Law

Ethics and law overlap in significant ways, but they are nevertheless distinct from one another. This distinction becomes particularly clear in instances where what the law may require in a given situation ethics might equally reject, and vice versa. Consider, for example, the issue of active voluntary euthanasia (commonly referred to by the colloquial term ‘medically assisted death’) and the plight of patients suffering intractable, intolerable and irremediable pain who request euthanasia as a ‘treatment’ option despite it being illegal in the jurisdiction where they live. With the notable exception of the Australian State of Victoria, ¹ under Australian law it is a criminal offence ‘to assist, encourage or aid a person to commit suicide or attempt to commit suicide’ ( Forrester & Griffith 2015 : 247). Under these provisions, any nurse or doctor who administers a lethal substance to a patient with the sole intention of assisting that patient to die (suicide) would be committing a criminal offence and likely to be prosecuted accordingly. The fact that such an act was demonstrably in accordance with the patient’s autonomous wishes would not be a legitimate defence. Regardless of the benevolence and voluntariness of an act of assisted death / euthanasia, it would still be deemed by law as illegal, and thereby legally wrong . This legal wrongness, however, is not necessarily synonymous with moral wrongness. Consider the following.

Ethics essentially requires that people be respected as self-determining choosers, and further that the considered preferences of autonomous persons be maximised. This requirement holds even in instances where a person’s individual preferences might be considered mistaken or foolish by others. Ethics also requires that otherwise avoidable harm (such as the needless suffering of intractable and intolerable pain) should be prevented where this can be done without sacrificing other important moral interests. Returning to the euthanasia example, it soon becomes clear that an application of ethics (or, more particularly, the principles of bioethics) might, in this instance, permit the administration of a lethal injection to a suffering patient who has autonomously requested it. Not only might ethics permit such an act; it might actually require that it be done. Where sound moral justifications for the act can be shown, then the act of euthanasia in question could be deemed as having accorded with the principle of ethics and thereby as being morally right and justified.

Other compelling examples illuminating the difference between law and morality can be found by considering the laws enforced during wartime (such as those upheld by the Nazi and other despotic regimes), and the laws used to enforce apartheid (such as those upheld in early North America, and in South Africa circa 1948–91). The legal laws of the Nazis and of the apartheid-supporting regimes, although evil, still stand as constituting valid legal law ( Hart 1958 ). We would presumably want to resist condoning the morality of these laws, however.

Law and ethics are quite separate action-guiding systems, and care must be taken to distinguish between them. Making this distinction may not only help to prevent moral errors, but also enforce moral and intellectual honesty about the undesirability of morally bad (evil) law ( Hart 1958 ). Further, if we do not make this distinction we will not have an independent value system from which to judge the moral acceptability or unacceptability of valid legal law. For instance, if ethics were not distinct from legal law, we could not judge certain laws (e.g. Nazi laws) to be morally bad and wrong.

The question remains, however, of how the distinction between law and ethics can be made and, equally important, what the essential differences are between a legal decision and a moral / ethical decision, and, indeed, a clinical decision.

A very traditional view of law is that it is the command or order of a sovereign (e.g. a government) backed by a threat or sanction (e.g. punishment) ( Hart 1961 ). For instance, governments around the world have formulated laws that command their citizens to pay taxes; if the citizens in question fail to pay their taxes they can expect to be punished in some way, such as by being fined or even sent to prison. The mere fact that they have not complied with the command – in essence, have broken the law – would probably be deemed sufficient justification for a sanction or punishment to be directed against them. Although this view of law does not capture its more political nature (see, for example, Johnstone 1994a ; Kairys 1997 ), it is nevertheless sufficient for the purposes of this discussion in regard to distinguishing between law and ethics.

Accepting the above view of law, there is a fundamental sense in which the concept ‘legal decision’ as it is used by nurses probably refers to a type of decision that is made on the basis of what is required or prohibited by law – together with a desire to avoid a legal sanction or punishment for non-compliance. In this respect, the notion ‘legal decision’ is probably more aptly described as a ‘legally defensive’ decision. Consider the following example. A nurse who regards voluntary euthanasia as morally justified in cases of intolerable, intractable and irremediable suffering may nevertheless decline a patient’s considered request for assistance to die in order to avoid any legal risk of receiving the penalty that would almost certainly be applied for assisting another’s suicide should her actions be discovered. In this instance, the nurse’s decision not to comply with the patient’s request could be described as a ‘legal decision’ rather than a moral or clinical decision, and also as being ‘legally defensive’. This is because her decision was influenced predominantly by considering the legal consequences of complying with the patient’s request, rather than the moral or clinical consequences of doing so.

The question remains, however, of how a legal decision differs from an ethical decision. As is discussed more fully in the following chapter, ethics can be defined as a system of overriding rules and principles of conduct which function by specifying that certain behaviours are either required, prohibited or permitted. These principles are chosen autonomously on the basis of critical reflection, and are backed by autonomous moral reason (generally recognised in moral philosophy as the central organising principle of morality) and / or by feelings of guilt, shame, disgust, moral remorse and the like, which operate as kinds of moral sanctions. For example, we may choose autonomously to follow a moral principle which demands truth telling; if we fail to tell the truth in a given situation, we may then reason the act to be wrong and / or experience feelings of guilt, shame or moral remorse accordingly. Unlike what happens in instances involving a breach of legal law, however, we are not generally ‘punished’ for lying – for example, by being fined or sent to prison – unless, of course, our lying entails an act of perjury in a court of law.

