Ethical and Legal Implications of Practice

Ethical and Legal Implications of Practice

Anthony L Dewitt

An effective respiratory therapist (RT) must possess excellent clinical skills and an understanding of the business of health care. The health care industry, similar to all industries, must deliver services in an atmosphere in which ethical and legal considerations are an integral part of the organizational culture. RTs regularly encounter circumstances that require them to make choices or take actions that have ethical and legal implications. In society, ethics and law help maintain order and stability. In professional practices, ethics guide RTs in carrying out their duties in a morally defensible way. Law establishes the minimum legal standards to which practitioners must adhere. Although not always the case, ethical practice may require a standard above that of legal practice.

The force behind law is twofold: (1) statutory punishment, ranging from reparations and fines to licensure suspension and incarceration; and (2) civil judgments for violations of duties that cause harm to others. Sanctions for ethical misconduct involve censorship or expulsion from the profession. In some cases, ethical misconduct and legal misbehavior may result from the same incident. The distinction between illegal acts and unethical behavior is not always straightforward. A given act may fit any one of the following categories, depending on the circumstances and the ethical orientation of the person involved: ethical and legal, unethical but legal, ethical but illegal, or unethical and illegal. This chapter provides a foundation of principles related to the ethical and legal practice of respiratory care.

Philosophical Foundations of Ethics

Although an in-depth discussion of philosophy is beyond the scope of this chapter, it is important to note that ethics has its origins in philosophy. Philosophy may be defined as the love of wisdom and the pursuit of knowledge concerning humankind, nature, and reality.1 Ethics is one of the disciplines of philosophy, which include ontology (the nature of reality), metaphysics (the nature of the universe), epistemology (the nature of knowledge), axiology (the nature, types, and criteria of values), logic, and aesthetics. Ethics is primarily concerned with the question of how we should act. Although ethics may share common origins with the disciplines of law, theology, and economics, as an applied practice, ethics is clearly different from these disciplines.1 Ethics can be described philosophically as a moral principle that supplements the golden rule and can be summed up by a commitment to “respect the humanity in persons.”2

Ethical Dilemmas of Practice

The growth of respiratory care has paralleled the development of advanced medical technology and treatment protocols. At the same time, during the 1970s through the 1990s, an ever-growing and sophisticated patient population, fueled by medical benefit packages from the government and employers, developed rising expectations about acceptable standards of care. In the latter part of the 1990s, managed care strategies and other cost-containment methods adopted by most third-party payers slowed the growth of the health care industry. The ethical and legal issues faced by practitioners, although changed in many cases, continued to grow. In the earlier period, RTs faced ethical dilemmas and legal issues associated with patient expectations, staffing, and quality of care, among others. RTs continue to face ethical dilemmas and legal issues at the present time; however, such dilemmas may now include the rationing of care, dealing with conflicts associated with third-party standards of care, and delivery of the appropriate standard of care in the face of cost constraints. Staffing issues continue to be a problem and are at the root of many of the ethical and legal concerns faced by RTs. As respiratory care continues to mature as a profession, these challenges are likely to increase. The twenty-first century has brought one particular challenge, although not new to health care or to RTs: a heightened awareness of the patient’s right to privacy. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), discussed later in this chapter, is now a major consideration for RTs as they perform their jobs.

RTs work in complex health care settings, making it difficult to predict definitively the range of ethical dilemmas likely to be experienced on a regular basis. The clinical aspects and the management aspects of health care are rife with possibilities for ethical dilemmas. In addition, the ethical orientation of the RT plays a role in recognition and identification of ethical dilemmas. The health care industry continues to be in a period of dynamic change bringing many new challenges. New technologic and management methodologies are continuously being introduced to accomplish the missions and goals of health care organizations. Over the past decade, there has been an almost complete change from a relatively open fee-for-service system to one in which care is managed in some fashion, and the fees are in some form of capitated payment. These changes often pose serious ethical dilemmas.

