The first case of HIV/AIDS in the United States was identified in 1981; however a blood sample taken in 1959 confirms the existence of the disease at that time (History of AIDS, 2005; Gorman, 1998; Coughlin & Beauchamp, 1996). Initially, significant negative stigma hindered the public health processes that may have helped to identify and slow the progression of the disease within the society. HIV was viewed as a gay man’s disease, and diagnosis with the virus could have resulted in residential eviction, professional termination, social isolation, and other discriminatory practices (Beauchamp & Steinbock, 1999). The development of testing for HIV had additional negative connotations as some intended the results to identify homosexuals in order to fire them (Beauchamp & Steinbock, 1999). Due to the severe public reaction, public health information was gathered at a cost of extreme confidentiality; identifying the disease but not the individual carrying it. In this manner, the containment of the disease was slowed and transmission of the disease was not adequately countered.

In the after effects of the civil rights protections, public health means have been significantly hampered. As of 1999, testing was voluntary under most situations, and routine testing was prohibited (Beauchamp & Steinbock, 1999). Since people may be asymptomatic for extended periods of time while carrying HIV/AIDS, they are likely to continue engaging in risky behavior that may expose others within the population. “The incubation period between infection with HIV and a diagnosis of AIDS is often longer than ten years” (Beauchamp & Steinbock, 1999, pg. 215). One would conclude that HIV testing at earlier stages would allow patients to receive beneficial treatments earlier, as well as to practice safer behaviors that would reduce the risk of exposing others to the virus. With an asymptomatic incubation period of approximately ten years, adequate testing could potentially affect entire generations, reducing actions that could have otherwise been prevented by HIV-status awareness. Within the realm of public health, many diseases may be tested for without explicit patient permissions; however, due to the limitations and exceptions placed on HIV/AIDS because of the early stigma, the current population suffers without proper disease prevention and detection.

According to the CIA (2009), 1.2 million Americans are living with HIV/AIDS, with an estimated 33 million infected individuals worldwide. Approximately 40,000 new cases of HIV/AIDS are identified each year (Branson, Handsfield, Lampe, Janssen, Taylor, Lyss, Clark, 2006). As of 2002, 24,844 healthcare personnel were reported to have AIDS (CDC, 2003).

Given that over one million Americans have HIV/AIDS and an approximate 25,000 healthcare workers have been infected with the virus (CDC, 2003), one would naturally consider routine screening of the population, especially those at higher risk for exposure and transmission of the virus. Early detection may lead to a reduction of risk-exposure behavior, and early treatment may improve the outcomes and quality of life of a HIV/AIDS positive patient (CDC, 2003; Branson, et. al., 2006).

In 2006, the CDC updated their guidelines for HIV/AIDS detection: the current recommendations include routine testing for HIV/AIDS as part of the general medical examination for all individuals aged 13 to 64; as well as discontinuing written consent for testing while allowing for an informed opt-out of testing (Branson, et. al., 2006, Gostin, 2008). As the public has gained knowledge into the disease and the populations at risk, there is more understanding of lifestyle and exposure risks; and a person is less likely to be discriminated against due to their HIV/AIDS status.

Considering the obvious benefits of HIV screening (CDC, 2003; Branson, et. al., 2006), it is important to consider the routine testing of the general population yearly or relative to their risk level. “Screening is the systematic application of a medical test to a defined population with the objective of identifying persons with infectious diseases” (Gostin, 2002, pg. 394). Screening that is based on minority or sexual orientation may be considered discriminatory; however screening based on risk-exposure within the professional context of healthcare is an avenue of protecting the patient and within the burden of obligation secondary to the healthcare workers’ right to practice.

There are valid arguments against mandatory screening of healthcare providers, including the provider’s own privacy and right to freedom against discrimination (Fremgen, 2009).  However, one would argue that the benefits of protecting patients from risky procedures performed by HIV positive physicians, as well as protecting immunocompromised providers from secondary infections and diseases would outweigh the right to privacy for a healthcare provider. In the event that the patient was infected, having not been informed of the provider’s viral status, the provider may be found liable of misconduct or even malpractice. The Federation of State Medical Boards states that a healthcare provider not knowing their HIV-status would be professional misconduct (Fremgen, 2009). In lieu of this statement, one would logically conclude that healthcare workers, particularly those working in high-risk areas and may expose patients to HIV-positive bodily fluids, should be required to be tested for HIV/AIDS.

