Ethics, Health, and the Law

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Ethics, Health, and the Law

• Lance Gable
• Assistant Professor of Law
• Wayne State University Law School

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Ethics, Health and the Law

• Approaches to ethics
• Metaethics
• Normative Ethics
• Rules and Rights
• Casuistry
• Ethics, Health, and the Law
• Bioethics
• Public Health Ethics
• Professional Ethics
• Environmental Ethics
• Specific examples

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A case study

• After the March 2011 earthquake and tsunami in
  Japan, officials from the Fukushima Daichi
  nuclear plant were faced with containing a
  nuclear release. Workers would need to enter the
  area, which had high levels of radiation, to try
  to stop the meltdown of the reactors from
  worsening. Worker will face immediate and
  long-term health risks. What is the ethical thing
  to do in this situation?

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What is Ethics?

• Approaches to ethics
• Metaethics
• Normative Ethics
• Rules and Rights
• Casuistry

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What is Ethics?

• The study of ethical principles.
• Values judgments of preference
• Morals judgment of the goodness of action of
  responsible agents, their general policies, or
  traits of character
• Ethical principles Attempt to articulate and
  justify principles that serve as guides for
  evaluating actions or policies or to assist
  comprehension or judgment

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Metaethics

• What are the sources of ethics?
• How do we know what is ethical?

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Metaethics

• What is the source of ethics?
• Religion Divine Law
• Secular sources Natural Law Social Contract
• Relativist Ones culture, personal preferences,
  actual social contract
• How do we know what is ethical?
• Religious revelation, scriptures, tradition,
  experience
• Secular reason, experience/observation,
  intuition, social agreement or contract
• Relativist ones own thoughts

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Normative Ethics

• Consequentialism
• Deontology
• Areataic (Virtue)

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Normative Ethics

• Consequentialist Utility ethicsthe
  consequences and utility of an act is what
  matters.
• Deontological Principles and reasons for the
  act matter, not the consequences.
• Areataic Virtue ethicsthe qualities of the
  actor is what matters.

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Utilitarianism

• Classical Utilitarianism based upon the
  principle of utility (actions are right in the
  proportion as they tend to promote happiness
  wrong as they tend to promote the reverse of
  happiness).
• Positive value over disvalue will go for the
  most value or least disvalue. In other words an
  act is morally right if and only if it maximizes
  the good (cost-benefit analysis).

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Utilitarianism

• 1) What or whose values are the most important?
  Happiness, pleasure, economics. Mill assigns
  values to pleasures.
• Who does this balancing? A benevolent spectator
  performs the calculus of pleasure and pain.
  Perhaps there is some snobbery in Mills
  conception of utilitarianism.
• 2) How to balance equally valuable
  considerations? What to do when pleasure for one
  (or many) results in pain for others?

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Deontology Kantianism

• Rational creatures possess autonomous,
  self-legislating will which confers intrinsic
  worth and dignity
• Moral rules are objective truths that have their
  source in the rational nature of human beings.

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Kantianism the categorical imperative

• Act only on that maxim which you can at the same
  time will that it should become a universal law.
  (do unto others as you would have them do unto
  you.)
• In other words Always act so as to treat
  humanity, either yourself or others, always as an
  end and never as only a means.

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Principlism Beauchamp and Childress

• Autonomy
• Beneficence
• Non-maleficence
• Justice

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Justice

• Ethical decisions should be made in the original
  position, i.e. in a veil of ignorance.
• Individuals behind the veil will make good
  decisions.
• John Rawls, A Theory of Justice (1971).

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Principles of Justice

• Each person has an equal right to the most
  extensive liberty compatible with a like liberty
  interest for all
• Inequalities must be arbitrary unless it is
  reasonable to expect that the inequalities will
  work out for everyones advantage (difference
  principle) Social and economic inequalities are
  to be arranged so that
• a) offices and positions must be open to everyone
  under conditions of fair equality of opportunity
• b) they are to be of the greatest benefit to the
  least-advantaged members of society (the
  difference principle).

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Areataic Ethics Virtue ethics

• Virtues are states of character concerned with
  choice examples include courage, temperance and
  justice.
• Virtues can derive from professional, religious,
  or secular sources.

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Normative Ethics summary

• Utilitarianism An action is right if and only if
  the action will produce the best consequences as
  compared to the alternative actions that could be
  undertaken by the agent.
• Deontology An action is right if and only if the
  action is either (a) required by a moral duty, or
  (b) allowed by a moral permission, and not (c)
  forbidden by a moral prohibition.
• Virtue Ethics An action is right if and only if
  the action is one which a virtuous moral agent
  would characteristically perform under the
  circumstances.

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Rules and Rights

• Rules duties we owe to others (Everyone should
  refrain from polluting the water supply all
  employers should limit/eliminate hazardous
  substances in the workplace)
• Rights duties owed to us (All people have the
  right to access clean water all workers have the
  right to work without being exposed to hazardous
  substances)

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What is the Relationship Between Law and Ethics?