For example, managed care uses a concept known as “restrictive gatekeeping.” Restrictive gatekeeping requires patients to obtain prior approval from their third-party payer, usually an insurance company, before hospitalization and before certain procedures. When the hospital admission or procedure is approved, specific requirements or limitations are usually associated with the patient’s care. As a result, health care workers, including RTs, may find themselves engaged in clinical processes that are dictated more by the third-party payers than by patient needs. Under these circumstances, health care workers may feel frustrated and helpless if they believe that a patient needs care beyond that approved by the third-party payer.

The rationing of care continues to be a side effect of staffing patterns created by managed care. Although all businesses must carefully balance staffing patterns against productivity, managed care has brought this concept home in a major way to health care facilities. An RT working in an understaffed department may decide that Patient A can really forego therapy because the department is short staffed and Patient A is really not going to get better anyway. Although this may sound at first like a case of simple neglect of duty, it is also an ethical dilemma.

The approaches used to address ethical issues in health care range from the specific to the general. Specific guidance in resolving ethical dilemmas is usually provided by a professional code of ethics. General approaches involve the use of ethical theories and principles to reach a decision.3

Codes of Ethics

A code of ethics is an essential part of any profession that claims to be self-regulating. The adoption of a code of ethics is one way in which an occupational group establishes itself as a profession. A code may try to limit competition, restrict advertisement, or promote a particular image in addition to setting forth rules for conduct.4

The first American medical code of ethics (established in 1847) was as much concerned with separating orthodox practitioners from nontraditional ones as it was with regulating behavior. Even modern codes tend to be vague regarding what is prescribed and what is to be avoided.

The American Association for Respiratory Care (AARC) has also adopted a Statement of Ethics and Professional Conduct. The current code appears in Box 5-1. This code represents a set of general principles and rules that have been developed to help ensure that the health needs of the public are provided in a safe, effective, and caring manner. Codes for different professions might differ from the code governing respiratory care because they may seek different goals. However, all codes of ethics seek to establish parameters of behavior for members of the chosen profession. Professional codes of ethics often represent overly simplistic or prohibitive notions of how to deal with open misbehavior or flagrant abuses of authority.

Box 5-1   AARC Statement of Ethics and Professional Conduct (Revised 7/04)

In the conduct of professional activities, the respiratory therapist shall be bound by the following ethical and professional principles. Respiratory therapists shall:

• Demonstrate behavior that reflects integrity, supports objectivity, and fosters trust in the profession and its professionals. Actively maintain and continually improve their professional competence and represent it accurately

• Perform only those procedures or functions in which they are individually competent and which are within the scope of accepted and responsible practice

• Respect and protect the legal and personal rights of patients they treat, including the right to informed consent and refusal of treatment

• Divulge no confidential information regarding any patient or family unless disclosure is required for responsible performance of duty, or required by law

• Provide care without discrimination on any basis, with respect for the rights and dignity of all individuals

• Promote disease prevention and wellness

• Refuse to participate in illegal or unethical acts, and shall refuse to conceal illegal, unethical, or incompetent acts of others

• Follow sound scientific procedures and ethical principles in research

• Comply with state or federal laws that govern and relate to their practice

• Avoid any form of conduct that creates a conflict of interest and shall follow the principles of ethical business behavior

• Promote health care delivery through improvement of the access, efficacy, and cost of patient care

• Encourage and promote appropriate stewardship of resources

The most difficult ethical decisions arise from situations in which two or more right choices are incompatible, in which the choices represent different priorities, or in which limited resources exist to achieve a desired end. Ethicists readily admit that reducing these issues to simple formulations is not an easy task. The number and complexity of ethical dilemmas continue to grow as the complexity of life and health care increases. For health care, difficult ethical dilemmas continue to involve concerns about the practical limits on financial resources, the growing emphasis on individual autonomy, and more research advances such as cloning and stem cell research. Resolution of these more complex problems requires a more general approach than that provided by a code of ethics. This more general perspective is provided by ethical theories and principles.

In addition to the moral obligations that ethical duties impose on RTs, ethical obligations are often cited in legal proceedings as a tool of cross-examination. If an RT expresses opinions or is accused of actions that would violate the ethical duties of the profession, the RT’s ignorance of ethical standards during cross-examination can have a powerful effect on a jury.

