Chapter 85: Ethical and Legal Issues of a Caring-Based Practice

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For 18 years running,

the public has ranked nursing as the most honest and ethical profession in the world.

I mean, you are literally more trusted than doctors, police, and clergy.

Which is amazing.

It is.

But what happens when doing what you believe is profoundly ethical is, well, what if it's actually illegal?

Yeah, that tension right there is exactly why you can't rely on just having good intentions anymore.

You know, you're entering a field filled with like really complex billing, intricate legal frameworks, and incredibly tough end of life choices.

Right.

So welcome to this deep dive.

Pull up a chair, grab your notes, and you know, just take a breath.

Because today our mission is to completely master Chapter 85, which is ethical and legal issues of a caring based practice.

Exactly.

We are taking these advanced practice nursing concepts exactly as they appear in your text, and we're breaking them down so you feel totally confident applying them clinically.

And we've got a lot of ground to cover for the tutoring session.

We do.

We're going to do this systematically, though.

We will walk through the foundational ethics,

the guiding principles, frameworks for actually resolving those messy dilemmas, and finally, the legal realities of advanced practice.

It's really about taking the theory and seeing how it actually drives safe, patient -centered management.

Okay, let's unpack this, starting with the foundation.

Because to understand how to navigate complex healthcare today, we must first understand the philosophies that actually guide your moral compass.

Right.

So let's define the terms first.

Ethics is a branch of philosophy focused on what is right and what one ought to do when confronted with moral choices.

And then bioethics is?

Bioethics is when those moral choices specifically involve healthcare.

Now, formal contract between society and the nursing profession is the ANA's code of ethics, which was first formally adopted back in 1950.

Wow.

Okay.

Yeah.

But here is a really surprising reality check from the text.

Only about 10 % of nurses actually belong to the American Nurses Association.

Wait, really?

Only 10 %?

Yep.

Just 10%.

That's wild, considering the ANA literally sets the ethical standard for the entire profession.

But, you know, knowing the code is really only part of it.

The text points out that taking ethical action requires three specific skills.

Right.

It's not just about reading a document.

Exactly.

First, you need the ability for in -depth questioning.

Like, you can't take information at face value.

Second, you have to understand different points of view empathetically.

And third, you need to be able to argue logically in what's called a dialectic exchange.

Yeah.

And a dialectic exchange is basically a win -win debate.

It's where both sides actually learn something rather than just, you know, trying to defeat each other.

Which is rare these days.

Extremely rare.

And those three skills are constantly tested when you look at the major theoretical approaches to ethics.

As a student, you need to know the two most common ones, which are

deontology and teleology.

Okay.

Let's start with the deontology.

That's the one championed by Immanuel Kant, right?

Yes.

So deontology is entirely rule -based.

The word actually comes from the Greek word deonon, which means duty.

It says your duties are based on absolute rights, and you must act the exact same way in similar situations.

You never break the rule because the means justify the ends.

I always think of deontology like following a strict traditional family recipe.

You use the exact ingredients in the exact order, no matter who is coming to dinner.

The rule is the rule.

That is a great way to look at it.

Now contrast that with teleology or utilitarianism, which was championed by John Stuart Mel.

Right.

Teleology is goal -oriented.

It's about achieving the greatest amount of happiness or, you know, the least amount of harm for the greatest number of people.

Here, the consequences are what matter most.

The ends justify the means.

So sticking with the recipe analogy, teleology is like realizing half your dinner guests are allergic to an ingredient, so you ditch the recipe entirely to make the most people at the party happy and safe.

Exactly.

You adapt based on the outcome.

But I'm curious, what happens when these two theories collide in the real clinical world?

Well, let's look at the text's examples.

Imagine a patient who just found out they're HIV positive and they flat out refuse to tell their partner.

Oh, that's tough.

Right.

So a gene -tologist looks at this and says,

I must tell the truth because lying or withholding truth is fundamentally wrong.

It violates the rule.

Okay, let me guess what the teleologist does.

They wouldn't care about the absolute rule against lying, but they would care about the outcome.

Exactly.

