The bioethical principles presented in Module 3 establish the framework for ethical decision making and undergird the case study in the next section. A grasp of the basic principles provides the template for sound decision making. The way in which clinicians actually arrive at ethical decisions continues to be studied and refined. Clearly ethical and clinical decision making models must overlap significantly to derive a satisfactory outcome (Dale, 2016; Drumwright, 2015; Kearney & Penque, 2012; Sujdak & Birgitta, 2016).
Ethical decision making is a challenge to physical therapy professionals, who face both an increase in the number of issues and situations that are increasingly complicated. Ethical decision making skills can be enhanced by your studying cases and developing a strategy for facing ethical issues. Practitioners don’t always have complete control over the situations that confront them. When the welfare of the patient is compromised, the healthcare provider is challenged to manage the situation in the patient’s best interest (Airth-Kindree & Kirkhorn, 2016; O’Fallan & Butterfield, 2005; Osswald, 2009; Rate, 2007).
Making decisions is part of everyday living, whether it is deciding to turn off the stove or how to find your way to work. For the most part, these decisions are part of an automatic, and therefore unconscious, process. But there are other decisions, particularly those related to professional practice, that are not automatic. We are often confronted with two equally appropriate choices. Kidder calls this a right vs. right dilemma. When evaluating the alternatives, both courses of action have positive and negative elements. Right vs. right is an ethical dilemma, whereas right vs. wrong is identified as a moral temptation (the individual knows the right thing to do, but chooses the action that is wrong) (Kidder, 1996).
All healthcare providers struggle to establish ethical decision making standards that provide guidance in a challenging practice environment, and the challenge is not unique to physical therapists. One threat to ethical practice arises from within each profession as a result of materialistic self-interest and from the outside in terms of profit motivation. Another kind of challenge to ethics comes as the result of scientific advances such as mapping of the human genome, which made possible some procedures that raise ethical issues as to whether certain things should be done just because they are possible (eg, cloning animals—or people).
A wealth of literature exists on the subject of ethical decision making. A search of this literature reveals that professionals are inconsistent in ethical decision making (Smith, 1991; Tymchuk et al., 1982). The literature speaks of the “science” of decision making but cautions that human limitations result in the inconsistencies that professionals acknowledge in their decision making skills.
Decision making is described by Brecke and Garcia (1995) as a course of action that ends uncertainty. The theory they developed requires that the uncertainty associated with the decision must be brought to a level where the decision can be made with confidence. They also place considerable importance on the time that it takes to make a decision. The time line for decision making can range from a few seconds to several years.
Brecke and Garcia (1995) developed a decision making process that consisted of four points related to a decision making time line. Decisions are made at different points on the time line, but at any point where action is not taken the decision will ultimately be made by default. Initially, practitioners recognize that there is an opportunity to make a decision. The nature of the decision becomes clearer, and they determine what they will do and then commit to a course of action.
The final point on this continuum is the default point where no intervention on the part of the practitioner will result in a course of action on which they had limited or no input (Brecke & Garcia, 1995). Choosing the default option, or, stated more appropriately, permitting the default option to occur, can be potentially harmful to patients because failure to make a decision carries its own set of ethical concerns. Healthcare providers have a responsibility to protect their patients from harm, and failure to make a decision may place the patient in a potentially harmful situation.
Ethical decision making is the level that is expected and demanded of professionals. Pellegrino (1993) identifies ethical decision making as the integration of ethical principles with practical wisdom, enabling healthcare providers to make ethical choices. Healthcare providers have specific standards and codes that guide practice; these are in the form of codes of ethics and professional practice standards (Newkrug, 1996). Codes of ethics are generally broadly written. They help to identify issues, but they are not meant to serve as a methodology for ethical decision making. To recognize an action and carry out that action requires both knowledge and skill in the art of ethical decision making.
Patients have the right to expect that their healthcare providers are involving themselves in thoughtful deliberation of ethical issues, with a commitment to take reasonable and rational action. These steps warrant the trust of the patient and society. Unethical, self-serving behaviors result in a loss of trust by patients and their families. According to Dove (1995), the loss of trust could be prevented with training programs that include the application of professional ethics to actual situations.
