22: Ethical and Legal Issues

Ethical and Legal Issues

Pamela Zarkowski and the publisher acknowledge the past contribution of Judith A. Davison to this chapter.

Understanding and applying legal and ethical principles protects the provider (dental hygienist), the client, the employer, and the employee. Dental hygienists make decisions that are influenced by laws and ethics. At times, these decisions are clear; other times ethical dilemmas create conflict with employers, colleagues, or clients. Dental hygienists must be cognizant of the laws governing the employer–employee relationship and influencing the responsibilities and rights of the parties involved. This chapter reviews the laws and ethics most closely associated with the dental hygiene profession.

Ethical Considerations

Definitions

Ethical theories

Three major theories

1. Teleologic/utilitarian ethics (John Stuart Mill)—comprise rules for conduct based on consequences of action; an action is considered right or wrong on the basis of its usefulness; useful actions bring about the greatest good for the greatest number of individuals

2. Deontologic ethics (Immanuel Kant)—focus on the morality of the act rather than the situation or consequences of actions; one would say, “It’s the principle of the thing”; a person’s intention, not the consequences of the action, is key; three important elements: applied universally to all individuals, unconditional, demand an action

3. Virtue ethics (Aristotle and Plato)—focus on character traits and excellence of character; evaluate ethical dilemma by asking, “Is this what a virtuous person would do?”

4. Other theories

Universal principles

1. Veracity—truthfulness; mutuality for the client and the provider, for example, the client must be truthful to receive appropriate care, and the provider must provide truthful information so that the client can exercise his or her autonomy

2. Autonomy—personal liberty; individuals are free to make decisions regarding their own health; respect for the individual autonomy of others is basic to the health care provider–client relationship; informed consent and informed refusal is basic to autonomy (see discussion on informed consent in the section on “Legal issues for the dental hygienist” later in this chapter)

3. Beneficence—the provider’s duty is a commitment to the health and welfare of the client above all other considerations; duty to prevent or remove harm and promote good

4. Nonmaleficence—the provider’s duty not to use the treatment to injure or wrong the client; inflict no harm

5. Fidelity (role fidelity)—health care providers are required to provide services within the scope of their practice; ethics require that health care providers practice within the constraints of the role assumed within the health care environment; the provider is expected to follow through with commitments

6. Confidentiality—based on an individual’s right to privacy, for example, client has the right to expect all his or her medical records and communications to be kept confidential

7. Justice—fair and equitable treatment of clients

Professionalism

Defining a Profession

Characteristics of a profession

Code of ethics

1. Historical evidence of Western medical ethics traced to guidelines outlining the duties of physicians

2. Early evidence included oaths and rabbinic and Christian sources

3. Common themes include:

4. Oath of Hippocrates—fifth century B.C.E.; statement of principles guiding the professional conduct of physicians

5. Ethical codes for health care professionals continue to be evaluated and revised to reflect:

6. Common elements of codes

7. American Dental Hygienists’ Association (ADHA) Code of Ethics and the Canadian Dental Hygienists’ Association (CDHA) Code of Ethics

8. Codes of Ethics—compare all codes

9. Client’s Bill of Rights—outlines client expectations and provides guidelines for provider conduct; the client has the right to:

a. Respectful, competent, and considerate care irrespective of ethnicity, gender, national origin, age, or disability

b. Receive current, accurate, and complete information regarding diagnosis, treatment, and prognosis

c. Receive information necessary to give informed consent or informed refusal before treatment; be informed of the consequences of refusing treatment.

d. Confidentiality regarding all communications, consultations, and records except when permission has been granted to submit this information to others

f. Obtain information relating to the credentials of all providers rendering services

g. Reasonable continuity of care

h. Examine and receive accurate copies of professional services and fees

i. Receive treatment from health care professionals who act within the limits of their professional licenses (scope of practice) and adhere to the standard of care in delivering services

10. Types of professional credentials

a. Licensure—state regulation of professionals

b. Registration—qualified professionals listed in a directory

c. Certification—state or national recognition

Ethical Issues in Public Policy

Ethical issues and public policy

1. Distributive justice—fair allocation of resources involved

2. Distributive justice or allocation of scarce resources—determination of who should receive treatment when all cannot be treated; services may be allocated on basis of:

3. Influenced by principles of human dignity and human rights and contributing to the common good

4. Current health policy debates

a. Question of whether public health funds should be used for:

b. Research

Public policy

Creating public health policy

Policy makers—usually legislators, members of executive branch of government, and government officials who write regulations

Policy analysts—provide policy makers with information required to determine the impact of past and current public policies; determine whether new policy should be implemented or present policy or nonpolicy should continue

