Supporting Professional Development: Understanding the Interplay between Health Law and Professional Ethics
Scott, Ron, Journal of Physical Therapy Education
ABSTRACT Physical therapists in all practice settings-clinical, educational, and research-- are bound by legal and ethical professional standards governing practice. In recent times, the substance of these formerly distinct obligations have become blended into increasingly unitary standards of professional conduct. Courts now examine health care professional codes of ethics as secondary sources of legal obligation, licensure statutes and regulations derive from professional codes of ethics, and professional association ethics codes encompass legal concepts, including patient abandonment, informed consent, and confidentiality, among others. Physical therapists must simultaneously conform official conduct to legal as well as ethical standards to avoid sanctions on the privilege to practice in a variety of disciplinary forums.
THE MODERN BLENDING OF LAW AND ETHICS
Although legal and health care professional ethical obligations seemingly involve distinct duties incumbent upon physical therapists (and other health care professionals), in fact they have become in modern times very closely intertwined. What constitutes a breach of professional ethics more often than not also violates regulatory, civil, and/or criminal legal standards. This concept of duality of ethical-legal duties is referred to as the modem blending of health law and ethics, and is illustrated in Figure 1.
Modern legal standards and health care professional codes of ethics derived, in part, from the pronouncements and processes of medieval ecclesiastical and equity courts within the British commonwealth system. These specialty jurisdiction courts enforced moral standards and ensured fundamental fairness and justice, respectively. The sovereign "law courts," or "King's bench," on the other hand, strictly enforced written statutory laws, without explicit regard for morals or fairness.
Historically, ecclesiastical courts reviewed church-related matters, including the fact and validity of marriage, and questions of legitimacy. Equity courts heard civil (private dispute) cases that could not be resolved through the ordinary mechanisms of justice in the law courts and were the first to hear pro bono cases of poor litigants without the financial means to pay for requisite writs (legal papers). Over time, ecclesiastical courts were dissolved, and the law and equity courts merged into the unitary legal system that exists in the Anglo-American world today.1
Part of the rationale for the modern blending of health law and professional ethics relates to the fact that peoples within the western world are highly litigious, and societies inordinately legalistic--especially in the United States, where as many as 20 million new civil lawsuits are filed annually.2 Additionally, consumers (including patients) are better educated, more sophisticated, and acclimated to the legal culture, so that they more readily assert and enforce their legal rights. The processes of submitting claims to professional associations and licensure entities for breaches of health care professional ethics very closely mirror those for legal complaints within administrative, civil, and criminal legal systems.
SOURCES OF LEGAL AND ETHICAL DUTIES
Legal obligations bind everyone in society (except those with diplomatic immunity) to their provisions. Health care professional ethics codes formally obligate members of a health care discipline's professional association (and, indirectly, nonmembers as well) to their provisions and address professional conduct.
There are four primary sources of legal obligation. They are briefly discussed in descending hierarchal order. The highest-order primary source of legal obligation in the United States is the federal Constitution, particularly, its Bill of Rights and subsequent amendments, which delineate personal rights and duties, including the constitutional right of privacy from undue governmental intrusion. …