End-of-life issues, caregiver challenges, and right-to-choose plans of care often become intertwined with ethical issues, and the medical team, patients, and families find that they are confronted by complex ethical decisions. This is made more challenging when the issues involve one or more generations, who may have the same interests at heart but prefer different expressions of those interests.
There are many models for ethical decision making that help to organize the thoughts of the individual. Some are quite simplistic. The tilt factor model looks at the choices confronting the individual, with pros and cons defined and with the factors that would change the decision indicated as “tilt factors.” This simple model does not truly guide the practitioners’ actions but it does help to frame the question.
Among the many models available is one offered by Kornblau and Starling (2000). This template provides the practitioner with guidance for collecting information about the problem, the facts of the situation, the identification of interested parties, and the nature of their interest: is it professional, personal, business, economic, intellectual, or societal? The practitioner is then encouraged to determine if an ethical question is involved and if there is a violation of the code of ethics of the profession, or if there is a potential affront to personal moral, social, or religious values. This model also demands that any potential legal issue such as malpractice, or a practice-act infringement, be identified. The practitioner is encouraged to gather more information if it is needed to make an appropriate decision. This is the point where the healthcare provider is encouraged to brainstorm potential actions and then analyze the course of the chosen action.
Another method of ethical decision making that is becoming increasingly popular with physical therapists is the Realm, Individual Process, Situation (RIPS) model (Swisher, 2005). The steps of the RIPS model bring forward many of the aspects of a problem confronting the interdisciplinary team. This method essentially involves four steps (Nordrum, 2009). To better illustrate the ethical decision making process, we will work through a case that involves issues of utilization. You will see that the three primary components of the RIPS model are implemented in the case.
Too Much of a Good Thing
[This case is adapted from Kirsch, 2009.]
Mr. Markham is 82 years old and he has been in relatively good health. He does have high blood pressure, and eight years ago he had bypass surgery. He lives with his 79-year-old wife in the two-story home they have owned for more than forty years. He is retired from an executive position at a large manufacturing company. His primary insurance is Medicare.
Two weeks ago he awakened disoriented in the middle of the night and fell as he tried to get out of bed to use the bathroom. His wife called 911 and he was taken to the hospital, where it was determined he had sustained a right CVA with a resulting left hemiplegia. His course in the hospital was complicated by an unexplained fever. When he had been fever-free for 48 hours it was determined that he could be discharged to a subacute facility to begin rehabilitation.
Mr. Markham looks forward to starting rehab but is very tired and finds it difficult to tolerate the 30 minutes of therapy he is receiving in the hospital. He has only been out of bed for 20 minutes at a time and was exhausted afterward. He and his family are assured by staff that he will continue to get stronger each day.
At the subacute facility he is evaluated by physical therapy (PT), occupational therapy (OT), and speech therapy. He is found to have no speech deficits and no cognitive deficits other than mild confusion, which is steadily clearing. His entire program will thus consist of physical therapy and occupational therapy. Following evaluation he is placed on Tim’s caseload for PT and Casey’s caseload for OT.
Mr. Markham is assigned a very high level RUG rehab (Resource Utilization Group, under Medicare Part A) and Tim and Casey plan his program around the required 500 minutes of therapy in seven days required for this RUG level. He is to receive over an hour of service per day, seven days a week.
The first day Tim sees Mr. Markham, the patient is begging to return to his room after 15 minutes. His blood pressure has dropped and he had tachycardia. He is diaphoretic and becoming increasingly lethargic. Tim returns Mr. Markham to his room, recognizing that he will have to make up the time in the afternoon. Casey sees Mr. Markham after lunch and, though he wants to cooperate, Mr. Markham cannot do more than 20 minutes before he is having difficulty keeping his head up.
