By Lexie Brans FACN
Welcome back to the second edition of this new column. You will recall from the Winter edition of The Hive, that the intent of this column is to identify issues of concern to the profession (what ‘matters’) and to suggest ethical or philosophical ways of thinking about them. The aim is to enrich practice for all nurses whether they be working in a clinical, research, managerial or an educational context.
This time we look at a dilemma which foregrounds the nature of the relationships between codes of ethics, conduct, legislation and professional practice. All nurses registered to practice by the Nursing and Midwifery Board of Australia (NMBA) must meet the NMBA’s professional standards. These standards include the Code of conduct for nurses (2018); the Registered nurses standards for practice (2016) and the ICN Code of ethics for nurses (2012) (Professional Standards, NMBA, 2019). ‘Standard 1’ expects nurses to “think critically”, to “reflect on…beliefs to identify how these shape practice” and to use “ethical frameworks when making decisions”.
The code of conduct “sets out the legal requirements, professional behaviour and conduct expectations for nurses in all practice settings” and expects nurses to “practice honestly and ethically”. Nurses are also expected to “adopt” the (seven) values outlined in the code of conduct notwithstanding their “personal beliefs and values”.
The code of ethics is a “guide for action” and states that in order to achieve its purposes, it “must be understood, internalised and used by nurses in all aspects of their work”. Although the similarities between these professional practice expectations is obvious with the quotations chosen here, the nature of the relationships between the three can be fraught, typically resulting in a real dilemma as opposed to a practice situation with ethical dimensions.
When a situation arises where a nurse – thinking critically on practice as the standards demand – encounters a circumstance where they cannot, at one and the same time, act both ethically and lawfully, (as the code of ethics and of conduct demand), then they have a true ethical dilemma. It is in these kinds of circumstances that codes of ethics, as a “framework” are intended to “guide action” in the face of legal obligations and conduct expectations. A stark example of this occurred in Australia in mid-2015 in relation to the Australian Border Force Act 2015 (the Border Force Act). As briefly outlined above, nurses were then, and still are now, mandated by the terms of their registration to “practice legally” and to “abide by relevant laws” (Code of conduct for nurses Principle 1, 2018).
Similarly, codes of ethics applicable then and now, also establish legally mandated ethical conduct including nursing action to “meet the health and social needs of the public, in particular those of vulnerable populations” (ICN Code of ethics for nurses, Element 1: Nurses and People, 2012). Part 6 of the Border Force Act contained secrecy provisions about what was deemed to be “protected information” that were specific to Australia’s Immigration Detention Centres (mostly offshore). These provisions were so severe that if a nurse (or other health care worker) disclosed conditions that were adversely affecting the health and wellbeing of those in their care, they faced a two-year prison sentence.
Yet nursing codes of ethics and of conduct legally required nurses working in these centres to report the adverse conditions they were witnessing: they were also obligated by legislation other than the Border Force Act, to report these circumstances. In the June 2015 edition of ACN’s publication NurseClick (now online), ACN reported on this impossible situation for nurses. Together with other health professionals, ACN advocated for nurses to change this legislation and in October 2017, the Act was amended and the “protected information” provisions were removed. In other words, ethics (rightly) became the driving force behind this collective action, demonstrating that there are occasions in professional life, when doing the ‘right’ thing for the ‘right’ reasons, that is for ethical reasons, trumps both ‘the law’ and conduct.
This circumstance also highlights the importance to the profession of the leadership role ACN can take collectively for the benefit of the profession. Unfortunately, there has not been space here to explore in any depth the nuances of this situation and other circumstances where a true ethical dilemma arises. It must be noted that ACN is not suggesting that nurses disobey “relevant laws” when resolving dilemmas as nurses must always practice within their regulatory and legislative frameworks and adhere to their professional code of ethics and of conduct. Rather what is being suggested is that approaches to ethical dilemmas requires a sophisticated thinking through of the situation and the actions to be taken (or not taken): codes of ethics both guide the decision-making process in these circumstances and contribute to the necessary rationales for the decision.
Advocacy @ACN: ACN responds to the Australian Border Force Act 2015, Nurse Click, Australian College of Nursing, August 2015.Australian Border Force Act 2015 (Cth), www.legislation.gov.au/Details/C2017C00354 Retrieved 15 August 2019
Professional practice standards, Nursing and Midwifery Board of Australia, https://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx Retrieved 15 August 2019.