Ethical and Legal Issues in Nursing

 The nursing regulatory body, the Nursing and Midwifery Council requires all registered nurses to understand the ethical and legal principles which underpin all aspects of nursing practice (NMC,2019). A comprehensive understanding of current legal and ethical frameworks facilitates the delivery of appropriate skilled nursing care. The purpose of this assignment will be to critically discuss an episode of care encountered whilst on clinical placement. The episode of care involves the covert administration of medication to an elderly patient.

The decision to covertly administer the medication will be critically assessed in this assignment. The Gibbs (2017) reflection model will be used to guide the discussion. The discussion will also consider the legal, ethical and professional issues surrounding covert medication.

In the mental health sector, medication non-adherence remains a serious health-care problem with far-reaching ramifications for patients, their relatives and health-care professionals. Harris et al. (201)7 found that between 40 and 60% of mental health patients fail to adhere to their medication treatment plan.

This number increased to 50 and 70% for elderly patients with dementia, and between 75 to 85% among patients with schizophrenia and bi-polar disorders. In such cases, where the patient’s wellbeing is at risk and the treatment is essential, health-care professionals may resort to disguising medications in food and drink. The medication is crushed or liquefied and mixed with foodstuff. This practice of concealment is called covert medication (NMC,2017). By covertly administering medication, the patient consumes a drug without the required informed consent. The Gibbs (2017) reflection model has been chosen for the purpose of this assignment as it allows the author to reflect and think systematically about the episode of care. The initial stage of Gibbs’ reflective cycle is ‘Description’; in which the author is required to describe the events which occurred.

In order to comply with the NMC (2017) code of conduct and guidelines on patient confidentiality, the patient will be called Mr Walker. Mr Walker, an 80-year-old service user was temporary placed at the respite care home. Mr Walker had severe dementia and was unable to communicate effectively. He frequently resisted all essential nursing care. Mr. Walker’s medical history also included hypertension and angina. He was prescribed blood pressure medication (enalapril tablets) to stabilize his blood pressure and to reduce the risk of stroke and heart attacks. He was also prescribed diuretics and medication to prevent further angina attacks. Mr. Walker frequently refused to take his medication; spitting out the tablets and refusing to swallow. The nurse in charge, concerned about the deterioration of Mr. Walker’s health, considered the option to covertly administer his medication. The MDT held a meeting and reached the decision to covertly administer Mr Walker’s medication. The second stage of the Gibbs’ reflective cycle is ‘Feelings’, requiring the author to briefly discuss her reactions and feelings. The author felt the decision to covertly administer medication was morally correct and ethically permissible. The author refers to the deontology ethical theory to support her thoughts and feelings.

The NMC code of conduct considered by Beckwith and Franklin (2011) as a model of rule deontology states that all health-care professionals should “safeguard and promote the interests and well-being of patients”. The act of covertly administering medication could therefore be deemed morally correct. The practitioners intended on acting in the best interest of Mr. Walker irrespective of the consequences of their actions (breaching patient autonomy). Their actions promoted and safeguarded Mr. Walker’s health and well-being. Husted (2008) argues that from a deontological point of view, violating an individual’s autonomy is sometimes necessary to promote the individual’s best interest. In this case it could therefore be ethically permissible to covertly administer medication without Mr. Walker’s consent. The medication is essential and promotes Mr Walker’s long-term autonomy and safeguards his health and well-being. Similarly, the ethical principles of beneficence and non-maleficence could be used to justify the use of covert-medication (Wheeler 2008).

The principle of beneficence is an ethical principle derived from the duty to provide benefits and to consider the benefits of an action against the risk. According to Masters (2005), health-care practitioners have a professional duty and an ethical obligation to carry out positive actions with the aim of safeguarding their patient’s health and well-being. With this notion in mind, covert medication could be morally justified if it safeguards the welfare of the patient. In this case, the discontinuation of medication would have had a detrimental effect on Mr Walker. Thus administering the medication covertly was in accordance with the principle of beneficence.

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In this case, one could also argue that the medication was actually acting as an autonomy restoring agent (Wong et al,2005). Mr Walker’s autonomy was restored in that he was relieved of severe pain. The medication also worked by improving his quality of life. Several studies on the chemical and physical restraint of aggressive dementia patients also often show a preference to covert medication (Treolar et al,2001). Covert medication is often considered the least ‘restrictive’ and ‘inhumane’ way of administering medication when considering alternatives like physical and technical restraint to administer medication by force (Engedal,2005). Such alternatives to covert medication are unsafe and can have long lasting negative psychological effects on the patient (Wong et al, 2005).

