Healthcare as a Morally and Legally Regulated Entity: Understanding the Importance of Ethics and Law
By Ed Horowicz
At the core of the provision of safe, effective and high-quality patient-centred healthcare is competent and ethical decision-making on the part of healthcare professionals, set within a legal framework. Ethical values traditionally inherent in healthcare practice, such as avoiding harm and promoting the welfare of the patient, remain central features of modern healthcare. Yet we should accept that it is impossible to avoid questions as to how these should be weighed or applied in individual cases. In addition, the increasing complexity of healthcare, advancements in medical technology and social developments continually give rise to new ethical, legal and professional issues. It is essential to the provision of diligent care that patients trust that those caring for them will act in their interest and maintain their confidence. This is further reinforced through professional regulation, which provides a means of holding healthcare professionals to account for their conduct through formalised ethical codes and standards.[1] Ultimately the ethical, legal and professional expectations of healthcare professionals become the foundation of clinical education.
Healthcare professionals in training must understand that law and ethics in healthcare are intertwined, with one never far from the other. That is to say, that healthcare law ought to reflect accepted and established moral principles and at the least, should not require the healthcare professional to act in a way that is generally considered immoral. However, there is a distinct difference between law and ethics in that ethics considers what we ought to or should do, whilst the law sets out the threshold for what must be done and what is prohibited for public protection. As Goold and Herring eloquently explain, ‘the law tells you how not to be a devil, while ethics often asks what it means to be an angel’.[2]
Healthcare law is thus concerned with how different areas of law apply specifically to the provision and practice of healthcare. It focusses on the relationships that arise between the State, healthcare professionals, healthcare institutions, patients and their families. It encompasses standards of care, patient safety, access to services, medical research, and the management of public health. Ultimately, healthcare law is about people, their bodies and those entrusted to care for them. Fast-paced, continuing advances in technology and healthcare practice make this a dynamic and complex area of law that must address long standing as well as new and evolving professional and ethical considerations. However, history has taught us that the self-regulation of healthcare professionals is problematic, in that patients become vulnerable to paternalistic views that fail to acknowledge them as rights holders and thus healthcare professionals are accountable in both civil and even criminal law.
When a patient claims to have been harmed, a key issue is whether that harm was an accepted risk of a procedure and thus part of informed consent[3], or whether the harm resulted from care that had fallen below the standard expected in law[4]. Civil negligence in healthcare has been subject to increasing public and political scrutiny because of the significant costs resulting from monetary damages paid to claimants. However, harm caused by negligent healthcare can be catastrophic and life changing for the patient and those close to them. NHS Resolution, the body that deals with negligence claims and compensation in the NHS, explain that negligence claims are not only important to the individual affected but also allow lessons to be learned by healthcare providers to prevent similar harm occurring again.[5] Although unintentional, healthcare professionals are vulnerable to making mistakes that may cause harm to a patient in their care. In the extreme and where a death occurs, the criminalisation of healthcare professionals, most notably through the offence of gross negligence manslaughter, is contentious. Such criminal cases are rare but there has been increasing professional, judicial and academic debate as to the threshold and appropriateness of such offences.[6] Yet it is important that healthcare professionals in training recognise that the law of negligence provides a form of redress for those harmed and holds the healthcare professional accountable for negligent acts and omissions that result in harm. Moreover, by understanding this legal accountability, training healthcare professionals gain insight into the importance of ensuring high standards of care and clinical practice.
Biography
Ed is a registered nurse and was a senior lecturer in healthcare law and ethics in the School of Medicine at Edge Hill University, before being appointed as a lecturer in law at the University of Liverpool. Ed has extensive experience of teaching healthcare law and ethics in medicine and across a range of health profession courses.
Ed obtained a first-class law degree and subsequently gained a Master of Law and Bioethics degree with distinction from the university of Manchester. It was during his master’s degree that his research interest focussed towards ethical and legal issues that affect children and young people in making healthcare decisions. Ed focuses on decisions relating to sex and gender identity within healthcare and is completing a PhD exploring the relationship between medicine and children with a sex or gender variant diagnosis, at the University of Manchester. Ed has published and presented on a number of issues related to his work and is part of ongoing research projects linked to this.
[1] For example see the General Medical Council https://www.gmc-uk.org/ or for nursing and midwifery see the Nursing and Midwifery Council https://www.nmc.org.uk/ [2] Goold I, Herring J. Great Debates in Medical Law and Ethics. Macmillan International Higher Education; 2018. [3] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [4] See: Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 and Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 [5] NHS Resolution. About NHS Resolution [Internet]. [cited 5th March 2021]. Available at: https://resolution.nhs.uk/about/ [6] Farrell, A.M., Alghrani, A. and Kazarian, M., 2020. Gross Negligence Manslaughter in Healthcare: Time for a Restorative Justice Approach?. Medical Law Review, 28(3), pp.526-548.