rights and responsibilities, confidentiality and professional regulation. A case study will be presented pertaining to healthcare professional dilemma, patient rights and confidentiality whether to disclose patient HIV status to his wife. In order to safeguard and protect the right and confidentiality of the healthcare professionals, patient and his family members’ real name are not used (NMC, 2008).
Tom, 40 years old, and his wife Jane, 35 years old, both Chinese were married for 10 years. They did not have any child and had been trying to conceive for 6 years. They live with their parent-in-law in Malaysia. The couple, whom are not well educated, are working as hawker in the market. Tom’s family is a very traditional family. And his parent had been blaming Jane for unable to bear them an offspring. Tom, a male chauvinist with a big ego thinks that the problem lies with his wife and refuses to seek fertility treatment. Jane was under a lot of pressure and she had been trying to convince Tom to seek fertility treatment together with her for many years. Finally, Tom agreed. According to Directives for private healthcare institutions providing assisted reproduction services, CAP 248, REG 1 (MOH, 2006) couples whom are undergoing assisted reproduction procedures have to undergo a series of blood test including Human Immunodeficiency Virus (HIV). Consent was signed for agreeing to be screen for HIV, but HIV pre-counseling was not done as it is not a protocol in the clinic.
Tom was diagnosed with HIV, while Jane was found to be negative. Jane was unaware of his HIV status. He was in shock, not knowing what to do when the medical practitioner told him that he was HIV positive. After he came out from the consultation room, he requested Nurse A, who is on duty not to disclose his diagnosis to a third party including his wife, even the medical practitioner did not know about his decision. He even threatened with suicidal intention and denial of treatment. Nurse A was in dilemma as to whether to disclose Tom diagnosis to his wife or not and whether to inform the medical practitioner regarding his decision.
Sim (1997a) defined law as a standard conduct which one must not fall into. While Susan & Katherina (2009) defined it as the formalization of a body of rules of action or conduct that is enforced by binding legal authority. Once law are broken, one will be punished by an authority figure. Beauchamp & Childress (2001) stated that ethics are moral ethical principles. Ethical principles act as a guide to moral decision making and action. It also acts as formation of moral judgment in a professional practice. Moral and ethic are often drawn together, both words derived from the same root. Moral is often used to describe the standard of behaviour while ethic is referred as the study of moral (Hendrick, 2000). The important of applying ethical principles in health care is increasingly recognised worldwide, as the public is more concern with the morality of medicine and health (Sim, 1997a). Healthcare professionals are often in ethical dilemma due to the given situation and specific culture belief. E.g. euthanasia and abortion
Four ethical principles include respect for autonomy; beneficence; non-maleficence and justice were developed by Beauchamp & Childress (2001). Ethical rules such as honesty, confidentiality and professional behaviour are derived from the four ethical principles (Vevaina et al, 1993). Law and ethics are basically not from the same discipline, they may sometimes conflict each others. Ethical responsibilities are frequently more stringent than legal responsibilities. Respect for autonomy is respecting the decision made by informed and competent patients. It has many prima facie implications as it requires the healthcare professionals to obtain informed consent before carrying out the treatment to help the individual (Gillon, 1995). Beneficence refers to balancing the benefits of treatment against the risks and cost, before the healthcare professionals will put into action the treatments that benefit the patients. While non-maleficence proscribes healthcare professional from doing any action that will result harm to the patient. Justice refer to the moral obligation to distribute benefits, risk and cost in a fairly manner (Beauchamp & Childress, 2001).
According to the principle of respect for autonomy, individuals should have control over their own lives which include control over personal information without unjustified interference from others (Thongkrajai, 2000). Relating to my case study, under the Infectious Disease Act (Cap 137) Section 25, concealing one’s HIV status while maintain sexual intercourse with his spouse can be seen as a deliberate action by the husband as it put his spouse at risk of early death. Johnstone (1999) stated that individual has the right to consent or deny any medical treatment without affecting the rights of others. The state law and the healthcare professionals have an obligation to protect the well-being of the community. The seriousness of the threatened grave injury to another outweighs the harm to the patient by breaching the confidentiality. In order to prevent harm to others, the obligation of confidentiality has to give way (Kipnis, 2006). Therefore, Nurse A has the right to inform the medical practitioner about Tom’s decision and the medical practitioner have the right to disclose Tom’s HIV status to his wife as the medical practitioner believes that Tom will pass HIV infection to his wife and their unborn child. In this case, patient’s respect of autonomy was override and confidentiality was breach as there was no voluntary consent by the patient to disclose his HIV status to third party. It also breach the principles of non- maleficence by disclosing Tom’s HIV status to Jane that may lead to embarrassment, hostility, stigmatization or discrimination. It may jeopardize Tom’s treatment and he may commit suicide. However Bianco & Pagani (2000) argued that privacy and confidentiality are the main human right for people living with HIV. In order to respect these rights, the healthcare professionals are not supposed to disclose Tom HIV status to Jane without Tom consent.
