The relationship between law and ethics

CHAPTER 2 The relationship between law and ethics


Perhaps the best way to provide an explanation of the relationship between law and ethics is to use a personal example. If you were told you needed to have an operation there would be a number of concerns you would wish to have addressed. You would want to be informed adequately about the nature and consequences of the surgery so that you would be able to make a wise choice. You would want to know that the surgeon and anaesthetist are competent, also that the nursing staff are competent and will care for you in a compassionate manner, and that the private information you choose to share with the medical and nursing staff will be treated confidentially and not discussed inappropriately. For each of these concerns to be addressed properly the nursing and medical staff who care for you will be required to behave in what would probably be described as a professional manner — and, in the majority of cases, this is indeed how nursing and medical staff do behave.


All of the above professional behaviours are ethical behaviours — they comply with established ethical principles and theories. Nurses and doctors normally behave in these ways because they wish to give the best possible care they can give to their patients. However, in Australia all of these behaviours are also legal requirements. That is to say, these behaviours are so fundamental to people’s expectations of healthcare professionals that they have either been incorporated into the common law or enshrined in legislation. This need to provide for orderly and good conduct through the development of legal systems was discussed in Chapter 1. The major difference between these professional expectations being legal, as opposed to ethical, is that from a legal perspective if these expectations are breached in some way there will usually be some form of sanction or adverse consequence for the healthcare professional concerned.


However, sometimes the alliance between legal and ethical requirements is not as clear as in the above example. Not all laws are necessarily ethical — for historical examples, consider the laws governing slavery in America, the laws allowing persecution of the Jews in Nazi Germany or the anti-apartheid laws in South Africa. Many people, believing strongly that these laws were unethical, did not comply with them and as a consequence put themselves at considerable personal risk. These are obviously extreme examples, but there are other scenarios where two or more possible courses of action are available, each of which may be perfectly legal, but over which there may be disagreement as to the ‘best’ (most ethical) course of action. Such situations may offer a range of alternative solutions, none of which will offer an ideal outcome. Consequently these will create ethical quandaries or dilemmas for the people involved.


It is important to recognise at this stage, however, that there is more to making ethical decisions than simply adopting a moral stance, for example, according to strong religious or moral beliefs. Ethical decision-making is a complex and rigorous process, whereas our morality is what propels us to adopt a particular stance based on a particular set of beliefs, many of which have been inculcated into us since childhood. Johnstone, who argues that there is no philosophically significant difference between ethics and morality, nevertheless points out that:



… while our ‘ordinary moral apparatus’ may motivate us and guide us to behave ethically as people, it is often quite inadequate to the task of guiding us to deal safely and effectively with the many complex ethical issues that rise in nursing and healthcare contexts.1


Ethics not only requires a consideration of morality but also many other factors, as will be seen later in this chapter.


Because of the human and complex nature of healthcare, ethical dilemmas are not uncommon in clinical practice and have received much attention in both academic and media circles over the past two decades. The study of ethical dilemmas in healthcare is often called ‘bioethics’. There are many excellent comprehensive texts available on the subject, a number of which are used as references in this chapter. Some of these ethical dilemmas have been major issues for society as a whole to ponder, such as resource allocation, euthanasia and gene technology, but other, more individual clinical dilemmas, such as truth telling to patients, challenging doctors about treatment choices and prioritisation of care, have also been reported by nurses as causing considerable angst.2


Making decisions about any of these ethical dilemmas is complex. Usually there are no simple answers; otherwise there would be no dilemma. However, it is possible to become skilled at ethical decision-making by developing and refining those decision-making processes and by being aware of the motives and values with which they are undertaken. Justice Michael Kirby made the observation that ‘Good law and good ethics must be grounded in good data’.3 In analysing ethical dilemmas, the legal parameters of the situation are inevitably important aspects of the data, but are unlikely to be the only considerations. It is far beyond the scope of this chapter to provide a sound grounding in ethical decision-making or reasoning, but the chapter will set out some basic ideas about ethics and provide a range of sources, some practical, some more theoretical, to enable the reader to research the issues in more depth. To begin, the next section will attempt to define ethics and to differentiate it from other concepts with which it is commonly confused.