When Tim arrives to take Mr. Markham to PT in the afternoon he finds him asleep and difficult to rouse. Tim and Casey confer at the end of the day and find that between them they saw Mr. Markham for 35 minutes. They report the situation to the rehab supervisor, who reminds them of the importance of achieving the full 500 minutes and tells them to be sure to include the missed time over the rest of the week. He reminds them that if Mr. Markham cannot participate in therapy he may have to be discharged from the subacute facility to a nursing home.
Tim and Casey wonder if Mr. Markham should be at the assigned RUG level, the second highest level of therapy. They are concerned that, if they push him to achieve the level in which he has been placed, they could compromise his fragile medical condition. On the other hand, if he cannot do the program they have designed for him and he is sent to a nursing home, there is little chance of his doing well enough to ever return home. Tim and Casey are very uncomfortable with the situation in which they find themselves.
The following day they rearrange their schedules, switching a few patients to afford Mr. Markham more advantageous times of the day. He does a bit better but still cannot achieve even 45 minutes of combined time. Tim and Casey approach their supervisor again and ask for a decrease in the RUG level for Mr. Markham. Once again they are told to make it work. The lower rehab category does not have sufficient time to justify a subacute stay for this patient.
From experience Tim and Casey recognize that “make it work” means they need to provide the minutes of treatment but they cannot rationalize placing this patient at risk to meet the minutes. They believe their supervisors do not share their concern and feel that their professional values could easily be compromised as they balance their desire to act with nonmaleficence (not harming the patient) while maintaining veracity (being truthful regarding the treatment rendered).
Through “Tim” and “Casey” we will work through this situation using a multi-faceted ethical decision making model that combines the work of Kornblau and Starling (2000) and Kidder (1996), and the RIPS model developed by Swisher and colleagues (2005). The following template, developed by John Nordrum (2009), helps to establish a logical sequence for integrating the RIPS model with the work of Kornblau, Starling, and Kidder.
Template for Ethical Decision Making Using the RIPS Model
Step 1: Recognize and define the ethical issues
Issue or problem
Step 2: Reflect
Step 3: Decide the right thing to do
Approaches to resolve the issue:
Rule-based: follow the rules, duties, obligations, or ethical principles already in place
Ends-based: determine the consequences or outcomes of alternative actions and the good or harm that will result for all of the stakeholders
Care-based: resolve dilemmas according relationships and concern for others
Step 4: Implement, evaluate, reassess
Into which realm does this case fall—individual, organizational/ institutional, or societal?
This situation falls into the institutional realm. The care of the patient is being dictated by institutional policy. There is also a societal component here, because of the policies dictated by a third-party payer (Medicare), care is determined largely on payment parameters; but a professional must weigh treatment outcomes vs. treatment options. In this case it appears that reimbursement is driving practice, not practice driving reimbursement.
What does the situation require of Tim and Casey? What individual process is most appropriate? There are four components to the individual process. To manage an ethical issue all four components of the process must come into play at some point, although there is no particular order in which the components are handled. The four components are defined as follows.
Moral sensitivity. This involves recognizing that there is an issue and being aware of its impact. Tim and Casey recognize that this is an ethical issue. They cannot rationalize treating Mr. Markham at a level that he cannot tolerate; not only will it not be beneficial but it also has a high probability of being detrimental to him.
Moral judgment. The individual considers possible actions and what the effect will be on all parties. Tim and Casey recognize that, while they are right to insist that their patient not be forced into therapy he cannot tolerate, if Mr. Markham cannot participate fully in the program at the level it has been set, he risks being discharged to a lower level of care or to home without the benefit of the rehab program he needs. Tim and Casey are torn because they believe that Mr. Markham just needs some time to build up his endurance, but they cannot document treatment not rendered. Will their honesty result in his loss of services?
Moral motivation. This is the force that compels the individual to consider possible courses of action. Casey and Tim are not willing to compromise their integrity or their loyalty to their patient. They want him to get the services to which he is entitled but they also want to protect him. Their supervisors appear to see only the financial ramifications of Mr. Markham’s lack of treatment. Tim and Casey are faced with falsifying minutes to protect his treatment program, treating him at a level that he cannot tolerate, or risking early discharge by treating him to his tolerance and documenting appropriately. While they support each other in their ethical decision making, they do not feel they are getting much support from their superiors.
