk of perforating the urethra. Are we then to argue, on the grounds of first do no harm that treatments, which carry a known risk, should not be given? Catheterising a patient as a way of managing incontinence would be difficult to justify. The principle of non-maleficence would hold, since the distressing complaint of incontinence would be replaced with an equally distressing one. On the other hand, if a patient has urinary retention, then the duty to do good would dictate that the patient be catheterised. In this case the harmful effects of not acting outweigh those of acting (Rumbold 1999).

One has to make a choice between doing good and not doing harm. In some instances, where the harm outweighs the good, then the duty not to harm takes precedence over the duty to do good. In the end, the morally justified act is that which causes the least harm and the most good. In Mrs Jones’s case it was clear that she was suffering harm, which outweighed the good. In the authors opinion it was unnecessary to catheterise Mrs Jones and the nurse should have applied the principle of non-maleficance.

PROFESSIONAL ISSUESYoung (1989) says that the United Kingdom Central Council (UKCC) has put forward a Code of Professional conduct for Nursing, Midwifery and Health Visiting (1992) and is crucial in debates on ethical dilemmas in nursing. Firstly the code advises on standards of practice and gives ethical guidance to nurses. Secondly, it is the body, which can punish a nurse for professional misconduct.

The code has legal status and authority under the Nurses, Midwives and Health Visitors act (1979). A marked failure to abide by the code, could in turn lead to the UKCC using its disciplinary function, with legal implications of removal of the nurses name from the register.

However, the code of conduct is issued for guidance and advice, laying a moral responsibility rather than a statutory duty on members of the profession. The UKCC (1996) main responsibility is to protect the interests of the public by maintaining a register of people who are recommended suitable practitioners and whom have knowledge and skill through a qualification registered with the UKCC.

It is outlined in the guidelines for professional practice that one of the overriding responsibilities of the nurse is that she must obtain patients consent before treatment is given. The consent must be based on adequate information that is shared freely with the patient. The guidelines state that the information must be given in a sensitive and understanding way, and that enough time should be given for the patient to consider the proposed treatment and be able to ask questions. It is not safe to assume that the patient has enough knowledge for them to make an informed choice without explanation.

The Guidelines outline that the nurse must not assume that only she knows what is best for the patient, as this may create dependence and hinder the patients right to choose. This is concerned with patient advocacy and is outlined as clause 1 of the UKCC Code of Professional Conduct (1992) “act always in such a manner as to promote and safeguard the interests and well being of patients”. Patients may very well be vulnerable and unable to protect their own interests. Providing information and making the patient feel confident to make their own decisions will ensure the professional role outlined in clause 1 of the code.

It is stated in the guidelines for professional practice that support and respect should also be provided if the patient refuses treatment. Clause 5 of the Code for professional conduct outlines the professional role in promoting patient independence and states that the nurse “work in an open and co-operative manner with patients, foster their independence and recognise their involvement in the planning and delivery of care”.

Therefore, discussing any proposed treatment will help the patient to decide whether to accept or refuse treatment, whether this be in their best interests or not.

If a patient feels that the information they received was insufficient, they could make a complaint to the UKCC, or take legal action. Therefore, documentation of the discussions and decisions must be made and placed in the patient’s records. (UKCC Guidelines for professional Practice 1996). Amongst others, the purpose of this would provide a record of any problems that arise and the actions taken in response to them. To provide evidence of care, interventions and patient responses and to record the chronology of events and the reasons for any decisions made. This would provide evidence in any later dispute. (UKCC Standards for Records and Record keeping 1993).

The nurse must be able to account for any decisions made. Accountability is concerned with weighing up the interests of patients in complex situations by using professional knowledge, judgment and skills to make that decision. A nurse is professionally accountable to the UKCC, as is held which other well as to the law. This is because a responsibility position people rely on (UKCC, 1996). The code of professional conduct sets out the professional accountability and states that: “Each registered nurse, midwife and health visitor shall act at all times, in such a manner as to: safeguard and promote the interests of Individual patients serve the interests of society, justify public trust and confidence and uphold and enhance the good standing and reputation of the professions” (UKCC, 1992).

Whatever decisions are made the nurse must be able to justify her actions.

Consent is very much tied up with the law surrounding it to the extent that consent must be obtained before treating a patient. Also patients are to be made aware of all the risks in order to make a fully informed decision. Otherwise a nurse could find herself in court.

Nurses are constrained by their role as patient advocate and are bound by their duties to their patients. However they may feel that they know what is best for their patient and thus limit the amount of information they give. Nonetheless the courts require a patient to be informed of any risks in at least broad terms. Which clearly did not happen in the case of Mrs Jones. The nurse should have ensured that she followed the reasonable standard of care in informing Mrs Jones about the procedure of catheterisation.

The nurse in the case of Mrs Jones not only made a decision to catheterise her without consent; she also forced her to undergo the procedure. Mrs Jones, in the author’s opinion was a mentally competent adult capable of making up her own mind. Mrs Jones was justifiably battered. She would be quite within her rights to start legal proceedings against the nurse in question.

I can only hope that in future this nurse will approach her professional obligations less dogmatically and her patients more respectfully. Perhaps she could learn that the well being of the human being is best served by co-operation not compulsion, that policies are to be applied with judgment and that patients, too, have rights.

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