Generic capability 2
The first capability concerned the ability of a rehabilitation professional to work within part of the intangible but vital environment of the professional and the team, the organisational environment. This second capability concerns the ability of the rehabilitation professional to work with a second intangible environment, the social and cultural environment. The capacity is that the rehabilitation professional is “able to identify the relevant legal, ethical, and cultural frameworks that appertain to a patient’s situation, to consider them when making decisions, and to adapt plans in the light of these factors.” As with the first capability, it constrains absolute professional autonomy; the professional has to obey the law, is required by professional bodies to act ethically, and would be wise to take account of their own culture and the culture of the individual patient. A MindMap summarising the capability is shown below and can be downloaded here.
Table of Contents
Preface
In this case, the importance of a patient’s legal, ethical and cultural aspects are illustrated vividly and dramatically in a legal report of a case heard before the Court of Protection, where the judge had to make an impossible decision. I discussed it in detail in a blog post. Unusual? Yes. But the same factors will influence a significant proportion of cases seen in an active rehabilitation service daily, affecting decisions made and actions taken by all team members. For example, up to half of people receiving daily supportive care from social services at home may have reduced mental capacity to make decisions; it is pretty frequent for family members to ask carers to do or not do tasks contrary to a patient’s wish; and family culture will often determine what advice a patient will act on.
The capability's context
How we behave is influenced by myriad factors over and above just following our own wishes. We may wish to please someone or not to upset them with our choice. The law may proscribe or require certain decisions, such as driving on the left or not taking goods without paying. It is morally incorrect to knowingly be untruthful but correct to act to save someone from harm. In some families, it is expected that everyone shares domestic tasks, but in other families, some activities are only undertaken by one person or are not undertaken by one person.
These intangible, often unwritten influences are central to a more harmonious social life for an individual and all members of society. They can be classified as:
- legal factors. The law sets out a framework of rules backed by punishments if broken.
- moral factors. There is no universally accepted and agreed framework, nor should there be, and there is no formal system to enforce ethical expectations, except where actions are against the law.
- cultural factors. This refers to the much more effective but diffuse system of social expectations that guide behaviour in almost all situations. The term covers everything from family ‘rules’ through the expectation of the many social groups and networks that an individual may belong to, to the broad national society.
The legal factors can limit professional actions directly, though in reality, professional standards are all well within the law and direct limitation is rare. More importantly, and often overlooked, the law determines the process to be used to undertake some actions or decisions. Prescribing drugs, especially controlled drugs, is an obvious example; only certain people are legally allowed to prescribe.
The two most critical legal frameworks in rehabilitation are the Mental Capacity Act 2005 and the Mental Health Act 2007. It is probable that anywhere between 30% and 60% of patients seen within most rehabilitation services lack the mental capacity to make some complex decisions. (see here for more information.) It is also, unfortunately, the case that the Mental Capacity Act is frequently not used when it should be to legitimise care and treatment. (here)
Ethical matters do not have a ‘best’ or ‘proper’ framework; they require consideration focused on the particular issues in a specific case. There is also rarely a correct answer. This feature often leads people to ignore or not raise ethical questions and to carry on without any ethical analysis. An example that spans the ethical/legal boundary is discussed here.
Problems associated with the particular cultural context of a patient are also either not recognised or actively ignored, often for fear of offending. Most people are not offended if a person asks about, in a non-judgmental way, beliefs and attitudes that might influence decisions or advice. Indeed they may welcome the opportunity to discuss how a good approach can be arrived at. Equally importantly, the assumptions made by a professional may need to be more accurate.
Attitude
The critical attitudes involved in this capability are:
- being respectful of others, whatever their opinions, values, or ideas;
- considering the patient’s clinical situation in the broadest context possible;
- empathy, the ability to understand and share the feelings of others [OED], discussed in a blog post;
- adherence to legal frameworks and sound moral principles.
Behaviour expect for capability
The behaviours associated with this capability depend upon an active, conscious consideration of legal, ethical and cultural matters in all patient encounters – but this ‘behaviour’ is not directly observable. Nonetheless, a person with a ‘heightened awareness’ –an appropriate awareness, but heightened compared to the understanding of many other healthcare professions – will usually show secondary behaviours. These behaviours can be taken as evidence.
