This article presents a case study highlighting the conflict between an individual's right to privacy and the rights of patients and staff to know when a professional standard has been breached. The process by which the administrator determines a course of action is reviewed in the context of workplace realities through an ethical analysis. The growth of information systems and the increased involvement of third parties in decision making have created new issues regarding confidentiality and the release of sensitive information for health care personnel who are in a position of public trust. The issues facing nursing administrators are complex, and of particular concern are the conflicting demands of providing quality care with limited resources. The authors identify strategies to deal with the workplace issues that give rise to the potential for abuse as well as the strategies to support an impaired colleague who attempts to reenter the workforce.
Key words: privacy, confidentiality, ethics, nursing administration, nursing service standards, quality improvement, institutional/organizational ethics
Institutional ethics and organizational ethics are becoming increasingly familiar phrases when we talk about our current health care systems. Organizational financing mechanisms, structural design, and employer-employee relations are all being highlighted as areas where ethical challenges and value conflicts are increasing. The tensions created by differences in organizational, individual, and professional values are noticeable when administrators and managers grapple with ways to operationalize organizational goals without violating personal and professional values. Administrators have become dispirited with organizations that do not embody values consistent with those by which they hope to live.
According to a study by Badaracco and Webb (1995), many young managers reported being asked implicitly to do things they personally believed were unethical, and sometimes illegal. Well-intentioned executives were reported to rely on a mix of corporate credos, statements of their own convictions, ethics hotlines, training programs, and ombudsmen to set the ethical standards for their organizations. As a result of inconsistent organizational ethical standards, disturbing patterns emerged including the identification of a cynical view of organizational or business ethics by young managers. The Badaracco and Webb study highlighted the need for ethics education and a greater understanding of ethical decision-making for administrators.
In the administrative health care setting there is a continuous presence of ethical issues embedded in everyday activities.
In the administrative health care setting there is a continuous presence of ethical issues embedded in everyday activities.
The health care administrator has responsibilities to self, to the organization, to the clientele served by the organization, and to the employees who provide services at the organization. With the growth of information systems one ethical concern that continually presents itself to the administrator is confidentiality of information. Confidential information refers to facts that are private, secret, or privileged. Confidential information for the administrator in the health care setting extends beyond patient medical information to broader information systems that encompass the organization as a business and a workplace. Managing confidential information within the health care system requires ethical awareness, knowledge, and decision-making skill. In order to avoid a "cynical view" by administrators of the importance of ethically managing confidential information, increased education and discussion of these issues need to take place. Hopefully, through discussion, retrospective analysis, and ethics education, innovative ways to effectively answer difficult questions concerning confidentiality information will emerge.
Under what circumstances confidential information should be disseminated is an issue that most administrators encounter sometime in their administrative practice. Ethical as well as legal questions often surround the release of confidential information. Administrators are duty bound to respect the confidentiality of information they acquire, maintain, and use in their role as an agent of the organization. Confidential information may include, but is not limited to, employees' personal information and compensation records. Access to this information of a private nature carries with it a fiduciary obligation to respect confidentiality and to take due care not to disclose or release information outside the course of that necessary within the confines of the business endeavors.
Release of information outside the scope of that necessary for sound business purposes may carry with it consequences of personal and business liability. Well-intentioned acts, like unwarranted acts, may create liability for the administrator individually and for the organization if there was a legal duty to maintain confidentiality and the breach of confidentiality caused harm to another. Confidential information should be handled with a high level of professionalism and quality. Any release of confidential information should be reasonable and limited to specific uses by appropriate parties. Policies and procedures should be in place to ensure confidential information is protected. Appropriate educational programs should be in place so that members of the health care organization understand what is and what is not a breach of confidential information.
Presentation of the Case Study
The following case study provides an opportunity to review ethical issues relative to confidentiality. The case study will serve as a backdrop for the ethical analysis of issues by an administrator related to disclosing confidential information concerning an employee.
