Conflicts Between Ethics and the Law in Healthcare Research Paper

Introduction

It is not unusual to come across a scenario where laws conflict with ethical values. This is often pronounced on disciplines that study standards of conduct, such as philosophy, theology, law psychology, or sociology, Resnik (2011). To understand the major conflicts that may arise between law and ethics, a clear definition of the two terms is of great importance. Resnik further defines ethics as “norms for conduct that distinguish between acceptable and unacceptable behavior”.

In relation to disciplinary studies, Resnik further asserts that ethics can be defined as “a method, procedure, or perspective for deciding how to act and for analyzing complex problems and issues”. On the other hand, law can be defined as a set of rules that guide man’s conduct in a society and are enforceable through public agencies (Gates, n.d., para. 2).

The underlying phrase in ethics and law is thus ‘acceptability by the populace’. The two are thus an expression of norms or rules in a society, either defined or expressive. Laws and ethics are the guiding principles of people’s behavior and ways of life in a society. They are often adhered to because they are either perceived to be right or in the course of one’s endeavor to seek approval from others. However, when the rules are too serious, that is, enacted through a judicial mechanism, the enforcer and custodian become the government. In this case, a mere approval/disapproval is not satisfactory.

Ethics vs. the Law: A General View

First, it is imperative to note that the conflicts that often arise between law and ethics are experienced in many disciplines and professions. The focus and study should be widespread and not confined to bio-medical studies only.

The police force is one such profession that normally experiences a conflict between the law and ethics. The police often go into the record for various wrong reasons e.g. violating a rule or procedure; overstepping their powers in the course of crime investigation and an utter breakage of the law. This is usually against the officers’ or the public’s ethical values. According to (Crowley & Larsen, 2010), although some universal moral principles are violated with apparent impunity, moral principles serve to provide an external morality guide to the police.

The other emotive situation in as far as the aspect of conflict between the law and ethics is concerned is public sector strike (industrial action) by the nurses. An example is the South African industrial action that led to the wage negotiation of 2010. According to (Rensburg & Rensburg, 2013), there was a general unethical behavior on the part of the nurses that warranted a further exploration.

Rensburg & Rensburg clarifies that the unethical behavior was majorly evident from the media coverage of the events. Such industrial actions are often regulated by laws and policies. The professionals (nurses included) are always expected to be guided by the stipulated laws, policies and provisional codes of conduct. These codes are often formulated by the labor organizations and the trade unions. This ensures, a good representation of all the stake holders in the in the process of policy formulation.

The main issue to analyze from the nurses action is whether or not they behave unethically in the course of the strike. This can be looked at by analyzing Loewy assertions on what to consider while determining the degree of the nurses unethical behavior. According to (Rensburg & Rensburg, 2013), Loewy says that the factors to be considered are inclusive of the nature of the work done by the nurse, the situation prevailing at the day of planning, the proceeding commitment of the nurse to the people under her/his care and the person who stands to gain from the industrial action. Rensburg & Rensburg concludes that the general role of the nurses while in industrial action can be illuminated by ethical theories.

Bullet wounded robbers/ thieves, torture victims and political refugees present another case to the conflict between the ‘law’ and ethics. According to Amnesty international (1997), about 115 to 251 countries torture their citizens. Most of the victims are reported to flee their countries of origin thereby becoming refugees in other countries, majorly in the West e.g. countries such as Australia, Canada, the UK and the United States.

In many instances, health providers fail to attend to such people because they either have no knowledge of how to approach the situation or are just unwilling to engage in such matters. The situation is further complicated when the victims themselves fail to report for medication due to trauma. Trauma usually results into feelings of shame and dread. With time, however, the nurses have learnt to assist the victims either out of self consciousness or after an awareness campaign.

Another case worth studying is the “War on Terror”, especially in relation to the breach of ethical conduct among military doctors, nurses and medics. Following the U.S’s congress enactment of stringent laws to deal with the care of enemy combats; an action instigated by the events of 9/11, the (U.S) president granted the secretary of defense the power to detain (without trial) anyone perceived, by the president, to have engaged in international terrorism.

These detainees have been exposed to various forms of torture, both physical and psychological. Registered nurses in America were accused of being involved in these unethical practices especially at the Camp Delta in Guantanamo Bay, Cuba. According to the American Nurses Association (2005), registered nurses must protect and advocate for all patients. The ANA asserts that the abuse of prisoners, including the failure to report any known abuse, would conflict with nursing ethics. In addition, the nurses are also ethically expected to keep private and confidential, any information she/he acquires from their patient. This norm was not adhered to as illustrated by (Holmes & Perron, 2007),

A previously unreported US Southern Command policy statement, in effect since 6 August 2002, instructs healthcare providers that communications from enemy persons under US control at Guantanamo “are not confidential and are not subject to the assertion of privileges” by detainees.

