Key Questions in Healthcare Law and Ethics

Marc Cornock

• Publisher: SAGE Publications Ltd
• Year: 2021
• ISBN:
  9781526489609
• Edition: 1
• Topic: Medicina
• Subtopic: Ética en medicina

The perfect textbook for healthcare students who want a fresh, innovative way to understand how law and ethics relate to their studies, placements, and professional practice. By using a unique format made up of frequently asked questions and corresponding answers, Key Questions in Healthcare covers the what, why, where and how in legal and ethical issues related to healthcare. Its easy-to-use layout helps you quickly find informative yet straightforward answers to over 150 questions, helping you to feel confident in your legal and ethical knowledge, without leaving you overwhelmed or confused. All answers are written in-line with Nursing and Healthcare regulations and its conversational writing style will make you feel like you are talking with a lecturer, instructor, or knowledgeable colleague, rather than reading a textbook. The book is appropriate for all levels, from healthcare students in the initial stages of their education, to the advanced practitioner who wishes to refresh their knowledge, or maybe learn something new.

1 An Introduction to Ethics and Law

Chapter 1 introduces ethics and the law, the relationship between the two, and considers how they both affect the practice of healthcare practitioners as a group and as individuals. For those unfamiliar with ethical and legal principles and the sources of law in the United Kingdom, it provides the essential background information that will underpin the issues explored in the remainder of the book.

Throughout the chapter/book, the term ‘state’ is used to mean a country that is able to govern itself and so issue its own laws and decide upon its own regulatory mechanisms.

Questions covered in Chapter 1

• Why are ethics and law important?
• What are ethics?
• What is the law?
• What are the traditional ethical theories for healthcare?
• Are there any limitations of the traditional ethical theories?
• How have healthcare ethics been reconsidered?
• What are the main ethical principles relevant to healthcare practice?
• Where does law come from?
• What is the role of the Courts?
• What is the difference between criminal and civil law?
• Why is the law so confusing?
• How do ethics and law affect me?

Why are ethics and law important?

Ethics and law are important aspects of healthcare practice because they provide the foundation upon which practice can develop.

Healthcare is a unique profession because of the relationship between the healthcare practitioner and the patient. Although patients are involved in their own healthcare needs and care, there can be an imbalance between the two parties. In any such situation, there needs to be a framework or guidance as to how the person with the perceived power, the healthcare practitioner, should act in relation to the other person, the patient, and what is and is not acceptable behaviour. This is the role that ethics and law play, through the development of principles, in healthcare delivery. Ethics and law apply to healthcare practitioners, their practice and their relationships with patients.

As well as setting the framework within which healthcare practitioners must undertake their practice, it forms a key element of this book: how ethics and law support the healthcare practitioner to undertake that practice.

Ethics and law are not a single entity, although they may be said to be intertwined in most spheres, such as in healthcare, where the one supports the other. In order to understand the relationship between the two concepts, we will firstly explore the two separately and then consider how they relate to each other.

What are ethics?

A dictionary definition of ethics is ‘the science of morals’; ‘the rules of conduct recognized in … human life’ and ‘the science of human duty in its widest extent’ (Onions, 1984).

Although morals and ethics are related in that one can inform the other, they are distinct from each other. Morals may be seen as a standard of behaviour whereas ethics are more of a system for understanding this behaviour.

Morals relate to the individual, being based on the individual’s religious, societal or personal beliefs; how the individual views their actions in a given situation; and whether they see something as being good or bad. For instance, one person’s morals may mean that they believe telling a lie is always wrong; whereas another person’s morals mean that they see lying in some circumstances as justified, what is sometimes known as the ‘white lie’ concept.

Ethics are based on morals in that they can affect and control the actions of individuals; however, they are a formalised system of accepted or acceptable beliefs about how individuals within a particular group should act in a given situation. Ethics allow for personal beliefs to be shared within a given group and to be systematically developed for the benefit of the group.

There are several ethical theories that provide guidance for a person’s actions and behaviours; two of these are discussed in What are the traditional ethical theories for healthcare? (p. 6).

What is the law?

Although ‘the law’ is a very common expression, what do we mean when we talk of the law?

The law is a system of rules. Rules that govern the operation of society, for instance what government can and cannot do, as well as governing the individuals within that society through the development of accepted behaviour. There are various forms of rule that exist in any given society.

Etiquette is a form of rule that governs how individuals act toward each other, yet if someone was to breach the rules of etiquette it is unlikely that they would find themselves subject to the might of the legal system. Custom can also be seen as a set of rules; rules that are recognised by particular groups of individuals and govern their behaviour, for instance religions have customs that affect how their followers practise the religion. Other rules apply to the society as a whole rather than a subset within that society. They are the rules that society expects all individuals within the society to observe. Laws are an aspect of society’s rules. However, whereas the non-observance of a custom or rule of etiquette may result in a sanction by members of the subset of society who follows them, the non-observance of a law results in a formal sanction by society against the individual.