Accepting this view of ethics, it is probably correct to say that the concept ‘ethical decision’, as it is used in health care contexts, refers to a type of decision that is guided by certain moral principles of conduct or other moral considerations (rather than by punitive legal laws) and a desire to achieve a given moral end. Thus, a doctor or a nurse tempted to tell a lie to either a colleague or a patient may choose instead to tell the truth in order to achieve some predicted overriding moral benefit and thereby also preserve her or his integrity as a morally autonomous professional (as distinct from, say, a law-abiding citizen).

In light of these basic views on law and ethics, and legal and ethical decision-making, what then is the nature of clinical (nursing and medical) decision-making? Primarily, nursing and medicine involve the skilful practice and application of tested principles of applied science and care to prevent, diagnose, alleviate or cure disease, illness and sickness and restore a person’s health and sense of wellbeing. The practices of nursing and medicine are backed by legal and professional sanctions. For example, doctors and nurses can be found financially liable for negligence, and can be deregistered for professional misconduct as well as for civil misconduct unbefitting a professional person (see discussion on unprofessional conduct and professional misconduct in Chapter 1 of this book).

Accepting this, to say of a decision that it is a ‘nursing decision’ or a ‘medical decision’ in this context is probably to say little more than that it has been made by a nurse or a doctor respectively, and is based on an established body of evidence-based knowledge and ‘reasonable’ professional opinion on how this knowledge should or should not be applied in a clinical situation. For example, a doctor may venture the ‘reasonable’ medical opinion that if a certain life-saving treatment is stopped the patient will surely die. Or a nurse may venture the ‘reasonable’ nursing opinion that if a certain nursing care is not given the patient will suffer a particular type of harm. It must be understood here, however, that neither of the clinical opinions expressed in these instances is tantamount to expressing a valid moral judgment. For example, to say that a patient ‘will die’ if a certain drug or other treatment (e.g. surgery) is given or withheld says nothing about the moral permissibility or imperatives of giving or withholding the drug or other treatment in question. The ethics of a given clinical act is not implicit in the act itself; this is something that can be determined only by independent moral analysis.

Given these rough comparisons, it can be seen that legal, ethical and clinical decisions can be readily distinguished from one another ( Fig. 2.1 ). What is also obvious is the enormous potential for the respective demands of each of these three types of decisions to come into conflict. For example, a medical decision not to resuscitate a patient in the event of a cardiac arrest (on the grounds that the patient’s condition is ‘medically hopeless’) may be supported by an established body of medical opinion, but nevertheless be deemed morally unsound or even illegal, or both. For instance, the patient’s autonomous wishes may not have been established before the medical decision was made, or the patient’s legally valid consent may not have been obtained to withhold cardiopulmonary resuscitation (CPR) in the event of a cardiac arrest. Or, to take another example, a medical decision to continue treating a patient may accord with a ‘reasonable body of medical opinion’, be legal (as in cases where patients have been deemed rationally incompetent under a mental health act), yet be unethical if the patient has expressly stated a prior wish not to be treated, and if this expressed wish, contrary to popular medical opinion, is not ‘irrational’.

Types of decisions in clinical settings

We can also imagine cases where a medical decision to cease treatment accords with moral principles but may nevertheless invite legal censure – as in the case of withholding or withdrawing unduly burdensome life-prolonging treatment from severely brain-injured adults, poignant examples of which can be found in the much-publicised Terri Schiavo case in the United States (US) (discussed in Gostin 2005 ; Perry et al 2005 ; Quill 2005 ).

Although there is potential for conflict between ethical, legal and clinical decisions, it is not the case that these are always on a direct collision course; indeed, they may even complement or reinforce each other, as examples given in the following chapters show.

In drawing comparisons between legal, ethical and clinical decisions, there remains another crucial point to be observed: that it is conceptually incorrect to regard nursing or medical decisions per se as synonymous with either legal or moral decisions. This is not to say that we cannot meaningfully speak of nursing or medical decisions as being legally or morally correct or incorrect. On the contrary, it makes the point that, in asserting the legal or moral status of a given clinical (nursing or medical) decision, a judgment independent of the generally accepted scientific or indeed conventional standards of nursing or medicine must be made. In the case of ethics, the moral status of a clinical decision requires independent philosophical / moral analysis and judgment based on relevant moral considerations (e.g. moral rules and principles); in the case of law, the legal status of a clinical decision requires an independent legal analysis and judgment based on relevant legal considerations (e.g. legal rules and principles).

Codes of ethics

A code may be defined as a conventionalised set of rules or expectations devised for a select purpose. A code of professional ethics by this view could be described as a document that sets out a conventionalised set of moral rules and / or expectations devised for the purposes of guiding ethical professional conduct. It is important to understand, however, that codes of ethics are not ethics per se since they are not a fully developed system of ethics. Nevertheless, codes of ethics tend to reflect a rich set of moral values that have been expressed through a process of extensive consultation, debate, refinement, evaluation and review by practitioners over a period of time, and thus are well situated to function as meaningful action guides.

It is important to state at the outset that codes of ethics can be either prescriptive or aspirational in nature. In the case of prescriptive codes, provisions are ‘duty-directed, stating specific duties of members’ ( Skene 1996 : 111). In contrast, aspirational codes are ‘virtue-directed, stating desirable aims while acknowledging that in some circumstances conduct short of the ideal may be justified’ ( Skene 1996 : 111). Either way, codes of ethics have as their principal concern directing:

what professionals ought or ought not to do, how they ought to comport themselves, what they, or the profession as a whole, ought to aim at … ( Lichtenberg 1996 : 14)

Codes of ethics are not, however, without difficulties – a point noted over 100 years ago by the distinguished North American nurse leader and scholar, Lavinia Dock. In a little-known but important essay entitled ‘Ethics – or a code of ethics?’, Dock (1900 : 37) challenged:

What, exactly, could a Code of Ethics be? … What are ethics and can they be codified? Do we aim at ethical exclusiveness and shall our ethical development be bounded or limited by a code? ‘Code’ suggests statutes, infringements, penalties, antagonisms. If we have the ethics, we will not need a code. The code is to regulate those who have no ethics, and in proportion as ethical principles are made a part of our natures and lives, our codes and restrictions will shrivel away and die the death of inanition.