Ethics: what it is


Kerridge et al., in what they admittedly describe as an ‘untidy or confusing’ explanation, do go to the heart of the idea of ethics as process. They answer the question ‘What is ethics?’ as follows:



We believe that ethics has no substantive form, has no single method, and is not the domain of any one discipline or individual. Rather, ethics is best characterised as a space, a region of turbulence (rather than conflict), where the space is defined by what is at stake — values, relationships, behaviour and human flourishing. This space contains many of the things that people care about, but about which not everyone can agree …This means that ethics must ultimately be about discourse, communication, social relationships and politics.4


Kerridge et al. also state that ‘ethics is the study of what should be done’. Words like ‘should’ and ‘ought’ are often used in ethical discussion, but although they are helpful as a starting point, they are also sometimes limiting, as such terms can also be applied to school rules and table manners. Kerridge et al. go on to provide a helpful amplification to this introduction by listing five general statements that can be applied to systems of ethics. These are as follows:


1. Ethics is broadly concerned with human flourishing and well-being and the construction and maintenance of a peaceful society in which all may benefit.

2. Ethics is prescriptive — it refers more to what we should do than what we actually can do.

3. Ethics is a systematic approach that uses reason as moral justification to define what ought or ought not to be done, either as action or process.

4. Ethics embodies ideas that are universalisable — so ethics is relevant to all individuals; and if we develop moral concepts, principles and action-guides, they should apply equitably to all persons equally.

5. Ethics is of over-riding importance — that is, ethics is of greater significance than the law, politics or self-interest (although in practice ethics is often overridden by considerations of law, politics or self-interest).5

It is this systematic approach to addressing problems that is probably the most important aspect of ethics for nurses who are commencing on a path of ethical inquiry and study. Herring notes that:



… ethical approaches to medicine (sic) must be practical. They must develop ways of reaching decisions about complex issues which can be used by medical (sic) professionals …While therefore it might be unreasonable to turn to medical ethicists to produce the ‘correct’ answer, it may be reasonable to expect assistance in thinking through the issues with sensitivity, logic and clear-headedness.6


Perhaps it would be fair to say that ethical decision-making is as much about asking questions as it is about finding answers. Clearly, the process of making careful ethical decisions takes time, yet often nurses are confronted with ethical dilemmas in the course of their working day and may have little opportunity to consider their immediate response. That is why the academic study of ethics is so helpful to nurses, as it enables them to explore in advance issues that might arise regularly and to develop at least some rudimentary decision-making skills. However, junior nurses are always advised to discuss ethical dilemmas with more senior, experienced nurses or other clinicians who may have more expertise in this area.


Longstaff points out that ethics is fundamentally a practical concern.7 It is concerned with making decisions and taking (or not taking) actions. Johnstone offers the idea of ‘the task of ethics’ which she says is ‘to find a way to motivate moral behaviour, to settle disagreements and controversies between people, and to generally bind people together in a peaceable community’.8 Both undergraduate and some specialist postgraduate programs now contain the study of ethics within their curricula, which provide nurses with opportunities to hone and practise these skills away from the immediacy of the clinical environment.



Ethics: what it is not


Charlesworth points out that a major problem is that ethical discussions often take place:



… between people with widely differing interpretations of what the terms of the discussion mean, how the facts may be interpreted or described, and also with differing ethical stances.9


For this reason it is helpful to differentiate ethics from a range of other issues with which it is often confused. This enables nurses to look at what other value systems and ideas they might bring to any ethical decision-making process and be explicit about identifying them. In differentiating ethics, it also needs to be recognised that all of these factors are likely to be involved in and inform ethical decision-making. Although the famous bioethicist Peter Singer10 was probably one of the first to embrace this differentiation approach, a number of other authors on health law and ethics have adopted it in recent times.11 These other issues are listed below and then an example is used to explore each issue.


image Ethics is not professional codes of ethics nor a set of guidelines that, if followed, will lead to correct behaviour.

image Ethics is not professional etiquette or opinion.

image Ethics is not hospital policy or medical authority.

image Ethics is not religion or morality.

image Ethics is not law.

image Ethics is not gut feeling or intuition.

image Ethics is not empirical data.

image Ethics is not public opinion or consensus.

image Ethics is not following the orders of a supervisor or manager.12


An example of an ethical problem


Consider the following case study.



Mr X, an 89-year-old man, has been admitted in extreme pain with urinary retention. He has prostate cancer with multiple secondaries throughout his abdomen. He is middle European in origin and has limited English. His distraught wife and two sons are with him — both sons speak fluent English. Effective analgesia has been provided and he is sleeping when the surgeon arrives to see him.