Any healthcare organization has vicarious liability for the actions of their employees (Rodriguez, 2009); by routinely testing employees for infectious diseases such as TB and HIV/AIDS, a hospital may be able to reduce the liability carried by providers performing risky procedures without knowing their viral status. The providers’ right to personal privacy only extends as far as their professional obligation to protect their patients: their ethical and moral obligation to respect the autonomy of the patient and to non-malfeasance supersedes their personal privacy.

In the same vein as TB testing for healthcare workers, HIV/AIDS testing should be required for all healthcare workers relative to the risk of patient exposure. For example, those providers who are at high risk of exchanging or exposing others to bodily fluids should be tested at a higher frequency than ancillary staff with limited or no direct-contact with patients. Because of the vulnerable and delicate nature of the provider-patient relationship, it is important that healthcare workers, the healthcare organizations employing them, and the applicable patients, are made aware of the potential risk involved with a provider’s HIV/AIDS status.

Providers that test positive should not be discriminated against; however, they must also maintain the legal, moral, and ethical standards of their profession. Providers who are known to have HIV/AIDS should behave in a manner that limits others’ exposures. This includes regular protection against the exchange of bodily fluids, including gloves and masks as indicated by the CDC and standards of the profession. Additional precautions may be necessary if the context of the job design lends to using sharp objects, such as phlebotomy, surgery, emergency departments or obstetrics/gynecology (Fremgen, 2009).

While healthcare workers may have a low probability of infecting their patients (Fremgen, 2009; CDC, 2003), one would still conclude that a healthcare professional has a moral and ethical obligation to do no harm and to protect the patient’s autonomy by disclosing all necessary information to make an informed decision. In addressing the medical code of ethics, a physician is obligated to address the principles of respect for persons, beneficence, non-malfeasance and justice (Rodriguez, 2009; Fremgen, 2009).

Particularly within the principle of respect for persons, it is important for physicians to be truthful so that a patient may make his or her own decision. The healthcare provider has a duty to disclose information that a reasonable person would need to make an informed decision. If an invasive or risky procedure is being discussed, than the provider’s HIV/AIDS status would be necessary information in order for the patient to make an appropriate healthcare decision. Healthcare workers that are HIV/AIDS positive should not perform invasive procedures that could place their patient at risk (Fremgen, 2009, CDC, 2003).  In either case, if the provider is positive, than they have an ethical obligation to disclose this information to the patient prior to the procedure, or should decline to do the procedure so as not to break fidelity with the patient.

A second principle of the medical code of ethics is non-malfeasance (Rodriguez, 2009; Fremgen, 2009).  Following this principle, a physician may not do harm to a patient. By inadvertently exposing a patient to the risk of HIV/AIDS contraction, even if the probability is low, is unacceptable because it generates unnecessary risk and potential harm.

After careful consideration of the aforementioned data, one would conclude that the public good of provider screening for HIV/AIDS is a greater need than the individual provider’s privacy. “Unless the medical profession is occasionally willing to put public interests before individual patient (and physician) interests, the social trust will falter” (Wynia, Kurlander & Green, 2006). As this quotation demonstrates, without some sacrifice on the side of the healthcare workers’ privacy, the trust in the healthcare system will fail. Without appropriate trust in the healthcare professionals and system in general, both public and individual health will suffer. In order to maintain the dignity of the profession, healthcare providers should be required to be screened and precautions should be taken to protect the interests of positive healthcare workers and their patients.

References

Beauchamp, D. & Steinbock, B. (Eds.). (1999). New ethics for the public’s health. New York, NY: Oxford University Press.