Dock (1900 : 38) goes on to explain that she is not advocating the total rejection of rules and regulations of professional conduct – on the contrary, particularly since such rules and regulations, as given in a code, could serve as helpful mechanisms ‘to prop up the steps of those who are young in self-government or feeble in self-control’. Rather, the issue was not to call codes of rules and regulations ethics since, as she argued persuasively, there was a real risk that:

If we call them ethics we may perhaps come to believe that they are all there is of ethics, and presently be worshipping the code rather than the thing, so unreasoning a reverence is there in our souls for statutes, fines, and punishments; so exaggerated a notion of the potency of drafted laws; so strong a tendency to make rules the end and aim of life rather than simply conveniences, changeable contrivances. ( Dock 1900 : 38)

Although written over a century ago, Dock’s visionary words are applicable today. Nurses globally would be well advised to be cautious in their use of formally stated and adopted codes of ethics, and to be especially vigilant not to fall prey to ‘worshipping the code’ at the expense of being ethical – and not to fall into the trap of treating the requirements of a code as absolute, and as ends in themselves, rather than as prima-facie guides to ethical professional conduct.

It has long been recognised that a professional code of ethics is an important hallmark of a profession ( Bayles 1981 ; Goldman 1980 ). Whether professional codes as such have succeeded in fulfilling their intended purpose of ‘formulating the norms of professional ethics’ ( Bayles 1981 : 25) and guiding ethical professional conduct is, however, another matter. Some have argued that codes of ethics have failed to ensure this; instead, codes of ethics have served to protect the interests of the professional group espousing them rather than the interests of the client groups whom the professionals are supposed to be serving ( Beauchamp & Childress 2013 : 6–10; Kultgen 1982 : 53–69). Others have contended that codes may be little more than ‘toothless tigers’ and hence unable to serve their intended purpose – especially if barriers exist to their being used effectively in practice. Barriers can include constituents not having a working knowledge of the content of a given code or how to apply it in practice ( Heikkinen et al 2006 ; Pattison 2001 ; Tadd et al 2006 ). Codes of ethics can also be problematic for disciplinary panels on account of their content being ambiguous and hence vulnerable to subjective interpretation ( Snelling 2016 ). This, in turn, can make it difficult for disciplinary panels to take action and impose penalties for breaches of the code – particularly if involving the ‘moral emotions’ (e.g. failures to be compassionate) ( Snelling 2016 ).

Despite the demonstrable shortcomings of professional codes of ethics, it is evident that many professional codes of ethics have been written with the principled intention of guiding ethically just professional practice and for providing a framework for dealing with code violations (see, for example, Sasso et al 2008 ). What needs to be understood, however, is that even the most scrupulously formulated and well-intended professional code of ethics is not without its limitations and, in the final analysis, may do little to either guide moral deliberation or ensure the realisation of morally just outcomes in morally problematic situations (see, for example, Page 2012 ). In the case of the nursing profession, owing to the complexity of nursing work and the complexity of the contexts in which nurses work, codes of ethics may be inadequate to the task of guiding ethical decision-making and conduct (see, for example, Numminen et al 2009 ). This is particularly so in environments where economic and legal considerations reign supreme and have dominance over other considerations ( Meulenbergs et al 2004 ). Moreover, following a code of ethics will not necessarily protect nurses when they are called upon to defend their actions in, say, a court or disciplinary hearing (see Johnstone 1994b : 251–67).

For example, in an instructive 1990 Australian case involving the alleged unfair dismissal of a registered nurse involved in a case of suspected child sexual abuse, the deputy president of the Industrial Relations Commission of Victoria (where the case was heard) rejected the authority of the ICN (1973) Code for nurses , which was referred to in defence of the nurse’s actions ( In re alleged unfair dismissal of Ms K Howden by the City of Whittlesea 1990 ). In this case the deputy president of the commission pointedly criticised the ICN code as being ‘imprecise’ and lacking the ability to provide ‘clear guidance’ in matters requiring fine discretionary professional judgment. He also pointed out that the ‘code in its terms cannot stand alone’ and must be considered in relation to the guidance that is also offered by the law ( In re alleged unfair dismissal of Ms K Howden by the City of Whittlesea 1990 ). The fact that the ICN code is widely accepted by professional nursing organisations around the world had little bearing on the deputy president’s views in this case.

The legal authority of other codes of nursing ethics / conduct has also been called into question in other cases heard in jurisdictions outside Australia ( Johnstone 1994b ; see also Irwin v Ciena Health Care Management Inc . 2013 ).

One question which arises here is that, if codes of ethics are problematic, and have only limited legal (and, it should be added, moral) authority, should nurses adopt them? The short answer to this question is yes. One justification for this, as previously discussed in Chapter 1 of this text, is that, despite their limitations, codes of ethics have an important role to play in the broader schema of professional nursing ethics insofar as they can provide a public statement on the kinds of moral standards and values that patients and the broader community can expect nurses to uphold, and against which nurses can be held publicly accountable. Second, they can also inform those contemplating entering the profession of the kinds of values and standards which they will be expected to uphold, and which, if not upheld, could result in some sort of professional censure. For example, The ICN code of ethics for nurses ( ICN 2012a : 2) makes explicit that a nurse’s ‘primary responsibility is to people requiring nursing care’, and that, in providing care, the nurse will promote ‘an environment in which the human rights, values, customs and spiritual beliefs of the individual, family and community are respected’. If people contemplating entering the profession of nursing are informed of these prescriptions, and do not agree with them, they will be in a better position to make an informed choice about whether or not to enter the profession.

