Module Components

• Overview

Topics

• Ethical Health Care Issues
• Basic Concepts of Law in the Healthcare Workplace
• The Legal Environment: Healthcare Law
• Legal & Clinical Incapacity and Informed Consent
• Confidentiality and HIPPA
• Advance Directives
• Labor Relations
• Human Resources: Related Legislation

Nurs 692 Administration of Nursing and Health Care Services

Module 10: The Ethical & Legal Environment and Labor Relations

The Legal Environment: Healthcare Law

The healthcare industry is one of the most heavily regulated industries in the United States. Those who provide, receive, pay for, and regulate healthcare services are affected by the law. Law is a body of rules for the conduct of individuals and organizations. Law is created so that there is a minimal standard of action required by individuals and organizations. Most laws are created by federal, state, and local governments. When the judiciary system interprets previous legal decisions with respect to a case, they create common law. The minimal standard for action if federal law, although state law may be more stringent. Legislatures create laws that are called statutes. Both common law and statute are then interpreted by administrative agencies by developing rule and regulations that interpret the law.

In the course of delivering care, a range of issues may arise that lead to consultation with a medical ethicist, a lawyer, and/or a risk manager. The following discussion will outline key distinctions between these roles.

• Clinical ethics may be defined as: a discipline or methodology for considering the ethical implications of medical technologies, policies, and treatments, with special attention to determining what ought to be done (or not done) in the delivery of health care.

• Law may be defined as: established and enforceable social rules for conduct or non-conduct; a violation of a legal standard may create criminal or civil liability.
• Risk Management may be defined as: a method of reducing risk of liability through institutional policies/practices.

Many health care facilities have in-house or on-call trained ethicists to assist health care practitioners, caregivers and patients with difficult issues arising in medical care, and some facilities have formally constituted institutional ethics committees. In the hospital setting, this ethics consultation or review process dates back to at least 1992 with the formulation of accreditation requirements that mandated that hospitals establish a “mechanism” to consider clinical ethics issues. Ethics has been described as beginning where the law ends. The moral conscience is a precursor to the development of legal rules for social order. Ethics and law thus share the goal of creating and maintaining social good and have a symbiotic relationship as expressed in this quote:

The role of lawyers and risk managers are closely linked in many health care facilities. Indeed, in some hospitals, the administrator with the title of Risk Manager is an attorney with a clinical background. There are, however, important distinctions between law and risk management. Risk management is guided by legal parameters but has a broader institution-specific mission to reduce liability risks. It is not uncommon for a hospital policy to go beyond the minimum requirements set by a legal standard. When legal and risk management issues arise in the delivery of health care, ethics issues may also exist. Similarly, an issue originally identified as falling within the clinical ethics domain may also raise legal and risk management concerns.

Ethical norms may be derived from:

• Law
• Institutional policies/practices
• Policies of professional organizations
• Professional standards of care, fiduciary obligations

Note: If a health care facility is also a religious facility, it may adhere to religious tenets. In general, however, clinical ethics is predominantly a secular professional analytic approach to clinical issues and choices.

Law may be derived from:

• Federal and state constitutions(fundamental laws of a nation or state establishing the role of governmentin relation to the governed)
• Federal and state statutes(laws written or enacted by elected officials in legislative bodies,and in some states, such as Washington and California, laws created by a majority of voters through an initiative process)  
• Federal and state regulations (written by government agencies as permitted by statutory delegation, having the force and effect of law consistent with the enabling legislation)
• Federal and state case law (written published opinions of appellate-level courts regarding decisions in individual lawsuits)
• City or town ordinances, when relevant

Risk Management may be derived from law, professional standards and individual institution’s mission and public relations strategies and is expressed through institutional policies and practices.

An interesting twist: There is an epidemic of HIV, and with it an epidemic of bad laws — laws that effectively criminalize being HIV positive. Shereen El-Feki gives a forceful argument that these laws, based in stigma, are actually helping the disease spread. Click here to watch this interesting TED Talk!