• Ethics informs law
• Ethics supplements law
• Ethics is necessary for the practical
  interpretation of law
• Ethics and law may conflict

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Rules and Rights

• How rigidly do rules apply?
• No Rules Apply
• Antinomianism
• Situationalism (rules of thumb or guidelines)
• Rules of practice
• Legalism
• Rules Apply Rigidly

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Rules and Rights

• Codes of Ethics
• Hippocratic oath
• AMA Code
• Ten Commandments
• Human Rights Treaties
• CIOMS Research Guidelines
• Nuremburg Code
• US Bill of Rights
• ABIH Code of Ethics

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Casuistry

• Using individual case examples to discern ethical
  pronouncements. A case-based comparison system
  allows ethical principles to emerge.
• This is a bottom-up rather than top-down approach.

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Other approaches to ethics

• Liberal Individualism individuals have rights
  that protect them from intrusion, especially from
  the government.
• Communitarianism ethical actions are those that
  place the good of the community above those of
  specific individuals.
• Critical ethics feminist and race theories.

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What is Ethics?

• Ethics, Health and the Law
• Bioethics
• Public Health Ethics
• Legal Ethics
• Environmental Health Ethics

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What is Bioethics?

• The study of ethical principles in medical and
  biological sciences.
• Principles of bioethics
• Respect for persons
• Beneficence
• Non-maleficence
• Justice

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What are Public Health Ethics?

• The use of ethical principles to evaluate moral
  dilemmas that arise from efforts to improve
  population health
• The use of ethical principles to assure
  conditions in which people can be healthy

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Public Health Ethics
General Moral Considerations

• Producing benefits
• Avoiding, preventing, and removing harms
• Producing the maximal balance of benefits over
  harms and costs (utility)
• Distributing benefits and burdens fairly
  (distributive justice)
• Ensuring public participation (procedural justice)

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Public Health Ethics
General Moral Considerations

• Respecting autonomy in choices and actions
• Protecting privacy and confidentiality
• Keeping promises and commitments
• Disclosing information as well as speaking
  honestly and truthfully (transparency)
• Building and maintaining trust

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Public Health Ethics

• Weighing of general moral considerations within a
  specific circumstance.
• There is no universal agreement on ethical
  outcomes.

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Resolving Ethical Conflicts

• Effectiveness
• Proportionality
• Necessity
• Least infringement
• Public justification

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What are Professional Ethics?

• The study and application of ethical principles
  in a profession.
• Some principles of professional ethics
• Adequate professional conduct
• Privacy/Confidentiality
• Business practices
• Justice
• Veracity/truth-telling

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What are Environmental Health Ethics?

• The study of ethical principles in environmental
  health sciences.
• Challenges
• Balancing risk tradeoffs
• Enacting just policies
• Allocating resources
• Protecting human rights

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What are Industrial Health Ethics?

• The study and application of ethical principles
  in industrial health.
• Combines ethical considerations from all of the
  above models
• Industrial Hygiene Science and art devoted to
  the anticipation, recognition, evaluation,
  prevention, and control of those environmental
  factors or stresses arising in or from the
  workplace which may cause sickness, impaired
  health and well being, or significant discomfort
  among workers or among citizens of the community.

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Industrial Hygiene Ethics

• Specific examples
• Standard setting and the precautionary principle
• Conflicts between industrial and health
  objectives
• Confidentiality of person health information
• International ethics and distributive justice
• Industrial hygiene ethics in the legal system
• Relevant codes of ethics

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Standard setting and the precautionary principle

• Industrial health standards are to protect most
  healthy workers.
• Precautionary principle when an activity raises
  threats of harm to the environment or human
  health, precautionary measures should be taken
  even if some cause-and-effect relationships are
  not fully established scientifically
• What about setting standards for new materials
  that are not yet regulated?

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Conflicts between institutional and health
objectives

• Businesses have profit motives and want to
  contain costs
• Institutions may be seeking energy reductions
• Institutions may wish to protect intellectual
  property or contain negative attention from
  health risks/incidents

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Conflicts related to professional activities

• Industrial hygiene professionals may work for
  multiple clients with conflicting goals
• Industrial hygiene professionals may work as
  consultants beyond their main employer
• Industrial hygiene professionals may serve as
  experts in legal proceedings

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Confidentiality of personal health information

• Sensitive personal health information may be
  revealed during investigations
• How should this information be protected?
• What sorts of conflicts and ethical concerns may
  arise?

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International ethics and distributive justice

• Global industries may have to comply with
  different regulatory standards in different
  countries. How should this affect decisions about
  health and safety standards?
• What role do industrial hygiene professionals
  have in ensuring that workers in countries with
  less stringent protections are not exposed to
  additional health risks?