However, covert medication is not without its shortcomings. The team was deceiving Mr Walker, an already confused, poorly, frail, weakened and vulnerable individual. In the Dickens et al(2007) study, many patients expressed this view of covert-medication as an act of deception. They considered covert medication as an extremely coercive practice violating their personal rights. This resultantly damaged the therapeutic nurse-patient relationship and patients felt they were no longer in a safe, therapeutic environment. The nursing ethical principle of non-maleficence is similarly relevant to this discussion. It requires practitioners to safeguard their patients’ welfare by not inflicting pain or harm (Koch et al,2010). This requirement poses serious ethical dilemmas. It is difficult to uphold this ethical standard as all forms of medical intervention entail some element of harm. Koch et al,(2010) suggest that perhaps for the harm caused to be ethically permissible it should be proportional to the benefits of the medical treatment. The author thus feels that covert medication in Mr Walker’s case could be ethically justified under these ethical principles.

The author will now focus on the ‘Analysis’ stage of Gibbs’ reflection model. Here, the author will critically analyze the events which occurred including the decision making process and the decision itself. The author will firstly discuss the issue of consent in relation to covert medication. The covert administration of medication is indeed a complex issue. It derives from the essential principles of consent and patient autonomy which are deeply rooted in the UK statute, common law and the Human Rights Act 1998 (Lawson and Peate,2009). The UK law clearly considers bodily integrity a fundamental human right; a mentally competent adult has the right to refuse medical treatment regardless of how essential the treatment is to their health and wellbeing (Kelp, 2000).

The freedom of choice which is reinforced by the ethical principle of respect for autonomy is an important right. The NMC (2008) further highlights in the Code that it is the nurses’ professional, legal and ethical duty to respect and uphold the decision made by the patient. If a nurse administers covert medication to a mentally competent individual, the nurse will be acting unethically (disregarding autonomy) and in breach of the law which could constitute grounds for trespass, assault or battery (NICE,2014), as shown in the cases R v SS [2005] and R v Ashworth Hospital [2003]. Thus practitioners have a professional, legal and ethical duty to respect the autonomous wishes of each patient.

In Mr Walker’s case an MDT meeting was held prior to the covert administration of medication to consider Mr Walker’s lack of consent and his mental capacity to consent. The MDT consisted of: the general practitioner, psychiatrist, junior house officer, nurse-in-charge, home-manager, occupational-therapist, physio-therapist, speech and language therapist, pharmacist, dementia nurse specialist, student nurse, and two relatives. By holding an MDT meeting, the practitioners were acting in accordance with local policies and guidelines. The NICE(2014) guidelines state that health-care practitioners have a legal duty to investigate and take into account the patient’s wishes, as well as the views of their relatives, carers and other practitioners involved in the patient’s care. By consulting with the relevant parties, the decision made will be, “based on what the person would have wanted, not necessarily what is best for their physical or mental health”(Latha,2010). Latha thus argues that decisions based on the patient’s wishes show some respect for the patient’s autonomy and are much more ethical than isolated decisions to covertly administer medication.

As such, a failure to consult the relevant parties may constitute a breach of legal, professional and ethical duty as shown in the Gillick v West Norfolk Health case (Nixon,2013). However, the Dickens et al, (2007) study shows that nurses frequently administer covert medication without any prior discussion with the MDT, relatives or even the pharmacist. Such practice has led to some nurses being disciplined and charged with various offences (Wong et al,2005). Under UK law, covert medication could be legally justified and considered ethical if

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the patient is admitted to the hospital under the Mental Health Act (1982). It could also be justified if it is shown that the patient lacks capacity under the Mental Capacity Act(2005). The MCA(2005) introduced the 2 stage capacity test. This 2 stage-capacity-test was used by the MDT in Mr Walker’s case. The MCA test required the MDT to consider whether Mr Walker’s cognitive impairment rendered him mentally incompetent to make treatment decisions. The physician used the MacArthur Competence Assessment Tool for Treatment (MacCAT-T) and the Mini-Mental Status Examination tool (MMSE) to assess Mr Walker’s cognitive function and his capacity to consent.

