The final project for this course is an analysis of the legal and or ethical issues involved in the below
health care scenario. See questions to be answered at end of this factual scenario below. I have also
provided, after the formatting requirements for the paper, two articles that will aid you in your analyzing
the scenario and writing your paper.
The two articles to base the analysis of your paper are entitled:
Clinical Ethics Issues and Discussion and
A Framework for Thinking Ethically
This is the final paper for the class and must be double spaced and be approximately 4-5 pages in 12
point New Times Roman font. Include a cover page [not counted as a page] which should have student
name and title of your paper. See more formatting requirements later in these paper instructions.
NOTE: For this paper it is unnecessary to do any research beyond the two articles I furnished with this
assignment. Both are after the specific paper requirements. To do internet research would only be wasting
your valuable time.
A 72 year old woman was admitted to the Neurological Intensive Care Unit following a cerebral
hemorrhage which left her with severe brain damage and ventilator dependent. One year before this
event, the patient and her husband had drawn up "living wills" with an attorney. She was diagnosed by
her treating physician as being in a permanent unconscious condition. The patient's living will specified
that the patient did not want ventilator support or other artificial life support in the event of a permanent
unconscious condition or terminal condition.
The patient's husband is her legal next of kin and the person with surrogate decision-making authority.
When the living will was discussed with him, he insisted that the patient had not intended for the
document to be used in a situation like the present one. Further discussion with him revealed that he
understood that the patient would not be able to recover any meaningful brain function but he argued that
the living will did not apply because her condition was not imminently terminal. He further indicated that
he did not consider his wife to be in a permanent unconscious condition. The immediate family members
(the couple’s adult children) disagreed with their father’s refusal to withdraw life support.
The treatment team allowed a week to pass to allow the husband more time to be supported in his grief
and to appreciate the gravity of his wife’s situation. Nevertheless, at the end of this time, the husband
was unwilling to authorize withdrawal of life support measures consistent with the patient's wishes as
expressed in her living will. End of scenario.
You paper should have 3 major sections. Each is numbered 1, 2 and 3. Questions to be discussed based
on the facts above. You must weave into your discussion the relevant facts from above scenario to
support your discussion in discussion areas 2 and 3 below. And for discussion area 3 you must weave
into your discussion the ethics philosophy you pick for each issue from the article A Framework for
Thinking Ethically. -5% penalty in grading rubric if fail to use appropriate underlined headings in your
1. Three Legal/Ethical Issues. Just list the three most important legal/ethics issues in this scenario
that you will discuss. They must be three separate, different and distinct issues. Pay particular
attention to the article I furnished with this assignment. No explanation needed, just state them 1,
2, 3. 2. Discussion of Three Legal/Ethical Issues. Discuss the three most important ethical/legal
issues you listed above. Must use the relevant facts in the scenario to support your discussion
of the legal/ethical issues.
Must use underlined headings below. Headings will be:
Legal/Ethical issue 1 [state the issue] then discussion
Legal/Ethical issue 2 [state the issue] then discussion
Legal/Ethical issue 3 [state the issue] then discussion
For each legal/ethical issue above discuss
a. Why each is a legal /ethical issue?
b. Discuss each issue in the context of the scenario facts and
c. Define the concepts you use 3. How I would Handle Each Issue. First, in this section and for each issue, as a health care
provider, how would you handle each of the three issues discussed above and why? Must use
the relevant facts in the scenario to support your positions. Secondly for each issue, using the
article in these requirements, entitled "A Framework of Thinking Ethically" fully discuss the
specific ethics philosophy that would epitomize your handling of each issue. Fully define the
specific ethics philosophy used and weave the ethics philosophy into your discussion. See article
below entitled A Framework for Thinking Ethically.
Must use underlined headings below. Headings will be:
Handling of Legal/ethical issue #1 [then discussion]
Handling of Legal/ethical issue #2 [then discussion]
Handling of Legal/ethical issue #3 [then discussion]
[-5% in grading rubric fail to use appropriate headings in your paper. ]
This is an independent paper and you are on the honor system not to discuss or consult with any students
or other individuals about this paper. You may use the information we have discussed in the class, the
articles in the class, and the two articles I have furnished below. Just so you know, all you need to read to
analyze the questions for your paper are the two articles I have furnished with this assignment and
information in the class.
