Law and Medical Ethics

This information reflects the opinions of its author, and is not a formal legal opinion. These materials are for educational purposes only and are not intended to substitute for advice of legal counsel on any specific situation.

Law and Medical Ethics are disciplines with frequent areas of overlap, yet each discipline has unique parameters and a distinct focus.

Objectives:

At the conclusion of this course the student will understand the relationship between law and medical ethics including:

  • Definitions - Sources of Authority
  • Conceptual Models
  • Roles of Medical Ethics and the Law
  • How can one find out what the law says on a particular subject?

The two cases further explore this topic.

spacer spacer

Definitions - Sources of Authority

In the course of practicing medicine, a range of issues may arise that require consultation from either a lawyer, a risk manager, or an ethicist. The following discussion will outline key distinctions between these roles.

The role of lawyers and risk managers are closely linked in many health care institutions. Indeed, in some hospitals the Risk Manager is an attorney with a clinical medicine background. There are, however, important distinctions between law itself and risk management.

  • Law is the established social rules for conduct; a violation of law may create criminal or civil liability.
  • Risk Management is a method of reducing risk of liability through institutional policies/practices.

Risk Management is guided by legal parameters but has a broader institution specific mission. It is not uncommon for a hospital policy to go beyond the minimum requirements set by the legal standard.[1]

When legal and risk management issues arise in the delivery of health care, there may be ethical issues, too. Conversely, what is originally identified as an ethical problem may raise legal and risk management concerns.

Medical ethics may be defined as follows:

Medical ethics is a discipline/methodology for considering the implications of medical technology/treatment and what ought to be.

To better understand the significant overlap among these disciplines, consider the sources of authority and expression for each.

Law is derived/expressed through:
  • federal and state constitutions
  • federal and state statutes 
  • federal and state regulations 
  • federal and state case law (individual lawsuits-decisions at appellate level.)

Risk Management is derived from law and professional standards and is expressed through institutional policies/practices.

Medical Ethics is derived/expressed through:

  • law
  • institutional policies/practices
  • policy of professional organizations
  • professional standards of care, fiduciary obligations

Conceptual Models of Law and Ethics

Conceptual Model - Linear
linear conceptual model

Conceptual Model - Distinctions
conceptual model distinctions

Conceptual Model - Interconnectedness
conceptual model interconnectedness

Roles of Medical Ethics and the Law

Within their distinctive roles, the disciplines of law and medical ethics nevertheless significantly overlap. Consider that both disciplines address:

  • access to medical care (provision of care, emergency treatment, stabilization and transfer)
  • informed consent
  • confidentiality of health care information and exceptions to confidentiality (mandatory reporting obligations such as: child and elder abuse, duty to warn)
  • privileged communications with health care providers
  • advance directives
  • abortion
  • physician-assisted suicide

There are, however, significant distinctions between law and medical ethics in philosophy, function and power. A court ruling is a binding decision that determines the outcome of a particular controversy. A statute or administrative code sets a general standard of conduct, which must be adhered to or civil/criminal consequences may follow a breach of the standard. Conversely, an ethics pronouncement which is not adopted into law may be a significant professional and moral guidepost but it is generally unenforceable. Lawmakers (courts and legislatures) frequently do turn to the policy statements (including any medical ethics statements) of professional organizations when crafting laws affecting that profession. Thus, health care providers may greatly influence legal standards by their work in creating professional ethics standards.

spacer spacer Good ethics has been described as beginning where the law ends.[2] The moral conscience is a precursor to the development of legal rules for social order. Law and medical ethics thus share the goal of creating and maintaining social good and have a symbiotic relationship as expressed in this quote:

Conscience is the guardian in the individual of the rules which the community has evolved for its own preservation.
William Somerset Maugham

 

How can I find out what the law says on a particular subject?