The remaining behaviours concern the usual rehabilitation process of assessing the nature and extent of the influence associated with one of these areas and then taking these into account when discussing decisions and undertaking actions.
This capability also requires the professional to consider the consequences of decisions and actions more broadly.
An example of the need to consider societal implications of individual decisions comes from outside rehabilitation concerns decisions about terminating a pregnancy when it is known that the child will have a severe lifetime problem that may cause pain or distress. A complete legal and ethical consideration of the individual case may justify the termination of the pregnancy. This will inevitably affect both women in the same situation, the people alive with the condition, and their families. The professional is not expected to resolve this issue, nor should it affect the individual decision, but it is still essential to be aware of and discuss openly such consequences.
Indicative behaviours of an expert rehabilitation professional that are associated with this capability are:
- regularly and routinely raises and discusses cultural, legal or ethical aspects of a patient’s rehabilitation with team members and others. This is behavioural evidence that the expert is fully aware of the importance of these aspects of rehabilitation.
- works within the legal frameworks that appertain to the clinical and rehabilitation processes. In most situations, it is likely to be the Mental Capacity Act 2005 or the Mental Health Act 2007 (or similar legislation in other countries).
- ensures that others adhere to relevant laws concerning the rights and duties owed to people with disability. There are many laws outlining both the protection of people with disability against discrimination and also the responsibilities of organisations to support people with disability.
- identifies ethical aspects of a patient’s situation that should be discussed and ensures that they are discussed and, if necessary, that external advice is sought. Also ensures that the issues are documented, with an outline of the discussion, reasoning and decision.
- always establishes the personal cultural context of a patient without making any assumptions and adapts all decisions and actions accordingly. This does not necessarily require adherence to illegal cultural expectations or have a severe impact on others (including family members who may not share the cultural expectation).
- discusses, when relevant, the broader social and ethical considerations of decisions over and above the implications for the individual patient. For example, withdrawing gastrostomy feeding from one patient in a nursing home may impact the families of other residents in a similar situation.
Knowledge and skills
The knowledge required for this capability is knowledge that applies across all areas of healthcare and is needed by all healthcare professionals. However, most people in training or less senior posts, where there is always someone clinical with more experience and a more senior role, will usually need less knowledge because others will take responsibility. Even so, middle-level professionals may be faced with a situation without the support where this knowledge is necessary.
In reality, most professionals who develop further expertise in rehabilitation will have worked in healthcare for sufficient time to have acquired some, though often not enough, knowledge.
The expert rehabilitation professional should know the following:
- the major legal frameworks that appertain to their clinical practice and the patients seen within the service, especially patients with a reduction in the cognitive ability to make sound decisions and patients with other disturbances in mental function that reduce a person’s ability to act without risks to their safety or the safety of others;
- the principal legally-determined rights of people with disability, for example, protection against discrimination, and also the duties imposed upon Society to provide support, such as employment support grants or access to mobility aids;
- how to access or obtain further expert advice and information about legal matters relevant to clinical decisions and actions;
- a systematic way to approach an ethical problem, a framework outlining the main areas to consider;
- when and how to obtain further moral assistance, including published guidance and other materials available from professional organisations and on the web;
- the significant cultural factors present in the population being seen clinically.
The specific skills needed for this capability are similar to general rehabilitation skills, although applied in a different context. They involve collecting and analysing information and communicating well.
The expert rehabilitation professional should be able to:
- both recognise when a legal framework should be applied and be able to use the legal framework correctly;
- explain how and why the law influences decision-making and actions
- both recognise when there is an ethical matter to be considered and be able to raise it without embarrassment or causing distress;
- analyse, discuss and resolve a moral issue successfully, seeking help when needed;
- engage the team in considering and discussing ethical matters without causing any upset or distress;
- establish the significant cultural factors that are relevant to a patient without making any assumptions and without causing distress or upset.
- adapt all assessments, decisions and actions to respect a patient’s cultural values as far as is practical and safe;
- show respect for alternative opinions and values from the patient, family, team members and others.
Conclusion
This page has discussed the second generic professional capability, as it applies to someone who is also an expert in rehabilitation. It is based on recognising and using two societal rules governing the behaviour – an ethical framework, which reflects society’s culture at a human level (i.e. similar ethical principles apply to all people), and a legal framework which is a formalised set of moral principles. These principles are taught in outline but are generally acquired through experience, specifically through active learning from that experience.