So they'd say, I must tell the truth because warning the partner prevents infection and creates the greatest good for the community.

Precisely.

They use totally different reasoning, but arrive at the exact same action.

But you know, they don't always agree.

Like when?

Take a terminally ill patient on life support.

The deontologist focuses on the sanctity of life and their strict duty to preserve it.

So they advocate to keep the patient on the ventilator.

Right, because the rule is to preserve life.

But the teleologist looks at the consequences.

They see the prolonged suffering of the patient, the emotional toll on the family, the drain on hospital resources.

So they support withdrawing life support.

Understanding both sides seems incredibly practical.

I mean, it's the only way you can effectively communicate with colleagues or families who might be operating from a completely different framework than you are.

Exactly.

It helps you see where they're coming from.

But broad theories aren't enough.

We need specific rules to guide daily patient care.

Which brings us to box 85 .2 in the text outlining the seven core ethical principles.

Let's break them down.

Principle number one is autonomy.

Right.

Autonomy is free will.

It's self -determination.

And this is the entire basis for informed consent, which, by the way, accounts for about 10 % of all lawsuits against providers.

Wow.

Yeah.

And remember, informed consent requires two things.

First, giving the patient the information in terms they actually understand.

And second, the patient's autonomous agreement.

Let me stop you right there because this trips up a lot of students.

Isn't it sometimes better for the provider to just make the call?

Like you have the advanced degree, you have the clinical experience, you know the treatment is going to save their life.

Why not just say, we are doing this.

It is a very tempting thought, especially when you're stressed and just want to help.

But doing that is called parentalism.

It's take this.

It's essential.

Without gaining true consent, they are violating autonomy.

Even with the best, most benevolent intentions, disregarding a patient's values shows contempt for them as a fully functioning adult.

Okay.

That makes total sense.

And speaking of functioning adults, the text makes a really crucial distinction here for students.

It's the difference between competence and capacity when you're dealing with a patient whose mental status might be compromised.

I used to think these were completely interchangeable.

A lot of people do, but competence is strictly illegal status.

Every adult over 18 is assumed legally competent unless a judge specifically says otherwise.

Only a judge.

Only a judge.

Capacity, on the other hand, is judged clinically by you, the provider.

It's your assessment at the bedside of whether the patient actually understands the options and consequences in front of them at this exact moment in time.

Right.

So moving to second principle,

beneficence.

This just means taking positive action to do good.

Like say, a provider risking their own health to care for highly infectious patients during a pandemic.

Exactly.

And the third is non -maleficence, which is the classic do no harm.

Beneficence is taking action.

Non -maleficence is usually about omission.

It's about not taking the wrong action.

Like holding back.

Yeah.

Think about prescribing chemotherapy.

The therapy is a positive benefit.

That's beneficence.

But the side effects are harmful.

You are constantly balancing beneficence against non -maleficence.

But it gets so tangled.

Like take principle four, veracity, which is truth telling.

Telling the truth gets incredibly complicated by principle five, which is confidentiality.

Oh, absolutely.

Like if an angry family member corners you in the hallway and demands to know the truth about a patient's prognosis, you are stuck right between veracity and IP.

It's a perfect example of conflicting principles.

Yeah.

You really want to be truthful, but you legally and ethically must maintain privileged information.

And that flows right into principle six, which is fidelity,

keeping your promises.

Meaning what exactly in a clinical setting?

Well, if a treatment isn't working,

you don't string the patient along to spare their feelings.

You pivot the care from curative to palliative.

You stay faithful to them, which means not offering false hope.

That's tough, but necessary.

And the final principle, number seven, is justice, fairness.

Right.

In healthcare, we are usually talking about distributive justice.

How do we fairly allocate scarce resources?

If you only have one patient controlled Algaezy pump left on the floor or one liver available for transplant, who gets it?

You have to base it on clinical need and immediacy, right?

Not emotion or social status.

Exactly.

What's fascinating here is, well, these principles aren't like the laws of physics.

Gravity is a principle, but you literally cannot break it.

If you drop a pen, it falls.

But these principles of ethics contain the word ought.

They can be broken.