Law and medical ethics are both dynamic and are in a constant state of change, i.e., new legislation and court decisions occur and medical ethics responds to challenges created by new technology, law or other influences. To locate information about what the law on a particular topic is or to get copies of statutes, regulations or case law you may need to go to a law library. There are also legal search tools available on the Internet. Another potential resource are medical journals which frequently have articles on ethical issues which mention relevant legal authority.

The Relationship Between Law and Medical Ethics:
Case 1[3]
A 32 year old woman was admitted to the Trauma Intensive Care Unit following a motor vehicle accident; she had multiple injuries and fractures, with several complications which continued to develop over the first couple of weeks. The patient rapidly developed Adult Respiratory Distress Syndrome, was on a ventilator, and was continuously sedated. Shortly after the patient's admission, her parents were contacted and remained vigilant at her bedside. The parents reported that the patient was one month away from having her divorce finalized. The patient's husband was reportedly physically and emotionally abusive to her throughout their five years of marriage. The parents had not notified this man of the patient's hospitalization, and reported that visit by him would be distressing to the patient if she were aware of it. The patient's soon to be ex-husband is her legal next of kin.

Should the husband be responsible for treatment decisions which the patient cannot make?[4]
What are the legal and ethical parameters?


The Relationship Between Law and Medical Ethics:
Case 1 Discussion

Some key legal and ethical issues raised by Case #1 are informed consent and surrogate decision-making. While the details of each case will determine the advice provided, Case #1 raises a number of issues with legal ramifications.

Specific legal issues:

  • There is implied consent by law for provision of "emergency" medical treatment. The  law often uses the term "emergency" but doesn't define it. However, the hospital policy often defines what the hospital's will consider an "emergency" and sets an institutional documentation standard:

     

    Consent for care is implied by law when immediate treatment is required to preserve life or to prevent serious impairment of bodily functions and it is impossible to obtain the consent of the patient, his/her legal guardian, or next-of-kin.

    In such emergency situations, the physician should consult, whenever possible, with the patient's attending physician or with another physician faculty member about the existence of an emergency. This must be noted in the patient's medical record, together with statements by each physician that the emergency treatment was necessary for the reasons specified. These notations should clearly identify the nature of the threat to life or health, its immediacy, and its magnitude.

    Thus, if a medical emergency exists and implied consent is relied on by the health care providers, it should be documented in the patient's medical record in accordance with legal and institutional standards.

     

  • The patient may have provided her own consent to treatment either at the time of her admission or earlier in her hospitalization. At that time, she may have expressed her ongoing wishes for care. The patient's own previous statements/consent may therefore be the basis for continued consent for her ongoing care. Also, it is important to note that neither the law nor  institutional policy sets an explicit time limitation on implied consent based on an "emergency."

     

  • If there is a need for informed consent for a new treatment decision on behalf of the patient, the patient's previously expressed wishes may still be relevant to her legally authorized surrogate decision-maker and her treatment plan.

     

  • If the patient already filed for divorce, it is likely that there is a temporary court order in effect and this order may affirmatively remove the patient's estranged husband from making medical decisions for her. Also, it is common in divorce paperwork to have mutual restraining orders which prevent both spouses from contacting each other. The patient's parents should be asked to provide the name of her divorce attorney to obtain copies of the relevant legal papers - which can then be placed in the legal section of the patient's medical record. With the husband thus removed as her surrogate decision-maker, it appears the patient's parents would become the highest level class of surrogate decision-maker and could provide informed consent for her care if the patient is unable to do so.

     

  • Even if the patient's husband remains as her legal surrogate decision-maker, his decisions on the patient's behalf are constrained by legally imposed standards. First, a surrogate is legally required to provide "substituted judgment" on behalf of the patient. This means that the surrogate must act in accordance with the patient's wishes. If substituted judgment isn't possible (i.e., unknown what the patient would want under the current medical circumstances), then the law requires the surrogate to act in the patient's "best interests." Since the medical team has significant input about what would medically be in the patient's interest, a decision by a surrogate which doesn't adhere to this standard should not be automatically followed and may need to be reviewed by the institutional ethics committee, risk management, or legal counsel.