Another justification is that codes of ethics can help with the cultivation of moral character. They can do this by ‘increasing the probability that people will behave in some ways rather than others’ – specifically that they will behave in ‘the right way’ and, equally important, ‘for the right reasons’ ( Lichtenberg 1996 : 15). As already stated, although codes of ethics do not constitute a system of ethics (at best, they comprise only a list of rules that have been derived from systematic ethical thought), they nevertheless provide people with a reason to think and act ethically, not least by reminding them ‘of the moral point of the sorts of activities they are involved in as members of the particular profession or group’ ( Coady 1996 : 286). On this point, Lichtenberg (1996 : 18) contends:

A code of ethics can increase the probability that people will think about it [what one is doing] – can make it more difficult to engage in self-deceptive practices – by explicitly describing behaviour that is undesirable or unacceptable.

Crucial to the cultivation of moral character is self-conscious moral reflection. And, as Freckelton (1996 : 130) contends, codes of ethics ‘are a means to this end’. He states:

They [codes of ethics] have the potential to articulate the characteristics and ideals of a profession and to facilitate consciousness of and discourse about ethical issues. Through the process of moral deliberation thereby engendered, they may operate as the catalysts for ethical conduct both by heightening awareness of ethical priorities and by providing guidance from experienced professionals for the resolution of ethical conundra encountered at a practical level by practitioners … By articulating the parameters of a profession and of acceptable professional conduct by its practitioners, a code defines what a profession is and is not, as well as the limits of proper conduct.

Self-conscious moral reflection and discussion about ethical issues are facilitated by codes of ethics in at least one other important way – namely by what Fullinwider (1996 : 83) describes as supplying a vocabulary (which can be used for the purposes of stimulating ‘moral self-understanding’) and helping to ‘create a community of users’. To put this another way, by expressing a given set of ethical values a code of ethics makes discussion and debate of ethical issues possible within a given professional group (community); it provides a (common) moral language, which can be used meaningfully by subscribers to a given code, to identify and discuss matters of moral importance and to advance the task of professional ethics generally in their milieu.

The point remains, however, as already argued, that codes of ethics have only prima-facie moral authority (i.e. they may be overridden by other, stronger moral considerations) and hence can only guide, not mandate, moral conduct in particular situations. Further, as Seedhouse (1988 : 65) points out, it is important to understand that a code cannot inform a nurse about which principles to follow in a given situation, how to interpret chosen principles, how to choose between conflicting principles or ‘how to decide when it is most ethical to disregard the rules and deliberate instead as a unique and independent individual’ as is sometimes required. Accepting this, and as the examples given in the following chapters show, it can be seen that no code of professional nursing ethics should be regarded as an authoritative statement of universal action guides. Rather, it should be regarded only as a statement of prima-facie rules which may be helpful in guiding moral decision-making in nursing care contexts, but which can be justly overridden by other, stronger moral considerations (see also Biton & Tabak 2003 ; Meulenbergs et al 2004 ).

Codes of conduct

Codes of conduct (to be distinguished from codes of ethic), although designed to regulate professional conduct, are not ethics. Nor are they ‘codes of ethics’ (discussed above). This distinction has been clarified in the codes of conduct ratified by the respective nurse regulating authorities in New Zealand ( NCNZ 2012a ) and, more recently, Australia ( NMBA 2018a ). The NCNZ (2012a : 2), for example, describes its Code of conduct for nurses as ‘a set of standards defined by the Council describing the behaviour or conduct that nurses are expected to uphold’. It goes on to clarify:

This is not a Code of Ethics – it does not seek to describe all the ethical values of the profession or to provide specific advice on ethical issues, ethical frameworks or ethical decision making. This type of advice is provided by professional organisations [emphasis added] ( NCNZ 2012a : 3).

Australia has recently taken a similar position. As noted in Chapter 1 of this book, the NMBA abandoned its Code of ethics for nurses in Australia (2008a) and adopted a code of conduct in its place, marking a significant shift towards a wholly regulatory (some might say managerial) approach to professional conduct. This is made clear in the Foreword to the Code, which states unequivocally: ‘The Code of conduct for nurses (the code) sets out the legal requirements [emphasis added], professional behaviour and conduct expectations for nurses in all practice settings, in Australia ( NMBA 2018a : 2). In a footnote, it is further clarified that:

The code does not address in detail the full range of legal and ethical obligations that apply to nurses. Examples of legal obligations include, but are not limited to, obligations arising in Acts and Regulations relating to privacy, the aged and disabled, child protection, bullying, anti-discrimination and workplace health and safety issues. Nurses should ensure they know all of their legal obligations relating to professional practice, and abide by them. ( NMBA 2018a : 6, §2)

These examples demonstrate that codes of conduct, unlike codes of ethics, tend to be regulatory (as opposed to aspirational) in nature – that is, they set minimal standards of practice against which nurses’ conduct can be ‘objectively’ measured and breaches sanctioned ( Snelling 2016 ). As minimum standards (unlike aspirational standards) tend to prescribe a lower standard of conduct, there is a risk, as Snelling (2016) contends, that merely ‘just-good-enough’ behaviour will result. Even though ‘just-good-enough’ behaviour might be higher than that otherwise expected of the general population ( Snelling 2016 : 230), it still may not be ‘good enough’ to justify public trust in the profession or indeed the profession’s code.

