Justice is a complex ethical principle, with meanings that range from the fair treatment of individuals to the equitable allocation of healthcare dollars and resources. Justice is concerned with the equitable distribution of benefits and burdens to individuals in social institutions, and how the rights of various individuals are realized.1
Common definitions for Justice are often problematic for clinicians, as the explanations leave many questions unanswered. If Justice is a concept about treating people fairly, then it is prudent to wonder what it means to be “fair.” In discussing a different aspect of Justice, distributive Justice, the concern focuses on who gets what treatment in healthcare, and who decides what treatments are administered. Is the decision based on need? Age? Prognosis?2 These concepts leave clinicians with many unanswered questions as to what is fair and equitable in the treatment of individuals.
The Elder Justice Act
Defining Quality Continence Care for Older Adults in LTCFs
In light of the challenges inherent in defining Justice, it is fair to say that it is a concept involving fairness, equality, and equitable treatment. Specifically, Justice involves the application of fairness to individuals in population groups or communities. In order to apply Justice in any scenario, individual factors should be examined on their own merit. Each scenario is unique and should be addressed accordingly. Consider what Justice means within a small patient population or community. For example, the long-term care (LTC) setting has a community of residents, all of whom live together and interact with staff on a daily basis. The daily pressures of regulatory compliance, process improvement, and attention to clinical outcomes in LTC can threaten the consistent application of Justice, as can the pressures on facility administration to maintain staff morale. In making policy and in establishing standards of practice in LTC, it is imperative to uphold the principle of Justice. More specifically, residents should receive care that is fair and equitable, and upholds their basic rights as equal citizens in a shared community.
Objective criteria for resident treatment must prevail over emotional or subjective approaches. An example of violating the ethical principle of Justice is outlined below in a case involving the rights of staff versus residents to smoke on facility grounds. A LTC facility designed a policy to eliminate resident smoking both inside and outside of the facility building. However, the facility’s policy continued to allow staff to smoke in designated smoking areas where residents were prohibited.
A LTC facility was concerned that some of its residents were at increased risk for advancing illness by continuing to smoke cigarettes. In order to reduce the risk of advancing illness, the facility enacted a policy that prevented all facility residents from smoking anywhere on facility grounds. The staff discussed this policy with the residents, their families, and physicians, and collectively developed a program to aid the residents in gradually withdrawing from smoking. The residents were in agreement with this request and complied with the smoking cessation program. In fact, three residents stopped smoking, felt enhanced well-being, and enjoyed more fulfilling activities to occupy their time that had previously been spent smoking. However, the facility allowed staff to continue to smoke on facility grounds. It became uncomfortable for the three residents who had quit smoking to watch staff smoke in the same designated areas from which they were now restricted.
The LTC ombudsman was contacted, and the issue was brought before a LTC-focused ethics committee for discussion and ethical analysis. The ethics committee pointed out that the ethical principle of Autonomy was violated for the residents who were no longer allowed to smoke on facility grounds. However, the ultimate success of the smoking cessation program for the three residents minimized this issue. The committee also noted that the facility’s policy restricting smoking for the resident population, but not for staff or visitors, was a clear violation of the ethical principle of Justice. All parties in this small community—residents, visitors, and staff—were not treated uniformly, fairly, or equally. The ethical principle of Justice had been breached. The ethics committee recommended that the facility expand its nonsmoking policy to include not only residents but staff and visitors as well. The equal distribution of treatment dictated that certain policies must pertain to all individuals in the community. Residents, staff, and visitors alike should be treated equally and asked to comply in a similar fashion with regard to the facility’s nonsmoking policy.
Beneficence is defined as “doing what is right and medically helpful.”3 The overzealous rush to do what is right can be problematic in many clinical and social situations in LTC facilities. In this case, the intention of the staff to protect its residents from potential advancing illness was beneficent. However, when the facility prohibited residents from smoking, it violated not only resident autonomy, but it breached the ethical principle of Justice because staff continued to exercise their right to smoke on facility grounds. The facility did not uphold the principle to treat people fairly and equally and apply regulation in an equitable manner. “Justice is best explicated in terms of fairness.”4
If the case were different, if the populations were dissimilar, then the nonsmoking policy for residents may not have breached the principle of Justice. For example, if the case involved resident safety, the outcome and ethical discussion would have been different. Residents who are unsafe smokers require supervision and more stringent attention. Such smoking populations would be dissimilar to staff and visitors, who generally do not pose safety risks while smoking. Staff has a regulatory and ethical duty to protect residents from harm. Under these circumstances, it might be permissible to disallow residents from smoking due to serious safety hazards for those in the facility, or at least to require unsafe resident smokers to smoke only under supervision, and/or with smoking aprons, etc.
Justice can be appropriately considered only when criteria are similar and applied equally to all involved in the community’s population. Upon entering a LTC community, people fear the loss of freedom, privacy, choice, independence, and control. Ensuring these rights is the “cornerstone of care.”5 Justice provides for the rights of all residents in LTC facilities to enjoy privileges in an equal and fair manner. Justice dictates that residents who are bed-bound, as well as those who are ambulatory, have the same right to engage in and have a voice in resident council. Similarly, capable residents have the same right, or the same restriction, as do staff and visitors to smoke or not to smoke in smoking-designated areas on facility grounds. Justice can be considered the engine for Autonomy. Supporting the individual’s right to self-determination supports Justice within population groups. Residents have the right to choose and execute an advance directive, to make clinical decisions about their own personal health, and to execute the inherent right of self-determination.6
Promoting Autonomy for all is an application of Justice. To treat people fairly and equally means to support all persons’ rights to decide for themselves. In addition, Justice enforces the limits of Autonomy. Although Autonomy provides for “self-determination without overbearing external influence,”7 equal application of the law, for example, restricts individual rights to perform acts that are outside of regulation or code. The right of LTC residents to smoke in their room violates fire code. Rules that prevent smoking in residents’ rooms are enforced without exception as dictated by the principle of Justice, thereby restricting individual autonomy. Therefore, Justice demands that one’s right to exercise Autonomy is limited when it affects the safety and well-being of another person.
Justice is a concept intended to promote fair and equitable treatment of individuals within populations. Ostensibly, it seems like a very straightforward and simple principle of Ethics. However, applying Justice within populations in clinical settings is often challenging and requires constant vigilance to ensure that its intentions are upheld.
This case was discussed by the Pinon Community Ethics Committee, Lakewood, CO.