Examples of community-based programs requiring public policy analysis

Policymakers may seek input from professionals or professional associations; health-related professional associations frequently hire lobbyists to influence government policy makers

Distinctions between ethics and law

1. Laws are societal mandates, whereas ethics are professionally based

2. Ethical principles and legal doctrine are related

3. Ethical duties are usually greater than legal duties; for example, a health care provider who is acquitted in civil or criminal court after being charged with illegal conduct did not necessarily act ethically

4. Compliance with the law sometimes mandates unethical conduct—health care providers are ethically and legally bound to keep confidential all client communications and records; however, the law makes exceptions and requires disclosure to appropriate authorities in specific situations (e.g., in cases of suspected child or elder abuse or threats of inflicting bodily harm to another person or self)

5. Personal values not necessarily congruent with professional ethics or the law—under law, individuals have a right to control their own bodies; this includes the right to refuse medical or dental treatment; health care providers must honor this right despite their own personal values

6. Differentiating between ethics and law (Table 22-1)

TABLE 22-1

Differentiating Between Ethics and Law

  Ethics Law
Definition Individual interpretation of the nature of right and wrong and rules of conduct Rules and regulations by which society is governed set forth in a formal and legally binding manner
Source Internalized; individual nature and beliefs Externalized rules and regulations of society
Emphasis Individual moral behavior for the good of the individual within society Social behaviors that are good for society as a whole
Conduct Motives and reasons why the individual behaves the way he or she does Overt conduct of the individual; what a person actually did or failed to do
Sanctions Professional organization—expulsion from the organization Judicial and administrative bodies—criminal sanctions such as fines and imprisonment imposed by the courts; civil sanctions such as monetary damages imposed by the courts; disciplinary sanctions such as fines, license suspension, or license revocation by a board of dentistry

Legal Concepts

Law defined

Sources of law

1. U.S. Constitutional law

2. Statutory law

3. Administrative law

a. Administrative agencies are given the authority to oversee the specific laws or statutes to ensure that the intent of the law is enforced

b. Administrative laws are the results of decisions of administrative agencies, for example, state boards of dentistry or the College of Dental Hygienists of Ontario implement rules and regulations to enforce the law

c. Administrative agencies may conduct investigations and hearings and may issue decisions that suspend or revoke the license of a dentist or a dental hygienist; decisions of administrative agencies may be appealed through the state court system to determine whether:

4. Judicial law

a. Determined by courts (state, provincial, and federal), which interpret legal issues in dispute

b. Stare decisis1 (Latin, meaning “let the decision stand”)—doctrine of law whereby the court will base its decision on previous case law (a prior case with similar facts); the previous case must be from the same jurisdiction (state); emphasizes the importance of legal precedent

c. Landmark decisions—court decision that departs from precedent, for example, new technology may require different conclusions based on the same facts

d. Res judicata1 (Latin, meaning “a thing or matter settled by judgment”)—legal doctrine that applies when a legal ruling has been made by a competent court of jurisdiction, and no appeals are possible; prevents parties from taking the same issues to different courts

Classifications of law (Figure 22-1)

1. Common law and civil law—two concepts of legal thought, one from England (common law) and one from Europe (civil law)

2. Criminal law—relates to acts considered offensive to society as a whole

a. Classifications of crimes

b. Certain violations of law may be considered both criminal and civil, for example, if a client loses his or her life resulting from gross negligence of a dental hygienist, the dental hygienist could suffer loss of professional license, the estate of the deceased person could bring civil charges such as wrongful death against the hygienist, and the state may bring criminal action such as manslaughter against the hygienist

c. Level of proof required to determine innocence or guilt beyond a reasonable doubt; the level of certainty a juror must have to find a defendant guilty of a crime

Primary individuals involved in a lawsuit

1. Plaintiff—party bringing the lawsuit

2. Defendant—party against whom the lawsuit is filed

3. Attorney—individual serving as an advocate for either the plaintiff or the defendant

4. Expert witness—explains specialized information to jurors; possesses appropriate credentials and expertise

5. Lay witness—testifies as to facts for judge and jury

6. Dental hygienist as a witness (lay or expert)

7. Cannot be lay witness if named in lawsuit

Due process and equal protection

Judicial process

1. Questions of law or fact—usually the jury determines what is fact from the evidence admitted by the court; the judge determines questions of law

2. Jurisdiction of the courts—authority of the court to determine the controversy, for example, the bankruptcy court may not hear divorce cases