Hospital or professional etiquette

Nothing could be more different from ethics than etiquette . Although both seek to guide behaviour and conduct, they do so in different ways and for different purposes. Ethics, for example, speaks to morally significant rights and wrongs, with behaviour being guided by critically reflective moral thought and the application of sound moral values that seek to maximise the moral interests of all people equally. Etiquette, in contrast, seeks more to maintain style and decorum, with behaviour being guided by the unreflective and arbitrary requirements of custom and convention. In application, etiquette paves the way for coordinated, consistent, predictable and, where possible, aesthetically pleasant practice and conduct, and serves only the interests of particular persons in particular circumstances ( May 1975 ). As with legal law, what etiquette might demand in one situation, ethics might reject, and vice versa.

The extent to which the notions of ethics and etiquette can be confused in health care settings is illustrated by the following case – which demonstrates the reluctance by some health professionals (including nurses) to advise patients to seek a second medical opinion, in the mistaken belief that doing so would constitute a serious breach of ethics.

The case involves a middle-aged woman suffering moderately severe retrosternal chest pain and shortness of breath who presented to the emergency department (ED) of a large city hospital. The nursing staff admitted the woman into a cubicle equipped to deal with ‘cardiac emergencies’ and proceeded to perform an electrocardiograph (ECG). The ECG showed a number of cardiac arrhythmias, all of which were suggestive of an acute cardiac condition warranting immediate specialised medical and nursing care. Upon further questioning, it was revealed that the woman was also suffering a mild pain in her left arm (a pain she had ‘never had before’), which is characteristic of cardiac disease. The pain improved, however, while she rested in the ED. Her past medical history indicated no known heart disease or any previous incident of chest pain. This was the first time she had ever experienced such symptoms – symptoms that were indicative of significant underlying cardiac disease.

A junior first-year medical resident examined the woman and decided she should be admitted immediately into the coronary care unit for further cardiac monitoring and tests. As required by the hospital’s admission policy, he contacted the registrar ‘on call’ to have his diagnosis confirmed and to arrange the woman’s admission formally. Upon examining the patient, however, the registrar declined to admit her, since there were no ‘cardiac beds’ available in the hospital and he was not convinced that the ECG findings indicated a life-threatening cardiac condition. He discharged the woman, advising her to see her own general practitioner the following morning. He gave her a medical note and a prescription for an oral cardiac anti-arrhythmic agent.

The nursing staff members were very concerned, as was the first-year medical resident. All felt the patient should have been seen by another doctor for a ‘second opinion’, but could not decide whether to advise the woman to go immediately to another hospital. After some 20 minutes of deliberation, the attending nursing supervisor concluded it would be ‘unethical’ to advise the patient to go to another hospital for a second examination. The nursing staff and junior doctor involved agreed. The patient walked out of the door and was not informed that it would be in her interests to seek a second medical opinion. At this hospital, it was not ‘decorum’ to advise patients to obtain a second medical opinion.

What arguably was at issue here, however, was breaching hospital etiquette, not ethics. Advising the woman to seek a second medical opinion, in this case, would not have been unethical; indeed, the staff would have been both morally and professionally justified in taking appropriate action to ensure the patient received appropriate attention – which could have included contacting the cardiologist on call at the discharging hospital.

Etiquette obviously has its place in the professional and health care arena; it is not without limits, however. Unfortunately, as Blackburn (1984 : 189) points out, people do ‘often care more about etiquette, or reputation, or selfish advantage, than they do about morality’. The lesson to be learned here is that acting in accord with hospital or professional etiquette might sometimes be tantamount to engaging in substandard practice and ipso facto acting unethically. It is, therefore, important that nurses learn to distinguish between the demands of etiquette and those of ethics.

Hospital or institutional policy

Hospital policy or institutional policy is often appealed to in order to legitimise a worker’s actions and, in some cases, to settle a conflict of opinion about what course of action should be taken in a particular situation. In this respect, institutional or hospital policy plays an important practical role – it helps to coordinate ‘the running of the system’ and to make institutional practices consistent and predictable; nevertheless, it also paves the way for uncompromising control. Like legal law and etiquette, institutional policy can be morally bad and in application can seriously conflict with the demands of ethics.

Research has suggested that, although the theorisation and practice of nursing ethics has developed substantially over the past 30 years, nurses continue to experience ethical conflict based on their disagreement with organisational values, policies and rules as well as the values and viewpoints of colleagues ( Gaudine et al 2011 ; Idrees et al 2018 ; Johnstone 2012d ; Kälvemark et al 2004 ; Leuter et al 2017 ; Pavlish et al 2014 ; Wlodarczyk & Lazarewicz 2011 ). A common example can be found in the case of a hospital’s discharge planning policies which might require nurses to plan and implement the discharge or transfer of a patient who, in their professional opinion, is not yet ready to be either discharged home or transferred to another health care facility.

Public opinion, populism or the view of the majority ²

The term ‘public’ originates from the Latin pūblicus , meaning ‘of the people’ ( Collins Australian dictionary 2011 : 1328). Just ‘who’ is the public and whether publics ‘really exist’, however, are moot points. Some suggest that, at best, ‘publics’ are more artefact than fact, and thus any political influence ‘the public’ might exert needs to be viewed with caution. At the very least, serious and probing questions need to be asked about who is ‘this’ public, and whose interests ‘this public’ is ultimately serving and to what ends?