In Jane’s point of view, the principles of beneficence and justice actually benefit her whereby she is informed of Tom’s HIV status, hence reducing her risk of being infected with HIV by Tom. But for Tom, there are no benefits as he threatened with suicidal intention and denial of treatment. Ethically, is this right for Tom? His human right and confidentiality had been evoked! A person infected with HIV is also a human being and has his own individuality. Tom has the right to keep his HIV status a secret however this right is potentially in conflict with the rights of Jane of not being infected and the right of her unborn child. But on the other hand, is it fair for Jane and her unborn child, who is innocent? Jane also has the right to be informed of the risk so that she can protect herself. By not telling her the truth will entail potential harm to her and her unborn child. By knowing the truth, she can use contraceptive measure or seek treatment at the earliest opportunity to reduce the risk of HIV transmission to the unborn child. If the unborn child happens to be HIV positive, who will take the responsibility to support and look after the poor child and the HIV positive mother? The ethical challenge emerges between medical confidentiality and the duty to protect imperiled third party. Both Tom and Jane were patients to the healthcare professionals, therefore the healthcare professionals also have the obligation to look after Tom’s health as well as Jane’s health. Before making any decisions, healthcare professionals should look into the reason why Tom refuses to disclose his diagnosis to his wife. Study done by Warner (2003) shown that more than 1 in 10 people don’t inform their sexual partners about their HIV status. Another exploratory study done by Ssali et al (2010) looks at reason for disclosure and non-disclosure of HIV status; who they disclose to. The semi structured interview shown that only 54% of the participants disclose their HIV status to their spouse, while 46% discloses it either to the other family members, friends or colleagues. The most common reason for disclosure was to gain psychosocial and physical support therefore fulfilling the responsibility to someone they love. The most common reason for non-disclosure was fear of abandonment; stigmatized and the individual maybe concerned about how their spouse will cope the aftermath of disclosure.
Confidentiality means the keeping of promises. It also establishes the trust between the healthcare professional and the patient (Gates and Fink, 2008). Common law of confidentiality states that any information pertaining to the patient is not to be divulged without his/her consent unless there are legitimate reasons supporting it (Sim, 1997b). According to the Code of Ethics and Professional Conducts for Nurses and Midwifery mentioned, to safeguard the confidentiality of all client-related information, disclosure of confidential information only when consent is given by the client, unless there is risk of harm to the patient or other persons, or when there is a legal obligation to disclose the information (SNB, 2006). It is also nurses’ responsibility to maintain the anonymity of clients upon disclosing confidential information to other healthcare professional in circumstances such as emergency or due to legal obligation (SNB, 2006 and NMC, 2008). However confidentiality does not mean hiding relevant information from those who are likely to be harm of that information (Kishore, 2000). In the principle of beneficence, nurses are obligated to protect, prevent harm and maintain the best interest to patients. The challenge of bioethics occur when ethical principles and rules conflict, which made the nurse in the ethical dilemma not knowing who shall she protect. Whether it should be Tom or Jane? Under the code of conduct, Nurse A should inform the medical practitioner who is on duty regarding Tom’s decision within clinic premises. In this case, she did not breach the confidentiality of the patient as the medical practitioner who is on duty on that day already knew about Tom HIV status, but she is not in a position to disclose Tom HIV positive status to Jane. Tom told Nurse A about his decision because he trusted her. She will breach the trust established, confidentiality and the duty of care, if Nurse A did disclose Tom HIV positive status to Jane. The duty of care would be breached. The duty of care by the nurse was established when there was a patient- nurse relationship that creates that duty and she owe the duty of care to prevent any harm to the patient (Pozgar, 2007). Professionalism is important in nursing as it safeguard the interest of the public and serve as a beacon of ethics. In order to maintain the high standard of quality care, nurses are not allow to discuss issues pertaining to patients outside the clinic setting or public area; leaving patient medical files unattended and disclose patient information to third party without patient’s consent are prohibited (Roberta, 2007). Nurses are responsible and accountable for their own judgement and action made in the course of nursing practice, irrespective of the organisation policies.
Paternalism refers to the doctor, who believes that he or she is making the best decision in regard to patient’s care. It occurs when the principal of beneficence and respect of autonomy are in conflict (Gates and Fink, 2008). In the principal of beneficence, paternalism had been argued that the critique of paternalism had swept away the rhetoric of autonomy. Paternalism derives from the relationship of father and child. E.g. Children are not trusted in making important decisions due to not being mature enough and the lack of experience as to knowing what is good and bad for them. Therefore their parent will make the decision for them. Paternalism is commonly used in the past where the healthcare professionals believed that the patients are incompetent of making important decisions. Hence healthcare professionals thought that they are doing good for the patients by deciding which treatment options are the best for them. Not knowing that it diminishes the principle of autonomy as they did not consult the patients’ opinion (Yeo and Moorhouse, 1996).