The MacCAT-T interview tool was used to assess Mr Walker’s ability to (1) understand his medical condition and the benefits/ risks of the medical treatment (2) his ability to appreciate this information (3) his reasoning ability and (4) his ability to communicate and express his decision. The results showed Mr Walker as mentally incompetent and lacking the capacity to consent. Mr Walker was (1) unable to understand the information given to him regarding his treatment (2) he was unable to retain or weigh up the information given to reach a decision (3) he was unable to communicate his decision effectively even when encouraged to use non-verbal communication such as blinking or squeezing a hand. The Mini-Mental Status Examination (MMSE) tool was also used by the physician to assess Mr Walker’s cognitive function. Mr Walker following the assessment scored a low score of 12 on the MMSE. The MDT provided further clinical evidence (screening tools, clinical data, memory tests, medical imaging results).There were some disadvantages associated with using the MacCAT-T assessment tool. The MacCAT-T tool itself does not give ‘cut off scores’ to clearly ascertain the boundary between capacity and incapacity.

This is certainly a limitation. As shown in the Palmer et.al. (2002) study, this can lead to some patients with low scores being wrongly assessed as lacking capacity. The MacCAT-T tool also fails to recognise the emotional aspects of decision making (Stoppe, 2008). It assumes that people only rely on a rational, analytic, rule-based thought process to make decisions. Breden and Vollman (2004) thus argue that, “the restriction to only logical rationality runs the risk of neglecting the patient’s normative orientation”. Other factors including situational anxiety, severity of the medical condition, medication could also impact on a person’s ability to articulate their decision making process. Furthermore, assessment tools like the MacCAT-T tool, largely depend on the clinician’s ability to carry out a clinical interview with the patient. It requires the physician to make an isolated evaluation and decision. Isolated judgements and evaluations can be unreliable as they can be influenced by factors such as subjective impressions, professional experience, personal values, beliefs and even ageism as shown in the Marson et.al. empirical study (Sturman,2005). In the study only 56% of physicians who participated in the capacity assessment of patients were able to agree on a capacity judgement.

Many physicians found that they were unable to agree due to differences in medical experience, personal beliefs and subjective impressions. Such empirical evidence certainly questions the reliability of capacity assessment tools. Following on, effective communication skills were essential at this first stage of the capacity assessment as the team was required to consider whether Mr Walker was likely to recover capacity. Effective communication is certainly important in such MDT settings as, “effective communication, which is timely, accurate, complete, unambiguous, and understood by the recipient, reduces errors and results in improved patient safety” (Bretl,2008). Several studies have shown ineffective communication as a contributing factor in medical error cases (Rothschild, 2009). Through effective communication, each member of Mr Walker’s MD team understood the discussion at hand and was thus able to contribute new suggestions and solutions. The team implemented communication skills such as negotiation, listening and goal setting skills.The MDT with input from Mr Walker’s relatives concluded that a best interest decision would have to be made on Mr Walker’s behalf. The general practitioner made it clear that the best interest decision would have to comply with the UK legal framework.

The European Convention of Human Rights (ECHR) requires the medical treatment given to be respectful to the patient (Pritchard, 2009). In discussing Mr Walker’s case, it was firstly established (during the medication review), that the treatment in question had both ‘therapeutic necessity’ and ‘therapeutic effects’ for the patient. The MDT when making a best interest decision also considered the risks and benefits of treatment in accordance with the ECHR requirements. The ECHR states that the medical treatment should not be given in a sadistic, inhumane or degrading manner (Human Right Review,2012). Similarly, the NICE(2014) guideline states that the harm that would be caused by not administering the medication covertly,

Ethical and Legal Issues in Nursing 3

must be greater than the harm that would be caused by administering the medication covertly. This requirement was satisfied by the practitioners in Mr Walker’s case. An in-depth risks and benefits assessment were carried out. The pharmacist’s input was essential at this stage. The pharmacist presented an evidence-based argument, discussing the essential medication with medical necessity.

The pharmacist also provided guidance on the most appropriate form of administration; for example, he suggested prescribing enalapril in its liquid form (enabled). The pharmacist also provided guidance on the most appropriate method of administration; for example, not mixing the medication with large portions of food or liquid. Following this discussion with the pharmacist, a best interest decision was made to covertly administer Mr Walker’s medication. It was important for the MDT to consult with the pharmacist. The method of crushing, smashing tablets or opening capsules which is a commonly used when covertly administering medication is an unlicensed form of administration (NMC, (2017) It can inflict harm by altering the therapeutic properties which can cause adverse reactions and fatalities. When using this unlicensed method of administration, the practitioner is also unable to establish whether the patient has received the prescribed amount. If the patient is not receiving the correct dosage required for his treatment, the treatment is ineffective (Wong et al,2005).

