Implementing Best Practices: Converting Good Ethics into Good Law

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Implementing Best Practices Converting Good
Ethics into Good Law

• David Orentlicher, MD, JD
• Indiana University Schools of Law and Medicine
• Indiana House of Representatives
• July 14, 2008

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Medical ethics and the law

• In the United States, law and medical ethics have
  a close relationship
• Legal rules shape bioethical principles (e.g.,
  informed consent) and bioethical principles
  influence the law (refusal of life-sustaining
  treatment, assisted suicide)

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The law is generally consistent with ethical
principles

• Contrary to popular belief, legal rules generally
  should--and do--follow ethical understanding
• If it is morally permissible to do something
  (e.g., discontinue a ventilator), it usually is
  legally permissible to do so.
• If it is morally impermissible to do something
  (e.g., perform euthanasia), it usually is legally
  impermissible to do so.
• Discriminatory laws are main exceptionabuse by
  the majority of its power

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Law as consistent with ethics

• Legal duties are generally ethical duties.
• People have an ethical obligation to obey the
  law. Therefore legal duties are by definition
  ethical duties.
• Fidelity to the law is essential to an orderly
  functioning society
• Any legitimate system of law must operate in
  accordance with moral principles
• Legal duties tend to entail the imposition of
  ethical duties (e.g., laws against murder or
  robbery)
• Law seeks to promote justice, ethics to promote
  morality

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Law as an ethical minimum

• The law typically requires less of people than
  does ethics.
• Although legal duties are usually also ethical
  duties, many ethical duties are not legal duties
  (physicians and care for the poor, parents and
  raising of their children).
• The negative rights/positive rights distinction
  is important here (constitutional right to refuse
  life-sustaining treatment but not to obtain it).

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Negative/Positive rights distinction

• Reluctance to recognize positive rights (e.g.,
  right to counsel)
• Concern about undermining incentives to be
  productive
• Ensuring accountability for ones decisions
• Preservation of autonomy of others
• Problem of limits
• Problem of enforcement
• Positive rights are typically rights against
  government, not individuals (Medicaid, food
  stamps, public education, dialysis case)

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Distinction between permitting and facilitating

• Even if society permits a practice, it might
  choose not to subsidize the practice (the
  negative/positive rights distinction again and
  abortion funding as an example).
• Thus, President Bush withheld federal funding for
  research involving the taking of stem cells
  without proposing federal legislation to prohibit
  the taking of stem cells with private funds.

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Public health exceptionalism

• Public health questions tend to blur the usual
  distinctions
• Normally, the Constitution guarantees all persons
  the negative right to refuse any unwanted medical
  treatment
• However, people do not have a constitutional
  right to refuse unwanted vaccinations, unwanted
  treatment for tuberculosis or other public health
  interventionscourts are much more deferential to
  public health powers than to other state powers
  that can infringe individual liberties

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Public health exceptionalism

• Negative-positive right distinction not as clear
• My negative right to be free of infection may
  imply helpful action for others to take (e.g.,
  become immunized) rather than just a duty to
  refrain from harmful actionor another way to put
  it is that just being infected causes harm to
  others
• Public health interventions (e.g., mandatory
  treatments) generally are consistent with the
  no-trade-off principle
• They override the right to refuse treatment but
  dont trade off the patients health for the
  benefit of other peoples health
• But quarantines can increase a persons risk of
  illness

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Laws deference to medical judgment

• As a general rule, courtsand legislaturesdefer
  to the judgment of health care professionals in
  resolving dilemmas in medical ethics.
• Arline Rehabilitation Act decision by the Supreme
  Court and deference to the judgment of public
  health officials (later diluted in Bragdon)
• Chicken pox immunization in Indiana

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Importance of clear rules

• Sometimes, law will appear to deviate from
  ethics, but apparent inconsistency disappears
  when need for clear guidance is taken into
  account.
• Abortion for any reason before viability

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Effect of legal rules on future behavior

• The right decision for the case at hand may
  create bad incentives for future behavior
• E.g., requiring a pregnant woman to accept a
  cesarean sectionmay be good for the fetus but
  may discourage other pregnant women from seeking
  any prenatal care
• Recall the debate in the 1980s over HIV-testing,
  reporting and warning

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Importance of mandateseducation important but
not sufficient

• Communicable diseases and mandatory vaccination
  statutes
• 1949 - The last known case of smallpox in the
  United States.
• 1979 - The last indigenous transmission of wild
  polio virus in the U.S. All future cases are
  either imported or vaccine-related.
• 2004 Reported cases of rubella virus dropped to
  9 from epidemic levels of 12.5 million in 1964
  and 1965.
• 2008 Resurgence of measles (most cases since
  2001) following increase in parents rejecting
  immunization of their children

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Importance of mandateseducation important but
not sufficient

• Highway safety--Child restraint laws
• For 4-7 year-old children, use of booster seats
  reduced risk of injury in a crash by 59 compared
  to children who used only a safety belt
• JAMA. 20032892835-2840
• IN booster seat law took effect 7/1/05
• Booster seat use 8 in 2003
• Booster seat use 75 in Aug.-Sept., 2005
• Indianapolis Star, October 18, 2005

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Obstacles to good public health law

• Health concerns and private economic interests
  may conflict (at least in the short-term)
• In an era of globalization in which serious
  outbreaks of communicable disease may be
  recognized slowly and disseminated rapidly across
  national boundaries, restrictions on travel are
  essential to containment, but difficult balance
  with economic interests.
• Quarantined individuals may find it difficult to
  stay home and forgo wageslaws for job protection
  and income preservation may be important
  (especially when sick days or vacation time are
  not available).

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Obstacles to good public health law

• Health concerns and budgetary constraints may
  conflict
• When the SARS epidemic began, Canada had in place
  a world-wide monitoring system for outbreaks of
  communicable diseases, but one early warning was
  missed (two months before the first diagnosis in
  Toronto), and timely health advisories were not
  received or recognized by health care providers.

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Obstacles to good public health law

• Health concerns and budgetary constraints may
  conflict (continued)
• Preparing for future, uncertain risks can cost
  significant dollars now (e.g., shoring up New
  Orleans levees before Katrina)
• But once a public health emergency occurs, it may
  be too late to implement new policyespecially
  since most legislatures meet only part of the
  year
• Leaves enormous discretion for executive branch

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Obstacles to good public health law

• Health concerns may collide with special
  interests
• The NRA meets public health law
• The public health authority may not prohibit a
  person lawfully permitted to possess a firearm
  from possessing one (1) or more firearms unless
  the person is quarantined in a mass quarantine
  location. The public health authority may not
  remove a firearm from the person's home, even if
  the person is quarantined in a mass quarantine
  location.
• Ind. Code 16-41-9-1.6 (c)

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Navigating the legislature

• Part-time, part-year legislatures offer small
  windows of opportunity to pass legislation
• Its critical to line up support for a proposal
  before the legislative session beginsideally,
  proponents of a bill start the legislative
  session (1) with a broad-based coalition of
  support already formed and (2) already having
  persuaded key legislators.
• If interest groups disagree about a bill,
  committee chairs often will table the bill until
  a compromise is reached.