1.5: Ethical and Legal Concerns
By the end of this section, you will be able to:
- Discuss the standards of practice for nurses
- Explain risk management and QSEN
- Describe legal issues in maternal-newborn nursing
- Review ethical issues in maternal-newborn nursing
Nurses are guided by standards of practice to ensure safe and high-quality care. Risk management helps hospital systems, nurses, and health-care providers anticipate areas of risk and address interventions to decrease those risks. Nurses are taught the Quality and Safety Education for Nurses (QSEN), a system to encourage quality of care by focusing on implementing quality and safety competencies. Nurses in maternal-newborn nursing are faced with many legal and ethical issues, such as maternal-fetal conflict , autonomy, informed consent , research, and abortion . The responsibility of the nurse is to support the patient and to not allow personal feeling to interfere with care.
Standards of Practice
The American Nurses Association (ANA, 2021) publishes standards of care for nurses to ensure the safety of the public. These standards are descriptions of duties all registered nurses must follow regardless of specialty population. A competency is linked to the standard. When the nurse maintains these standards and competencies, safe nursing care is ensured. The ANA Standards of Practice consist of:
- Assessment
- Diagnosis
- Outcomes Identification
- Planning
- Implementation
- Evaluation
- Ethics
- Advocacy
- Respect and Equitable Practice
- Communication
- Collaboration
- Leadership
- Education
- Scholarly Inquiry
- Quality of Practice
- Professional Practice Evaluation
- Resource Stewardship
- Environmental Health (ANA, 2021)
Every state also has a nurse practice act that describe the laws governing the practice of nursing. Every state board of nursing is responsible for enforcing these laws. A registered nurse uses knowledge, critical thinking, and skills to interpret these laws and follow standards of care.
In 2015, WHO developed a framework to improve quality in maternity care. The framework addresses quality hospital care using quality provision of care and experience of care (Lazzerini et al., 2019). Provision of care includes “evidence-based practice, efficient information, and referral systems” and experience of care includes “effective communication, respect, dignity, and emotional support” (Lazzerini et al., 2019, p.1). It is hypothesized that the following issues continue to be barriers to quality maternity care:
- non implementation of evidence-based care
- fear of litigation resulting in overmedicalization of maternity care
- lack of systems to evaluate and monitor quality of maternity care using quantitative indicators
- lack of inclusion of maternal perceptions of care (Lazzerini et al., 2019)
The Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN) also sets standards of care. Staffing in maternal-newborn care units, like the one shown in Figure 1.5, affects the safety and quality of care. AWHONN (2021b) has published evidence showing that inadequate staffing leads to negative patient outcomes. To determine staffing needs, the clinical situation and patient acuity must be assessed. AWHONN’s (2022) Standards for Professional Registered Nurse Staffing for Perinatal Units are listed in Table 1.3.
Risk Management
According to a health-care risk management company, risk is defined as “anything that can result in an unexpected outcome or loss,” and risk management involves identifying risk factors by analyzing processes and procedures and implementing programs to address risk and prevent patient harm (Performance Health Partners, 2023, p.1). Some risk management projects are born from negative patient outcomes. Risk management nurses work with administration and health-care providers to determine potential risks for patients while also working alongside the legal team to identify breeches in standards of care (Legal/Risk Management, n.d.). Risk management involves disclosing errors or unanticipated outcomes to the patient in language a layperson can understand along with an apology and plan for correction (Russell, 2018). Disclosing this information allows the patient and family to ask questions, the nurse and hospital to express their apologies, and the patient to have closure (Russell, 2018).