The fact that certain rules are elevated to the status of laws means that society holds them in higher regard. As such, these laws are enforceable through the legal system, which includes the police service and the Courts. The purpose of the legal system is to ensure that the rules are followed and that anyone who does not follow the rules is dealt with appropriately. Whether this is through the criminal or civil legal system, the outcome is that the ‘wrongdoer’ faces a sanction that is imposed through the legal system, the Courts. It is said that, as well as being a punishment for the ‘wrongdoer’, the sanction should act as a deterrent to others who are considering breaking the rules of society.

Law is state specific. It is related to the particular characteristics of the state and also to a point in time. As the society evolves, so do the laws of that society, so that the law represents the contemporary society’s view of acceptable behaviour. However, one feature of the law of the United Kingdom is that laws do not go out of date; unless they are specifically enacted for a limited period of time only, laws remain in force until they are repealed. Thus, in the United Kingdom today, there are laws that have been in existence for hundreds of years, sitting alongside the laws that are enacted in each passing year.

Law allows society to function. At the simplest level, law governs the relationship between the individual and the state. In return for certain rights, for instance the right to vote, society demands certain obligations from the individual, for instance not committing a crime (or as a lawyer would say, a criminal offence – why use one word when you can use two!).

What are the traditional ethical theories for healthcare?

There were two ethical theories that were traditionally taught and considered to be relevant to healthcare practitioners and to healthcare itself. These are Deontology and Utilitarianism. Here we will look at both of these theories in the way that they were presented, that is as a binary approach to ethics: something was approached through either a deontological or utilitarian outlook.

Deontology

Deontology literally means the study of duty. It arises from the Greek for duty, ‘deon’. As an ethical theory, it can be traced back to the work of Immanuel Kant, a Prussian philosopher working in the mid to late 1700s. Kant’s philosophical theory is grounded in what he termed the ‘categorical imperative’.

A categorical imperative is something that has an intrinsic nature about it that is good. No external validation is needed to make them good. For humans to be morally good, they have to follow all categorical imperatives. Therefore, a categorical imperative becomes a selfless act; it is something that has to be done because of a duty or obligation to do so. Duty or obligation are key underlying features of deontology as Kant believed that if someone acts without there being a duty to do so, there is no moral value to that action.

One aspect of the categorical imperative is that individuals should always act as if their action was to become a universal ethical law for others to follow; that is to act without any personal motive.

Someone who acted according to deontological ethics would do so because they felt they had a duty or obligation to do so. They would have no free will in the choice of action but would feel compelled to act in a certain way. Thus, actions can be classified as being good or bad according to the reasons behind the act. Failing to act when there is a duty to do so would be seen as behaving unethically.

Therefore, for deontologists, clear duties and obligations exist in given situations. For instance, the healthcare practitioner who is off-duty but comes across someone who requires their assistance would have a clear duty to act for the benefit of the individual rather than themselves (see Do I have a duty to individuals outside my clinical practice? [p. 44]).

In this way, codes of practice can be said to have a deontological ethical basis, as they require the individual subject to them to act in certain ways because of their duty or obligations. Indeed, the Health and Care Professions Council’s (HCPC) Standards of conduct, performance and ethics (Health and Care Professions Council, 2016) actually begins with the words ‘Your duties as a registrant’ (title page). Each of the ten standards that make up the ‘code’ then begins with the words ‘You must’. The Nursing and Midwifery Council’s (NMC) code has a similar approach, with its introduction stating that, ‘The code contains the professional standards that registered nurses, midwives and nursing associates must uphold’ (Nursing and Midwifery Council, 2018: 2). Similar to the HCPC code, each of the 25 standards in the NMC code start with ‘To achieve this you must’. It is only after the duty has been stated do the codes provide any guidance as to how you, the healthcare practitioner, who has to use and follow them, may achieve the duty.

When considering how to act in any situation, the person acting according to a deontological ethical perspective would ask, ‘What is my clear duty in this situation?’. Not, ‘What should I do?’, or ‘What do I want to do?’ but ‘What do I have to do?’

Utilitarianism

Utilitarianism developed through the late 1700s and the early 1800s, and was generally influenced by two British philosophers, Jeremy Bentham and John Stuart Mill. It is also known as consequentialism (for reasons that will soon become apparent).

Compared with deontology, utilitarianism is said to be a much easier ethical theory to understand. Its basic premise is that an act should be based on the premise of maximising utility and minimising worthlessness: or to put it another way, doing the greatest good and the least harm. Thus, any action is judged, not by it being a universal right or wrong as in deontology, but on the outcome it produces. The consequences of the action are the key aspect of any act in utilitarianism/consequentialism.

Those actions that result in more good than harm are seen as being more ethically desirable in utilitarianism.

Other ways of looking at utility and worthlessness are pleasure or happiness and pain or suffering. Accordingly, utilitarianism is often referred to as ‘the greatest happiness principle’.

However, rather than concentrating on pleasure at the level of the individual, the utilitarian theory concen...