Branson, B., Handsfield, H., Lampe, M., Janssen, R., Taylor, A., Lyss, S., Clark, J. (2006). Revised recommendations for HIV testing of adults, adolescents, and pregnant women in health-care settings. Retrieved 6 December 2009 from http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5514a1.htm.

C.I.A. (2009). The world factbook. Retrieved 6 December 2009 from https://www.cia.gov/library/publications/the-world-factbook/fields/2156.html?countryName=&countryCode=&regionCode=T

Centers for Disease Control and Prevention (CDC). (2003). Surveillance of healthcare personnel with HIV/AIDS, as of December 2002. Retrieved 6 December 2009 from http://www.cdc.gov/ncidod/dhqp/bp_hiv_hp_with.html.

Coughlin, S. & Beauchamp, T. (Eds). (1996). Ethics and epidemiology. New York, NY: Oxford Press.

Fremgen, B. (2009). Medical law and ethics (3^rd ed.). Upper Saddle River, NJ: Prentice Hall Health.

Gorman, C. (1998). When did AIDS begin? Retrieved 6 December 2009 from http://www.time.com/time/magazine/article/0,9171,987824,00.html.

Gostin, L. (Ed). (2002.) Public health law and ethics: a reader. Berkley, CA: University of California Press, Ltd.

Gostin, L. (2008). Public health law: power, duty, restraint (2^nd Ed.). Berkley, CA: University of California Press, Ltd.

History of AIDS. (2005). The history of AIDS. Retrieved 6 December 2009 from http://fohn.net/history-of-aids/.

Rodriguez, R., Ph.D. (2009, November 19). Chat posting. Retrieved from AIU Online Virtual Campus. Chat 1 week 2. The ethical and legal aspects of healthcare: HCM410-0904B-02 website.

Wynia, M., Kurlander, J., Green, S. (2006). Physician professionalism and preparing for epidemics: challenges and opportunities. In Balint, J., Philpott, S., Baker, R., & Strosberg, M., (Eds.), Advances in bioethics (Vol. 9). Oxford, UK: Elsevier.

Within the healthcare system, it is important for healthcare professionals to maintain ethical standards, including those that govern respect for persons, a primary component of which is autonomy, and beneficence.

According to R.G. Rodriguez, Ph.D. (2009), autonomy is an element within the professional code of healthcare ethics that allows for a patient to govern themselves in the event that they are rational, competent, conscious and not coerced. This definition is significant because it provides indications both for the patient’s autonomy as well as situations where the requirements for autonomy have not been met and autonomy should therefore not be fully granted. Spicer (2005) qualifies autonomy by adding that patients must be informed in order to make an appropriate decision; must have the capacity to decide; and must be free from coercion. These definitions differ slightly in the emphasis of information required to be autonomous; however, capacity as defined by Spicer (2005) encompasses rationality, competency and consciousness. In effect, both definitions are mutually supportive and establish complementary guidelines in determining autonomy.

The definition offered by Fremgen (2009) is limited as it describes autonomy as “independence for their beliefs” (pg. 176). The definition provided fails because it addresses only religious considerations, as well as a person’s right to decision-making based solely on competence: “As long as a person is competent, he or she has the right to make his or her own decision” (pg. 176). This does not address matters of relevance involved with determining autonomy, including consciousness or freedom from coercion. “Bioethical and legal issues arise when a person is called upon to make this decision, based upon his or her own religious beliefs, for another person such as a child or an elderly or incompetent adult” (Fremgen, 2009, pg. 176). The assumption that religious considerations are the main contributing factor for dilemmas of autonomy is myopic and impractical as many social, cultural, familial, personal and financial components may contribute to a person’s decision making with regards to healthcare treatments and options. The aforementioned definition given by Fremgen also implies that people without religious considerations would not have ethical dilemmas when making healthcare decisions for themselves or others. However, one would conclude that the complexity of the human condition is still relevant even in the absence of religious belief. Therefore, in consideration of the inefficiency and of the definition provided by Fremgen, the definitions given by Rodriguez and Spicer will be used to analyze the following dilemmas.

