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An Issue of Ethics: Summer 2005

In everyday language we often use the words law and ethics as if these two terms were synonymous. We say that a specific practice, for example breaching confidentiality in a privileged relationship is unethical when what we really mean is that it is illegal and that another practice, lying about that breach is illegal when what we really mean to say is that it is unethical.


September 29, 2009
By Cidalia Paiva

Topics

Broadly speaking, a law is a rule of conduct established and enforced by the government of a particular society. Law is derived from codes of English common law and concerns itself primarily with rules that stabilize social institutions.

In everyday language we often use the words law and ethics as if these two terms were synonymous. We say that a specific practice, for example breaching confidentiality in a privileged relationship is unethical when what we really mean is that it is illegal and that another practice, lying about that breach is illegal when what we really mean to say is that it is unethical.

In fact, the vast preponderance of ethics education in many massage therapy training schools consists of health regulation or laws pertaining to the legal obligations of massage therapists as health care professionals and these are often mistakenly labelled as ethics curriculum.

Why is this the case? Sometimes law and ethics do in fact overlap and certain behaviours i.e. breach of confidentiality in privileged relationships are both legally and ethically wrong. Moreover, and perhaps even more problematically, the relationship between law and ethics is not a simple one to grasp.

The relationship between law and ethics is subtle and presupposes a familiarity with health care ethics as a discipline of study. For the most part complementary health care practitioners unlike their counterparts in allopathic medicine are not knowledgeable in the discipline of health care ethics.

In the absence of an informed point of view, we try to make sense of these two distinctions on our own and invariably end up merging and equating the two.

Broadly speaking, a law is a rule of conduct established and enforced by the government of a particular society. Law is derived from codes of English common law and concerns itself primarily with rules that stabilize social institutions.

We are all exposed to many rules in our daily lives. In our schools for example we are exposed and expected to comply with rules pertaining to our conduct and deportment within the educational institutions we are enrolled in.

These rules however, cannot fall into our definition of what is law because they are not enforceable by a court of law. The legal system operates in order to govern and “enforce” the conduct of the people of Canada and in order to protect the best interests of all people as a whole.

The word ethics is derived from the Greek word “ethos” (character) and from the Latin word “mores” (customs).

The word ethics is often combined or merged with the word morality and used interchangeably as if these two concepts were also synonymous.

While both serve to define how individuals choose to interact with one another and find their origin in the beliefs of a given society, ethics and morality are distinct concepts.

Ethics is a discipline of study which defines what is good for the individual and for society and establishes the nature of duties that people owe themselves and one another.

Beyond this, ethics also refers to a field of moral philosophy which involves the analysis of the meaning and justifications of moral beliefs. Morality on the other hand refers to the moral beliefs and opinions of a particular group or society.

How do ethical duties differ from legal duties? Isn’t it both legally and ethically wrong to breach confidentiality or use our patients for research purposes without their informed consent? Again, while it is true that in many instances law and ethics overlap and converge, it is also true that they are separate and distinct areas of study.

For example, freedom and equality for all human beings is a strong principle of most ethical systems. Yet laws, in certain parts of the U.S., once sanctioned the slavery of one human being to another.

To make this point more poignant perhaps in an everyday context, think of those instances in which someone tells a lie to another, breaches the confidence of a friend, breaks a promise, or becomes sexually involved with a married person. We might certainly say these behaviours are unethical but they are certainly not prohibited by law.

Massage therapists, similar to other regulated health care practitioners, have highly detailed and enforceable ethical codes for their members which outline the professional ethics of massage therapy. Despite the fact that not all of these codes have become incorporated into public law, nevertheless, they certainly affect
and influence judicial decisions about professional conduct in litigation. In other words, if a judge is trying to ascertain the duty of a therapist in a particular situation where there is no relevant applicable law, he or she will likely turn to the profession’s code of ethics to establish what is and was required of the therapist.

A further distinction between law and ethics lies in what we call the normative nature of ethics, that is the fact that ethical questions require that we ask what should be done rather than simply legal questions about what must be done. “Doing ethics” requires reflection and thought about the morality of a given situation. We must weigh the impact of our actions on others in order to ascertain if our actions can be justified.

Ethics will often bring us into the grey zone where there will be no clear-cut answer in the form of a legal rule we can appeal to to guide our conduct. If I am attempting to decide whether or not I should hire my patient to renovate my office, thereby entering into a dual relationship with him the law cannot help me.

Finally, law can only speak to what we call the minimum content or bottom line of legal rules constructed to preserve social existence. Some critics have described laws as legal checklists of behaviour we are required to refrain from in order to prevent harm to our patients. In other words, laws deal with negative duties to others. Negative duties are prohibitions to refrain from harm usually attached to significant social sanctions and punishments if we fail to comply. Ethics on the other hand, while respecting  the bottom line, also raises the bar by providing us with moral ideals in the form of positive duties that provide benefits to others.

Many codes of ethics will contain both negative and positive ideals. That is they will outline what it is we must refrain from doing as well as what it is we ought to do in order
to meet the highest standards and aspirations of health care practice. 

An example of a positive ideal might be to provide compassionate care in the delivery of health services. We are not required to be kind and caring, and no one can punish us if we fail to behave this way with our patients. After all there is no law that can require this of us. However, our professional ideals may require this
of us. What happens if we fail to live up to our ideals? We may be judged by our peers and others or we may suffer the pangs of conscience but certainly the law will not punish us for this behaviour.

Ethics will always take us down the high road, to the best we can be and the highest expectations we can have of ourselves and others. Why are ideals important? The ethical heart of health care is the commitment to serve the best interests of our patients and to contribute to their well-being, not simply to refrain from harming them. Laws enable us to live together relatively peacefully and to protect our interests. However ethics enables us to live a truly human life.

To live a truly human life we must be committed to doing good by being persons of character and integrity who can and will serve the best interests of our clients not because we are afraid of being punished but rather because we have a sincere and genuine regard for others and human life.


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