Mini Clini

Conflicting Obligations

image Problem

Therapist H, a registered RT with 18 years’ experience, has worked for a large regional medical center for the past 10 years. She is generally happy with her work but is concerned about the financial stability of the hospital. As a result, she has signed on with a temporary agency to ensure that she will have work if the hospital decides to initiate a reduction in force. On one of her scheduled days off, Therapist H agrees to work a shift for the temporary agency at another hospital. Two hours before her shift is scheduled to begin, she receives a telephone message from the medical center where she is employed. Her supervisor asks Therapist H to report to work at the medical center because the only experienced therapist on the shift has been in an automobile accident. Therapist H is torn between her obligation to the medical center where she has worked for 10 years and the agency.

Ethical Theories and Principles

Ethical theories and principles provide the foundation for all ethical behavior. Contemporary ethical principles have evolved from many sources, including Aristotle’s and Aquinas’ natural law, Judeo-Christian morality, Kant’s universal duties, and the values characterizing modern democracy.5,6 Although controversy exists, most ethicists agree that autonomy, veracity, nonmaleficence, beneficence, confidentiality, justice, and role fidelity are the primary guiding principles in contemporary ethical decision making.1,5

Each of these ethical principles, as applied to professional practice, consists of two components: a professional duty and a patient right (Figure 5-1). The principle of autonomy obliges health care professionals to uphold the freedom of will and freedom of action of others. The principle of beneficence obliges health care professionals to further the interests of others either by promoting their good or by actively preventing their harm. The principle of justice obliges health care professionals to ensure that others receive what they rightfully deserve or legitimately claim.

Expressed in each duty is a reciprocal patient right. Reciprocal patient rights include the right to autonomous choice, the right not to be harmed, and the right to fair and equitable treatment. More specific rules can be generated from these general principles of rights and obligations, such as those included in a code of ethics.


The principle of veracity is often linked to autonomy, especially in the area of informed consent. Generally, veracity binds the health care provider and the patient to tell the truth. The nature of the health care delivery process is such that both parties involved are best served in an environment of trust and mutual sharing of all information. Problems with the veracity principle revolve around such issues as benevolent deception. In actions of benevolent deception, the truth is withheld from the patient for his or her own good.

When the physician decides to withhold the truth from a conscious, well-oriented adult, the decision affects the interactions between health care providers and the patient and has a chilling effect on the rapport that is so necessary for good care. In a poll conducted by the Louis Harris group, 94% of Americans surveyed indicated that they wanted to know everything about their cases, even the dismal facts. Other than with pediatrics and rare cases in which there is evidence that the truth would lead to a harm (e.g., suicide), the truth, provided in as pleasant a manner as possible, is probably the best policy.7

Truth telling can also involve documentation and medical recordkeeping. This type of dilemma is occurring more frequently under strict managed care reimbursement protocols. The accompanying Mini Clini provides a good example of this type of dilemma.

Mini Clini

Patient Rights


The RT must acknowledge and respect the patient’s right to decide freely whether or not to allow the respiratory care treatment. According to the principles of ethical theory and conduct, health care professionals have an obligation to promote patient autonomy by permitting freedom of will and freedom of action. An additional requirement on the part of the practitioner is that coercion or deceit not be used to get a patient to reverse his or her decision to refuse a treatment. According to the American Hospital Association statement entitled “The Patient Care Partnership,” the patient has the right to refuse treatment and to be informed of the medical consequences of her action.

The RT could talk to the patient and explore what the term “bad day” meant to her. It might be that she is not feeling well because of breathing problems from her asthma condition and worsening symptoms of possible pneumonia. The RT has an important role in ensuring that the patient understands the benefits of the respiratory treatment and the health consequences of refusal so that the patient can make a well-informed decision. If the RT approaches the patient in a professional, nonthreatening manner, she may feel more at ease and be willing to discuss in greater depth why she does not want to take the treatment. It is common for a patient to refuse therapy initially only to change his or her mind after communication with the RT. Should the patient still refuse the treatment after discussion with the RT, the RT should remain nonjudgmental, even if he or she disagrees with the patient’s decision. Appropriate documentation in the medical record and physician notification should then occur.


