It is simply not possible for clinicians to do the right thing if ethical principles and legal requirements are in direct conflict.
“But it is important not to lose sight of what the right thing is, even if that goal cannot always be reached,” says Dena S. Davis, JD, PhD, endowed presidential chair in health and professor of bioethics at Lehigh University in Bethlehem, PA.
The following are some examples of scenarios where the law and ethics collide:
• Gag laws make it a criminal offense for physicians, nurses, or other medical staff to ask patients and families about gun possession.
Physicians who broke this Florida law faced possible disciplinary action. Here, says Matthew DeCamp, MD, PhD, “the conflict was between physicians’ obligations to inform and protect patients’ welfare, and the threat of legal sanction were they to violate the law in doing so.”
For physicians who saw discussing gun safety as part of fulfilling their primary obligation to a patient’s welfare, the law presented a clear ethical conflict.
“Hospital ethicists can help individual physicians think through these complicated issues just as they do for other areas where law and ethics intersect,” says DeCamp, adding that it allows clinicians to protect their moral integrity.
Ultimately, the Florida chapter of the American Academy of Pediatrics, other medical societies, and six individual physicians filed a lawsuit, and the gag law was overturned.1 “This demonstrated how physicians can be effective in advocating to change laws that conflict with core ethical obligations,” says DeCamp, an associate professor at the University of Colorado’s Center for Bioethics and Humanities.
• Laws in some states require abortion providers to give patients specific information.
“I don’t think a healthcare professional should ever lie to a patient about medical information, such as a spurious link between abortion and breast cancer,” says Davis.
Some providers compromised by qualifying the information with statements such as, “The state requires me to tell you.”
“But that concerns me,” says Davis. The mere fact that information comes from a doctor’s mouth, or is on a piece of paper handed to someone by a doctor, carries considerable weight. Despite providers’ attempts to downplay it, says Davis, “it may be difficult to comprehend that it is baseless and false information.”
Ethicists cannot simply advise physicians to break the law in this type of scenario. Yet, they still can be of help in addressing resulting moral distress. “Ethicists could help physicians see the full depth of this sort of issue by recognizing it as a fundamental ethical or professionalism problem, not just one of discomfort,” says DeCamp.
• Requests by law enforcement violate patients’ rights.
There have been recent cases involving local sheriffs who presented to hospitals with a person in custody. “They seemed to think they could drag their suspect into an emergency room and demand that hospital personnel perform X-rays or exams without the person’s consent,” says Davis.
Ethicists can make it clear that legal constraints against performing an exam without consent still apply, and help develop an institutional policy with clear guidance.
The ethicist’s job in such cases, says Davis, is to “sort out which legal constraints can be complied with, albeit reluctantly; which can be sidestepped; and which are lines in the sand that cannot be crossed.”
• For unrepresented patients who lack capacity, the only available mechanism in some states is to get a court-appointed guardian or conservator.
“But that could take weeks to months. What should clinicians do in the meantime?” asks Thaddeus Mason Pope, JD, PhD, director of the Health Law Institute and professor of law at Mitchell Hamline School of Law in St. Paul, MN.
Some institutions have developed internal policies on how to make treatment decisions for unrepresented patients. These are not specifically prohibited by law. “They are simply not expressly permitted,” says Pope. “Institutions and systems can develop policies to fill in these gap areas where the law is silent.”
Policies should require the following steps be taken, says Pope, to be consistent with guidelines from the American Geriatrics Society2:
1. Assess capacity very carefully.
Patients who appear unrepresented may, in fact, be able to participate in their own healthcare.
2. Undertake a diligent search for potential surrogates.
“Social workers are often able to find available surrogates for patients who appeared to be unrepresented,” notes Pope.
3. Take a broad view on who may serve as a patient’s surrogate.
State default surrogate laws often include only limited categories of family relations. “But clinicians should look to any family or friend who knows and cares about the patient,” says Pope.
4. Specify a process for making treatment decisions when none of the above measures are successful.
“Ideally, this would be a multidisciplinary committee independent from the attending physician,” says Pope.
1. Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014).
2. Farrell TW, Widera E, Rosenberg L, et al. AGS position statement: Making medical treatment decisions for unbefriended older Adults. J Am Geriatr Soc 2017;65:14-15.
• Dena S. Davis, JD, PhD, Professor of Bioethics, Lehigh University, Bethlehem, PA. Phone: (610) 758-6082. Email: email@example.com.
• Matthew DeCamp, MD, PhD, Associate Professor, Center for Bioethics & Humanities, University of Colorado. Phone: (303) 724-4098. Email: firstname.lastname@example.org.
• Thaddeus Mason Pope, JD, PhD, Director of the Health Law Institute/Professor of Law, Mitchell Hamline School of Law, St. Paul, MN. Phone: (651) 695-7661. Email: email@example.com.