In perinatal care , a treatment or an assessment by a nurse that is not performed is called an error of omission . Haftu et al. (2019) studied perinatal care in Ethiopia and found that in both developed and developing countries, labor and delivery nurses omitted the following care elements most:
- physical exam
- ongoing and timely monitoring of patient status
- intake and output measures
- response to rapidly changing conditions or deterioration
- reassuring the mother
- documentation
- timely nurse-to-patient communication
- completing review of the history
- general comfort care based on patient need
- repositioning when patient needs it
According to this study, 74.6 percent of nurses studied missed at least one nursing element of care. The reason for the omissions was primarily lack of labor resources (inadequate staffing and inexperienced staff), teamwork, material resources (medications or equipment not available in a timely manner), and communication. Teamwork and communication are extremely important for patient safety and risk management.
Risk management programs investigate why errors occur. The most common errors in medicine occur in relation to communication issues. Xuejiao and Xuejiao (2022) found that obstetric nurses who were interrupted during preparation, management, and documentation made more medication errors. Nursing interruption in this study referred to “external behavior that occurs suddenly, interrupts or delays things, and distracts the nurse when the nurse provides standard nursing functions in a prescribed time, role, and environment … interruption of care leads to interruption of work and the result is unpredictable” (Xuejiao & Xuejiao, 2022 p. 3). Another cause of nurse error is communication issues. Communication errors cause 72 percent of perinatal deaths (Lippke et al., 2021). Communication must improve between patient, nurse, and health-care provider to decrease errors and increase safety.
Unfortunately, Zabari and Southern (2018) discovered that obstetric nurses and health-care providers report errors less frequently than other specialties. The study hypothesizes that birth is not perceived as a medical procedure; therefore, families’ expectations are for perfect births. Because of this expectation, obstetric nurses feel shame and guilt upon making errors and in turn do not report them (Zabari and Southern, 2018). This lack of reporting does not allow for risk management opportunities and interventions to overcome these errors. The nurse plays a very important role in the identification of risk and the implementation of changes to reduce these risks.
QSEN
The Quality and Safety Education for Nurses (QSEN) project started in 2005 to address the need for improvement in quality of health care (Dolansky et al., 2024). Six quality and safety competencies and knowledge, skill, and attitude statements (KSA) were developed and consisted of the following:
- patient-centered care
- teamwork and collaboration
- evidence-based practice
- quality improvement
- safety
- informatics (Dolansky et al., 2024)
The QSEN competencies were designed to change nursing from focusing on tasks to focusing on the KSA concepts for quality and safety (Altmiller & Hopkins-Pepe, 2019). These competencies were developed for nursing education but have been used by nursing organizations, in the development of continuing education, and by hospital administration to provide continual quality and safety of care (Altmiller & Hopkins-Pepe, 2019). Nurses are integral in utilizing evidence-based care to ensure effective, safe, and quality nursing care.
Legal Issues in Maternal Newborn Nursing
Obstetrics and gynecology are specialties with high rates of litigation. Baird et al. (2019) list the following as possible reasons for the high rate of malpractice suits filed by intrapartum patients:
- Childbirth is an intense, emotional experience, which is subject to each family’s expectations.
- Parents may be well-informed consumers of health care.
- Obstetric care is high pressure and rapidly changing, where accidents, errors in judgment and negligence occur.
- Nurses are being given more accountability and autonomy.
Nurses are held to the standard of care for OB patients and expected to use judgment, as any “ordinary, prudent” nurse would when caring for patients in the same situation (Baird et al., 2019). If the health-care team does not meet the standard of care and a negative outcome occurs, some patients and families will turn to the law and medical malpractice.
The most common errors for which OB health care team members are sued include the following:
- improper administration of magnesium sulfate, oxytocin, insulin, and/or heparin
- failure to assess and monitor for side effects of medication or intervention
- improper use of equipment or availability of equipment
- poor/inadequate communication and/or collaboration
- failure to act as a patient advocate and initiate the chain of command
- failure to follow provider orders
- failure to verify informed consent
Nurse-midwife and obstetrician practices have closed in many areas of the United States. due to financial constraints, low delivery numbers, and the issues surrounding professional liability, such as extremely high malpractice premiums and fear of litigation (Harvard Law Review, 2021). This creates an environment of fewer providers and higher expectations for OB nurses, along with areas of the United States described as “birthing deserts,” areas with no delivery hospitals. Nurses must follow their nurse practice acts and standards of care and hospital policies. Nurses should also be proactive in reporting unsafe working conditions, such as too few nursing staff, higher complexity of patients, and equipment failures. This diligence increases quality and safety.