Louw, an Australian-based political communications scholar, contends that publics are, in essence, ‘media constructions’ – that is, they are created by the mass circulation media. The mass circulation media create or ‘assemble’ publics by ‘constructing and holding together public opinion’ ( Louw 2010 : 24). And the means by which public opinion is created or constructed is via the intellectual exercise of conducting public opinion surveys ( Louw 2010 : 24). Thus, whereas ‘publics’ might not exist (they are artefacts), ‘public opinions’ (as measured by quantifiable surveys) do, even though these too are media constructions. Explaining the ethereal nature of ‘the public’ and ‘public opinion’, Louw writes:

These publics (containing millions of individuals) do not involve actual human interaction or communication between those incorporated into these ‘publics’. The members of these publics do not know each other, or communicate with each other. They will never know each other, or communicate with each other. Yet publics can be ‘brought together’ by the mass media and can even be ‘guided’ (by the media) to carry out the same action (e.g. mourning the death of a celebrity they do not know, such as Princess Diana). Such ‘publics’ and ‘public opinion’ are the ultimate artificial ‘hyper’ construct. These publics have no real ‘presence’ because they are assembled in the ether of media representations. One cannot find ‘a public’, because it does not ‘exist’. But one can find ‘public opinion’ by constructing it as an intellectual exercise (i.e. conducting public opinion surveys). ( Louw 2010 : 24)

Louw goes on to explain that a major implication of the media creation of publics is that individuals within ‘a public’ become ‘passive followers, “guided” by the limited agendas presented to them by the media’ and, it should be added, the agenda setters manipulating it ( Louw 2010 : 24). Instead of being ‘actively engaged citizens’ who have a civic moral responsibility to question and call into question things as they are, individuals are held together as a ‘media-ted passive public’, vulnerable to manipulation and ‘herding’ towards a preferred political standpoint by agenda setters ( Louw 2010 : 24). While the individuals in this ‘public’ might feel they are purposefully interacting with other human beings, in reality they are situated as little more than isolated individuals who are experiencing only ‘a form of manufactured “pseudo-interaction” received through mass media messages’ ( Louw 2010 : 24).

Public opinion is often cited in defence of the ‘ethics’ of something such as the moral permissibility of abortion, euthanasia or the use of fetal tissue for research. For example, those in favour of the legalisation of euthanasia (discussed further in Chapter 10 of this book) will commonly cite public opinion polls favouring the legalisation of euthanasia to support their stance ( Johnstone, 2013a , Johnstone, 2014a ).

Ethics is not something that can be determined or decided reliably by public opinion, however. If ethics were merely a matter of public opinion, all we would have to do is conduct an opinion poll and establish a ‘majority view’ on a matter to find out whether it was morally right or wrong. If ethics were determined by mere public opinion, our moral standards would be rendered unacceptably changeable, making it extremely difficult to practise ethically.

A public opinion or majority view of ethics is open to serious objection on a number of grounds. On a philosophical level, it violates a formal and necessary requirement for sound moral judgments, notably the requirement for internal consistency ( Kuhse, 1987a , Kuhse, 1987b : 25). Its findings are liable to reflect sudden and unpredictable changes in attitudes and opinions, and thus are morally unreliable and untrustworthy. More seriously, it lacks the justificatory power of sound moral theory. According to Beauchamp and Childress (2013 : 353–5) the criteria for assessing moral theories include the following: clarity (the theory and language used to articulate it must be unambiguous and avoid ‘obscurity and vagueness’), coherence (there should be no conceptual inconsistencies), comprehensiveness (provides as full an account as is possible of justifiable norms and judgments), simplicity (in the sense of theoretical parsimony), explanatory power (‘provides enough insight to help us understand morality’), justificatory power (‘provides grounds for justified belief’), output power (it must ‘generate more than a list of axioms already present in pretheoretic belief’) and practicability (its demands must ‘be able to be satisfied’, i.e. ‘a theory that presents utopian ideals or unfeasible recommendations fails the criterion of practicability’). Public opinion is frankly incapable of meeting these criteria.

Public opinion is problematic on a pragmatic level as well. As the ancient Greek philosopher Plato (c. 428–347 bc ) explained in The republic , ‘ordinary opinion’ is comprised of belief and illusion , not knowledge (intelligence, pure thought and mathematical reasoning) ( Plato 1955 edn: 274–5). Moreover, opinions are not fully thought through and, at best, can serve only as ‘impressions’ not knowledge. These views have contemporary application to the question of public opinion in our modern world.

In today’s world there is always the troubling possibility that public opinion might be mistaken, wrong or misguided – particularly where it has been manipulated by pressure groups, politicians or by the media, as occurred in the much publicised ‘Children overboard’ incident that occurred in Australia in the lead-up to the 2001 Federal election. The incident involved the public misrepresentation of photographic images and false claims by Federal government politicians that asylum seekers, who were attempting to enter Australian territory ‘illegally’ by sea, had ‘deliberately’ thrown their children overboard from the boat they were on in order to force their rescue and subsequent entry into Australia via the HMAS Adelaide, a nearby naval ship. It was later revealed, however, and subsequently verified by a Senate Inquiry into the matter, that no children had, in fact, been thrown overboard ( Senate Select Committee on a Certain Maritime Incident 2002 ). In the lead-up to the Federal election on 10 November, this incident was used along with other incidents (e.g. the Tampa rescue of Afghan refugees) to support the Federal government’s ‘hardline political response to unauthorised arrivals’ and to sway public opinion against asylum seekers seeking refuge in Australia by portraying them (demonising them) as ‘faceless, violent queue jumpers’ ( Australian Broadcasting Corporation (ABC) 2002 ), as ‘illegal immigrants’ and ‘illegal refugees’ ( MacLennan 2002 : 152) (rather than ‘genuine’ asylum seekers) and as people of poor moral character (‘the kinds of people who would throw their children overboard’ ( Senate Select Committee on a Certain Maritime Incident 2002 : xxi)). Post-election analyses indicated that the ‘Children overboard’ incident had influenced public opinion in favour of the Federal government’s tough (some would say, inhumane) policies on the admission and detention of refugees and asylum seekers in Australia and contributed to the Federal government’s re-election in 2001 (see also Hamilton & Maddison 2007 ; Manne 2005 ).