You can't violate gravity, but you can unfortunately violate autonomy.

Which is exactly why we need a practical tool for when things get messy.

Because as the text notes, an ethical dilemma by definition means there is no purely satisfactory answer.

It is always a choice between conflicting obligations.

To navigate that without just relying on your gut feeling, the text provides the ethical mnemonic.

Instead of just listing the letters, let's apply this to the case study from the chapter as we go.

Sounds good.

So you have Sylvia.

She's a 76 -year -old woman who comes into the clinic with a massive suspicious breast lump and a new cough.

You strongly recommend a mammogram.

She refuses.

She says she wouldn't want surgery at her age anyway.

And she says, when God wants me, he'll take me.

Okay.

So instead of panicking, we use the framework.

E stands for examine the data.

What do we actually have here?

We have a highly suspicious mass, a potential metastasis indicated by the cough, and a patient refusing diagnostic workup.

Right.

Now T, think about who decides.

Well, Sylvia is fiercely independent.

She drove herself to the clinic.

Based on our clinical assessment, she clearly has the capacity to understand the consequences of her choice.

So she decides.

Exactly.

H is humanize options by constructing a decision tree.

We map out what happens if she does get the mammogram.

It could be benign, giving her peace of mind, or it could be cancerous, leading to a cascade of biopsies and treatments she explicitly stated she doesn't want.

And IR is where we incorporate principles.

This is the crux of the whole dilemma.

As a student or a new provider, your beneficence, your innate desire to do good and treat a potential cancer makes you desperately want to push her to get the test.

Right.

You want to fix it.

But her autonomy overrides your beneficence.

She has the capacity to make this choice, even if it might result in an early death.

That is perfect clinical reasoning.

So C, you choose an option.

You respect her refusal.

A, you act.

You document the conversation thoroughly, ensure she knows she can change her mind and support her current symptoms.

And finally, L, you look back and evaluate the scenario to improve your practice for next time.

But let's be real.

What if you're in practice, you run through the ethical mnemonic, and you still completely stuck on a case like Sylvia's?

Well,

you are never entirely alone.

If you're stuck, you should consult your Institutional Ethics Committee, or IEC.

Who's on that?

They are multidisciplinary teams made up of physicians, nurses, social workers, clergy, and even community members.

They don't take the decision out of the patient's hands, but they provide a formal forum for conflict resolution, advice, and education.

The Local Ethics Committee is a great safety net, but they can only guide your morals.

They can't protect you from the law.

Which brings us to a scary reality.

Just because an action is ethical doesn't mean it's legal.

Yeah, that's a hard lesson.

We must translate our moral compass into the boundaries of the law and your advanced practice scope of practice.

The text highlights this beautifully, with a matrix in table 85 .2.

Sometimes an action is ethical, but illegal.

For example, assisting a 99 -year -old terminally ill and ending their life might align perfectly with some ethical frameworks regarding the prevention of suffering, but it is strictly illegal in many states.

And it goes the other way, too.

Something can be legal but unethical, like a provider ordering emergency contraception in a clinic affiliated with the Catholic Church.

It's totally legal to prescribe, but it violates the institution's deeply held ethical policies, or, as the text explicitly points out, billing for a treatment wasn't actually done.

Which brings us to what defines what you can legally do.

For APRNs, your scope of practice is governed by individual state nurse practice acts.

But this creates a chaotic patchwork across the country.

In one state, you have full independence, you cross the border, and you suddenly require intense physician oversight.

To fix that, over 40 nursing organizations got together and developed the consensus model.

The goal is to unify licensure, accreditation, certification, and education across the country so that APRNs can practice to the full extent of their training no matter where they live.

A great goal, but progress is notoriously slow.

As of June 2020, only 18 states had fully implemented it.

And understanding that regulatory environment requires keeping your terms straight.

Yeah, I'll admit I always get licensure and certification mixed up.

If I pass my NCLEX or my advance boards, aren't I certified?

It is easy to confuse them, but no, they are very distinct.

Let's break it down clearly.

Licensure is a legal status granted by your specific state board of nursing.

Passing your NCLEX is about licensure.