Michele, a 39-year-old master's prepared nurse, was the nursing administrator for surgical services at a nonprofit, 250-bed hospital. She had been in administration for three years and still considered herself to be a novice in comparison to the rest of the administrative team at the hospital. Michele often disagreed with the other administrators and often found that her own personal values played a part in the uneasiness she experienced with some of the decisions made by the administrative team. She was committed to helping the nursing staff provide the best possible care in a changing environment. Despite its nonprofit status, the environment within the organization seemed to be shifting away from quality care in the community toward cost cutting measures including staffing decreases. Michele was bothered by what appeared to be subtle changes in the overall mission of the organization. Michele noticed that turnover rates were higher than they had been in two years and that it was increasingly hard to find nurses who could withstand the difficult working conditions that included supervision of multiple unlicensed assistive personnel and required mandatory overtime. Michele believed the staffing problems were in part due to the changing philosophy of the hospital administrative team.
Jackie is a 43-year-old bachelor's prepared nurse. She worked in a hospital setting for several years after graduating from college, but she and her husband agreed subsequently that she would stay home to raise their two daughters. When her children reached school age she returned to work in home care part time, and was happy with the work and the hours. Recently, her husband found that their savings for their children's college education was not keeping pace with the increased tuition rates, and he asked her to increase her work time. She found it stressful, but felt obliged to do this for the family. Her husband noted that the local hospital where Jackie had previously worked was seeking nurses, and that the pay was considerably higher than her salary at the home care agency. He strongly encouraged her to interview at the hospital because he believed she could earn a more respectable wage that would enable them to increase their savings considerably. She was reluctant, because she felt her skills were not current, she knew that the pace would be stressful, and that it would be difficult to be home when the girls got out of school. She did interview, and although her skills were out of date, the hospital was willing to take her and work on refreshing her knowledge and skills. She signed on for the flexible staffing pool, thinking that she would have more control over her schedule. Jackie also believed that since she wouldn't be a permanent staff member less would be expected of her.
The nursing administrator of the flexible staffing pool, Karen, is a colleague of Michele's. They have often had conflicting opinions on issues related to quality of care. In the past year, Michele brought a number of problems concerning the ability of the flexible staff pool nurses to function on the surgical units to Karen's attention, without satisfactory resolution. Karen's staff are assigned randomly throughout the organization's units; and therefore, those nurses are harder to supervise and evaluate. Karen has guidelines for hiring, orientation and evaluation, but her standards are not as stringent as Michele's. Karen believes her staff has to have a certain level of knowledge about every specialty, not the one focus of Michele's specialized unit staffs. It is Karen's perception that Michele expects every flex pool nurse to be as knowledgeable as her specific unit staff, and Karen sees that as unrealistic, given that they float to so many diverse areas.
Jackie did find the work extremely stressful. She rarely had the same unit and patient assignment. Each day she worked on a different unit with different co-workers. She developed few friendships or collegial relationships. She was often dispensing medications and treatments she found unfamiliar. When she attempted to ask questions, she found she approached gruff busy attending doctors and young uninformed house staff. Jackie's supervisor, Karen, was sympathetic to the problems associated with nurses who work in the flex pool; however, Jackie felt she offered no concrete ways to decrease the stressors. The pressure at work was becoming intolerable, but Jackie's husband was pleased with the increased income. He urged her to keep working and told her the overtime was adding an unexpected boost to their savings. Feeling trapped, Jackie began to divert narcotics. Jackie was able to justify her actions because she perceived the drugs reduced her anxiety and stress, which enabled her to better care for her patients.
Jackie's diversion went unnoticed since she went to many different units. Initially, she signed out drugs to patients who had not requested pain medication but had orders for it; later out of a fear of being caught she began to substitute saline for the drug in the syringe. Even then the problem did not reveal itself, for a patient's lack of relief for one shift might result in an increase in the dosage, that would then be reduced when not needed, and Jackie would be off to another unit. Ultimately, she was discovered when she was assigned to a surgical unit for three weeks to relieve for someone on vacation. The pattern of suspected drug diversion was identified by the pharmacist who noted an unusual increase in narcotic use and found several signature errors on the medication record of a unit noted to have the lowest number of medication errors. The pharmacist reported the information to Michele, the nursing administrator for that unit. Michele's review of the pharmacy records, narcotic inventory sheets and patient records and staff schedule led to the inescapable conclusion that Jackie had been diverting drugs. Michele informed Karen, and together they confronted Jackie who confessed to the behavior. As Jackie had confessed, and asked for help, Karen decided to grant Jackie a leave of absence to pursue rehabilitation, with the expectation that she could have her job back if she successfully completed the program. Karen did not believe it was necessary for Jackie to report to the State Board of Registered Professional Nurses since she was actively engaging in rehabilitation activities.
