José María Antequera Vinagre
Enfermero, abogado y profesor de Derecho Sanitario. Escuela Nacional de Sanidad. Instituto de Salud Carlos III. Madrid.
Versión en Español
One of the great values of our National Health System (NHS) is the performance-based nature of nursing care; and, in return, legislative authorities decided to incorporate them to Royal Decree 1030/2006, of September, 15th, which established the portfolio of NHS common services and the procedure for its update. In this legal provision, a guiding principle acknowledged by article 43 of the Constitution becomes a real right of patients and users of health services to receive assistance; that is to say, the so-called healthcare citizens are entitled to be guaranteed nursing care by the Regional Health Ministries. This legal configuration, surprisingly unknown by nursing professionals, is linked with the relevant competence from the point of view of legal liability, such as the management, evaluation and performance of nursing care. Therefore, nurses must guarantee patient care, within their area of professional responsibility, under the terms and conditions established by said Royal Decree 1030/2006.
If we extrapolate the previous lines of reflection to a setting such as End-of-Life Nursing Care, it is important to point out that nursing palliative care and the entire process of accompaniment in dignity at the end of life, is a competence that must be guaranteed and supervised by nurses. Their professional dimension does not only impose this, but it is also a consequence of the legal regulation about these final stages of care for many patients with severe conditions and with fatal prognosis at short term.
From a comprehensive concept of healthcare teams, End-of-Life Care requires coordinated actions by the members of the team; and this maximum collaboration will ensure an effective action that respects the dignity of patients.
Undoubtedly, along the process of accompaniment at the end of the patient’s live, bioethical and legal conflicts will frequently appear, that generate tensions and uncertainty in the professional team, because they must provide fast responses when faced with goods and rights in conflict: informed consent, the right to know, privacy, state of necessity, previous instructions, professional freedom, family, etc. These situations are not easy, and there are no fast response mechanisms in healthcare centres.
This context of bioethical-legal conflict has generated the response of various Autonomous Communities through the so-called laws for “rights and guarantees of persons during their dying process”; even at national level, in the Congress of Deputies, there is the Legislative proposal on rights and guarantees regarding the dignity of persons faced with the final process of life (122/000051). Also recently, the Community of Madrid has approved Law 4/2017, of March 9th, on Rights and Guarantees of Persons during the Dying Process. All legal rules with similar nature and goals highlight the need to respect the Principle of Autonomy in decision-making during the final process of life. That is to say, as stated in the grounds for the Madrid law: “the Principle of Autonomy of Will is shown through the right to clinical information, informed consent, and involvement in decision making.”
Nurses are responsible for the management, evaluation and performance of care, and therefore they must integrate the provisions of regional and national legislation in palliative care and the entire end-of-life process: right to give prior instructions and to respect for dignity of the patient, right to be informed (nurses have a special legal obligation to inform the patient at that stage), right to respect the decisions of the patient and / or family, rights of minors, right to pain management, professional obligation to limit therapeutic effort, etc.
Nurses must not only be skilled technically and in terms of performance regarding patient care; they must also incorporate the observance for said legal provisions in their lex artis; not doing this means that their professional activity is heeling towards the malpractice area.
Ending a sorrow and a regret is the most pertinent, in doing so, I want it to serve as a stimulus to trigger reflection among nurses, because a subject as important as care in the final process of life does not usually generate in the nurses public lines of reflection or activism in the processing of laws. Nursing care is one of the pillars in respecting the dignity of patients in the final process of their life.