Essay Sample: Ethical and Legal Dilemma

An ethical dilemma involves a conflict of values, in which there is more than one acceptable courses of action or, more than one acceptable course of action or, more often, there are mutually exclusive goods, thus forcing the clinician to choose among them. Situations in which clinicians are unsure what to door where they are sure what to do but something is preventing them from doing it often appear, at first glance, to be ethical in nature. The first step in addressing a perceived dilemma is to clarify the question to be answered, and then to determine if it is, indeed, an ethical dilemma. In some cases, this determination can be quite a challenge. A patient, family, or staff person may raise a profound concern, but they may not be able to articulate the precise nature of their discomfort. This just feels wrong, they might say. In the language of the classic medical model, this is akin to a patient presenting with a chief complaint, not yet knowing its cause. The persons feeling are valid and merit further analysis as well as clarification of the medical facts, but this may not present an ethical dilemma.

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As practical example, consider Elsie Lee, 88 years old had recently moved to a Residential Aged Care Facility (RAC). She had difficulty mobilizing due to severe rheumatoid arthritis as well as short-term memory and vision impairment. Elsie also had a history of AMI, removal of bilateral cataracts, and a (L) hip replacement four years ago. On admission to the RAC facility, on Tuesday afternoon, the Nurse Manager suggested that Elsie consider making out an advanced care directive (ACD), indicating what she would want done in the event that her health should deteriorate. Elsie agreed and awaited the help of her family when they visited on Sunday. She was pleased to have this opportunity as, although she had discussed her wishes with her family, she wanted to make it clear to staff caring for her that she did not want aggressive treatment of any kind and did not want to be resuscitated. On Friday night, Elsie developed severe chest pain which radiated down her (L) shoulder, an irregular pulse and a BP of 73/48 and the RN on duty called the ambulance. Elsie pleaded with the paramedics to leave her as she was; the R.N. insisted that they transport Elsie to hospital as she had not filled out an ACD indicating otherwise. In transit to the hospital, Elsie suffered a cardiac arrest. The paramedics attempted resuscitation but were unsuccessful. On arrival to the ED, Elsie was pronounced dead. Her family determined that Elsies death was brought on by the stress of being moved to hospital. They decided to sue the R.N., the paramedics and the RAC facility for assault and battery.

Situations such as those noted above are so common that some have even claimed that most conflicts encountered in the practice of medicine are false dilemmas. Conversely, some dilemmas which are indeed, ethical in nature may initially not be acknowledged as such. In such cases, there may exist a failure to recognize either the overriding importance of one value, or fact that two or more values are in conflict. For instance, a clinicians certainly could initially be framed in terms of probability of success (a biotechnical question), but it could also be because quality of life is not sufficient to justify the treatment (a profoundly ethical question). Only in situations in which the question is crispy framed and determined to be ethical in nature is further ethical analysis indicated.

Proposed structures of ethical analysis differ as to the degree to which the question needs to be classified at this stage. Some advocate (identifying) the basic principles involved and (explaining) how they relate to the case, thus making it possible to distinguish between conflicting principles and uncertainty as to what specific principle requires. Other experts consider identifying the conflicting principles to be premature at this stage, thus leading to an exaggerated use of principles in problem-solving.

While the former approach may be appropriate for trained ethics consultants, it is not reasonable to expect clinicians to classify ethical dilemmas at this early stage. Instead, it is enough simply to identify the competing goods such as increased likelihood of survival, optimal comfort, respect for patient wishes, and proper use of scarce resources that appear to be in conflict, and which render the dilemma ethical in nature. While the professional ethicist might tend to apply technical terms such as autonomy and beneficence to these goods, it is sufficient at this point to admit that all goods cannot be simultaneously achieved forcing the patient and the medical team to make a difficult choice which informed, well-intentioned people could reasonable disagree.

As an old saying goes, Good ethics begin with good facts. A review of existing information relating to the perceived dilemma will not only help clarify whether the dilemma is ethical in nature; it is also integral to resolving the dilemma. Throughout the review, it is crucial to keep an open mind regarding the competing issues at paly, in order not to leap prematurely to a conclusion. As (Pollock, 2014) wrote, The essence of critical thinking is suspended judgement; and the essence of this suspense is inquiry to determine the nature of the problem before proceeding to attempt at its solution. A thorough understanding of the clinical situation is the universal starting points for all proposed systems of ethical analysis, although the terminology varies slightly, with references to medical factors (Humber, 2013) medical indications (Jungers, 2103), medical factors and goals (Lo, 2013), and similar terms. This process necessarily involves a thorough review of the patients medical record and discussion with the professionals involved in the patients care. The end result is a comprehensive understanding of the patients current condition, prognosis, and treatment options, with attendant risks and benefits.