Following these events, Michele called together the nurse manager of the surgical unit where the diversion was discovered, the human resources (HR) director, and the chair of the nursing ethics committee to determine what further action should be taken and how to best communicate to the unit staff the action taken against this individual. Michele believed Jackie had a right to privacy and confidentiality, but thought perhaps an open staff discussion was needed to highlight for the staff the prevalence of nurse addictions and to see if anyone knew or suspected, and didn't act. Her concern was motivated by the fact that patient's pain relief was compromised, and that Jackie's actions caused harm to her clients. She was also concerned that in the future, should Jackie return, how would they handle her situation? When Karen learned of the meeting she objected to the planning of an all staff meeting as she felt it would compromise Jackie's confidentiality. The initial meeting was thus limited to the two nursing directors, HR director, and the ethics committee consultant.
At the meeting, the issue was identified as being one of confidentiality, but with the two nursing administrators having different focal points as to the scope of confidentiality, and its impact on others. Michele felt that Jackie's actions had compromised her professional status, and because patients had been affected, and other nurses' actions had been impacted by Jackie's performance, a full discussion needed to take place with the nurses. Michele wanted to determine what people knew or suspected, and if so, why they didn't act. She wanted to reassure the staff that a problem had been found, and that action had been taken with the particular nurse. This was important to her to show that administration was committed to appropriate action in providing a safe practice environment of competent peers. Without this, she was concerned that suspicions would continue to circulate throughout the staff, and that the rumors of drug diversion would create a climate of distrust. She was also concerned that if and when Jackie returned to work staff members would need to know that an individual with a substance abuse history would be one of their colleagues. Michele was surprised to learn that Karen had not reported the incident to the State Board of Nursing. Michele believed that even though the hospital was willing to sponsor her, Jackie still needed to self report to the State Board of Nurse Examiners and request that the Board defer action until she completed rehabilitation. The State Board of Nurse Examiners, according to state law, has the authority to take disciplinary action, ranging from a reprimand, probation, suspension, revocation or refusal to renew a license. In some instances a restriction is placed on the scope of practice (Aiken & Catalano, 1994).
Karen remained adamantly opposed to conducting a general staff meeting to discuss this. In her view, confidentiality was to be protected without exception. She felt that administration was aware of the incident and the corrective action was being taken. She believed a thorough review of the patient records had determined no actionable adverse outcomes. Contrary to Michele, Karen maintained that if Jackie's situation became known to the staff, they might fear that other confidential information might be shared as determined by administration to be "necessary". Karen was unwilling to consider reassigning Jackie. Michele believed that Karen's actions were inappropriate. Michele believed she had an obligation to not only safeguard the patients but also to promote competent nursing care within the profession and the organization. What should Michele do?
Analysis of the Ethical Question
Analysis of the ethical questions requires a systematic method to determine and select the best possible solution. A dilemma occurs when there is an ethical question for which there are two or more real solutions. When there is only one course of action or when a conflict does not exist there is no ethical dilemma. Any good ethical analysis and solution is dependent upon good problem identification and fact gathering. The discernment of good facts leads to an accurate identification of the ethical values and a determination of values in conflict. The potential for conflicts in administration is increased by the presence of multiple value systems. The administrator must reconcile values as an individual, as a professional, as an employee, as an employer, and as a representative charged with a fiduciary duty to protect the mission and values of the organization. Only after the facts, the values, and the conflicts have been sorted can creative solutions be determined. The best solutions are those that least infringe on the rights of all of the parties interested in the outcome to the dilemma.
Using this reasoning as a guide an analysis of the dilemma follows.