It's strictly about ensuring minimum safety for the public so you don't harm anyone.

Okay, so the state grants the license.

What about certification?

Certification is a national voluntary process.

Though I say voluntary with an asterisk because it's usually required for APRN licensure and not at all.

Certification validates your advanced knowledge and specialty qualifications.

Right now, 97 % of all MPs hold national certification.

So state gives the license, national board gives the certification, and then there's credentialing.

Right.

Credentialing is a local institutional process.

This is how a specific hospital, clinic, or insurance company grants you clinical privileges to actually practice within their specific walls or network.

Got it.

And once you have your license, your certification, and your credentials, you face the daily liabilities of practice.

Prescribing, billing, and avoiding lawsuits.

Let's talk prescribing first.

All states grant statutory independent prescribing authority to APRNs, which includes controlled substances.

However, the restrictions and the level of physician oversight required vary wildly depending on your state's laws.

And to prescribe anything or bill for any service, you need an NPI, a national provider identifier.

The text calls the NPI an intelligence free number.

I always loved that phrase.

It's a funny way to put it.

It just means the 10 digit number itself doesn't hide any secret codes about where you live, what your gender is, or what your medical specialty is.

It is simply a unique identifier for hypo -compliant tracking and billing.

And billing is where things get incredibly frustrating for the profession.

The text points out that Medicare often reimburses MPs at 85 % of physician rate for doing the exact same service.

To get around this financial hit, many practices utilize what's called incident to billing.

So what does this all mean for you, the listener, stepping into your first APRN role?

As a new grad, you might be thrilled just to land a great job.

But when your clinic uses incident to billing, they are billing the service under the supervising physician's NPI to secure that 100 % reimbursement.

And while that helps the clinic's bottom line, it is highly problematic for the nursing profession as a whole because it completely masks NP care in the national data.

It makes you, the MP, a ghost.

You literally don't show up in the numbers.

Exactly.

Yeah.

It also falsely suggests to policymakers that the NP is in a hierarchical supervisory relationship rather than a collaborative one.

Professional organizations are fighting hard to eliminate this, so NPs are recognized for the phenomenal care they actually provide.

That invisibility in the data is a huge systemic issue.

But a much more immediate, highly visible issue for you as a provider is malpractice.

Let's make sure we understand exactly what constitutes malpractice.

There are four required elements that a plaintiff must prove in court.

Duty, breach of the standard of care, causation, and damages.

Instead of just memorizing a list, let's use an infection metaphor.

To get sick, you need four things.

Exposure to a pathogen, a susceptible host, viral replication, and actual physical symptoms.

If you take even one of those away, there is no illness.

Malpractice is the exact same.

It requires all four pathogens.

Let's look at the text example with Mr.

Brown.

Right.

Mr.

Brown is a 72 -year -old former smoker.

The provider looks at his chart and realizes they forgot to order his AAA screening, his abdominal aortic aneurysm ultrasound at last year's annual visit.

Yeah.

So they order it now, and it turns out he does have an aneurysm.

Yeah.

So the provider clearly had a duty,

and they definitely breached the standard of care by forgetting it last year.

Is it malpractice?

Well, applying our metaphor,

we have the exposure, we have the replication, but we don't have the symptoms.

Yeah.

Because it didn't rupture.

Mr.

Brown didn't die.

He didn't require emergency surgery.

So there are no damages.

And because he wasn't harmed by the delay, malpractice is established.

If it had ruptured during that missing year, then yes, causation and damages would be present, and you'd have a full -blown malpractice suit.

Exactly.

But you can't rely on luck.

You need to protect yourself, and that means you need malpractice insurance.

And as a student, you must know the difference between the policies.

Let's slow down here because the legal terminology gets dense.

What is a claims -made policy versus an occurrence policy?

Let's use a timeline.

Imagine you deliver a baby in 2024.

In 2026, you change jobs and move to a new hospital.

In 2028, the family from 2024 sues you.

If you had a claims -made policy at your old job, it only covers you if the incident happened and the claim is filed while the policy is active.

Because you left in 2026, you are not covered in 2028.

That sounds incredibly risky.