Within the ethical guidelines of the healthcare profession, therapeutic privilege offers an option for nondisclosure under certain guidelines. “Physicians may withhold information about a patient’s diagnosis or treatment when disclosing it would pose a serious psychological threat, so serious a threat as to be medically contraindicated” (Wynia, 2004, p. 14). Following the guideline of therapeutic privilege, the provider may not disclose information simply because the information would cause the patient to choose a different course of action, but only in the event that the information would cause significant unnecessary harm if disclosed and is therefore determined to be medically contraindicated (Wynia, 2004). In this way, providers partially disregard the first ethical principle, selectively disclosing information and therefore not being fully truthful and allowing for the necessary information for complete autonomy, in lieu of the second and third principles, beneficence and non-malfeasance. However, beneficence is not sufficient; the judgment must be subjective to preventing actual harm.

The second principle within healthcare ethics is beneficence (Fremgen, 2009; Rodriguez, 2009; Gauthier, 2005). Beneficence means to “act with charity and kindness” (Rodriguez, 2009); it means to use one’s skills and professional authority to care for, comfort, and if possible, cure a patient. Beneficence implies that one will fairly and justly provide services with the intention of another’s improving the patient’s wellbeing. Rodriguez’s definition is valid because it indicates the primary values of beneficence.

When deciding ethical dilemmas, it is important to not only consider the ethical obligations; respecting a person and acting with beneficence, but it is also necessary to consider the legal implications of actions within the context of the healthcare setting. The following scenarios are presented with both ethical and legal considerations:

In the intensive care unit, you are working on a patient in a very unstable state. The woman and her children (who were all killed) had been in an accident. It is clear that further emotional trauma would be disastrous to the patient and may cause her death. In a lucid moment, she looks at you and asks, “How are my children?” Is this an instance when therapeutic privilege seems reasonable? Whether you decide yes or no to the therapeutic privilege question, write a sentence that you think would be the most appropriate answer for the patient.

The primary principle of healthcare ethics being respect for persons, it is important to reflect on the components of respect, mainly: autonomy, truthfulness, confidentiality and fidelity (Rodriguez, 2009). It is necessary to carefully consider the provider’s responsibility to the patient as well as the ethical duty expected by the profession. Beyond justice, the provider has a duty to respect the person, therefore allowing for autonomy as well as being truthful; beneficence, acting in a way that lends comfort, care and possible cure to the patient; and non-malfeasance, meaning that there is no harm caused.

The above mentioned scenario offers an ethical dilemma that may appear to be conflicting. It is the provider’s duty to be truthful, but also to cause no harm. In the event that the provider is truthful, harm, even death, is possible.

If the provider tells the patient that her children are dead, given the current situation, the patient may die due to the additional emotional trauma. In this manner, by telling the patient that the children have died, the provider would be causing harm; risking the patient’s death due to this additional emotional trauma would be medically contraindicated.

However, if the provider does not inform the patient of the news, then the provider is not being fully truthful and respectful of the patient. Under absolutely no circumstances should the provider lie to the patient; saying that the children are fine or any other statement simply to offer comfort. Such a lie would constitute a breach of ethical standards as it is not truthful and may cause greater long-term damage when the woman learns of their death. Lying to the patient is inadvisable and may lead to civil litigation since it would be outside of the professional ethical norms.

Under the guidelines of therapeutic privilege, a provider may not disclose information if such knowledge is dangerous, causing such significant emotional trauma as to be medically contraindicated. In this scenario, one may consider the immediate disclosure to be a matter of therapeutic privilege because the emotional trauma resulting from the information would cause significant emotional trauma possibly resulting in death. Given the likelihood of significant danger at the current time, the provider should not answer the question, but also not offer any false hope or lies. Additionally, autonomy is contingent on rationality; in the patient’s current condition of shock and significant physical trauma, she does not qualify for complete autonomy.

One appropriate response may be to redirect the patient’s focus to her own injuries and treatment, for example: “Ms. Doe, we are doing everything possible to help you right now. We need to ask you some questions about your medical history.” As the patient is not consistently lucid, this redirection would offer additional time to stabilize her condition before adding the additional emotional burden of her children’s death.