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Industrial Hygiene Ethics in the Legal System

• Compliance with law
• Reporting requirements
• Expert witnesses

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Codes of Ethics

• Professional codes
• AMA Code of Ethics
• APHA Code of Ethics
• ABIH Code of Ethics
• ICOH Code of Ethics

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American Board of Industrial Hygiene Code of
Ethics

• Who is covered? Certified ABIH professionals and
  candidates for certification
• Minimum ethical standards of behavior
• Responsibilities to ABIH, the profession and the
  public
• Responsibilities to clients, employers,
  employees, and the public

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Responsibilities to ABIH, the profession, and the
public

• 1. Comply with laws, regulations, policies and
  ethical standards governing professional practice
  of industrial hygiene and related activities.
• 2. Provide accurate and truthful representations
  concerning all certification and recertification
  information.
• 3. Maintain the security of ABIH examination
  information and materials, including the
  prevention of unauthorized disclosures of test
  information.
• 4. Cooperate with ABIH concerning ethics matters
  and the collection of information related to an
  ethics matter.
• 5. Report apparent violations of the ethics code
  by certificants and candidates upon a reasonable
  and clear factual basis.
• 6. Refrain from public behavior that is clearly
  in violation of professional, ethical or legal
  standards.

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Responsibilities to clients, employers,
employees, and the public

• A. Education, experience, competency and
  performance of professional services.
• 1. Deliver competent services with objective and
  independent professional judgment in
  decision-making.
• 2. Recognize the limitations of ones
  professional ability and provide services only
  when qualified. The certificant/candidate is
  responsible for determining the limits of his/her
  own professional abilities based on education,
  knowledge, skills, practice experience and other
  relevant considerations.
• 3. Make a reasonable effort to provide
  appropriate professional referrals when unable to
  provide competent professional assistance.

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Responsibilities to clients, employers,
employees, and the public

• 4. Maintain and respect the confidentiality of
  sensitive information obtained in the course of
  professional activities unless the information
  is reasonably understood to pertain to unlawful
  activity a court or governmental agency lawfully
  directs the release of the information the
  client or the employer expressly authorizes the
  release of specific information or, the failure
  to release such information would likely result
  in death or serious physical harm to employees
  and/or the public.
• 5. Properly use professional credentials, and
  provide truthful and accurate representations
  concerning education, experience, competency and
  the performance of services.

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Responsibilities to clients, employers,
employees, and the public

• 6. Provide truthful and accurate representations
  to the public in advertising, public statements
  or representations, and in the preparation of
  estimates concerning costs, services and expected
  results.
• 7. Recognize and respect the intellectual
  property rights of others and act in an accurate,
  truthful and complete manner, including
  activities related to professional work and
  research.
• 8. Affix or authorize the use of ones ABIH seal,
  stamp or signature only when the document is
  prepared by the certificant/candidate or someone
  under his/her direction and control.

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Responsibilities to clients, employers,
employees, and the public

• B. Conflict of interest and appearance of
  impropriety.
• 1. Disclose to clients or employers significant
  circumstances that could be construed as a
  conflict of interest or an appearance of
  impropriety.
• 2. Avoid conduct that could cause a conflict of
  interest with a client, employer, employee or the
  public.
• 3. Assure that a conflict of interest does not
  compromise legitimate interests of a client,
  employer, employee or the public and does not
  influence or interfere with professional
  judgments.
• 4. Refrain from offering or accepting significant
  payments, gifts or other forms of compensation or
  benefits in order to secure work or that are
  intended to influence professional judgment.

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Responsibilities to clients, employers,
employees, and the public

• C. Public health and safety.
• 1. Follow appropriate health and safety
  procedures, in the course of performing
  professional duties, to protect clients,
  employers, employees and the public from
  conditions where injury and damage are reasonably
  foreseeable.

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Canons of Ethics previous industrial hygiene
ethical guidance

• 1. Practice their profession following recognized
  scientific principles with the realization that
  the lives, health and well-being of people may
  depend upon their professional judgment and that
  they are obligated to protect the health and
  well-being of people.
• 2. Counsel affected parties factually regarding
  potential health risks and precautions necessary
  to avoid adverse health effects.
• 3. Keep confidential personal and business
  information obtained during the exercise of
  industrial hygiene activities, except when
  required by law or overriding health and safety
  considerations.
• 4. Avoid circumstances where a compromise of
  professional judgment or conflict of interest may
  arise.
• 5. Perform services only in the areas of their
  competence.
• 6. Act responsibly to uphold the integrity of the
  profession.

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ICOH Code of Ethics

• Much more detailed set of substantive guidance
  26 principles
• More focus in specific activities like
  surveillance, prompt action, health promotion,
  etc.
• Contrast language related to protecting trade
  secrets IH professionals must not withhold
  information necessary to protect the safety or
  health of worker or the community.