Legal and Ethical Issues in Healthcare: violation of professional boundaries

Introduction

The nursing profession emerges top of the most widely trusted and respected professions (NCSBN, 2018). The results of these polls are an indication of the special relationship that exists between nurses and those under their care. A patient will normally expect a nurse to act in a manner that is in their best interest and respect of their dignity. Therefore, this is both an ethical and legal issue and requires that a nurse abstains from achieving personal benefit at the expense of the patient and does not jeopardize the therapeutic nurse-patient relationship (Wiles, 2011). To successfully attain that tryst and practice within the professional requirements, a nurse must have the relevant knowledge on professional boundaries and maintain them (Slobogian, Giles & Rent, 2017). Therefore, this paper discusses professional boundaries for the nursing profession, especially in the age of social media, and how nurses can effectively maintain trust and respect from those under their care by observing the professional standards. The paper is meant for a multidisciplinary team in healthcare; it presents theoretical underpinnings on the issue, and finally, presents a systems-level program for the issue of professional boundaries.

Statement of the problem

A patient will look up to the healthcare professionals for their wellbeing and alleviation of any ill health conditions being experienced. Among the various healthcare professionals that a patient will interact with, the interaction between the patient and a nurse is normally the longest per session and overtime and mostly, more personal and thus, a patient might want, seek, or expect more from the nurse (Angelini et al., 2018). On the other hand, the enormous responsibility on a nurse, and the need to help patients get well and help them get over any suffering they might be experiencing, might cause a nurse to want to do more beyond their professional requirements (Gellerstedt et al., 2019). This is common among new nurses, nursing students on their internship, or caring for people they know. This complex relationship is complicated by the advent of social media platforms where patients or their family members can search for nurses on social media and “friend” them. Social medial presents an entirely new concern to nurses and their patients’ relationships and patient’s families. Through social media, a patient or a patient’s family member can learn about the nurse’s details through social media – for nurses active on social media, which can affect the nurse’s or family members’ expectations.

Acting beyond professional boundaries is both an ethical and legal concern. Professional boundaries emerge from the space between the power of a nurse and the patient’s vulnerability and the nurse’s power as a result of the professional position of the nurse and the access to sensitive personal information (NCSBN, 2018). The patient-nurse relationship is thus skewed for the nurse because of the imbalance between the patient’s personal information known by the nurse and the normally zero nurse’s personal information known by the patient. This, therefore, emerges as the legal concern is governed by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule (Daigle, 2020). As a result, acting outside of professional boundaries can cause legal jeopardy for both the individual nurse and the healthcare organization.

Significance of the problem

Professional boundaries in healthcare, especially for the nursing profession, are an inalienable cornerstone in establishing and maintaining therapeutic relationships with patients and their families (Slobogian et al., 2017). However, most often, boundary-crossing can be due to unplanned and honestly and positively intended actions meant to meet a patient’s needs or vice versa, the nurse. Across the various jurisdictions, there are codes of professional conduct that have been set and enforced by various professional bodies; The Code of professional conduct for nurse in Australia governed by the Nursing and Midwifery Board of Australia, the nursing code of ethics by the American Nurses Association, and in the United Kingdom - The Code governed by the Nursing and Midwifery Council. While this points to the importance of nursing ethics, professional boundaries are increasingly significant as it is normally a slippery slope. There is a thin line between neglect on the lower side and over-involvement on the upper side, as illustrated in figure 1 below. For most nurses, the zone of helpfulness might be threatened by such factors, among them inexperience, changing care needs, personal attributes, e.g., empathy, or relation with patient. Crossing the professional boundaries will expose the nurse to both ethical and legal repercussions. Based on the literature review done for this research, professional boundaries have been complicated by using social media (Ashton, 2016). Therefore, nurse professional boundaries are a significant concern for nurses that warrants study at the highest levels of academia.

