Ethics: Interstate Nursing Practice and Regulation: Ethical Issues for the 21st Century

"The ethics incorporated into good nursing practice are more important than knowledge of the law; practicing ethically saves the effort of trying to know all the laws." (Hall, 1996, p.2)

In OJIN topic Multistate Licensure: Who Owns Your Care?,  we weighed the pros and cons of interstate practice laws for nursing in the United States and its territories as we embark on a new era of licensure regulation. It is incumbent on us as nurses, both nationally and internationally, to dialogue about ethical issues that may come from entering into practice without traditional time and space boundaries.

The predominant model in the United States is that nurses are licensed in the state they practice. Nurses who hold dual or more licenses have successfully passed the licensure exam in one state and applied for reciprocity in one or more other states. In contrast to the predominant model, Utah and Arkansas are the only states that have changed state laws to encompass an interstate compact. Six other states are currently in process toward making state law changes (Hutcherson & Williamson, 1999). In addition, some countries like the United Kingdom (www.ukc.org.uk) and Australia (www.anci.org.au) have models for regulating licensure across boundaries.

As travel and electronic communication erode geographical barriers between patient and provider, new models for care delivery are emerging. As care models change, nurses must reflect on their practice and be vigilant about new and developing ethical issues. We will explore potential ethical issues related to interstate practice using the ethical principles of nonmaleficence, beneficence, autonomy, justice, and privacy/confidentiality.

Nonmaleficence

The first principle, nonmaleficence, or do no harm, is directly tied to the nurse's duty to protect the patient's safety. Born out of the Hippocratic Oath, this principle dictates that we do not cause injury to our patients.

How do interstate practice and nonmaleficence interrelate? With interstate practice, it may not seem self-evident how nurses can injure patients with whom they have no physical contact. Consider the interstate nurse, however, who does not return a phone call to a patient who is considered a malingerer. In refusing to return the call, perhaps the patient suffers needless physical or emotional trauma. Therefore, a way that harm can occur to patients is through communication failures. These failures can be intentional as just described or as a result of electronic or human error. Failing to convey accurate information, giving wrong messages, and breaking down of equipment, can cause harm to patients. This harm could be life-threatening such as in cases of strokes and heart attacks.

Some of these communication problems may certainly occur whether a patient is at a neighborhood clinic or 500 miles away, but distance and high reliance on electronic medium make close examination of communication and ethical issues vital. Examples of questions that need further investigation include: Should nurse call lines operate 24 hours a day instead of fewer hours? What back-up mechanisms exist for equipment failure? What phone work can and cannot be delegated? What quality assurance mechanisms are in place?

The principle of nonmaleficence is considered before new treatment approaches are tried on patients. We ask ourselves, and then patients and families ask us, "Can this harm the patient?" Should we not ask this same question before we initiate new models for professional practice such as interstate practice? While legal and financial issues are routinely discussed in relation to interstate practice, ethical issues are not. Unless open discussion of ethical issues occurs, the harm to patients may not be clear until nurses are practicing.

Beneficence

The second principle, beneficence, is at the heart of everyday nursing practice. Beauchamp and Childress (1994) state that "Each of ...[the following] three forms of beneficence requires taking action by helping--preventing harm, removing harm and promoting good...." (p. 192). The principle of beneficence may give rise to ethical issues when there is conflict between what is good between nurse and patient, between patient and organizations, between patients themselves, or between states engaged in interstate practice. Differences that may have ethical implications include: financial reimbursement, approved services, different laws on reporting sexually transmitted diseases or abuse, and protocols from whom nurses can accept orders.

While most agree in principle that a patient's good comes before the organization's or nurse's good, nurses often confuse what is good for the patient with what the nurse believes is good for the patient. At debate is what constitutes good for a patient without infringing on the patient's autonomy or letting the patient come to serious harm. Is it ethical to overrule your patients' preferences? Beauchamp and Childress (1994, pp. 277-278) argue that paternalism can be examined as "weak" or "strong." Weak paternalism infers that the health care provider is protecting the patient when the patient is unable to make decisions due to problems such as depression or the influence of medications. On the other hand, "Strong paternalism...involves interactions intended to benefit a person despite the fact that the person's risky choices and actions are informed, voluntary, and autonomous" (Beauchamp & Childress, 1994, p. 277). Relevant to this discussion is whether possible state differences about when a patient is impaired may bring up ethical issues for nurses who are in positions where they provide care to patients with impaired decision-making capabilities.

At a societal level, the move to interstate licensure itself is implicitly tied to the principle of beneficence. For example, the Pew Task Force (http://futurehealth.ucsf.edu/pubs.html) made a number of recommendations intended to help guide health care professions as they faced the challenges brought about by the fundamental changes occurring in the health care system in the United States. Now as a profession, nursing needs to examine if implementing the Pew recommendations will result in benefits to society. Will changing the system for regulating the nursing profession be a good for society? Does a model that facilitates interstate practice best serve the patient's good? How are interstate licensure models helpful to providing good patient care? What value does interstate licensure add to services we provide for a patient? Can we show real outcome differences in patient care?

Autonomy

The third ethical principle, autonomy, means that individuals have a right to self-determination, that is, to make decisions about their lives without interference from others. What are some of the ethical issues to be raised when applying this principle to interstate nursing practice?