The principle of nonmaleficence obligates health care providers to avoid harming patients and to prevent harm actively where possible. It is sometimes difficult to uphold this principle in modern medicine because in many cases drugs and procedures have secondary effects that may be harmful in varying degrees. For example, an RT might ask whether it is ethical to give a high dose of steroids to an asthmatic patient, knowing the many harmful consequences of these drugs. One solution to these dilemmas is based on the understanding that many helping actions inevitably have both a good and a bad effect, or double effect. The key is the first intent. If the first intent is good, the harmful effect is viewed as an unintended result. The double effect brings us to the essence of the definition of the word dilemma. The word comes from the Greek terms di, meaning “two,” and lemma, meaning “assumption” or “proposition.”8


The principle of beneficence raises the “do no harm” requirement to an even higher level. Beneficence requires that health care providers go beyond doing no harm and contribute actively to the health and well-being of their patients. Many quality-of-life issues are included within this dictum. Practitioners of medicine today possess the technology to keep some individuals alive well beyond any likelihood of meaningful recovery. This technology presents dilemmas for practitioners who have the ability to prolong life but not the ability to restore any uniquely human qualities.

In these cases, some individuals interpret the principle of beneficence to mean that they must do everything to promote a patient’s life, regardless of how useful the life might be to that individual. Other professionals in the same situation might believe they are allowing the principle to be better served by doing nothing and allowing death to occur without taking heroic measures to prevent it. In an attempt to allow patients to participate in resolving this dilemma, legal avenues, called advance directives, have been developed.9 Advance directives allow a patient to give direction to health care providers about treatment choices in circumstances in which the patient may no longer be able to provide that direction. The two types of advance directives available at the present time and widely used are the living will and the durable power of attorney for health care. A durable power of attorney for health care allows the patient to identify another person to carry out his or her wishes with respect to health care, whereas a living will states a patient’s health care preferences in writing. As a result of the Patient Self-Determination Act of 1990, most states require that all health care agencies receiving federal reimbursement under Medicare/Medicaid legislation provide adult clients with information on advance directives.9,10


The principle of confidentiality is founded in the Hippocratic Oath; it was later reiterated by the World Medical Association in 1949. It obliges health care providers to “respect the secrets which are confided even after the patient has died.”11 Confidentiality, as with the other axioms of ethics, must often be balanced against other principles, such as beneficence.

The main ethical issue surrounding confidentiality is whether more harm is done by occasionally violating its mandate or by always upholding it, regardless of the consequences. This limitation to confidentiality is known as the harm principle. This principle requires that practitioners refrain from acts or omissions in which foreseeable harm to others could result, especially when the others are vulnerable to risk. This principle would require that confidentiality be maintained for a patient with AIDS in matters involving his or her landlord. In this case, confidentiality is justified because the landlord is not particularly vulnerable. However, if the patient was planning to marry, the harm principle would require that confidentiality be broken because of the special vulnerability of the spouse.

Confidentiality is usually considered a qualified, rather than an absolute, ethical principle in most health care provider–patient relationships. These qualifications are often written into codes of ethics. The American Medical Association Code of Ethics, Section 9, provides the following guidelines: “A physician may not reveal the confidences entrusted to him in the course of medical attendance or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the community or a vulnerable individual.” Under the requirements of public health and community welfare, there is often a legal requirement to report such things as child abuse, poisonings, industrial accidents, communicable diseases, blood transfusion reactions, narcotic use, and injuries caused with knives or guns.12 In many states, child abuse statutes protect the health care practitioner from liability in reporting even if the report should prove false as long as the report was made in good faith. Failure to report a case of child abuse can leave the practitioner legally liable for additional injuries that the child may sustain after being returned to the hostile environment.

Breaches of confidentiality more often result from careless slips of the tongue than from rational decision making. Such social trading in gossip about patients is unprofessional, unethical, and, in certain cases, illegal. Risks of inadvertent disclosure increase exponentially with membership on social networking sites such as Facebook where RTs may exchange information that sometimes violates the rights of individual patients.

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Jun 12, 2016 | Posted by in RESPIRATORY | Comments Off on Ethical and Legal Implications of Practice

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