Moral courage. This is a measure of ego strength, the strength to take action to correct a wrong. It is interchangeable with moral character. Tim and Casey feel strongly that Mr. Markham should be given a lower RUG level—realistically, a rehab high-level—until he can tolerate more therapy. Administration does not support this view but Tim and Casey are very emphatic. They cite the literature supporting this more moderate approach and attempt to get their supervisor to understand their discomfort with the treatment protocol. The treatment plan put in place by administration compromises the autonomy to which they are obligated by the practice acts for each of their disciplines.
Moral failure. This is deficiency in any of the four components, the failure to recognize that an issue exists, the inability to plan a course of action, the lack of motivation to take action, and the inability to follow through on the action. The supervisors and administration in the facility are subject to moral failure with deficiencies in multiple areas.
Moral Potency. This is the element that, when absent, results in action not being taken. As a relative newcomer, moral potency is a concept we have to grow into (Schaubroeck et al., 2010).
What type of an ethical situation is this: a problem, a distress, a dilemma, a temptation, or a silence?
An ethical problem. The practitioner is confronted with challenges or threats to their own moral duties and values. This results in a need to reflect on a course of action.
An ethical distress. The focus is on the practitioner. The practitioner knows what action should be taken but there is a barrier in the way of doing what is right. The individuals experience some discomfort because they are prevented from being the kinds of persons they want to be or doing what they know is right.
An ethical dilemma. This type of problem involves two or more morally correct courses of action where only one can be followed. In choosing one course of action over another the practitioner is doing something right and wrong at the same time.
An ethical temptation. This involves two or more courses of action, one that is morally correct and one that is morally incorrect but, for reasons determined by the practitioner, they consciously choose the incorrect course of action.
Silence. The practitioner chooses to ignore the problem, and takes no action.
So, from the above we see that Tim and Casey are faced with an ethical distress. They know the correct action they wish to take but they are unable to take that action because of institutional constraints.
This is the opportunity to gather the additional information necessary to make a decision.
What else do we need to know about the situation, the patient, and the family? Who are the stakeholders in addition to Mr. Markham, the patient, and the healthcare practitioners, Tim and Casey. The following people are also stakeholders, or potential stakeholders:
Determining a plan of care is based on the assessment of the patient and available resources for treatment. In this situation, the assessment indicates the need for care and the resources are available to the patient but the rehab professionals have their plan of care dictated by the institution/third-party reimbursement. The professionals find the care to be unreasonable and potentially harmful; however, if they refuse to carry out the care as it is proposed, they may endanger the patient’s access to care in their facility.
The members of the rehab team understand that failure to question the plan of care and, instead, attempting to impose the RUG parameters on this patient may place the patient in danger. Mr. Markham is not medically stable enough to manage care at the level they are being forced to deliver it. In many cases this is a time-sensitive issue because the patient may be able in the future to benefit from the care, but the current level of recovery is insufficient to tolerate it. Rehabilitation professionals often find themselves caught between what they have determined is appropriate for the patient and external pressures regarding the delivery of care.
The last step of the reflection phase is associated with a proposal by Rushworth Kidder in How Good People Make Tough Choices (Kidder, 1996). Kidder initially proposed a four-standard test. Later, a fifth standard was added because the Kidder Test was being applied to professional ethics. A code of ethics/professional guidance check was incorporated into the test.
1. The Legal Test
2. The Stench Test
Does the situation feel right or does it stink? The uncomfortable feeling of a professional when integrity is challenged produces a positive response to the stench test. The individual knows that “it stinks.” In good conscious, professionals cannot pretend the situation does not exist or is beyond their control.
3. The Front Page Test
Is the potential publicity something you would not like to have on the front page? Healthcare providers generally take pride in the work they do. Positive publicity is welcomed by most professionals, but negative publicity reflects badly on all practitioners and is poorly received by the healthcare community. Negative publicity does considerable harm because it diminishes the public trust. Imagine the headline in our case: “Patient welfare compromised in a revenue enhancement scheme.”