The surgeon speaks with the sons and explains that the situation is terminal and that only palliative surgical measures will be undertaken to relieve his symptoms. The sons request that their father not be given his diagnosis. They explain that culturally it is the role of the family to be the decision-makers during illness and that their father would not expect to be involved. Furthermore they all believe it would be detrimental to the father’s wellbeing for him to be given a terminal diagnosis.


The surgeon reluctantly accedes to this request because the sons are so adamant about their cultural practices. He simply tells Mr X that they will insert a supra-pubic catheter later that day ‘to bypass your blockage and sort out your pain’. However, when you are caring for Mr X during that day, he constantly asks you, in his limited English, whether or not he is dying. How would you deal with this situation?




How might the nurse respond?


Clearly this is a difficult situation, and requires skilful and careful ethical decision-making. It may well be that you have already had an immediate reaction to this scenario — a gut feeling as to what ought to be done. You may have strong religious or moral convictions, say, about truth telling, and believe that your only option would be to answer Mr X truthfully that he is dying. You may already have found yourself taking ‘sides’ in this situation, believing that the consensus/cultural view taken by the surgeon and the sons was ‘wrong’. Conversely, you may feel that the surgeon is in charge; he has made the decision and professional etiquette demands that you do not challenge him.


The law here is clear. Mr X has a legal right to be informed of all material risks relating to his treatment options (see Rogers v Whittaker).13 Such a right would require him to be aware of his diagnosis in order to evaluate the treatment options before him. The hospital policy, particularly in relation to consent for surgical treatment, would mirror the law and would undoubtedly state that Mr X must be informed of his diagnosis and treatment options. Your immediate response might be to wish to comply with the law and hospital policy in disregard of the family’s wishes and advise Mr X of his diagnosis. Only ‘therapeutic privilege’ would permit the surgeon not to inform Mr X fully about his surgery, and this limited defence can be exercised if either the patient expressly states that they do not wish to know or if the information would be likely to cause serious physical or psychological harm to the patient.14 The surgeon has conceded ‘reluctantly’ to the family’s request and would probably consider the scenario to stretch the ambit of therapeutic privilege. However, a decision not to advise the patient may cause significant ethical distress for you, even if you decide to follow the orders of your manager and not provide information to the patient. Thus it can be seen that clinical decisions may be made for a range of reasons, not all of which may conform to the health professional’s sense of what is ethically appropriate.15


If you were to consult your Australian Nursing and Midwifery Council (ANMC) Draft Code of Ethics for Nurses in Australia, you might feel that it offered conflicting advice.16 For example, Value Statement 2 states ‘Nurses value people diversity’. The explanatory statements accompanying that value statement (inter alia) advise that:



Valuing diversity requires nurses to provide safe and quality healthcare to all people who require it.


2. Patients: Nurses seek to eliminate prejudicial attitudes that are harmful and to provide safe quality care to people whose appearance; spoken language; thinking; beliefs; values; perceptions; social, educational, economic, and political status; culture; religion; and other characteristics, including age, and sexuality; may increase their risk of being marginalised by others.

…


4. Community: Nurses recognise and value diversity in community lifestyles. This includes recognising that the community is constituted of people who share similarities as well as differences in many areas, such as: age, sex, and gender; cultural identity and language; religion; social, educational, and economic status; and physical and intellectual abilities. Nurses recognise that in delivering nursing and healthcare services, power imbalances and diversity of attitudes and practices may undermine social and institutional justice and adversely affect the just and humane delivery of healthcare, especially to individuals, families, groups and communities, that are marginalised.

However, Value Statement 5 of the Draft Code of Ethics states ‘Nurses value informed decision-making’. The explanatory statements in relation to this value statement include advice that:



… Nurses value people’s interest in making free, uncoerced and informed decisions. Nurses also recognise that making decisions is always constrained by circumstances beyond individual control, and that there are circumstances in which informed decision-making can not be fully realised.


2. Patients: Nurses value the legal and moral right of many patients, including children, to determine their care on the basis of informed choice, and recognise the value of shared decision-making. They also value the contribution made by patients whose decision-making is restricted because of incapacity, disability, language problems, or legal circumstances. Nurses should be knowledgeable about such circumstances, and of the role of family members, partners, friends and others in contributing to decision-making.

Related posts:

  1. The administration of drugs
  2. Coroners’ Courts
  3. The contract of employment, including occupational health and safety and workers compensation
  4. Report writing: confidentiality of and access to patient records

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Dec 3, 2016 | Posted by in NURSING | Comments Off on The relationship between law and ethics

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