ETHICS AND LAW IN THE HEALTH AND HUMAN SERVICES
Ethics is generally defined as a philosophical discipline concerned with human conduct and moral decision making. . . . Unlike a discipline such as mathematics, ethics is normative rather than factual. It is concerned with principles that ought to govern human conduct rather than those that do govern it. (Van Hoose and Kottler, 1985:3)
CODES OF ETHICS-3
Codes of ethics establish broad rules of conduct for a profession and its members, and thus can be differentiated from an individual moral code which governs particular decisions in both private and professional life. Codes of ethical conduct for the professional and moral decisions for the individual overlap with legal requirements but are distinct from them. While codes of ethics in the health and human services provide the professional with rules and guidance, they are not legally binding as such unless they are otherwise codified or incorporated into law. Unethical conduct may be sanctioned by a professional association, resulting in an admonishment, suspension from practice or expulsion from the profession. However, whether the unethical conduct is legally actionable remains a different question and will depend on applicable legal provisions.
Van Hoose and Kottler have identified several purposes served by codes of ethics. One main function is to provide guidance for professional conduct and decision making. A second function is to legitimate the profession in the eyes of the public, and a third is to preempt governmental regulation and the imposition of external standards. A fourth function is to establish rules of conduct with which a professional's conduct can be compared, either to protect the professional who operates within that code or to discipline the professional who violates its provisions (Van Hoose and Kottler, 1985).
Codes of Ethics and Law
Legal provisions and professional codes of ethics are often in agreement--that is, professional conduct is usually both legal and ethical, or occasionally both illegal and unethical. Sometimes, however, the two may not clearly coincide and the resulting conflict may pose some real dilemmas for the health and human services professional. Professional conduct may be unethical and yet remain legal; in some instances conduct may be illegal and yet still be ethical. A simple topology will illustrate the relation between law and ethics.
Ethical Conduct Unethical Conduct
Legal Conduct I II
Illegal Conduct III IV
CELL I. ETHICAL AND LEGAL CONDUCT
Examples abound. Preserving client confidentiality, not exploiting or harming a patient, making an appropriate diagnosis, providing adequate care, appropriately terminating treatment, or making an appropriate referral all meet legal and ethical requirements.
CELL IV. UNETHICAL AND ILLEGAL CONDUCT
The issues are usually clear. Forcible rape of a client, defrauding a patient, and certain violations of patient confidentiality are illegal and unethical.
CELL II. LEGAL BUT UNETHICAL CONDUCT
With a few exceptions, in most states it is not illegal to engage in voluntary sexual intercourse with competent, adult, present or former patients or clients (although such conduct if harmful may give rise to later malpractice or liability actions). Yet most health and human services professional codes of ethics make it clear that sexual relations with current patients is unethical conduct and a few codes state that sexual intercourse with former patients or clients is unethical. In a few states, specific health and human services professionals have no legal obligation to report knowledge that child abuse has occurred, although most codes of ethics would obligate the professional to prevent harm. Most states do not legally require that a professional inform a patient or client of the limitations of confidentiality or how confidential information may be used, but many professional codes of ethics require that this be provided.
CELL III. ILLEGAL BUT ETHICAL CONDUCT
While such conduct may at first appear highly unlikely, there are situations where it may occur. Ethical commitments to social justice or against discrimination, found in many professional codes of ethics, may result in illegal conduct such as sit-ins, disruptions, or demonstrations. Informing a sexual partner that the patient or client has AIDS or is HIV positive without that individual's knowledge and consent is illegal in many states. However, where it is reasonably clear that the patient will not inform or take measure to protect the third party, such conduct appears to be ethical for psychiatrists providing outpatient psychiatric services, and may be ethical for a number of other health and human services professionals under a broad ethical duty to protect third parties from harm. Assisting or advising a competent terminally ill patient who wants to commit suicide is illegal in many states, but may be ethical under professional guidelines which call for promoting patient or client self-determination.