Ethical and Legal Considerations
C. Ronald MacKenzie
Ethics and the law are related because each field is concerned with norms of conduct. While ethics examines what behaviors might be considered desirable and articulates the ideals and virtues to which one should aspire, the law deals with standards of conduct and the consequences of failing to live up to them.
Ethics has been described as a “generic term for various ways of understanding and examining moral life.” Drawing from the scholarship of multiple disciplines, the ethics of medical practice has, over the years, developed into a field that focuses on the problems and dilemmas that confront health care professionals and their patients and those that arise in the setting of caring for the sick. It is considered a “normative” discipline which sets out to answer such questions as “what ought to be done” in a given clinical circumstance. Although this describes the domain of “clinical ethics,” the influence of ethics as a scholarly endeavor has come to play a much broader role in modern medicine. In addition to its more public form, familiar to health care professionals through such activities as hospital ethics committees, the field of ethics also plays an important role in defining professional norms and codes of conduct (professional ethics), helps define appropriate practices and standards for health care organizations (organizational ethics), and has an important role in providing an ethical and moral framework to guide the practice of clinical research (research ethics).
I. CLINICAL ETHICS (PATIENT AS THE FOCUS)
The practice of clinical ethics deals with the common, everyday ethical challenges that arise in the practice of medicine. Developed and spurred on by the unrelenting pace of technologic advance over the last 40 years, it has largely been a “case-driven” field of inquiry, its moral foundations based on the concept
of patient rights and guided by a broader set of principles or physician obligations that include:
Beneficence. To benefit patients in order to further their welfare and interests.
Respect for autonomy. To protect and defend the informed choices of capable patients.
Nonmaleficence. To prevent harm, or if risks of harm must be taken, to minimize those risks.
Justice. An obligation relevant to fairness of access to health care and its rationing.
On a more individual basis in clinical care, additional responsibilities are required of the physician and health care provider. These include such obligations as:
Respect for the patient’s privacy and the preservation of confidentiality.
Open and honest communication concerning the patient’s condition (diagnosis, treatment, and prognosis).
Ascertaining the patient’s capacity for a shared decision-making process.
Insuring a valid process of informed consent.
Failure of the clinician in any of these obligations constitutes a fundamental infringement of the patient’s right to ethical health care delivery.
In the modern era of medicine, the medical ethicist and the Ethics Consultation Service are the public face of medical ethics at large health care institutions, specifically hospitals. The services provided by such individuals or entities are an important resource to all health care professionals as they provide a number of useful services including:
Providing specific case consultation.
Assisting in the development of institutional policies having to do with ethical issues arising in patient care.
Educating health care professionals, patients, and their families.
Participating in ethics-related research, which ultimately may inform practices of prevention for the future.
In practice, clinical ethics remains a case-based activity and those involved with medical ethics in a clinical environment draw on and apply a broadly founded base of bioethical theory to situations arising in the care of patients. Yet despite its theoretical and philosophical foundations, it nonetheless remains a very practical, problem-centered activity that draws widely on the expertise of those who work in the health care system. The composition of hospital ethics committees underscore this diversity, usually being composed of physicians and nurses, social workers, and psychologists, having legal representation, as well as the clergy, pastoral care, and the lay public. This sharing of authority is not only vital to the deliberative process but necessary for its perceived fairness.
II. PROFESSIONAL ETHICS (PRACTITIONER AS THE FOCUS)
Rather than the patient, the area of professional ethics is centered directly on the professional and the focus of this ethical domain is the maintenance of the integrity of the individual clinician within the profession at large. Rather than rights or principles, the bedrock foundation of professional ethics is generally articulated in its professional “codes” which are seen as the guiding beacons for the behavior of the practitioner. Such codes consist of advice and direction concerning the proper manner of responding to the problems that arise in clinical practice and they define certain fundamental character traits of the “professional” practitioner. Relevant examples of important professional codes of medicine include the Hippocratic Oath, as well as the Codes of Ethics of the American Medical Association, the American College of Rheumatology and the American Association of Orthopedic Surgeons, all of which are available on the websites of these organizations.
Professionalism in clinical care is based on the Hippocratic tradition and relates to the role of the physician as healer, fully focused on and committed to the patient. It implies a set of priorities and good conduct in a number of arenas:
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