All you need to read to analyze the questions for this paper are the two articles below entitled:
Clinical Ethics Issues and Discussion and
A Framework for Thinking Ethically The paper must be: Late submission – No late assignment 4 papers will be accepted. Paper is due last day of
class. Paper must be in narrative format not outline or bullets. Double spaced and be 4-5 pages in 12 point New Times Roman font. [No deduction if paper
exceeds a page or so. Thus 3 and half page paper will be penalized.] Must cite to source of all your facts in the text of your paper in APA format. You can cite directly to the original source. Here are the links to the sources where the University
received copyright permissions for the materials: Clinical Ethics and Law:http://depts.washington.edu/bioethx/topics/law.html A Framework for Ethical Decision Making:https://www.scu.edu/ethics/ethics-resources/ethicaldecision-making/a-framework-for-ethical-decision-making/ Include a cover page [not counted as a page] which should have student name and title of your
paper [Provide a short name for the legal responsibility the specific health care organization has
for one type of patient right in a specific setting ] A the end of the paper a list of references [not counted as a page] Be prepared using word-processing software and saved with a .doc, .docx, or .rtf extension. No
pdf. Be uploaded to your Assignments Folder by 11:59 p.m. EST on the due date. The paper is to be posted in Assignment #4 drop box. Grading rubric for assignment is with assignment in Assignments area of class.
Background articles to support the issues you will discuss in the paper.
Article One of Two
Clinical Ethics Issues and Discussion Article
Relationships: I. clinical ethics, law & risk management
1. Definitions and sources of authority
In the course of practicing medicine, a range of issues may arise that lead to consultation with a medical
ethicist, a lawyer, and/or a risk manager. The following discussion will outline key distinctions between
these roles. Clinical ethics may be defined as: a discipline or methodology for considering the ethical
implications of medical technologies, policies, and treatments, with special attention to
determining what ought to be done (or not done) in the delivery of health care. Law may be defined as: established and enforceable social rules for conduct or non-conduct; a
violation of a legal standard may create criminal or civil liability. Risk Management may be defined as: a method of reducing risk of liability through institutional
policies/practices. Many health care facilities have in-house or on-call trained ethicists to assist health care practitioners,
caregivers and patients with difficult issues arising in medical care, and some facilities have formally
constituted institutional ethics committees. In the hospital setting, this ethics consultation or review
process dates back to at least 1992 with the formulation of accreditation requirements that mandated that
hospitals establish a “mechanism” to consider clinical ethics issues.
Ethics has been described as beginning where the law ends. The moral conscience is a precursor to the
development of legal rules for social order. Ethics and law thus share the goal of creating and
maintaining social good and have a symbiotic relationship as expressed in this quote:
[C]onscience is the guardian in the individual of the rules which the community has evolved for its own
preservation. William Somerset Maugham
The role of lawyers and risk managers are closely linked in many health care facilities. Indeed, in some
hospitals, the administrator with the title of Risk Manager is an attorney with a clinical background. There
are, however, important distinctions between law and risk management. Risk management is guided by
legal parameters but has a broader institution-specific mission to reduce liability risks. It is not uncommon
for a hospital policy to go beyond the minimum requirements set by a legal standard. When legal and risk
management issues arise in the delivery of health care, ethics issues may also exist. Similarly, an issue
originally identified as falling within the clinical ethics domain may also raise legal and risk management
To better understand the significant overlap among these disciplines in the health care setting, consider
the sources of authority and expression for each.
Ethical norms may be derived from: Law Institutional policies/practices Policies of professional organizations Professional standards of care, fiduciary obligations Note: If a health care facility is also a religious facility, it may adhere to religious tenets. In general,
however, clinical ethics is predominantly a secular professional analytic approach to clinical issues and
Law may be derived from: Federal and state constitutions (fundamental laws of a nation or state establishing the role of
government in relation to the governed) Federal and state statutes (laws written or enacted by elected officials in legislative bodies, and in
some states, such as Washington and California, laws created by a majority of voters through an
initiative process) Federal and state regulations (written by government agencies as permitted by statutory
delegation, having the force and effect of law consistent with the enabling legislation) Federal and state case law (written published opinions of appellate-level courts regarding
decisions in individual lawsuits) City or town ordinances, when relevant Risk Management may be derived from law, professional standards and individual institution’s mission
and public relations strategies and is expressed through institutional policies and practices.