In the modern society, this is no longer acceptable as individual placed on liberty and individual right. They demand to be more involved in decision making process pertaining to their healthcare. They have more knowledge about human rights, medical and legal issues. Therefore paternalism had become a history in the field of the health care. The recent changes, liberating the NHS, encourages individual to take part in decision making and get involve in their treatment (DOH, 2010). Patient’s right are widely discussed. In modern paternalism, patients’ values and interest are taken into account in determining what is best for the patient (Weiss, 1985).
If the case scenario happened in olden days, the healthcare professional would have disclosed Tom’s HIV status to Jane despite his decision not to. They would think that Tom is incompetent as he was not well educated and believed that by disclosing Tom HIV status was considered being beneficence to both Tom and Jane. But under the code of conduct (NMC, 2008), Nurse A did not have the right to disclose Tom’s HIV status to his wife although it helps prevent Jane from being infected with HIV by Tom. This is where critical thinking and decision making skills are required. Nurse A should reflect on the reason behind Tom’s reluctance to disclose his HIV status. Nurse A should assess Tom’s knowledge of HIV since Tom was newly diagnosis with the disease, he may not know what HIV is and the impact of it may have to his wife, his family and the public in general.
According to Fry and Veatch (2006) nurses have the obligation to protect the rights of an individual with regards to HIV testing, treatment and counseling. At this moment, counseling and educating Tom would be important for him rather that forcing him to disclose his HIV status to his wife. The Code of Ethics and Professional Conducts for Nurses and Midwifery value statement 2(SNB, 2006) states that providing necessary information from appropriate sources required by the patient enables individual to make informed decisions concerning their own care therefore counselling involved the legal implications and the ethical obligations of the healthcare professionals in the event of his reluctance to disclosure his diagnosis. Nurses’ skill and knowledge must be updated in order to give competent and valued quality nursing standard of care. When the needs of the patients are beyond the qualifications and competency, nurses have the responsibility to continue learning and to upgrade themselves (Mahlmeister, 1999). According to Thompson et al (2006), in order to preventing any harm to the patients, nurses is legally accountable for the patients in their care. They have to be competent to perform the task that is assigned to them. Pertaining to my case study, Tom might not know the ethical and legal issues faced by the healthcare professional and his knowledge deficit about HIV as he was not well educated. He might feel betrayed and angry when the healthcare professional breaches the confidentiality. He would probably not received treatment and selfishly and purposely put others into danger or attempt suicide. In the duty of care, nurses should provide counselling for Tom on HIV. Inform him the importance of disclosing his HIV status to his spouse, how is HIV being transmitted and the preventive measures to reduce HIV transmission. Support should be provided upon making the disclosure. Nurse A should also consider about the stigma and discrimination faced by Tom after he had made the disclosure about his HIV status. Both Jane’s and Tom’s family should also be counselled. Letting them know how to cope with the disease and the stigma they are going to faced by the public. What is the duty of care here? It is the obligation of a nurse to perform and maintain the standard of care to a patient (Staunton and Chiarella, 2004). Even thought the respect for autonomy and confidentiality are breached, the duty of care is in place for Tom. After gaining the knowledge of HIV, Tom may disclose his HIV status to his wife and agree to receive treatment without having the suicidal thoughts.
Consent is essential for all treatment and procedure, it must be given freely as it imposes obligation on healthcare professionals to respect individual’s autonomy (Ahronheim et al). An adult decision will be respected if he/she has the mental capacity and makes a voluntary and informed decision to refuse treatment. Under the children act (1989), children who are under 16 years old are consider legally competent if they have sufficient knowledge and maturity to enable them to fully understand what is being proposed. For example Gillick competency, she foresees that she might get pregnant if she did not take the contraceptive pills. The doctor perceived by giving the contraceptive pills was at the patient best interest even without parental consent. Pertaining to my case study, consent were not obtainable as the patient and his wife had gone back to Malaysia for treatment and the healthcare professionals that were involved either resigned or were transferred to other hospitals.
Due to the growing importance in nursing law and ethics, critical, efficient and ethical decision making skills are essential in the current practice of nursing. It does not only require nurses to improve and maintain the standard of nursing care, nurses must also be responsible and accountable for their own action. Therefore having a wide knowledge and well-verse of the code of ethic, policies and law are important. The moral and values of the nurses are equally important in ethical decision making. Nurses are often in ethical dilemma, thinking which principles to fulfil whether it should be the respect for autonomy, beneficence, non-maleficence, justice or all the four principles. While making decision, nurses should weigh the pros and cons of the situation then reflect on it.
To conclude, although the healthcare professionals have the right to disclose Tom’s HIV status under the infectious disease act, it would be good for the healthcare professionals to find out the reason why Tom was reluctant to disclose his HIV status. From my point of view, healthcare professionals should weigh the pro and cons of the situation. Provide counselling sessions for Tom to let him understand the situation, and discussion sessions to help to work out possible solutions that will benefit both Tom and Jane. Rather than forcing him to disclose his HIV status to Jane when he was newly diagnoses. By doing this, confidentiality and the four ethical principles of Beauchamp and Childress will not be breached. Tom would agree to seek treatment after the disclosure of his HIV status to his spouse, without having suicidal intentions.