It is.

To stay protected under claims -made, you have to buy an expensive extension called a tail policy when you leave.

Oh, wow.

Okay.

So what's the alternative?

An occurrence policy is much better.

An occurrence policy covers any incident that physically occurred during the policy period, no matter when the patient eventually files the claim.

So in our scenario, because you had an occurrence policy active in 2024 when the baby was born, you are fully covered in 2028, even though you left that job years ago.

That makes total sense.

But beyond just buying good insurance, what's the best proactive defense?

The text is super clean on this.

The majority of malpractice cases against NPs involve a failure or delay in diagnosing cancer and infections.

And the absolute number one way to prevent these claims is excellent person -centered communication.

Right.

It all comes back to how you talk to people.

Exactly.

If the patient feels heard, if they truly understand your follow -up instructions, the risk of litigation plummets.

Protecting yourself legally allows you to practice safely on a daily basis.

But to truly serve patients long -term, APRNs must look beyond the clinic to the broader health care system.

And that means interprofessional collaboration.

The text highlights the landmark Institute of Medicine report, which is now the National Academies, which strongly urged that nurses be full partners with physicians in redesigning health care.

And we know that interprofessional education is the start of that.

When NP students and medical residents do clinical simulations together, it breaks down silos, drastically improves attitudes, and ultimately improves patient outcomes.

And that spirit of collaboration extends to advocacy and health care reform.

The text walks through several massive legislative wins that have directly expanded NP practice.

Let's run through how these actually change your day to day.

First, there's the Affordable Care Act in 2010, which aimed to increase patient access to care, though the text notes results are mixed and medical bankruptcy is still a devastating reality for many.

Then there's the VA Final Rule in 2016.

This was huge.

It granted veterans direct access to APRNs without requiring physician supervision, with the exception of CRNAs.

It drastically cut wait times for veterans needing care.

Also in 2016, we got GERA, the Comprehensive Addiction and Recovery Act.

Before this, NPs were restricted, but CRA finally allowed APRNs to prescribe buprenorphine, giving you a vital tool to combat the opioid epidemic on the front lines.

And most recently, the CARES Act in 2020.

This permanently authorized APRNs to order home health care services for Medicare patients.

Which is life -changing if you work in a rural area.

Instead of waiting for a physician to sign off on home health care for your frail Medicare patient, which used to delay their care for days, you can authorize it yourself immediately.

It completely transforms your workflow and their recovery.

Exactly.

And if we connect this to the bigger picture, it proves a vital point.

The rules governing your daily practice are written by legislators.

So, it is your ethical duty as a patient advocate to engage in these legislative efforts.

You have to have a seat at the table.

For a quick recap of our tutoring session, we started with the Theoretical Foundation's Kant Strict Rules vs.

Mills focus on consequences.

We moved through the seven ethical principles, specifically noting that a patient's autonomy overrides a provider's parentalism, and clarifying that competence is for a judge, while capacity is for the clinician.

We applied the ethical mnemonic to build a decision tree for Sylvia's refusal of care.

We cleared up the difference between state licensure, national certification, and institutional credentialing.

We used our pathogen metaphor to understand the four requirements of malpractice.

And finally, we look at how federal laws like the CARES Act are actively expanding your ability to care for patients.

Which brings us to the end of chapter 85.

But before we go, I want to leave you with one final thought to mull over.

We started this deep dive noting a powerful reality.

The public ranks nursing as the most honest and ethical profession year after year.

Yet, we still have outdated billing models like incident to billing that effectively erase the specific measurable impact of nurse practitioners from our national health data.

So, here's the question.

How can the healthcare system truly value what it cannot see?

Wow, that's a massive contradiction.

You are the most trusted, yet structurally often the most invisible.

It is.

And that's the challenge.

It's up to the next generation of APRNs.

It's up to you to not just practice ethically and legally at the bedside, but to advocate loudly enough to make your systemic impact visible.

On behalf of the Last Minute Lecture Team, thank you for joining us for this tutoring session.

You're going to do great out there.

Keep questioning, keep caring, and we'll catch you on the next deep dive.