Michele would begin to collect all of the relevant information related to the situation. Information that might be helpful to Michele would include any risk management records of medication errors or other incidents that compare nurses in the staff flex pool to nurses permanently assigned to other areas of the hospital. A disproportionate number of errors among staff flex pool nurses would indicate a need for specific strategies directed toward that particular group. Other facts of particular interest to Michele might be any guidance she could find in the organizational policies and procedures related to impaired employees. Substance abuse is a recognized universal health problem affecting the nursing community that requires appropriate management (American Associations of Colleges of Nursing [AACN], 1996). An estimated 7% of all nurses are impaired by alcohol or drugs (Loeb, 1992). Factors contributing to increased substance abuse among nurses include job stress, rotating shifts, staff shortages, anxiety and depression. Over the last decade substance abuse has been recognized as a prevalent problem that requires proactive efforts and a demonstrated commitment to establish rehabilitation programs; therefore, Michele should also request information from human resources including the details of any employee assistance program.
As Michele grapples with the best way to resolve her dilemma, she might also obtain additional information from the State Board of Nurse Examiners, the applicable state and national professional associations, and the recent literature. The state Nurse Practice Act as well as standards of practice and ethical standards may provide guidance to Michele as she sorts through her obligations to patients, other staff, and her profession.
Guidelines developed by the AACN (1996) emphasize the importance of maintaining the confidentiality of the impaired health care professional. The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) (1998) addresses competencies for practice but has no specific statements regarding the need for employer hospitals to develop ways to manage impaired employees. The American Nurses Association (1985) Code for Nurses emphasizes the rights and responsibilities of nurses and patients. The Code both references maintaining confidential information and states that professional nurses' organizations have a responsibility to clarify, secure and sustain ethical nursing conduct. Information from the pharmacy and medical associations related to impaired professionals and narcotic diversion might also be helpful as Michele gathers material that will be useful in resolving the ethical conflict.
Identification of the Major Ethical Issue
From the data collected Michele should identify the major ethical issue as whether or not a nurse administrator may legitimately violate the confidentiality of an individual, in this case a nurse employee, in order to protect vulnerable patients from harm and to maintain personal and professional standards of care. Michele might also consider the nonethical legal issues and ramifications related to privacy intrusions. In this case, there may be circumstances that impose a legal duty to maintain the confidentiality of the employee information. Laws such as the Americans with Disabilities Act place legal protections on some information. These nonethical issues are not within the purview of this analysis.
Understanding the Conflict
As Michele works toward potential solutions she will want to consider the relevant values of all of the parties. She will want to consider her own values as well as the values of the nurses collectively as a profession, the values of the organization and the values of Jackie and Karen. Michele should define the conflict or conflicts in values so that she can balance and justify her actions.
Reasons to maintain confidentiality.
Michele might begin to consider what moral reasons exist for keeping information confidential and what moral reasons exist for revealing confidential information. The reasons for protecting confidential information are closely linked to human dignity and respect for persons. Personal data are generally recognized as property of the person. Generally, permission from the owner is required to share or use their information. The ability to maintain privacy in one's life is an expression of autonomy. The capacity to choose what others know about us, particularly intimate personal details, is important because it enables us to maintain dignity and preserve a measure of control over our own lives. Choosing to disclose private, sometimes embarrassing facts in order to seek a benefit is a basic trust issue. Confidentiality is particularly important when the revelation of intimate and sensitive information has the potential to harm the individual. Harm can take various forms such as embarrassment, ridicule, discrimination, deprivation of rights, physical or emotional harm, economic harm and loss of roles and relationships.
Another moral reason to maintain confidentiality is one of utility. Keeping confidences promotes open communication. Paradoxically, revealing sensitive information that can cause individual harm discourages help seeking behaviors. If Jackie suspected that Michele or Karen would reveal sensitive personal information about her indiscriminately, then she may be reluctant to reveal private and potentially harmful information about her situation to them. Consider further that Jackie may have denied her impairment and set the nurse administrators on a path to prove her involvement in the drug diversion if she mistrusted them and believed they would not respond in a positive way to her truthtelling.
Reasons to override confidentiality.