The pharmacist should therefore be consulted with. However, as demonstrated by the McDonald et al, (2004) study pharmacists are rarely consulted with. In the study, 60% of nurses working in UK care homes admitted to crushing tablets on each drug round to help patients with swallowing difficulties without firstly consulting with a pharmacist. Fortunately, in Mr Walker’s case, the pharmacist was able to provide guidance on the most appropriate method of administration. Following on, in such cases where the patient is proven to lack capacity to consent to medical treatment, the Mental Capacity Act promotes the use of ‘best interest decisions. In Mr Walker’s case, the MDT reached a ‘best interest’ decision to covertly administer his medication. However, there are some problems associated with the practice of relying on ‘best interest decisions.’ Baldwin and Hughes (2006), highlight the numerous problems associated with making best interest decisions. In their empirical study, Baldwin and Hughes found that practitioners and relatives often evaluate a patient’s quality of life differently. The results showed the poor performance of relatives and practitioners at predicting patients’ medical treatment preferences. Differences in cultural backgrounds, professional experiences, values and beliefs mean that decisions made may actually go against what the patient would have wanted.

The failure to consider the patient’s values and believes was found to be a common occurrence in the Dickens et al, (2007) study. In this study, 18% of the nursing staff interviewed admitted that they would be willing to covertly administer medication to even those patients with capacity to consent, regardless of their values and beliefs, if the treatment was essential for their well-being. The legal framework in the UK was indeed established with the aim of safeguarding the welfare of the incapacitated person. However, with such results, it remains unclear the extent to which health-care professionals are actually adhering to the legal requirements. The Mental Health Foundation (2012) argues that the MCA, “needs revising to enable more effective ‘best interests’ decisions’ by health and social care staff.” In its investigation, the Mental Health foundation found that although a large number of health-care staff found the MCA to be an effective tool in balancing the ethical principle of autonomy and safeguarding patients lacking capacity, 63% of health-care practitioners felt the definition of mental capacity was not made clear, with many expressing the view that the legal framework does not “encompass the complexity of capacity assessments in practice” (MHF, 2012).

The Griffith (2008) study and the Roy et al. (2011) further found that due to this lack of understanding, a large number of mental-health patients were wrongly assessed as lacking capacity, depriving them of their personal rights. These results suggest that health-care professionals perhaps require further training and education about the legality and practicalities of covert medication. When used without the correct legal safeguards in place, covert medication undoubtedly becomes an extremely paternalistic unlawful and unethical practice. Following the anonymous ‘best interest’ decision to covertly administer Mr Walker’s medication. The decision making process was clearly documented; the mental capacity assessment, the best interest decision, method of administration (stating explicitly that the least restrictive method will be used) were all documented in Mr Walker’s care-plan and medication-chart. Accurate documentation and record keeping is essential as it safeguards service users’ human rights and ensures that health care professionals follow the legal framework as well as local policies and guidelines.

Article 6 of the HRA, ‘right to a fair and public hearing’, also requires clinical records to be comprehensible, clear and concise so that they can be referred to if needed in a fair and public hearing. Following the MDT meeting, Mr Walker’s care plan was frequently discussed and reviewed by the MDT in monthly formal review meetings in compliance with local policies and guidelines. NICE (2013) guidelines state that it is important to frequently review covert medication decisions. Each individual is different and an individual’s mental state and capacity can change over time. By carrying out the monthly formal review meetings, the practitioners safeguard their client’s rights by ensuring that covert medication is still the most appropriate, lawful and ethical method of administration.

In conclusion, the nurses of today certainly practice in a complex health care system. It is thus essential for nurses to have a good understanding of the ethical principles which underpin good nursing practice. In the nursing literature, nurses are often described as the “moral agents” of the health-care system (Sellman,2011). This means that nurses should value ethical reasoning; acting in such a way which balances good intentions against risk and the best outcome. Through good ethical reasoning nurses are able to promote patient comfort, patient’s safety, ease suffering, and promote patient welfare to enhance recovery. The covert administration of medication should therefore not be an isolated decision, it should comply with the legislation, ethical principles, local policies and guidelines.

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