You are working late and you enter the patient’s room to find that she has climbed out on the window ledge. She appears to be crying and tells you to leave her alone.

In the abovementioned scenario, the woman on the ledge offers another ethical consideration, contrasting the autonomy of the patient’s wishes to be left alone against the provider’s responsibility for offering care. The patient exhibits clear signs of lacking the necessary components of autonomy. Her actions are clearly not rational and arguably not competent as they are likely indications of mental illness, risk of self harm or even suicide. In this matter, the clear decision is to not fulfill her wishes to be left alone. However, staying in the room or climbing out on the ledge is not a sufficient answer to this situation. This situation needs immediate response: security and police/EMS services need to be notified. Any and all possible means to prevent harm need to be taken.

Beyond the ethical considerations, it is necessary to consider the legal impact of inaction. Had the provider observed the patient’s wishes, he or she would have been liable for any harm that came to the patient (Jenner & Welch, 2001). When a patient is under professional care, it is important for the provider to protect them from harm, even if the harm is caused by themselves as in the case of psychiatric disorders. If the provider fails to reasonably safeguard against actions of self-harm or suicide, he or she will likely be civilly liable for malpractice and negligence (Jenner & Welch, 2001).

Your elderly patient hates to have the bed rails up and tells you to leave them down.

Ethically, this scenario does not offer enough information to conclude if there is a legitimate dilemma: whether or not the patient is autonomous is unclear. The indication of age does not necessarily indicate any potential harm. There is no mention as to whether there are physician orders regarding the matter of the bed rails. The setting of the situation is unclear. More information needs to be obtained before any actual ethical determinations may be made.

However, while this scenario could offer an ethical dilemma given additional information, the more significant consideration is that of the legality of the action. Bed rails qualify as restraints; restraints must be used under the order and direction of a physician (Greenwich Hospital, 2005). Restraints are used only when absolutely necessary; to use them in any other fashion or without proper indications or medical direction could constitute unlawful confinement and may open the provider and healthcare site up to civil or criminal ramifications.

Considering all aspects of a dilemma is important, however it is necessary to consider not only the ethical factors but also the legal responsibilities within the healthcare setting.

References

Fremgen, B. (2009). Medical law and ethics (3^rd ed.). Upper Saddle River, NJ: Prentice Hall Health.

Gauthier, CC, PhD. (2005). The virtue of moral responsibility and the obligations of patients. Retrieved 21 November 2009 from  http://wf2dnvr6.webfeat.org/qxkBN12932/url= http://content.ebscohost.com/pdf9/pdf/2005/MPS/01Apr05/16999952.pdf?T=P&P=AN&K=16999952&S=R&D=aph&EbscoContent=dGJyMNHX8kSeqK84zOX0OLCmrlGep7RSsqq4TbeWxWXS&ContentCustomer=dGJyMPGvtEyvrbVLuePfgeyx44Hy7fEA.

Greenwich Hospital. (2005). Restraint/bed rail entrapment information guide. Retrieved 21 November 2009 from http://www.greenhosp.org/pe_pdf/genmed_restraint.pdf.

Jenner, R. & Welch, B. (2001). Suicide watch: liability for negligent psychiatric care. Retrieved 21 November 2009 from http://www.medlawlegalteam.com/article_jenner_suicide_watch.html.

Rodriguez, R., Ph.D. (2009, November 19). Chat posting. Retrieved from AIU Online Virtual Campus. Chat 1 week 2. The ethical and legal aspects of healthcare: HCM410-0904B-02 website.

Spicer, J. (2005). Consent autonomy and the new practice nurse. Retrieved 21 November 2009 from http://wf2dnvr6.webfeat.org/qxkBN12924/url=http://web.ebscohost.com/ehost/ detail?vid=2&hid=11&sid=8ddc3e69-4ea1-4d2c-b570-228fdecf7b81@ sessionmgr110&bdata=JmxvZ2lucGFnZT1Mb2dpbi5hc3Amc2l0ZT1laG9zdC1saXZl#db=buh&AN=18776068.