1. Conceptual Models
Another way to consider the relationship among the three disciplines is through conceptual
4. Orientation to law for non-lawyers
5. Potential legal actions against health care providers
There are two primary types of potential civil actions against health care providers for injuries resulting
from health care: (1) lack of informed consent, and (2) violation of the standard of care. Medical
treatment and malpractice laws are specific to each state.
1. Informed Consent. Before a health care provider delivers care, ethical and legal standards require
that the patient provide informed consent. If the patient cannot provide informed consent, then, for
most treatments, a legally authorized surrogate decision-maker may do so. In an emergency
situation when the patient is not legally competent to give informed consent and no surrogate
decision-maker is readily available, the law implies consent on behalf of the patient, assuming
that the patient would consent to treatment if he or she were capable of doing so.
Information that must be conveyed to and consented to by the patient includes: the treatment’s nature
and character and anticipated results, alternative treatments (including non-treatment), and the potential
risks and benefits of treatment and alternatives. The information must be presented in a form that the
patient can comprehend (i.e., in a language and at a level which the patient can understand) and that the
consent must be voluntary given. An injured patient may bring an informed consent action against a
provider who fails to obtain the patient’s informed consent in accordance with state law. From a clinical ethics perspective, informed consent is a communication process, and should not simply
be treated as a required form for the patient’s signature. Similarly, the legal concept of informed consent
refers to a state of mind, i.e., understanding the information provided to make an informed choice. Health
care facilities and providers use consent forms to document the communication process. From a
provider’s perspective, a signed consent form can be valuable evidence the communication occurred and
legal protection in defending against a patient’s claim of a lack of informed consent. Initiatives at the
federal level (i.e., the Affordable Care Act) and state level (e.g., Revised Code of Washington § 7.70.060)
reflect approaches that support shared decision-making and the use of patient decision aids in order to
ensure the provision of complete information for medical decision-making.
2. Failure to follow standard of care. A patient who is injured during medical treatment may also be
able to bring a successful claim against a health care provider if the patient can prove that the
injury resulted from the provider’s failure to follow the accepted standard of care. The duty of care
generally requires that the provider use reasonably expected knowledge and judgment in the
treatment of the patient, and typically would also require the adept use of the facilities at hand
and options for treatment. The standard of care emerges from a variety of sources, including
professional publications, interactions of professional leaders, presentations and exchanges at
professional meetings, and among networks of colleagues. Experts are hired by the litigating
parties to assist the court in determining the applicable standard of care.
Many states measure the provider’s actions against a national standard of care (rather than a local one)
but with accommodation for practice limitations, such as the reasonable availability of medical facilities,
services, equipment and the like. States may also apply different standards to specialists and to general
practitioners. As an example of a statutory description of the standard of care, Washington State currently
specifies that a health care provider must “exercise that degree of care, skill, and learning expected of a
reasonably prudent health care provider at that time in the profession or class to which he belongs, in the
State of Washington, acting in the same or similar circumstances.”
Common clinical ethics issues: medical decision-making and provider-patient
There are a number of common ethical issues that also implicate legal and risk management issues.
Briefly discussed below are common issues that concern medical decision-making and provider-patient
If a patient is capable of providing informed consent, then the patient’s choices about treatment, including
non-treatment, should be followed. This is an established and enforceable legal standard and also
consistent with the ethical principle of respecting the autonomy of the patient. The next two sections
(Surrogate decision-making; Advance directives) discuss how this principle is respected from a legal
perspective if a patient lacks capacity, temporarily or permanently, to make medical decisions. The third
section briefly introduces the issue of provider-patient communication, and highlights a contemporary
dilemma raised in decisions regarding the disclosure of medical error to patients.
1. Surrogate decision-making
The determination as to whether a patient has the capacity to provide informed consent is generally a
professional judgment made and documented by the treating health care provider. The provider can make
a determination of temporary or permanent incapacity, and that determination should be linked to a
specific decision. The legal term competency (or incompetency) may be used to describe a judicial
determination of decision-making capacity. The designation of a specific surrogate decision-maker may
either be authorized by court order or is specified in state statutes.
If a court has determined that a patient is incompetent, a health care provider must obtain informed
consent from the court-appointed decision-maker. For example, where a guardian has been appointed by the court in a guardianship action, a health care provider would seek the informed consent of the
guardian, provided that the relevant court order covers personal or health care decision-making.