More recently, as voting in democratic elections and referenda around the world has shown (e.g. the USA presidential election in 2016, the UK ‘Brexit’ referendum in 2016), public opinion is extremely vulnerable to covert manipulation via the use of targeted political campaign advertising and the use of ‘filter bubbles’ (website algorithms that selectively manipulate information so users’ access to contrary points of views is reduced), and ‘fake news’ bulletins like that which allegedly occurred via the activities of groups such as Cambridge Analytica (see Pariser 2011 ; Persily 2017 ; the ABC-TV Four Corners program ‘Democracy, data and dirty tricks’ – available at: http://www.abc.net.au/4corners/democracy-data-and-dirty-tricks:-cambridge/9642090 ). Adding to this, people rarely question the validity of opinion polls, accepting them instead at face value. Although pollsters often seek to qualify the accuracy of poll results by stating their margins of error, this does not mean they are immune to being wrong.

A public opinion view of ethics is problematic on another ground – democracy . Those who cite public opinion in defence of a stance on a moral issue will fervently argue that to ignore majority public opinion is an assault on democracy (the rule of the people). What is not always understood by those taking such a stance, however, is that democracy (a kind of political governance) has at its heart the promise that a nation’s people will be kept free from tyrannical rules that would otherwise oppress them and place their lives in danger ( Harrison 2005 ). Although the majority rules in a democracy, as long as the principles of democracy are operational the majority rule will be constrained so as not to deteriorate into the ruling of a mob . The threat of majority rule deteriorating into the rule of the mob has been increased in recent times owing to the rise of authoritarian populism in countries around the world. What is most worrying about authoritarian populism is its capacity to generate disturbing and disruptive forms of extremism which are now seriously threatening constitutional democracies ( Solomon & Jennings 2017 ).

Democracy ensures the freedom and security of a nation’s citizens by permitting diverse opinions and views to be expressed and debated freely within a system. Of necessity, this freedom must be balanced and measured by rational means as well as the rule of law based on democratic principles. Democracy does not support freedom that brings about destruction, however. Thus, although the majority rules by electing a preferred government, this does not mean that the majority views and opinions are required to be implemented without debate and rational decision-making. Although democracy allows freedom, it also protects the minority whose views and opinions are not congruent with the majority. A democracy should thus be considered first and foremost a device ‘in which people discover their proper preferences through a process of mutual deliberation’, rather than voting per se ( Harrison 2005 : 169).

Democracy has traditionally provided the justification of a whole variety of social and economic policies. However, when democracy is used to justify moral policy and government intervention, the moral judgments of individuals can be placed at risk of being substituted by what the state desires and thinks important. It is here that our greatest vigilance is required and why it is appropriate that procuring certain moral policy changes remains ‘hard’ and not governed by instruments of the state.

It is not being denied here that public opinion is an important and relevant consideration that warrants some attention especially when needing to identify, if not decide, ethical issues relevant to upholding the public interest. On the contrary: public opinion which reliably indicates a certain view on a given matter might well be a useful tool in guiding beneficial social policy and law reforms. However, public opinion is not infallible in matters of morality and mere common acceptance does not imply validity ( Brandt 1959 : 57). The moral rightness or wrongness of an act can be decided only by sound critical reflection and wise reasoning, not merely by public opinion, populism, ‘collective desire’ or ‘collective preference’.

‘Ethics by opinion’ has long been criticised by philosophers ( Salloch et al 2014 ). Despite this, public opinion polling and attitudinal research concerning ethical issues in a range of contexts has burgeoned in recent years ( Jin & Hakkarinen 2017 ; Salloch et al 2014 ). Just how useful or warranted this work is in terms of informing normative deliberations in health care ethics and moral politics generally is a moot point.

Ethical judgments cannot be based on empirical research alone ( Salloch et al 2014 ). While empirical data might be useful in identifying certain ethical issues in given contexts (e.g. health care), they are not sufficient to determine normative judgments concerning right and wrong. Given this, where empirical data are being sought, careful attention must first be given to determining:

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  what kind of empirical data is needed

  
  
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  how it will be collected and analysed

  
  
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  what mechanisms will be in place to ensure their credibility, trustworthiness and reliability

  
  
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  how the data once analysed will be used and to what ends or purpose

  
  
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  how the data will be framed in discussions on ethical issues and theoretical perspectives

  
  
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  whose interests will ultimately be served by the collection and use of the data

  
  
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  what moral actions the data will inform.

Ideology

People who have a vested political interest in given ethical issues in health care (e.g. abortion, euthanasia, advance care planning, truth telling, etc.) often approach debates on these topics with their minds already made up and remain committed to their personal stance independently of credible evidence ( Johnstone 2013a ). In many instances, the basis of their arguments is not ethics, but rather ideology (a set of conscious and unconscious ideas) masquerading as ethics. When ideology masquerades as ethics the end result tends to be a deep polarisation of views, with an exacerbation rather than a remediation of the moral controversies and conflicts at stake.

A distinguishing feature of statements advocating an ideology (i.e. as opposed to an ethical stance) is that the statements indicate commitment to a social or ethical issue without requiring the backing of credible evidence or reasoned argument. In contrast, statements of ethics have as their basis ethical analyses that seek to ‘defend a position by means of reasoned argument with reference to widely held ethical norms or principles’ and, where available, empirical evidence ( Campbell & Huxtable 2003 : 182).