     

  • The patient's husband may be willing to waive his surrogate decision-maker role to his estranged wife. If this occurs, then he would agree to remove himself from the list of potential surrogate decision-makers and the next highest level surrogate decision-maker(s) would be contacted as necessary to provide informed consent for the patient.

     

  • A final option may be for the patient's parents to file to become the patient's legal guardians for health care decision-making.

The Relationship Between Law and Medical Ethics:
Case 2[3]
A 72 year old woman was admitted to the Neurological Intensive Care Unit following a cerebral hemorrhage which left her with severe brain damage and ventilator dependent. One year before this event, the patient and her husband had drawn up "living wills" with an attorney. The patient's living will specified that the patient did not want ventilator support, or other artificial life supports, in the event of a terminal condition or a permanent vegetative state.[5]

The patient's husband is her legal next of kin and the person with surrogate decision-making authority. When the living will was discussed with him, he insisted that the patient had not intended for the document to be used in a situation like the present one. By this, the husband apparently meant that although the patient would not be able to recover any meaningful brain function, her condition was not imminently terminal. The husband did not consider his wife to be in a permanent vegetative state.

The treatment team allowed a week to pass, with the goal of providing the husband more time to be supported in his grief and to see how ill his wife was. Nevertheless, at the end of this time, the husband was unwilling to withdraw life support measures consistent with the patient's wishes as expressed in her living will.

What should be done?
What are the legal and ethical parameters?

The Relationship Between Law and Medical Ethics:
Case 2 Discussion

The legal parameters and the ethical parameters in Case #2 are informed consent, surrogate decision-making and the patient's ability to direct her care - expressed in law as a liberty or privacy right and in ethics as respect for patient autonomy. While the details of each case will determine the advice provided, Case #2 raises a number of issues with legal ramifications.

Specific legal issues:

  • Patient is unable to provide her own informed consent for medical care. Informed consent means making a medical treatment choice and includes the choice of non-treatment. What is known about the patient's wishes for continued medical treatment under her current circumstances?

     

  • The patient's Advance Directive is strong evidence and significant in determining what the patient would want for substituted judgment. Since the patient's husband (her legal surrogate) only made vague statements as to why he thought she would want continued care under these circumstances and the husband's perspective was contradicted by their adult children - it appears the situation requires further communication efforts, e.g., patient care conference, ethics consult.

     

  • If these additional communication efforts fail to resolve the impasse - one legal/risk management approach may be to go forward with withdrawal of life support under the following conditions:

     

    1. Verify that the content of the patient's Advance Directive is consistent with a decision to forego further life-sustaining measures. Check, if possible, with those persons who were present when she prepared/signed the document to gather further information about the patient's intentions.

       

    2. Affirm that the requisite clinical determination(s) were made ("terminal" or "permanent unconscious" conditions) to activate the patient's Advance Directive. Check to make sure the clinical determination is well-documented in the patient's chart.

       

    3. Affirm consensus among the medical team about: the clinical determinations; the appropriateness of withdrawing life support as in the patient's best interests; and that withdrawal is consistent with her Advance Directive.

       

    4. Set a final patient care conference with the family members to review the patient's prognosis and the medical team's decision to withdraw care at a specific future date and time. This advance notice of planned future action allows the patient's husband an opportunity to seek judicial review or arrange for a transfer of care to another medical facility before the withdrawal of care. Under the circumstances, if the husband sought such review or transfer, the patient would need to be continued on life support pending completion of review or transfer. The legal benefit of this notice and time to act is it eliminates any claim that the hospital unilaterally took irreversible action without the family's consent or at least without their acquiescence. This course of action would also break the stalemate of the patient's situation and force a resolution.

      MEDCEU Continuing Education Courses CEU for Nurses and Healthcare Professional

       Home Page