Violations of confidentiality infringe upon the individual right to autonomy and self determination. According to Brody (1989), if a person reveals information about us that benefits some goal of his, not ours, then he has made use of our identity in an undignified and disrespectful way that breaks faith between persons in a trusting relationship. Therefore, revealing confidential information is a moral consideration that must be strong enough to override the duty of fidelity in human relationships. Preserving confidentiality may not be an absolute obligation in all situations. Occasionally other moral reasons are sufficient to override the preservation of confidentiality. Some laws mandate disclosure of confidential information even though an individual may be harmed by the disclosure. The intent of the laws is to promote a public good or prevent a public harm that outweighs the individual's right to keep their information private.
Communicable diseases including sexually transmitted diseases, child abuse, and gunshot wounds are all examples of reportable information that promote a public good required by state or federal law (Brody, 1989). Additionally, there may be sufficient moral justification to override protecting confidentiality where the disclosure of information may prevent a serious harm. This reasoning may be applicable when the administrator recognizes that maintaining confidentiality will result in potential serious harm to third parties.
In 1976, a California case established that a health care provider has a duty to disclose information that would protect an innocent third party from harm (Tarasoff v. Regents of the University of California, 1976). The Tarasoff decision and other case decisions have found that privacy is not absolute. The duty to protect third parties from harm is even stronger when the third party is dependent or in some way vulnerable (D v. D, 1969; In re Doe Children, 1978).
Clearly there is a tension between Jackie's right to confidentiality and Michele's duty to warn innocent vulnerable others if she believes there is a serious threat of harm. However, despite some legal precedent for abandoning the principle of confidentiality, there is some legal risk to disclosing sensitive information; further, some actions that are ethical are not always found to be legal.
As law and ethics evolve, there are times when a conscientious person must rely solely on ethics to guide decision making. According to Weinstein (1995), ethics and not the law should determine what is morally acceptable when there is no relevant law, when the law lags behind the thinking of the moral community, and when the laws are immoral.
Some of the hard issues for Michele to address will be separating the greater good of the patient populations she serves and the rights of other staff from the individual right of Jackie to keep her information confidential. In Michele's value system the good of the individual must be weighed against the good of the community. Jackie has betrayed her patients' and her colleagues' trust. She has also broken the law, but Michele knows that this is a separate issue that must be put aside as she considers the ethical decision to maintain or violate confidentiality. Michele believes that administrators have a professional responsibility to hire, educate and then supervise the staff who provide care in the organization. There is a sense of guilt on her part that she did not address the issues with Karen strongly enough in past situations, and that Jackie's impairment may have been prevented had Michele advocated sooner for better mechanisms to assure competent, clinically prepared staff in the float pool.
Decision and Action
A more enlightened view of recovering nurse addicts exists than was previously held. In the past, administrators' approach to impaired nurses was swift and punitive. Nurse were fired without any understanding or rehabilitation (Loeb, 1992). Administrators and nurse colleagues not only failed to report impaired nurses, but also failed to offer support or rehabilitation. This approach is a dereliction of ethical responsibility that abandons the best interest of both the addicted nurse and her patients (Booth & Carruth, 1998; Loeb, 1992; Lowell & Massey, 1997).
Michele's reasoning will likely lead her to a decision to maintain the confidentiality of Jackie as an individual; however, in order to fulfill her ethical obligation to the profession and to patients she would also want to find approaches to assure measures are in place to provide competent, ethical nursing conduct. The best resolution is one that safeguards Jackie's confidential information, but also serves to safeguard the nursing staff and patients. Since a review of drug records indicated that patients were not adversely harmed, this lack of harm may justify not telling patients. In order to fulfill her obligation, Michele took the following actions:
- Initiated a series of administrative meetings to clarify policies and issues of employee confidentiality.
- Identified and develop educational sessions needed to educate administrators on identification of ethical issues and ethical decision-making.
- Began a review of the employee assistance program and drafted needed revisions of organizational policies and procedures related to impaired nurses and their re-entry into the clinical setting.
- Initiated educational sessions that would encourage all staff to learn about substance abuse dangers, behavioral traits and clinical symptoms of drug abuse, reporting requirements, and the available rehabilitation measures. Educational workshops are essential to communicate organizational policy and ethical considerations (Virden, 1992).
- Requested the state board of nursing review organizational policies and programs for compliance with the state standards of nursing care and the state disciplinary rules. Currently only a small number of states have formalized programs or committees that oversee or assist the individual in the rehabilitation process (Virden, 1992).