First, regarding autonomy, will nurses who reside in states where they are legally given substantial autonomy in their practice feel ethically violated when their autonomy has been decreased by laws in other states within the interstate compact? On the other hand, within the same interstate compact, will nurses who practice in states where they are legally given limited autonomy be prepared to make highly autonomous decisions and to render safe care? If these nurses do not feel prepared, will their right to refuse care (an autonomous decision) be honored as long as the patient is not abandoned? On the other hand, would the patient's right to refuse care be respected equally among the intercompact states?

Second, on a societal level, in exchange for professional services rendered, society has given the nursing profession the right to regulate its own practice. Thus, society has empowered nurses to be autonomous about matters related to nursing. Will interstate nursing practice strengthen this commitment to society as nurses working across state lines increasingly respect each other's autonomy? Will this increased respect result in better communication among nurses and the public they serve?

Justice

The fourth ethical principle, justice, means giving each person or group what he/she or they are due. It can be "measured" in terms of fairness, equality, need or any other criterion that is material to the justice decision. In nursing, justice often focuses on equitable access to care and on equitable scarce resource allocation.

Equitable access to nursing care implies that nurses are available to render care and that the recipients of care (i.e., patient, family, or community) know that care is available to them. Access in interstate practice must consider demographic issues. How many practicing nurses exist within an interstate nursing practice compact? Are they working full time or part time? What is their expertise? If their expertise (e.g., critical care) is in high demand in their state of residence and if their numbers are relatively few, is it fair to ask them to dilute their services in their own state to meet even higher demands for their services in other states?

The underlying material principle of justice here is need. Two states need a type of nurse expertise like critical care, but there are not enough nurses to supply the demand. The critical care nurses in these two states become scarce resources. Would they have to work harder, longer and travel greater distances for the same salary? If so, this situation would clearly not meet the ethical principle of justice. If, however, the nurses were in fact given benefits and salaries commensurate with working harder and longer and at remote sites, from where would the money come? Financial resources are finite, so while the preceding critical care nurses may now be receiving their just due, someone else most likely is being deprived.

Determining scarce resource allocations is difficult enough within any given state, let alone within an interstate nursing practice group, especially if there are rich and poor states within the compact. Under these circumstances, how will justice be best served to those most affected by both scarce nurse and financial resources? This question is first and foremost an ethical issue; as such, it demands the highest standards of justice.

Privacy and Confidentiality

The fifth ethical principle relates to privacy and confidentiality. Privacy belongs to each person and, as such, it cannot be taken away from that person unless he/she wishes to share it. Confidentiality, on the other hand, means that the information shared with other persons will not be spread abroad and will be used only for the purposes intended. A patient's sharing of private information imposes a duty of confidentiality on health care providers. That duty means providers will share information only on a need-to-know basis.

Interstate nursing practice, by its very nature, complicates the privacy/confidentiality ethical issue for both patients and nurses. More states and more patients equal more health care providers, administrators, regulatory agencies and financial decision makers with a need to know. When telenursing is added to this equation and more nurses are practicing across state lines, a potential ethical problem presents itself. Now is the time to avert such a problem before we are in the midst of practice and ethics gives way to expediency.

There already exists a hesitancy for patients to share information with health care providers. Too many reported breaches of confidentiality have appeared in the media. "High risk" patients with HIV or AIDS, genetic diseases, or mental illness may feel particularly vulnerable. As a result, patients are limiting information shared with health care providers, thus protecting privacy at the cost of impairing their health. We must avert any grass roots efforts, within or among states, in which patients embrace a "don't ask, don't tell" philosophy about their health.

Confidentiality is such a major issue that recently two health care oversight agencies '” the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) (www.jcaho.org) and the National Committee for Quality Assurance (NCQA) (www.ncqa.org) '” took a proactive stance against potential breaches in patient confidentiality. Their 1998 report "Protecting Personal Health Information: A Framework Of Meeting The Challenges In A Managed Care Environment" (jcaho.org/pphi/pphi_frm.htm) focuses on such strategies as clear policies and procedures for ensuring confidentiality and on periodic audits to assure compliance with such policies and procedures. This report is both important and timely, especially in light of the potential for an increased breach of patient confidentiality with interstate nursing practice.

The second concern with privacy and confidentiality focuses on nurses. The National Council for State Boards of Nursing (www.ncsbn.org) has developed a centralized data base (NURSYS) especially designed for interstate nursing practice. This data base, which contains personal and sensitive information such as nurses' licensures and revocations can be used to ensure quality care or to harm nurses' reputations if it falls into the wrong hands.

Summary and Conclusions

We have presented five ethical principles (i.e., nonmaleficence, beneficence, autonomy, justice, and privacy/confidentiality) that can help nurses to examine the ethical pros and cons of interstate nursing practice and regulation for the 21st century. For each ethical principle, we have raised questions about health care scenarios that nurses in interstate practice may face. Our goal was to be proactive and to stimulate critical thinking about ethics and interstate practice. Our conclusion is that nurses in interstate practice must "think ethics" before they act. By so doing, they are practicing at the highest nursing standard.

Mary Cipriano Silva, PhD, RN, FAAN
Ruth Ludwick, PhD, RN,C