4. The Mom Test
The Kidder Test looks at the background of the individual, recognizing that much of our ethical decision making has strong foundations in our upbringing, reflecting the value system of those who influenced us along the way. Kidder calls this the “mom” test, but it is broader than the values instilled by your mother. It incorporates not just parental guidance but also those mentors, teachers, and colleagues who have influenced your values as a professional. The mom test integrates personal integrity with the professional values that every healthcare professional brings to the situation.
If the action you are contemplating would not be acceptable to those who helped you develop your value system, you must consider other actions more consistent with the values that you hold to be important. If this requires a change in behavior, then you are faced with an ethical challenge to develop a course of action that is different and would be acceptable. In this case, continuing to treat this patient despite Tim’s and Casey’s concerns about Mr. Markham’s well-being would not pass the mom test.
5. The Professional Values Test
This is the element that was added to the Kidder test, which was originally devised for society in general and not for professionals. What guidance do we get from professional standards? The physical therapist involved with the care of this patient has access to guidance from the APTA Code of Ethics (2010). Codes and other professional documents help individuals determine what their responsibility is to the patient. The APTA Code of Ethics and Standards of Ethical Conduct for the Physical Therapist Assistant were completely revised effective July 1, 2010.
Consider the following guidance from the Code of Ethics:
The case made by the therapists on behalf of the patient contained current evidence and was substantiated by the literature. This is consistent with Principle 3B: Physical therapists shall demonstrate professional judgment informed by professional standards, evidenced by practitioner experience and patient/client values (including current literature and established best practice) (APTA, 2010).
If the situation does not pass the Kidder test, there is no need to go any further. The only question remaining is whether the healthcare professional has the moral courage to follow through and take appropriate action. Action in this case must be taken in order to preserve professional integrity (Kirsch, 2006). For Tim and Casey, taking action to place their patient’s needs above those of the institution is more consistent with their professional values.
Step 3 presumes that all the factual material has been investigated and the individual is now ready to make a decision. The adaptation of Kidder tests the factual information against the five standards of law: legal, stench, front page, parent/mentor, and professional guidance.
If any of the Kidder tests are positive, action must be taken. Even if the situation passes the Kidder Test there may still be an ethical issue to consider. At that point the information you have gathered must be considered in view of three classical approaches to ethical decision making: rule-based, ends-based, or care-based.
People who take the rule-based approach follow that which they think everybody else should follow. These are the rules, duties, and obligations already in place (Gabard, 2003). The procedures, techniques, and methods are what would be considered the “standard of care.” It is not hard to conceive of an approach that would apply selected parameters to care rendered and clearly define certain limits. In addition, objective measurements are available to provide guidance about the ethical dilemma of overtreating a medically fragile patient in order to qualify for care from which he cannot yet benefit. Standardized assessments—such as those for blood pressure, heart rate, oxygen absorption, reaction to exercise—provide objective measurements that are easily applied and interpreted.
Applying a rules-based approach to our patient situation would ensure that care not be rendered to the patient if he could not tolerate it. Note that this approach does not protect the patient against the situation where care is no longer available because he cannot meet the standard.
Those using the ends-based approach do whatever produces the greatest good for the most people. The analysis of the action and the resulting outcomes looks at the good and harm for all of the stakeholders, not just the patient (Sugarman, 2000). An ends-based approach looks more at the general good of society and less at the individual’s needs. This would be the least likely application in our case.
Those using the care-based approach follow the Golden Rule (“Do unto others as you would have them do unto you”) (Gabard, 2003). Situations are resolved according to relationships and concern for others. It is difficult for healthcare providers to remove themselves from the situation completely, but they can recall a personal experience or another patient-care situation that reminds them how important it is to integrate the ethic of care into the entire patient-care situation.
