Distinguishing Law and Ethics: A Challenge for the Modern Practitioner

December 1, 2002

Discussions of psychiatric ethics often devolve into discussions of applicable law. Although ethics is often operationalized by a society's laws, ethics differs dramatically in its foundations, framework and purpose.

Discussions of psychiatric ethics often devolve into discussions of applicable law. Although ethics is often operationalized by a society's laws, ethics differs dramatically in its foundations, framework and purpose. The distinctions between ethics and law become increasingly important as more and more practitioners encounter the legal system, whether by committing patients, advising guardianship, or participating in other administrative or criminal proceedings. Many practitioners struggle to present material governed by medical ethics to a forum governed by an almost alien paradigm--an ethic of arcane precedents and procedures. Consequently, distinguishing what is legal from what is ethical is not merely an academic exercise but a practical one as well.

Broadly speaking, ethics concerns itself with why and how one ought to act. It is derived from expansive theories of right and wrong. In the most dominant current view, theories give rise to principles that, in turn, give rise to rules of conduct. In Western thought, the earliest philosophers (e.g., the pre-Socratics) developed certain rules of thought, provoked disagreements and gave birth to opposing rules. Constant modifications rooted in multiple cultures addressed the positive obligations of one person to another and set ideals to be met by both commoner and king. This evolution resulted in a body of work rich in influences and models of thought.

Law, particularly American law, may be viewed as more derivative and more structured than its ethical counterpart. American law, derived as it is from codes of English common law, concerns itself primarily with the rules that stabilize social institutions. It is less concerned with promoting social ideals. This is not merely a function of the law's dependence on precedent and the principle of stare decisis (Latin for "let the decision stand"). It is a function of deciding when to act--when to bring the full force of social sanction to bear on individual citizens and their specific acts.

This distinction is often characterized as the difference between moral rules and moral ideals. Legal theorists write frequently on the need to distinguish between a broken rule and an unattained ideal. Most argue that exemplary, supererogatory or otherwise morally extraordinary behaviors should not be enforced by law. Charitable acts and rescues fall into this category, as might manners and dress codes. Law is generally reserved for those rules critical to the maintenance of the social fabric, including safety, contracts and broad conceptualizations of the common good.

Legal scholar H.L.A. Hart (1961) expressed this distinction in a manner well known to the legal tradition . By balancing burdens and benefits to society, he described a limit to the amount of law enforcement society can afford. In this view, the burden on the community may be too great to enforce every moral wrong: there may be great difficulties of proof, overburdening of the courts or hampering of particular social institutions (e.g., commerce).

Hart went further, however, in identifying two particular areas many recognize intuitively as distinctions between law and ethics. The first is described as immunity from deliberate change, a property of ethics but not of law. Law, for example, can be altered by the deliberate act of a legislature and applied at a specific time. This is hardly the case for ethics, which awaits changes in sensibilities, mores and community values.

The Patient Self-Determination Act (PSDA), for example, was passed in 1990 and came into action on a set date in early 1991. However, the moral pressure toward identification of proxy decision-makers (which the PSDA made a legal requirement) had been gaining momentum for some time. It represented more a movement than an event. Patients and physicians had been working to change the moral landscape for a generation before the law changed matters with the stroke of a pen.

The second distinction in Hart's well-known analysis underscores the form that moral pressure often takes. While law requires citizens to avoid certain behaviors under penalty of physical or economic harm, ethics utilizes pressure of a different sort. Ethics appeals to the ideal or purpose a rule serves. It appeals to conscience or regret, to guilt or remorse. Sanctions may consequently include social disapprobation or isolation within one's community. This is a qualitatively different response from that of the law.

An extension of this is the law's focus on the negative obligations of one citizen to another--with what an individual cannot do without social sanction. It is a reminder of the law's focus on institutional stability rather than social ideals. It is not law, but ethics, that addresses the positive obligations of care and cure that concern medicine most deeply (Morreim, 1991).

Other models of ethical reasoning underscore this difference. Ethics often sets multiple thresholds for proper decision-making, identifying behavior as obligatory, permissible or prohibited. Ethics generally functions higher in this spectrum than law, which is often seen to work at the level of prohibition rather than obligation. This is reminiscent of the distinction between negative and positive obligations, and again distinguishes ethics from law.