Ethical Issues in Maternal Newborn Nursing
Several ethical issues surround maternal newborn nursing, one issue being surrogacy . Surrogates are persons who carry and birth a baby with the intent of giving the child to another person or couple (Dickens, 2020). Some surrogates carry DNA from one parent, both parents, or neither parent. Surrogacy has some people questioning the ethics of “selling their reproductive abilities,” while other people support this option of family building (Hanson, 2021). Some countries do not allow surrogacy, and in the United States, states are responsible for laws surrounding surrogacy. The price of surrogacy in the United States is approximately $100,000 and includes the health-care fees, legal fees, and sometimes travel fees (Hanson, 2021). Most insurance companies do not cover these fees, bringing up the ethical issue of only financially secure persons being able to utilize surrogacy.
Another ethical issue nurses may encounter is female genital mutilation and cutting (FGM/C) , which is the removal of all or part of the external female genitalia for nonmedical reasons (Nabaneh & Muula, 2019). According to Nabaneh and Muula (2019), more than 200,000 girls and women in Africa, the Middle East, and Asia have been cut. Some people argue that FGM/C is a cultural or religious practice, but others consider this practice a violation of human rights. The nurse should provide support and education to the patient and family.
Another ethical issue is informed consent and autonomy in maternity care. Kingma (2020) notes that if a health-care provider touches a patient’s ear or knee without consent, there are few consequences. When a health-care provider touches a patient’s vulva or vagina without consent, devastating emotional trauma can occur. Health-care providers and nurses must remember that 30 percent of persons AFAB in the United States have experienced sexual assault (Kingma, 2020). Nurses can be the gatekeepers of informed consent , especially during physical exams of laboring persons.
The McMaster Demystifying Medicine Program has put together a video that explains obstetric violence and how nurses can prevent it.
Ethical Guidelines in Perinatal Nursing Research
Prior to beginning research, investigators must apply for approval from an institutional review board (IRB). The board must consider pregnant persons as “scientifically complex” and consider both the pregnant person and fetus when recruiting participants (ACOG, 2015). Historically, persons AFAB have been excluded from medical research, but the National Institutes of Health (NIH) now requires researchers to include women in NIH-funded research unless inappropriate (ACOG, 2015). Without perinatal research, medications and treatment cannot be determined as harmful or safe for pregnant persons and fetuses. ACOG (2015) notes that if thalidomide had been widely researched, many birth defects could have been prevented.
Informed consent, including benefits and risks, must be thoroughly explained. Research causing benefit or harm to the fetus could require paternal consent as well. Requirements of maternal and paternal consent are described in Table 1.3.
| Required Consent | Regulation |
|---|---|
| Maternal consent | Consent from the pregnant person is provided when the information explained shows a potential direct benefit to the pregnant person and the fetus, or no prospect of benefit for the pregnant person or the fetus when risk to the fetus is minimal and the purpose of the research is the development of important biomedical knowledge that cannot be obtained any other way. |
| Paternal consent | Consent from both the pregnant person and their partner. The partner does not have to give consent if they are unavailable, incompetent, or incapacitated or if the pregnancy resulted from rape or incest. Information about the choice needs to show that the research has a chance of direct benefit solely to the fetus. |
Embryonic Tissue and Stem Cell Research
Undifferentiated cells that can renew themselves and develop into different types of cells are called stem cells (NIH, n.d.-b). Embryonic stem cells are able to differentiate into any cells except placental cells (Pathak & Banerjee, 2021). Stem cells have been used for cardiac repair, breast cancer treatment, repair of skeletal muscle, and many more conditions (Pennisi et al, 2017).The history of research using embryonic tissue began in 1954 with the growth of polio in fetal brain tissue that led to the development of polio, varicella, and measles vaccines (Gelber et al, 2015). Fetal tissue has also been used in investigating treatments for human immunodeficiency virus (HIV) infection, immune disorders, diabetes, transplantation rejection, and cancer (MacDuffie et al., 2021). Use of human fetal tissue has been controversial because of the donation of tissue from terminated pregnancies. In 2019, the government put restrictions on the use of NIH funding for research using fetal tissue, while in 2021 some restrictions were lifted (MacDuffie et al., 2021). The use of stem cells in research will continue to be a controversial issue due to differing ethical and moral opinions.