Step 3 encourages the rehabilitation professional to implement the decision made. There is reasonable evidence that this will resolve the issue. But implementing a plan does not conclude the ethical decision making process. Each situation provides an opportunity to learn more and to develop a workable plan for managing future situations.
It is the responsibility of the professional to reflect on the chosen course of action and consider any steps needed to avoid this type of ethical situation in the future. The responsibility to modify behavior lies not only with the individual but also with the institution.
The situation confronting Tim and Casey points to the difficulty of implementing plans of care that are not at the discretion of the treating practitioner. The patient’s entire team needs to make the treatment a collaborative effort. To effect the most positive outcome, this includes the patient and family. For the team to work as a cohesive unit there must be mutual understanding and respect for the unique contribution of each team member and the way in which that contribution can benefit the approach to the patient (Badawi, 2016; McCarthy 2015; Keehan et al., 2008).
Initially the professional must do some reflection and answer the following questions:
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The previous case was analyzed extensively. We will look at the following case with a more clinically friendly approach.
Stepping Over the Line?
[adapted from Kirsch, 2017.]
Jim makes it a point to take at least one student physical therapist a year as their clinical instructor (CI). While it takes a lot of time, he feels strongly that it is a professional responsibility. He gratefully remembers his CIs while he was in school and wants to “pay it forward” by providing a quality experience for a student. The other therapists in the large rehabilitation hospital where he works also consider the student program a significant way in which to be engaged with the profession. Tom, his new third-year student, is starting his final clinical rotation.
Jim and Tom hit it off immediately and Jim begins to orient Tom to the patients and the routine at the hospital; this is generally a rather steep learning curve in this very busy clinical environment where every patient is complex. It is not unusual for students assigned to this facility to have difficulty as it is known to be quite challenging. While the days are busy, the two men find a few minutes to discuss the sports headlines and the prospects for the upcoming season. Unfortunately, Jim is becoming aware that Tom is not prepared for the neurological case load that Jim carries.
Jim is willing to help Tom, and both men come in early and stay late, but Tom is still struggling. Jim remains in contact with the school, and the director of clinical education visits the facility to work with the two men. Together, they determine that a learning contract should be made to clarify what is expected for Tom to complete this clinical rotation successfully. Despite Tom’s difficulty and the fact that Jim was still unable to give him the caseload he should be carrying, they nevertheless had a very good working relationship.
During lunch break on Friday Jim shares with Tom that he and his wife are moving from their apartment to a new house and a friend who was going to help with the move is sick. Jim suddenly looks at Tom, and seemingly without stopping to think, says “Hey, I’ve taught you everything you need to know about body mechanics, can you give me a hand?”
Tom did have weekend plans with friends but he is pretty sure they will understand the importance of helping his CI; at first he sees it as an opportunity to repay Jim, who has been so good to him. Yet, upon reflection, he wonders if it might look as if he’s trying to “butter up” his CI. It doesn’t feel right but he thinks he hasn’t much choice, so Tom agrees to help out, spending both Saturday and Sunday as Jim’s right hand man.
Monday morning Tom chats with the other students about their weekend activities. When he tells them that he helped Jim all weekend they exchange a knowing glance, and one says “That should ensure a passing grade” before going off to start the day.
While on the surface this may appear not too much of an ethical breech, there are some rather significant boundary crossings that occur and are easily extrapolated to other situations when you consider the many potential ramifications.
In which realm does this occur? This is occurring in the individual realm as it is a situation occurring between the two men—Jim, the CI, and Tom, his eager but struggling student.
The individual process for Jim is moral sensitivity: he fails to recognize that he is placing his student in a difficult situation. Tom is faced with a moral judgment: How will his willingness to help appear? And, if he declines, how will that appear?
This situation is a moral problem for Jim but it is a potential distress for Tom as he attempts to determine if the decision he is making is appropriate.
It could also be considered a moral temptation for Tom, because he is stepping into a situation that goes beyond the therapist-student relationship. He does stand to benefit from it, and he needs all the help he can get.
Not every step of the reflection must be completed in a short ethical analysis; the practitioner chooses those aspects of the analysis that will provide the information needed.