The next step is identifying the patients goals, what others have called patient preferences (Williams, 2013) or human factors (Bush, 2012). Patients who possess sufficient decision-making capacity may be able to express their goals and values directly. In situations where capacity is impaired or absent, the patient may have expressed his or her wishes at an earlier point in time, perhaps in the form of an advance directive. Additionally, loved ones (whether family or friends) may have a sense of the patients goals and values thus are able to offer substituted judgment as to what the patient would want (Ethics In Counseling & Psychotherapy, 2012). Here it is critical to distinguish in the terminology of medication between positions and interests (Holzemer, 2012). It is often said that a patient wishes to be full code, or have everything done. Strictly speaking, nobody wants to receive cardiopulmonary resuscitation or be intubated as both are highly burdensome and it is logistically impossible to do every possible medical procedure to a single patient. These are positions which reflect an application of the patients goals to a clinical situation. Patient preference, on the other hand, are interests, by which we mean human hopes and longings. As such, they are not inherently linked to specific medical procedures. Viewed in this light, full code may represent a fervent wish to survive despite significant burden and low probability of success. It is crucial at this stage to identify the patients interests in non-medical terminology, which allows them to be analyzed in light of specific medical situation.

In the well-known forth quadrant approach (Guido, 2013) medical indications and patient preferences represent the upper two quadrants which, when not in conflict, are often sufficient to resolve perceived dilemmas. However, when the patient (or surrogate decision-maker) disagrees with the medical team as to what should be done in ethical terminology, when autonomy and beneficence are in conflict then further information is necessary. The third quadrant deals with the patients quality of life, both prior to the current situation and in the future, to the degree to which that can be predicted. Specific attention must be paid to the patients goals and values how they relate to projected quality of life, it is imperative here to use the patients own measure of an acceptable quality of life, given that physicians tend to underestimate domains such as emotion and pain (Peirce,, 2013).

The fourth quadrant is contextual features, which take into account familial, social, religious, and cultural, and financial factors. Attention to these factors recognizes that a variety of considerations play into a patients or surrogates decision. In addition, it acknowledges that most patients have substantive personal relationships, such that what happens to the patient influences others as well. And while some might argue that the medical teams concern should be solely focused on the patient, even a modest recognition of interrelationship necessitates consideration of other peoples feelings, beliefs, and values as well (Maville, 2013). The right to decide for oneself (e.g., autonomy) is a basic human right, and as such it is considered inalienable and nonnegotiable. Professional right, on the other hand are more circumscribed, based on the social contract under which that profession functions. Physician autonomy is often manifested in the form of the professional right of conscience. If patients do not have an absolute right to any treatment they request, to what degree should the physicians own moral beliefs be taken into consideration when determining whether to provide that treatment?

Often a physicians refusal to provide a specific treatment is a biotechnical decision that is defensible based on the best available evidence. In other cases, however, the physicians refusal is based on ethical rather than empirical grounds. While some defend the physicians right to refuse others assert that someone who is unwilling to provide requested legal procedures should essentially choose another profession. In balancing the patients right of autonomy and the clinicians right of conscience, the former typically takes precedence based on the fiduciary responsibility of the physician to the patient (Pozgar, 2012). In most situations, the physician may be able to transfer care of the patient to a colleague who does not hold the same moral reservations about the requested procedure. Where that is not possible and the physicians refusal essentially determines that the patient cannot receive the procedure the physician may be obligated to provide the treatment, as long as it is legal and consistent with the standard of care.

Some approaches to ethical dilemmas do not emphasize principles at all. Casuistry, for example, reasons inductively from paradigmatic cases using analogy to determine whether a proposed course of action is ethically acceptable. While some scholars criticize such an approach precisely because it appears to be devoid of any ethical theory, others appropriately claim that it takes a structured approach based on the belief that ethics is a series of practices that arise from human moral experience. Casuistry offers many potential benefits. First, like virtue ethics, casuistry offers a valuable confirmation and clarification of a presumptive decision, by placing that decision on a spectrum of similar dilemmas. Casuistry can also provide guidance in situations where the competing ethical theories, duties, and obligations are so complex that it is difficult even to generate a presumptive resolution. Finally and here casuistry distinguishes itself from virtues ethics case based reasoning recognizes that sometimes it is ea...