The Role of Law and Ethics in Health Care
The importance of legal and ethical standards in Healthcare can not be understated. On the one hand, these standards not only provide a framework for regulating the conduct of healthcare professionals who are governed by respective state and national bodies, but they also ensure that healthcare professionals meet a minimum standard of competency based on industry evolution and patient need.
Failing to uphold a legal and ethical standard of practice can carry with it serious legal implications for health care professionals, such as licensure revocation, civil liability and in exceptional cases criminal liability . Importantly though, upholding the legal and ethical standards not only protects healthcare professionals, but it safeguards their patients by providing a standardized framework for the means by which they are delivered.
It is ultimately the standardization of these frameworks, however, that allows regulatory and professional organizations to maintain the integrity of their respective industries. Standards are often modified to reflect evolving practices and laws. This ensures that the legal and ethical standards have a receptive and responsive approach to safeguarding both patients and healthcare professionals, which is not only beneficial to the professions but the public as a whole.
Legal Considerations for Health Professionals
Effective health lawyers ensure that clients have a solid understand of these concepts which are important for physicians and health professionals in the health care field. They are:
Consent
Health care providers must ensure that patients understand the risks, benefits, and alternatives of any procedure or treatment before obtaining consent. This may come in the form of informed consent forms, or verbal consultation. However the provider must be competent enough to assess patient understanding, and make sure that patient has the capacity to consent to treatment.
Confidentiality
Although health care providers are expected to maintain patient confidentiality, there are certain exceptions to their duty. Such as if the public health department mandates reporting in the event of a reportable disease, or if a patient poses a danger to him or herself or third parties. In such cases, however legal counsel should be consulted as to proper termination of the relationship.
Malpractice
Malpractice refers to the failure of a health care provider to render care in accordance with the standards of care to be expected of a reasonably prudent provider in the same specialty in the same community. The standard of care in each case is governed by state law, and types of insurance that is available varies by state.
Ethical Guidelines in Health Care Practice
The ethical principles that govern the practice of health professions are the cornerstone of practice and the doctor/patient relationship. The four main principles are autonomy, beneficence, non-maleficence and justice. These principles may compete with one another during the decision-making process and must be balanced against the ethical principles of both the physician and the patient.
Autonomy – The cornerstone of medical ethics is autonomy. The concept of autonomy in the medical profession refers to the right of an individual to self-determination and to make choices regarding the course of his or her medical care. Informed consent is an example of this principle. Beneficence – The core of this ethical principle rests on the obligation of a physician to act for the benefit of a patient through medical care. This principle obliges a physician to attempt to achieve certain actions that will benefit the patient, and not cause harm to the patient. Non-maleficence – The basic idea of non-maleficence is that we cannot intentionally harm others. In the medical context, this means preventing harm to patients or causing no further harm to patients that have already been damaged. Justice – The basic idea behind justice is that a physician has an obligation to treat patients fairly and impartially and to give equal treatment to all. Equal consideration of all patients is a principle on which many ethical and legal principles are founded. Justice also means that equal resources must be given to all patients and that patients must be treated in the same manner.
Beneficence may be in conflict with autonomy at times. For example if a principal chooses not to undergo surgery or another form of treatment that you know will save his life, can you honor that choice? Beneficence may be in conflict with justice, if you decide that a potentially expensive new therapy is not warranted for a poorly compliant patient, yet, this therapy is rewarded to a wealthy compliant patient. Sometime, a physician may find the need to act against a core ethical principle to do what he or she believes is right. A physician that acts contrary to his or her ethical duty, as a result of the uncertainty of what may be right, may place him or herself in a liability position. The better-informed a physician is, the better suit the physician is in explaining his or her action by making it possible to scientifically or rationally explain the action. As we know, many medical cases are not black and white. Often a significant amount of grey area exists. If a situation arises where the physician will be making a decision that may be against one of core ethical principles, the physician should continue to ask questions. The more information a physician can provide relating to the ethical dilemma, the less likely a physician will face liability.
Common Ethical and Legal Challenges
Health professionals frequently encounter legal and ethical dilemmas that can arise from disagreements among family members about what should be done in certain end-of-life situations. For example, if a myeloma patient slips into a coma but there is uncertainty about whether or not he will wake up, family members may disagree about whether to pull the patient off life supports. Did the patient give express written instructions stating how he wanted to handle being kept alive on life support? What discussions did the patient have with the family about his wishes? Is there a spouse vs. a parent conflict about how to handle the situation? In a worst-case scenario, who will ultimately decide how to handle the situation, when all else fails? These are the tough questions that need to be anticipated when drafting a health care proxy and living will.