If, however, a physician determines that a patient lacks the capacity to provide informed consent, for
example, due to dementia or lack of consciousness, or because the patient is a minor and the minor is
legally proscribed from consenting, then a legally authorized surrogate decision-maker may be able to
provide consent on the patient’s behalf. Most states have specific laws that delineate, in order of priority,
who can be a legally authorized surrogate decision-maker for another person. While these laws may vary,
they generally assume that legal relatives are the most appropriate surrogate decision-makers. If,
however, a patient has previously, while capable of consenting, selected a person to act as her decisionmaker and executed a legal document known as a durable power of attorney for health care or health
care proxy, then that designated individual should provide informed consent.
In Washington State, a statute specifies the order of priority of authorized decision-makers as follows:
guardian, holder of durable power of attorney; spouse or state registered partner; adult children; parents;
and adult brothers and sisters. If the patient is a minor, other consent provisions may apply, such as: court
authorization for a person with whom the child is in out-of-home placement; the person(s) that the child’s
parent(s) have given a signed authorization to provide consent; or, a competent adult who represents that
s/he is a relative responsible for the child’s care and signs a sworn declaration stating so. Health care
providers are required to make reasonable efforts to locate a person in the highest possible category to
provide informed consent. If there are two or more persons in the same category, e.g., adult children, then
the medical treatment decision must be unanimous among those persons. A surrogate decision-maker is
required to make the choice she believes the patient would have wanted, which may not be the choice the
decision-maker would have chosen for herself in the same circumstance. This decision-making standard
is known as substituted judgment. If the surrogate is unable to ascertain what the patient would have
wanted, then the surrogate may consent to medical treatment or non-treatment based on what is in the
patient's best interest.
Laws on surrogate decision-making are slowly catching up with social changes. Non-married couples
(whether heterosexual or same sex) have not traditionally been recognized in state law as legally
authorized surrogate decision-makers. This lack of recognition has left providers in a difficult legal
position, encouraging them to defer to the decision-making of a distant relative over a spouse-equivalent
unless the relative concurs. Washington law, for example, now recognizes spouses and domestic
partners registered with the state as having the same priority status.
Parental decision-making and minor children. A parent may not be permitted in certain situations to
consent to non-treatment of his or her minor child, particularly where the decision would significantly
impact and perhaps result in death if the minor child did not receive treatment. Examples include parents
who refuse medical treatment on behalf of their minor children because of the parents’ social or religious
views, such as Jehovah’s Witnesses and Christian Scientists. The decision-making standard that
generally applies to minor patients in such cases is known as the best interest standard. The substituted
judgment standard may not apply because the minor patient never had decision-making capacity and
therefore substituted judgment based on the minor’s informed choices is not able to be determined. It is
important to note that minors may have greater authority to direct their own care depending on their age,
maturity, nature of medical treatment or non-treatment, and may have authority to consent to specific
types of treatment. For example, in Washington State, a minor may provide his or her own informed
consent for treatment of mental health conditions, sexually transmitted diseases, and birth control, among
others. Depending on the specific facts, a health care provider working with the provider’s institutional
representatives could potentially legally provide treatment of a minor under implied consent for
emergency with documentation of that determination, assume temporary protective custody of the child
under child neglect laws, or if the situation is non-urgent, the provider could seek a court order to
1. Advance directives The term advance directive refers to several different types of legal documents that may be used by a
patient while competent to record future wishes in the event the patient lacks decision-making capacity.
The choice and meaning of specific advance directive terminology is dependent on state law. Generally,
a living will expresses a person’s desires concerning medical treatment in the event of incapacity due to
terminal illness or permanent unconsciousness. A durable power of attorney for health care or health care
proxy appoints a legal decision- maker for health care decisions in the event of incapacity. An advance
health care directive or health care directive may combine the functions of a living will and durable power
of attorney for health care into one document in one state, but may be equivalent to a living will in another
state. The Physician Orders for Life Sustaining Treatment (POLST) form is a document that is signed by a
physician and patient which summarizes the patient’s wishes concerning medical treatment at the end of
life, such as resuscitation, antibiotics, other medical interventions and artificial feeding, and translates
them into medical orders that follow patients regardless of care setting. It is especially helpful in
effectuating a patient’s wishes outside the hospital setting, for example, in a nursing care facility or
emergency medical response context. This relatively new approach is available in about a dozen states,
although the programs may operate under different names: POST (Physician Orders for Scope of
You are here: / The final project for this course is an analysis of the legal and or ethical issues involved in the below health care scenario.