Figure 1: Continuum of professional behavior (Adopted from Nursing and Midwifery Board of Australia, 2010)

Professional boundary theory

Professional boundaries are a safeguard for the patient and the nurse....

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It allows for the progression of therapeutic regression and for the nurse to contain and adequately process all feelings without inappropriately acting on them. Psychodynamic terms countertransference and transference are used to describe the professional’s and patient’s emotional responses to each other (Jones, Fitzpatrick & Rogers, 2016). The ability to manage transference and countertransference is important in managing professional boundaries and delivering appropriate nursing care. One criticism of this concept is that countertransference is more of a reactive experience and not subjective. According to Gutheil & Gabbard (1998), there is a difference between boundary crossing – which doesn’t harm the patient, and boundary violation is exploitative or harmful. This contribution has been considered to be an important and turning point for the field of boundary theory.

According to Unhjem (2019), non-exploitation and abstinence of the patient, neutral practice by the nurse, and avoidance of dual agency are concepts that can be attributed to Sigmund Freud. These concepts are connected to the nurse’s role, and they do vary based on context and the type of therapy. For example, the context for a nurse operating in a small rural town will vary greatly with the nurse practicing in a large urban and cosmopolitan metropolis.

The terms self-disclosure and dual relationship describe personal information sharing and have off-hours contact with patients. Self-disclosure is believed to the sharing of personal information by the nurse. It is considered integral to being human in the nurse-patient relation and as part of establishing friendship and building trust (Unhjem, 2019). Self-disclosure is a potential research topic, mainly in the age of social media. Patients to patient’s family members can get personal information about a nurse from social media platforms, affecting their opinion about the nurse. For example, a family member requesting the hospital administration to assign another nurse to their Kin because they learned from social media that the current nurse has a relative with chronic conditions and thus, based on their judgment, this might affect the quality of care the nurse provides to their kin in the hospital (Slobogian et al., 2017).

On the other hand, the dual relationship is marked by the attention to violations of sexual boundary, a phenomenon which peaked in the 1980s and the early 1990s (Gutheil & Brodsky, 2011). Dual relationships can either be harmless transgressions or sexual boundary violations. Sexual relationships with patients currently under care are considered a prosecutable offense and thus unprofessional. However, the jury is still out on sexual relationships with former patients. While some have considered sexual transgressions as minor boundary violations compared to sexual relationships (Unhjem, 2019), it is obvious; thus, they are boundary violations that can attract legal repercussions.

Evolution of professional boundary

The recent literature on professional boundaries can be traced back to the thoughts of Carl Rogers, who discussed the need for sufficient and necessary conditions for personal growth and placing more weight on the professional attitudes and feeling about their patients and the relationship thereof, and vice versa (Rogers, 1957). Rogers (1957) laid out six conditions for the change of therapeutic personality. One condition is referred to transparency, congruence, and genuineness. While some authors have recognized the role of Rogers thoughts in the formulation of modern-day professional boundaries in nursing, e.g., Gibson (2012), others have recognized the role of Rogers thoughts, e.g., Buus (2009), termed Rogers conditions as essential interventions in the development and maintenance of therapeutic relationships.

Application to individual justice

Professional boundaries and their application in nursing care benefit both the patient and the nursing practitioner as they guide and dictate the relationship between the nurse and the patient. Therefore, professional boundaries are frameworks for the organization, ethics, and legal protection of nurses and patients (NCSBN, 2018). In any arising complications that challenge the situations in professional practice, the concerned parties can always fall back to the professional boundaries to determine any excesses or lacking. As a result, professional boundaries guarantee social justice for all the parties, emphasizing the nurse and patient.

For the patient, nurse profession boundaries provide a bracket of operations within which the nurse’s interaction should be restricted. In case of any lacking or excess in the nurse-patient relationship, the patient can seek legal redress in a court of law. In such a case, the nurse and the healthcare facility will be required to defend themselves. Therefore, the court of the adjudicating body will rely on established ethical…