Law and ethics complement each other

Interpreting law often requires ethical approach

While there are certain scenarios regarding patient care when what is written in the law might seem to counter what is ethically appropriate, in general, the law and ethics complement each other in the health care arena, according to ethical experts interviewed by AHC Media, publisher of Hospice Management Advisor.

As in so many difficult decision-making situations, particularly those related to end-of-life care, good communication among all stakeholders in a particular dilemma is key.

"The first thing I would say is that a good [health care] lawyer is always going to tell you that the best way to avoid legal difficulty is to communicate well with patients and families and cultivate good relationships with them," says Nancy M.P. King, JD, professor in the Department of Social Sciences and Health Policy, Wake Forest University School of Medicine, and co-director, WFU Center for Bioethics, Health and Society in Winston-Salem, NC.

King notes that there are "very, very few situations in which there is some kind of incompatibility" between the role of law and the role of ethics in patient care.

"Thinking that law and ethics are incompatible is, I think, very often a misunderstanding about the role and reach of law to begin with," she says. "And it stems in part from the fact that in bioethics in the United States, court decisions and other aspects of law have played a considerable role, and that's not true in bioethics everywhere."

Very often, she says, one of the misunderstandings — particularly among health care providers — is that there is a legal answer to every request. "The perception is that you plug in the facts, and a legal answer is going to pop out," she says. And while, she says, law "may actually get at some of the outlines of some of the important bioethics issues," a legal answer is not always possible — and most lawyers know this.

"There really are very few instances in which so-called black letter law, that is, there's a really clear answer here, and you better just do it, actually fits health care situations, which are nuanced and complex, and usually extend much farther than the law can actually speak to," King notes. "The considerations of bioethics are the considerations that fill in that gap between what law can actually contribute to the discussion of a complex problem and the range of morally appropriate actions and decisions that are available to patients and families and their health care team," she says.

Legal consultants vs. ethics consultants

Alexander A. Kon, MD, CM, FAAP, FCCM, who is, among other appointments, director of the clinical bioethics consultation service and chair of the bioethics consultation committee at Sacramento, CA-based UC Davis Medical Center, says, "There's no question that ethics influences the law, and certainly, to some extent, the law influences ethical discourse, but they're really looking at problems from very different perspectives, and both become very important for clinicians to know about and to have access [to]." Kon is also director of bioethics at the Clinical and Translational Science Center at University of California, Davis.

However, Kon says that "the role of the ethics consultant is quite different than the role of the legal consultant."

"While there is sometimes a perception among some people that ethics consultants sometimes are giving legal advice, that's really not the purpose of the ethics consultant," Kon explains. "In general, what ethics consultants will do is encourage clinicians to speak with their legal counsel or risk management to get a legal perspective, but the ethics consultants are giving an ethical perspective, because they are — quite honestly — very different ways of looking at an issue."

Like King, he suggests that many situations can be resolved through good communication. About 80% of the job of the ethics consultants is helping people communicate better, Kon explains. "So, it's really just sitting down with patients and families and health care providers to help people have better conversations, where there's no recommendations being made," he says. "It's just facilitated conversations."

In about 10-15% of situations, the ethics consultants help determine the ethically permissible options, Kon says. "That's a little different than legal advice, because legal advice is going to tell you, well, this is illegal or we think that this is legal," he says. "What good ethics consultants do is they help clinicians understand what are the things that are ethically required, what are the things that are ethically permissible, and what are the things that are not ethically permissible at all and need to be taken off the table."

Kon says the model is different. "There are certainly times on our committee — I don't know if people at other institutions find this — where you are asked legal questions, and the response is always: 'I can't give you legal advice. I'm not a lawyer; I'm not hospital counsel. For legal questions, you really need to talk to hospital counsel. We'll help you with some other things,'" he says.

Also, so much of what happens in health care decision making is governed by state law, and state law, of course, varies. "The ethics don't vary," Kon notes.

The fear of a lawsuit

One of the reasons some think there might be an incompatibility is the fear of being sued, either as an individual provider or an institution, King says. In fact, she says that "the perennial question that comes from the health care team is, 'How can I keep from getting sued about X?'"

And that, of course, is a concern for hospital legal counsel and those in risk management for hospitals.

"The proper answer, even though very often it is not a very satisfactory answer, is you can't keep from getting sued, because there are lots and lots of grounds on which somebody can bring a lawsuit," King says. "But if you do the right thing, you're not going to lose."