In the statement, the medical personnel are also instructed to relay any information on their findings, including confessions by patients, to any non-medical, military officer who may be interested in the same. This is against the medics’ professional conduct that requires handling of patient’s information with uttermost privacy and confidentiality.

Many military doctors and nurses have, however, resorted to ethical standards and have divulged the information about torture to the authorities. They have gone further to handle the patients’ information with the confidentiality that they deserve.

Ethics vs. the Law: The Nurses View

At the core of any health care practice is the human being and what is expected of any health care professional is the respect of the rights of the person under his/her care. The professional practices are governed by common values that are often well stipulated in the codes of ethics & guidelines. These values are inclusive of promotion of health, prevention of disease, restoration of health and alleviation of suffering. The nurses’ professional practice without exception rest firmly on the above mentioned codes (Jensen & Lidell, 2009).

Nurses, like psychologists, always strive to conform to these standards, but as (Knapp, Gottlieb, Berman, & Handelsman, 2007) asserts, at times the laws under which psychologists function may appear to contradict generally recognized ethical values and/or good clinical care. Knapp et al. further says that the psychologists have to take an initiative to ascertain whether or not the conflict really exists. If the conflicts exist, the psychologist/ nurse has to seek a way of reconciling the ethical values with the corresponding respect for the law. Depending on their analysis, they may decide to uphold the law or follow their ethical values. It is important to note that the decision must, however, be very sound.

The nurses must always commit to dedicate their energy to providing good care to all by sticking to their ethical principles. This effort can greatly be boosted by their willingness to develop a vicious attitude coupled by a great moral conviction. The two qualities are then applied in the two core areas of nursing practice: integration of expert activity (knowledge and skills) and caring (a virtue). It is therefore, of the essence to look at some approaches that best suits the nursing philosophy from the context of their philosophical and ethical foundations. These approaches are far reaching and have been practiced by nurses all over the globe.

The approaches

There are several principle-based approaches used by the nurses. It is of great importance noting two of the most widely used as advanced by van Hooft.

1. Principle of right action approach: This principle can be found in parts of the nurses’ codes of ethics like non-discrimination, confidentiality and informed consent. The approach focuses on the nurses’ acts and not the nurses themselves. It does this by defining which actions are morally right and which are morally wrong. This is done by describing the characteristics of the actions that tend to make them right. Nurses have often applied this principle to guide them in acting according to their ethical standards.
2. The virtue ethics approach: This advances the aspect of ‘caring’ as a virtue. It goes further to assert that the attitude of caring is the starting point for a good nursing practice. The approach advocates for the teaching of nurses with an aim of empowering them with the ability to act in situations that have normally proved to be rather difficult or stressful. The mentioned situations often lack objective guidelines. In most circumstances, this approach assists the nurses to handle the cases that require an application of greater ethical standards to make a sound decision without necessarily seeking objective guidelines.

It is important to clarify that people always think that confusion may arise in the course of application of the two approaches. These results from the fact that, when applied together, they are often viewed as giving rise to great tension. This is not true. As noted by (Vanlaere & Gastmans, 2007), “the two approaches are after all not mutually exclusive.”

Conclusion

Nurses must always strive to be consciously objective if they wish to maintain their ethical standards. In this endeavor, they can be guided by the various ethics enhancing characteristics including honesty, objectivity, integrity, carefulness, openness, respect for colleagues, (moral) legality, competence, confidentiality, social responsibility and non-discrimination.

References

Crowley, M. G., & Larsen, A.-C. (2010). Morality and Police Conduct: a way forward for ethical policing. Western Australian Police Code of Conduct (pp. 1-10). Western Australian : Forum on Public Policy.

Holmes, D., & Perron, A. (2007). Violating ethics: unlawful combatants, national security and health professionals. Journal of Medical Ethics , 33(3), 143-145.

Jensen, A., & Lidell, E. (2009). The Influence Of Conscience In Nursing. Halmstad, Sweden.: SAGE Publications.

Knapp, S., Gottlieb, M., Berman, J., & Handelsman, M. M. (2007). Professional Psychology: Research and Practice. APA PsycNET , 38(1), 54-59.

Rensburg, A. J., & Rensburg, D. J. (2013). Nurses, industrial action and ethics: Considerations from the 2010 South African public-sector strike. Sage journals , 1-3.

Vanlaere, L., & Gastmans, C. (2007). Ethics In Nursing Education:Learning To Reflect On Care Practices. Nursing Ethics , 14(6), 1-10.