Consequently, law is a reactionary creature. It does not easily adopt the creative, prospective, interventionist solutions of most ethics frameworks--frameworks that oblige participants to avoid or prevent ethical problems. The law, in its conservatism or restraint, as it is sometimes called, often chooses non-interference over intervention and allows communities (that is, jurisdictions) to develop their own solutions. Ethics has greater freedom to take a more prescriptive and generalizable approach.

An example of the more flexible nature of ethics is the conduct of ethics consultation in end-of-life care. Ethics consultants are taught to investigate all-important relationships that may inform clinicians about an incompetent patient's treatment wishes. In certain jurisdictions, however, there is a legally prescribed hierarchy of family members who must be consulted.

This distinction returns us to the strict emphasis on precedent in the legal system. Rather than support precedent as a force stabilizing societal rules, ethics argues that tradition is not moral warrant. In ethics, it is not sufficient that a problem has been solved a certain way in the past. Principles and rules must be derived in a manner that acknowledges the richness of each case. Indeed, ethics as a field has recently been developing a more casuistic (i.e., case-based) combination of principled and narrative approaches. This method allows the individual narrative (or story) to provide more context than the law usually affords.

John Rawls (1971), America's great modern philosopher, underscored the importance of the strict legal process that defines law. He wrote of legal procedures as the moral currency of law. Rawls recognized that perfect justice may be unattainable in all circumstances and that our system is one of imperfect procedural justice. That is, complex trial procedures and rules of evidence are the chief components of the law. Process provides the primary moral assurance of just outcome. If it is not followed, justice is not served. Hence the force of technicalities in determining the outcome of legal cases.

Ethics provides a greater balance of process and outcome by further emphasizing outcome. Although there is a mainstream process for coming to an ethical decision (often deductive and consensus- and principle-driven), the outcome must be right as well. If the process has somehow ignored relevant information, it is mutable and flexible. Not so the law.

What does this discussion mean for the practitioner, who must respond to a subpoena, give a deposition or otherwise appear in court? Knowing how to function within the law's minimalist, procedural and rule-driven confines is critical to success in its halls. Grilling one's own attorney on the rules that will be followed is an important starting point. Knowing that set procedures of qualification, direct examination, cross-examination and rebuttal frame one's testimony goes a long way toward calming the anxiety most practitioners experience in court.

Moreover, preparing a script for testimony allows practitioners to fit their expertise into the requirements of the legal setting. The challenge of direct and cross-examination is to express clinical thinking in terms recognizable to the law. Intended as a forum accessible to the layperson, the courtroom does not value jargon and specialized vocabularies. Physicians must fit clinical data into the specific legal language governing the hearing.

It is the jurisdiction's legal definitions that will often determine the relevance of clinical information. Because standards may differ from court to court, clinicians must apply their testimony to the frameworks known to the jurisdiction (e.g., dangerousness, best interests, substituted judgment). This makes for a more seamless transition from the consultation room to the courtroom.

Furthermore, the adversarial legal process challenges psychiatrists to re-think the strengths and weakness of their clinical logic. Because psychiatrists are not used to exposing the collegial clinical ethic to the ethic of adversarial legal procedure, rehearsing responses to potential criticism is useful preparation. It surprises many first-time witnesses to find that criticism of their testimony is often not clinical in tone. Rather, it derives from the understanding of a layperson--an attorney or judge who is not familiar with the clinical meanings practitioners commonly take for granted. For example, merely describing schizophrenia as disorganized thinking and impaired contact with reality disabuses some laypeople of their misunderstanding of the illness as multiple personalities. This description, simplistic to psychiatrists, is more likely to convey information to a court about insanity, a legal concept it is asked to address with clinical information. Being clear in the use of clinical terminology and making it relevant to the operant legal criteria goes a long way toward blunting criticism of one's testimony.

These distinctions notwithstanding, law must have its roots in ethics. It must support the right and the just. It must emanate from the mores and values of the community. From the ancient meaning of these terms, it must draw its strength from society's traditions of what is good. From this starting point, however, the fields diverge. They are distinguishable and distinct. Recognizing the unique qualities of each enriches the experience of any practitioner who must negotiate the path between them.

References:

References1. Hart HLA (1961), The Concept of Law. Oxford, England: Oxford University Press, pp171, 175.
2. Morreim EH (1991), Competence: at the intersection of law, medicine, and philosophy. In: Competency, Cutter MA, Shelp EE, eds. Dordrecht, The Netherlands: Kluwer Academic Publishers, pp93-125.
3. Rawls J (1971), A Theory of Justice. Cambridge, Mass.: Harvard University Press, pp85-86.