Kenneth A. De Ville, Ph.D., J.D.
From the "Baby Doe" regulations to court rulings on end-of-life care, from medical malpractice fears to the legal intricacies of treating patients with HIV/AIDS, health professionals face a nearly overwhelming barrage of medico-legal concerns. Although legal questions are ubiquitous and important, clinicians must also contend with an increasing number of equally complex ethical challenges. Given the present state of medicine and the law, it is important that health professionals know what the law says about the relevant aspects of their work. When an ethical dilemma is framed first and primarily in legal terms, however, it risks skewing the inquiry from the outset and may allow inappropriate considerations and assumptions to guide the discussion. Consequently, while health professionals' interest in the law is understandable and legitimate, they should recognize the limited goals and insights of the law and legal analysis when evaluating ethical questions.
Law as a discipline and a body of knowledge is far from useless in the weighing of ethical options in medicine. Legal and ethical conclusions on biomedical issues are frequently identical, and legal rulings have in some instances accelerated the scrupulous consideration of ethical problems in medicine. Accurate knowledge of the law sometimes frees health providers to treat their patients in a more ethical manner. Legal reasoning and argumentation, based on the open debate of the alternatives of a position, has been useful in the formal, institutionalized resolution of conflict. Law also frequently reflects society's moral beliefs and attitudes. As such, legal conclusions on various biomedical issues might sometimes serve as rough guides when ethical questions arise.
Despite these observations, a legal approach to problem solving does not guarantee a morally or socially correct result. Law has been used in the past to support immoral and unjust practices, such as racial discrimination. Legal approaches to problems can engender habits of mind that are difficult to overcome. Legal reasoning is sometimes little more than the playing out of a relatively mechanical, recurring set of arguments and counter arguments. The law's adversarial format and abstract concepts are rarely the most appropriate means of resolving the ethical challenges routinely generated in the health care setting. For example, legal reasoning may focus ethical discussions on the relative rights and duties of the physician and patient. A concern with rights-based duties is appropriate. But moral problems might also be fruitfully analyzed in light of personal loyalties and professional expectations and informed by cultural conventions and religious traditions. A legally dominated discussion could undervalue these other elements that are clearly relevant to the resolution of ethical problems in health care.
Court rulings and statutes may sometimes provide useful guidance. Court decisions and statutory proclamations, though, are subject to the vicissitudes of interest group politics, the personal philosophies of judges and legislators, bad research and poor briefing. It is important to remember, too, that each court decision was spawned by a particular set of facts. Consequently, the idiosyncratic character of the disputes presented to courts for adjudication sometimes undermines the universality and utility of the resulting legal reasoning and doctrine. Moreover, courts deal with medical relationships gone wrong. This raw material for medico-legal doctrine engenders a frame of reference and precedents that can cloud the ideal nature of the medical relationship. For example, several observers have recognized the unintentionally baneful effect of legal doctrine on the practice of informed consent. Law primarily emphasizes the importance of informing patients of the risks of procedures. Less attention has been focused on other aspects of physician-patient communication that are equally important for patient autonomy and well-being. A clinical decision based solely or predominantly on legal considerations may in many cases yield an ethical result. But that result is not preordained, and in other cases an over-reliance on the legal perspective undermines careful, complete, and subtle ethical analysis.
Real clinical situations present a complicated blend of ethical and legal concerns that are often difficult to consider in isolation. A particular treatment option or course of action may be legal and ethical, legal and unethical, illegal and ethical, or illegal and unethical. In addition, some medical decisions may be legal and ethical but place the clinician at an increased risk of civil liability. To unravel this amalgam of legal and ethical concerns, I would propose only that health professionals defer consideration and discussion of the legal aspects of a case until they have concluded their clinical and ethical deliberations. At that point, if there are relevant legal considerations, health professionals should consult with in-house legal counsel and risk management experts to determine what the law and institutional policy says about relevant topics. Then the decision-maker can face squarely and honestly whatever conflicts may arise. Decision-makers have to balance patient needs, ethical duties, institutional considerations, legal requirements and risks. But health professionals must also be prepared to analyze the most profound issues facing their professions without mistaking law for ethics, nor ethics for law.
(This article is adapted from an essay that appeared in "Western J of Medicine," May 1994.)