- Initiated administrative team evaluation of the criteria and competencies for staff float pool nurses. In most circumstances, given the factors contributing to substance abuse in the literature, returning impaired nurses should be assigned to more supportive, less stressful permanent units where they can develop social connections. Ideally, all nurses returning from rehabilitation or from long absences from clinical nursing would reenter with an identified "buddy" or mentor for support (Virden, 1992).
Evaluation of the Decision and Reflection
In reflection, Michele felt comfortable with her course of action. She believed the actions had promoted and not infringed upon her own values or those of other nurses in the hospital including Jackie and Karen. She remained concerned that Jackie and other nurses with known impairments were at risk to potentially harm patients should they relapse. She continued to believe that it was best if impaired nurses voluntarily shared their confidential information with their coworkers so that they could be supportive and watchful; however, she also understood the ethical reasons for maintaining confidentiality and respected individual rights to decide whether or not to share that information with anyone.
Implications for Health Care
Administrators and other persons in positions of authority and leadership have a responsibility to practice in a consistently ethical manner. Adherence to sound principles and policies with respect to confidential information for patients and employees will promote trust in the health care organization. Administrators must be competent in ethical decision making. The demonstration of consistent ethical standards along with effective ethical decision making by administrators will set an example for staff, and thereby, decrease disturbances created by ethical issues, like confidentiality, encountered in everyday nursing activities. Ethically competent administrators will be able to identify confidentiality issues when they arise and justify when compelling moral reasons override confidentiality.
Recommendations for competency for administrators in issues of confidentiality and privacy in the health care setting include the following:
- knowledge of organizational policies and procedures including human resources policies relating to confidential information;
- knowledge of ethical decision making and familiarity with sources of assistance (organizational and clinical ethics committees) for difficult ethical issues;
- an understanding of the difference between legal and ethical reasons to maintain or breach confidentiality;
- a willingness to engage in ethical analysis of issues of confidentiality in order to seek solutions that can be justified as morally correct; and
- the spirit to assist others as they engage in the identification and resolution of ethical conflicts where confidentiality is at issue.
Administrators will be able to negotiate resolutions to ethical dilemmas concerning confidential information when they become familiar with the process wof ethical decision-making, the issues concerning confidentiality in the health care environment, and the moral reasoning behind decisions to disclose information. Problems can be resolved through a process of sound reasoning and justification that accounts for conflicting values and results in mutually acceptable outcomes.
Laurie A. Badzek, LLM, JD, MS, RN
Laurie A. Badzek, LLM, JD, MS, RN, is an Associate Professor of Nursing at West Virginia University (WVU) School of Nursing and Director, American Nurses Association (ANA) Center for Ethics and Human Rights. As the ANA Director, she is the primary staff for the national nursing center for ethics and human rights at the ANA in Washington, DC. She is also an active faculty at WVU teaching ethics, law, and health policy courses to a variety of health science graduate and undergraduate students. Dr. Badzek is known for her research and publications on ethical issues including advance directives and end-of-life care. She was selected by the American Nephrology Nurses Association as the Outstanding Researcher for 1998.
Kathleen Mitchell, MA, RN is currently the Executive Officer for Operations, interim at The American Nurses Association. In this role she provides support to the Executive Director, interim, in overseeing the financial and operational aspects of the professional association, as well as participating in program areas. More recently she has been a nursing administrator in the acute care setting for the past 15 years, and is also a clinical faculty member of George Mason University School of Nursing, serving on the Master's in Administration Advisory Committee. She has served on the ethics committee of two academic medical centers as well as in the long term care arena.
Sandra E. Marra, EdD, NCC, RN, is a Lecturer at West Virginia University School of Nursing. She has 30 years of clinical experience in various faculty and managerial positions. Dr. Marra currently teaches fundamentals of nursing including ethical content. She engages in research related to end-of-life issues, grief, bereavement, and critical thinking.
Marjorie M. Bower, EdD, RN, is Assistant Professor at West Virginia University School of Nursing. She currently coordinates and teaches the undergraduate nursing clinical ethics course. Dr. Bower engages in research related to end-of-life issues, grief, bereavement, and critical thinking.
Article published December 31, 1998
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