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 (ex. Revised Code of WA.)
- federal and state regulations (ex. WA. Administrative Code)
- 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
Conceptual Model - Distinctions
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.
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