3. State courts

4. Federal courts

Statute of limitations

Case law—case law comprises the decisions, or the interpretations made by judges while deciding on the legal issues before them which are considered common law or as an aid for interpretation of a law in subsequent cases with similar conditions; case law is used by attorneys to support their views to favor their clients; it also influences the decisions of the judges; it is public record (occasionally court records are sealed)

Civil Law and the Dental Hygienist

A lawsuit can be filed against an oral health care provider in two areas of civil law:

Contract law1—a contract is an agreement between two or more consenting and competent parties to do or not to do a legal act for which sufficient consideration exists; breach of contract occurs if either party fails to comply with the terms of the contractual obligations

1. Two methods to create a contract:

2. The contract exists between a client and a health care provider when the client agrees to a specific treatment

3. Contractual responsibilities of the provider to the client

4. Contractual obligations of the client

5. Client–practitioner relationship—contractual; both are free to enter or decline the relationship; the practitioner may decline to undertake treatment of a client unless he or she has agreed to treat the client by participating in a specific dental insurance plan or the practitioner is employed by another who makes treatment decisions; if the practitioner offers services to the public, he or she may not refuse to treat clients because of race, color, gender, religion, national origin, disability, or any other basis that would constitute invidious discrimination; being bound to the code of ethics assumes a preexisting relationship of the client-practitioner

6. Termination of the client–practitioner relationship may be by:

7. Abandonment1—failure of a health care professional to provide services after the health care professional has established a relationship with the client; duty to the client to complete all treatment started; clients may be dismissed from future treatment

Tort law1—deals with civil wrongs committed against a person or a person’s property; wrongful conduct

1. Unintentional torts

a. Negligence and malpractice

b. Elements of negligence or malpractice, which must be shown in order for a lawsuit to go forward

c. Standard of care—the degree of care that a reasonably prudent professional should exercise; minimum requirements of acceptable client care, for example, practicing within the rules and regulations of the state or provincial dental practice act

d. Damages (awarded to the defendant; to restore injured party)

e. Res ipsa loquitur1 (Latin, meaning “the thing speaks for itself”)—legal doctrine that permits the plaintiff to prove negligence or malpractice without proving fault; no expert testimony required if the plaintiff shows a particular result occurred and would not have occurred but for someone’s negligence

f. Defenses to unintentional torts (protect defendant from liability)—not limited to, but include:

2. Intentional tort—an act must be willful; the defendant must have intended to cause the harm or injury; the act must have been a substantial factor in bringing about the injury

a. Assault—any action that places one in fear of bodily harm (e.g., threatening behaviors)

b. Battery—intentional infliction of offensive or harmful bodily contact; unwanted touching

c. Defamation—communication to a third person of an untrue statement about another person

d. Invasion of privacy—protects one’s right to privacy

e. Infliction of mental distress—outrageous conduct that causes emotional distress; behavior must be beyond standards of rudeness; behavior was intended to cause mental distress and actually did cause mental distress (e.g., publicly revealing client’s nonpayment; notifying neighbors or relatives of nonpayment)

f. Fraud or intentional misrepresentation—intentional perversion of truth (misrepresentation) for the purpose of gaining another person’s trust and reliance whereby that person suffers harm or loss as a result of trusting and relying (e.g., never guarantee treatment outcomes)

g. Interference with advantageous relations—generally prevents an individual from interfering with the gainful employment of another; name and definitions may vary from state to state; giving a former employee a poor reference is not a basis for this tort

h. Wrongful discharge—illegal termination of an employee; most dental hygienists are hired without employment contracts and are employees-at-will; they can be fired for any reason except

i. Defenses against intentional torts are not limited to, but include

(1) Statute of limitations—whether the time limit for initiating lawsuit has passed

(2) Privilege—person making the statement has the duty to do so; for instance, dental hygienists are often required by state law to report cases of suspected child abuse; in that case they are not held legally liable for doing so

(3) Disclosure statutes (state and federal)—permit access to client records by specific individuals or agencies without client consent, e.g., worker’s compensation statutes allow for such access to client information if a claim is filed

(4) Consent: oral, implied by law, e.g., during emergencies (when a client is not capable of consent), or apparent, e.g., client sits in dental chair and opens his or her mouth for an examination

(5) Self-defense or defense of others—behavior is justified to protect self or others from harm; if force is necessary, one may use only the amount of force necessary for protection (reasonable force)

(6) Necessity—allows personal property to be confiscated, e.g., weapon

3. Informed consent—from concept of battery and individual rights to make choices regarding his or her own body

Jan 1, 2015 | Posted by in Dental Hygiene | Comments Off on 22: Ethical and Legal Issues
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