Maternal-Fetal Conflict
Two patients must be considered while making medical decisions during maternity care, and at times maternal interests and fetal interests are incompatible, called maternal-fetal conflict (Aburas & Devereaux, 2017). Health-care providers must consider both the pregnant person’s rights and the fetus’s rights. Many times, the pregnant person is treated as the secondary patient, and the fetus is the main priority. The idea of “maternal self-sacrifice” is common, but it does not describe everyone's ideals (Kingma, 2020).
Maternal-fetal conflict can occur when the pregnant person chooses to terminate the pregnancy or uses harmful substances during pregnancy. Other examples can be a cesarean birth for fetal distress, which can cause increased risk for the pregnant person, or maternal treatment for cancer during pregnancy, which can cause harm to the fetus (Aburas & Devereaux, 2017). A difficult conflict occurs when a pregnant person declines medical treatment that could increase fetal well-being. A health-care provider deciding to perform treatment, even for fetal distress, without the pregnant person’s consent (e.g., emergency cesarean) can be prosecuted for assault. The American Academy of Pediatrics Committee on Bioethics suggested the following are the only three reasons a health-care provider should question a maternal decision:
- The fetus is susceptible to irrevocable harm if treatment is not administered.
- The treatment is indicated properly and is likely to work.
- There is minimal risk to the pregnant person (Aburas & Devereaux, 2017).
Autonomy and informed consent are extremely important in maternity care, and obstetric nurses are charged with protecting the autonomy of laboring persons and the health of the fetus. This ethical dilemma can be challenging for everyone involved.
Abortion
Any pregnancy loss before 20 weeks' gestation is considered an abortion . It is a complex, controversial issue in women’s health care. The laws governing legality and access to abortion care have changed multiple times over the past two centuries. McSpedon (2022) reviews the history of abortion in the United States, stating that in the 1800s abortions were legal until the time of quickening (when the pregnant person feels fetal movement at approximately 20 weeks’ gestation). The use of herbs to induce abortion was widely practiced. McSpedon (2022) points out that early abortion laws in the 1820s were designed to protect women from poisons sold at apothecaries, not to limit abortions. In the 1900s, physicians influenced states to create laws to limit abortions so that the procedure could be “professionalized and controlled by medical practice,” and abortion became illegal in 1910 (McSpedon, 2022, p. 43). In the 1960s, abortion was being discussed more openly, and in 1973, Roe v. Wade made abortion legal again. According to O’Donnell and Rogers (2023), political and antiabortion groups put pressure on lawmakers, and laws were created to ban the use of Medicaid funds for abortion care in 1977. In 2022, Roe v. Wade was overturned by the Dobbs v. Jackson Women’s Health Organization decision.
Abortion is both a personal issue and a global issue. Almost half of all pregnancies worldwide in 2022 were unplanned, nearly 121 million (United Nations Population Fund, 2022). Reproductive care is very limited for most of these patients.
The subject of abortion is polarizing. The discussion of abortion centers on when life begins. The job of the OB/GYN nurse is to support the patient, not allowing the nurse’s personal feelings or moral judgements to influence the quality of care. ACOG (2022) states that the best health care is free from political interference.