Influence of Ethics Committees and Legal Counsel on Care
Healthcare institutions may utilize ethics committees to aid health professionals in overcoming dilemmas and making decisions based on law and ethics. Ethics committees can provide support, education, and recommendations on how to approach specific issues and can include a range of people from physicians, nurses, and social workers to ethicists, administrators, and attorneys, among others. Ethics committees may assist with identifying medical-legal issues, clarifying ethical issues, offering a forum for discussion, or recommending strategies to address issues. With some exceptions, ethics committees generally function to review and advise instead of making decisions for a particular facility. It is important to note , however, that physicians must always act in accordance with their individual judgment and maintain a duty to do no harm, even when the guidance provided by an ethics committee is contrary to that judgment or duty.
Healthcare institutions may also enlist the help of legal advisors, external counsel, or internal attorneys. With an eye towards healthcare-related litigation that may occur, attorneys can advise on healthcare systems’ rights and obligations (i.e. patient confidentiality) and help to create systems and protocols to provide protection. Additionally, attorneys can provide guidance on potential liability and how to mitigate exposure (i.e. consent, documentation, etc.).
Keeping Current with Law and Ethics in Health Care
It is imperative that health professionals keep current on developments in both the law and ethics. While continuing education credits are required to maintain licensure, these hours are typically designated for education on clinical and practice management updates—not law and ethics. Health professionals have a responsibility to review their corresponding state boards’ websites, and other reliable sources, on a routine and regular basis to discern what, if any, changes might impact the delivery of services in their practices. These resources may consist of any or all of the following: newsletters, journal articles and online training modules addressing recent changes in law and topics like the importance of referring ethical dilemmas to peer review boards.
Specifically, as a healthcare compliance attorney with almost two decades of experience, I am aware that medical and dental professional organizations, hospital systems, and insurance and payer associations provide regularly scheduled publications and workshops to keep their members up‑to‑date on changes in the law and ethical standards. Many internet websites, such as the American Medical Association (AMA), the Institute of Medicine (IOM), the Federation of State Medical Boards (FSMB), and the Association of American Medical Colleges (AAMC) also offer up‑to‑date information about current trends in medical law and ethics. Those providers who do not read these sources or attend relevant workshops will be at a disadvantage, to say nothing of having less than current information available to their staff and patients.
It is true that inter‑state and intra‑state telehealth services provided by providers and facilities are not covered under some federal laws regulating practices. Providers and insurer benefits must still be appropriately coordinated, however, and organizational efforts to accomplish this, including the use of referral processes, will no doubt be subject to scrutiny. Efforts to improve coordination of care have been the focus of the IOM, and are reflected in many policies promoted by organized medical and ethical organizations.
Effects of Technology on Health Care Law and Ethics
At the heart of the intersection of law and ethics in health care is a struggle to define the very nature of professional practice. Is it a mission, something more than just a job? Or is it simply an entrepreneurial endeavor in which, by virtue of skill and expertise, the practitioner can charge a fee for a service provided? This battle plays out over and over again in the context of various clinical practices—whether in pharmacy, nursing, medicine, or dentistry. The professional enters a market’s entry level, offering entrepreneurial services. As the needs of society change, so, too, does the profession. As the profession grows and expands, so do the burdens and responsibilities of those who provide services within that category of health care. As medicine grew, for example, from the point of self-limited, general practice, through the age of specialization, specialty licensure became the norm, increasing the bar of entry and defining the parameters of practice.
With technology continuing to press the boundaries of conventional medicine and clinical practice, boundaries have blurred. As we enter a new phase, where telemedicine and telehealth introduce patients to specialist expertise never before available to them; where pharmacies can effectively operate as providers , delivering model disease management services; where the power of data analytics is now open and accessible to patients and practitioners alike; any boundaries delimiting clinical practice must be redrawn in ways that consider the ethical and legal implications inherent in technological advancement. Legal and ethical concerns abound, often running at cross purposes. Access is a fair and important ethical issue, but unease with decreased professional oversight of health care practices means the regulation of practice is, and arguably ought to be, the traditional focus of state regulatory bodies. Put into the context of technology, these two concerns collide in the realm of telemedicine and telehealth. From the paradigm of access to care and the ability of an ill patient to obtain prompt and efficient medical assistance, there is little ethical justification for any practice or service that would reduce opportunities for patients to receive this availability. However, while in theory the physical presence of a doctor might be minimized, in practice many would argue that human interaction between professional and patient ought not to be lessened. These views are not even.
Technology is as unpredictable as it is dramatic. Generalities may hold, but specifics are, by definition, situational. As a result, the implications of technology for practice regulation will be determined by the practical application of each aspect of technology to the capacities of health care professionals and clinicians.