Non maleficence is best characterized using the sentence “First, do no harm,” which is often incorrectly ascribed to the Hippocratic Oath. Allowing a patient to commit suicide may be seen as bringing harm. (The principles of beneficence and non maleficence will be further discussed later in the course.) Also in play in this ethical dilemma is the concept of client self- determination. According to the NASW Code of Ethics (2017), “Social workers may be faced with complex ethical dilemmas that have no simple answers,” and for many, physician-assisted suicide fits this characterization. Another example of an issue that may lead to ethical dilemmas would be abortion. True dilemmas often involve issues that are controversial in our society as well. In these types of dilemmas, the cultural contexts of the community and the client are important factors to consider. Defining law According to Saltzman & Furman (2016), law can be defined as those standards, principles, processes and rules – usually written down in some manner – that are adopted, administered, and enforced by governmental authority and that regulate behavior by setting forth what people may and may not do and how they may and may not do it. Simply put, law is a “pronouncement of the rules which should guide one’s actions in society” (Gifis, 2016). Reamer (2005) describes five distinct types of legal requirements and guidelines that may affect practice: 1. Constitutional Law : Examples include protection from unreasonable searches and rights of privacy and free speech. 2. Statutory Law : This includes laws enacted by federal, state, and local legislative bodies and covers such issues as confidentiality of records and obligations around suspected child or elder abuse. 3. Regulatory Law : These are legally enforced guidelines disseminated by government agencies such as the Department of Health and Human Services and Department of Justice. 4. Court-Made Law and Common Law : These result from court rulings, for example a recent court ruling in one state that prohibits child welfare workers from using office space for temporary sleeping accommodations for children removed from their homes. 5. Executive Orders : Chief governmental executives, such as mayors or governors, may issue orders that resemble regulations – examples being the State of Florida’s governor Jeb Bush prohibiting a husband from terminating life support measures in the Terri Schiavo case, or, more recently, several executive orders issued by state governors concerning the coronavirus pandemic. It is important to remember some of the basic differences between ethics and the law. Laws can change over time, will vary from state to state, and can be significantly influenced by politics and economic interests. Ethical standards, however, transcend all of these considerations. Legal duties are also often ethical duties, but ethical duties may not always be legal obligations. Although individuals may have an ethical obligation to obey the law, the law is often the lower standard even though ethics and the law may draw on the same sources of authority. Ethics generally provides the foundation for laws, as can be seen in the example of informed consent. A patient’s right to personal autonomy is the basis for the healthcare provider’s legal obligation to obtain informed consent from patients before commencing treatment. Another example is the legal mandate to report suspected cases of child abuse and neglect. This law is anchored in the principle of beneficence. Offenses against the law are either civil or criminal (Zarkowski & Roucka, 2015). An offense against a person or group for which some satisfaction is sought, usually in monetary form, is classified
It is important to remember that although each principle in a professional code of ethics has its own merits, the principles do not stand alone. They complement one another but at the same time often conflict with one another when ethical dilemmas occur. An ethical dilemma is a situation in which no best course of action exists; the person must choose between at least two options that have advantages and disadvantages. To solve ethical dilemmas, it is essential to identify which principles apply, how they conflict, and which ones take priority in a given scenario. Practitioners must also consider professional obligations and standards of care. Although professional codes of ethics are based on principlism, a basic understanding of consequentialism, deontology, and even virtue ethics can help in working through an ethical dilemma.
THE LAW AND MENTAL HEALTH
as civil. A criminal offense is a wrongful act against society, and criminal law is charged to protect the public as a whole against the harmful acts of others. Most healthcare issues that become legal issues are dealt with as civil offenses. Civil law can be further broken down into two primary categories: contract law and tort law . A contract is an agreement between two or more consenting parties to perform or not perform a legal act for which there is sufficient consideration. (“Consideration” is a vital element in contract law; it is the benefit or value bargained for between the parties.) A “breach of contract” occurs if either party fails to comply with the terms of the agreement. Contracts can be expressed orally or in writing or implied by signs, inaction, or silence. Examples of professional contractual responsibilities include: ● Being properly licensed and registered. ● Exercising reasonable skill and judgment in providing care. ● Referring when appropriate. ● Respecting clients’ confidentiality. ● Practicing within the standard of care. A tort is defined as an interference with another’s right to enjoy his or her person, privacy, or property (Zarkowski & Roucka, 2015). Torts can be intentional or unintentional . Intentional torts involve an element of intent to cause harm and include such offenses as: ● Mental distress (purposeful cause of anguish). ● Defamation (damage to a person’s reputation). ● Interference with property (damage to a person’s property). ● Misrepresentation (incorrect or false representation). Intentional tort offenses may include: ● Failure to get informed consent (battery). ● Promising a cure or other outcome that is not practically attainable (misrepresentation). ● A client making a derogatory statement about a social worker (defamation). Unintentional torts include negligence (failure to act appropriately) and malpractice (acting inappropriately). Although an unintentional tort involves no intention to do harm, the following has taken place: ● A recognized legal duty or responsibility owed to the client was breached. ● The client was harmed, damaged, or injured. ● The breach of duty was the primary or proximate cause of the harm. Both negligence and malpractice involve practicing below the standard of care. ● Assault (threat of bodily harm). ● Battery (unauthorized touching). ● False imprisonment (unlawful restraint).
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Book Code: SWUS1524
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