Ideologies often work by circumventing questions of ethics in the first place, such as by asserting an idea and then commending a related action without sound reasons justifying the relationship between the two. For example, those on the conservative side of politics are more likely than progressives to perceive poor people and the unemployed as being ‘responsible for’ and hence ‘deserving’ of their plight and ipso facto undeserving (and even ‘never deserving’) of welfare support ( Appelbaum 2001 ; Larsen 2008 ; van Oorschot & Roosma 2015 ; van Oorschot et al 2017 ). This view is held irrespective of evidence to the contrary (e.g. that their plight is due largely to external factors beyond their control) or whether the poor fulfil established ‘deservingness criteria’ ( Larsen 2008 ; Larsen & 2013 ; van Oorschot & Roosma 2015 ; van Oorschot et al 2017 ). Because they attribute individual rather than societal responsibility for people being poor or unemployed (e.g. ‘people are poor / unemployed because they are lazy and lack willpower, not because of social structures’), conservatives are more likely to advocate a ‘no-benefits’ policy for the poor and to focus on ‘undeserving groups’ to justify the ‘moral regulation’ of welfare benefits via policies restricting public assistance, even in the case of dire need ( Appelbaum 2001 ; Chunn & Gavigan 2004 ; Larsen 2008 ; Larsen & Dejgaard 2013 ; van Oorschot et al 2017 ). In some cases, by giving an inordinate amount of attention to so-called ‘welfare cheats’ (such as single parent mothers), conservatives have been successful in ideologically portraying welfare itself as fraud – one effect of which has been to criminalise poverty ( Chunn & Gavigan 2004 ; Jørgensen 2012 ). As Chunn and Gavigan (2004 : 219) contend:

The dismantling and restructuring of Keynesian social security programmes have impacted disproportionately on women, especially lone parent mothers, and shifted public discourse and social images from welfare fraud to welfare as fraud, thereby linking poverty, welfare and crime. [emphasis added]

One reason why ideology has been successful in masquerading as ethics is that we live in a fundamentalist world, encompassing an ‘age of ideology’ ( Davis 2004 ) – a period in which advocates on all sides of a public debate (in this instance on ethical issues in health care) tend to engage in ‘rhetoric, not negotiation or compromise’ ( Davis 2004 : 83) and are determined to crush all opposing ideas ( Sim 2004 ). This situation is deeply problematic for several reasons. First, it allows ideology to triumph over ethics and, in doing so, contributes to a new dark age of dogma in a world that is already bereft of moral principles requiring recognition, respect and restitution for what is ‘right’. Second, to borrow from Davis (2004 : 94), it risks perpetuating ‘polarization, gridlock and [policy] whiplash’ in debates on important ethics issues rather than enabling cooperation and negotiation in the interests of promoting human welfare and wellbeing.

Nurses need to be aware of the insidious ways in which ideology can masquerade as ethics and, as such, can be used to reaffirm people’s personal desires, beliefs, prejudices, fears, decisions and actions and to exaggerate threat – both real and imagined – to the welfare and wellbeing of the public.

Following the orders of a supervisor or manager

Following the moral commands of another is incompatible with the notion of ethics and the autonomous moral thinking that underpins it (for reasons that will be explained in Chapter 3 ). Moreover, it paves the way for the abdication of moral responsibility and accountability. Supervisors have supervisors, and these supervisors have still more supervisors. A hierarchical system of authority may mean in practice that, because everyone is accountable for a given action, it is difficult or impossible to decide who is to be held ultimately accountable.

The patient safety literature published over the past decade has highlighted some important lessons about the possible relationship between legal and moral responsibility and accountability – particularly in cases which have seen serious failures in clinical governance and the ‘normalisation of deviance’ (taking shortcuts) in health care (see, for example, Banja 2010 ; Casali & Day 2010 ; Driver et al 2014 ; Jones et al 2016 ; Wachter & Pronovost 2009 ). Nurses, like others, need to be aware that legal and moral responsibility and accountability travel a common path. Accordingly, it is not acceptable for nurses or other co-workers to justify their actions on the basis that they were simply ‘working as directed’ or ‘following the orders of a superior’.

The intricate relationship between legal and moral responsibility and accountability was made evident long ago by the much noted Bormann defence, named after Martin Bormann, third deputy under the Nazi regime of World War II, who argued in defence of his involvement in wartime atrocities that he was ‘just following orders’ ( Barry 1982 : 13). This kind of defence may be regarded as a convenient ‘moral cop-out’ for those who have no sense of moral accountability, or a poorly developed sense, and who ordinarily try to justify their behaviour as Bormann did: ‘I was told to do it’, ‘I was expected to do it’, ‘I was just doing my job’, ‘That’s how things operate around here’ and so forth ( Barry 1982 : 13). The outcome of the 1945–46 Nuremberg trials made it abundantly clear, however, that a plea of following the orders of one’s superiors was not an acceptable or a legitimate defence in the eyes of the law.

Such a precedent had already been well established for nurses as early as 1929, however, with the successful prosecution in the Philippines of a newly graduated nurse by the name of Lorenza Somera, who was found guilty of manslaughter, sentenced to a year in prison and fined 1000 pesos because she had followed a physician’s incorrect drug order ( Grennan 1930 ). In court it was proved that the physician had ordered the drug, that Somera had verified it and that the physician had administered the injection. But, as Winslow (1984 : 35) writes, ‘the physician was acquitted and Somera found guilty because she failed to question the orders’. The case stunned nurses around the world. A campaign of protest was organised, and Somera was given a conditional pardon before serving a day of her sentence.

In an institutional setting, it is very easy to rationalise moral ‘unaccountability’. As Barry (1982 : 13) explains:

So many people, even institutions, can get involved at so many levels that moral buck-passing can become the order of the day. The blind pursuit of prestige and profits also blurs moral accountability. And most important, the intense pressure to keep one’s job and to secure promotions can be used to justify almost anything. The point is that working within an organisation provides easy excuses for abdicating personal moral accountability for decisions and actions.

One way of avoiding this abdication is to draw a firm distinction between ethics and following the orders of a supervisor or manager, and to recognise that moral demands are always the overriding consideration, irrespective of a supervisor’s or a manager’s orders.