Learning outcomes
By the end of this chapter you should be able to:
Recognise the key ethical and legal concepts and principles that underpin health care policy and practice; Describe the role of law in developing health care policy and practice; Understand how ethical problems occur and the basis on which ethical decisions can be made; Critically evaluate the relationship between law and ethics, in particular their interaction in resolving problems that arise in practice.
Introduction
If nurses are to understand the key role played by the law in regulating the relationship between health professionals and children, they need to know how it sets and maintains standards of care and how it ensures that children have access to adequate medical assistance and health care. They need to know, in short, what this introductory chapter sets out to do, i.e. describe the nature of law and explain where it comes from and how it develops. That nurses should study ethics has also been so widely accepted that its inclusion in nurse education is now commonplace. This chapter therefore also attempts to introduce nurses to what we mean when we talk about 'ethics' in health care. However, after a brief analysis of key terms, it focuses on the skills that are required to 'think ethically', i.e. to recognise moral problems and dilemmas in everyday practice and make decisions that can be morally justified.
1.1 What is Law?
Almost every introductory text about the law begins with the obvious question: what is law? Typically, however, no answer is immediately given or even attempted. Instead, the reader is swiftly reminded of the pervasiveness of the law and its ever-increasing control of our professional and social lives. Soon too, there will be an acknowledgement that there are probably as many definitions of law as there are theorists seeking to identify its essential nature - the conclusion being that it is therefore impossible to agree on what it 'is'. That this should be so is then justified by explaining that there are many different ways of thinking about the law. For example, some legal theorists focus on legal structures and processes and therefore claim that law is what legislators, judges and lawyers 'do'. Others, by contrast, prefer to study how law operates 'in context', i.e. how law is inextricably linked to other social phenomenon such as economic, moral and political interests (and the extent to which these contexts shape and are informed by the law). Another common approach is to analyse the law in terms of the functions it performs (e.g. to maintain public order and facilitate cooperative action). Evaluating the law in an attempt to establish criteria for what constitutes 'good' or 'bad' law is another approach in which the relationship between law and morality is the central issue. With so many different perspectives - all asking equally valid questions about the nature of law - it is not surprising that debates about the subject remain as fervent as they were when the ancient Greeks first sought answers to man's place in the social order and the nature of human society some 2500 years ago (see further McLeod, 2009).
1.1.1 Law as a system of rules
The approach taken here to the question, 'What is law?' is a much less ambitious one. It examines basically the extent to which law is a system of rules. This approach is a useful starting point not only because it is the most practical way of unravelling the complex range of rules that shape and define professional practice but also because most people have a basic idea of what a rule is, i.e. a statement of accepted standards of behaviour, guiding conduct or action in particular circumstances or situations. Most people, too, can instinctively recognise what many legal rules (or rules of law) seek to achieve; for example, that the criminal law prohibits certain types of behaviour, family law regulates various aspects of marriage and cohabitation, and health care law (or medical law) governs professional practice. That law is in some way different from the web of moral and social 'rules' by which people run their lives is also widely recognised. The difference between legal rules and the wide variety of other formal and informal professional and institutional rules, guidance and policies and practices which regulate nursing practice may, however, be less well understood (see below).
1.1.2 The nature of legal rules
At this stage the distinctive feature of all legal rules that should be grasped is that they must be:
1. Reasonably definite, consistent and understandable,
2. Known in advance, and
3. Recognised and enforced by the courts.
Rules become law when they are recognised by the majority of people in society and are given official backing to enforce them; i.e. they are recognised and applied by the state. A more complex analysis of law which has focused on the role of rules in providing the foundation of a legal system is provided by H.L.A. Hart (19071992). In his hugely influential book, The Concept of Law, Hart (1994) distinguished between two different types of legal rules (which he categorised as either primary or secondary rules). Each of these sets of rules interacts with each other in a hierarchical way and when combined, constitute what we commonly understand by the term 'a legal system'. According to Hart, the content of these two sets of rules is determined by five basic features (or truisms) of human society.
These are that human beings are:
1. Vulnerable,
2. Approximately equal in power,
3. Capable only of limited altruism (i.e. are generally selfish),
4. Have limited understanding and strength of will, and
5. Live in societies with limited resources.
Given these five generalisations about the human condition, Hart argues that primary legal rules are essential for every society's survival and protect people and their property and ensure that promises are kept. As such, these rules will prohibit violence, theft and deception and will also include how people relate to each other, for example, making contracts and wills. Primary rules can be described as duty-imposing because they specify what people can (or cannot do). They therefore create obligations with which members of the society must comply.
In complex and developed societies, primary rules alone need to be supplemented by secondary legal rules to resolve three problems:
1. Uncertainty, e.g. it may not be clear whether a certain rule is a rule of law or some other type of rule.
2. Laws may need adapting or new ones may need to be created as society develops and changes.
3. Inefficiency, i.e. without a mechanism to resolve disputes, primary rules would be ineffective.
To remedy these defects, the secondary rules (which are mostly power conferring) must consist of the following: (a) rules of adjudication, conferring authority on officials (such as judges) to resolve disputes; (b) rules of change, these change legal obligations (whether in the public or private sphere), i.e. they enable people to alter their legal relationships and also facilitate legislative or judicial changes which may be necessary to modernise outdated law; and (c) rules of recognition, which establish criteria for validating legal rules, i.e. deciding which ones have legal force. Note that rules of recognition are the most important secondary rules since they provide the definitive test of whether a particular rule qualifies as a rule of a legal system (Adams and Brownsword, 1996, p. 5).
Hart insists that it is the union of primary (which apply to all members of society) and secondary rules (which confer authority on officials) that is at the heart of a legal system. Both must coexist before any society can be said to have a legal system.
As was noted earlier, Hart's approach to law is only one of several possible alternatives. Mindful, too, that this brief and simplified account does little justice to wider aspects of his analysis (on which see Doherty, 2005, Chapter 10), nor to the many other ways legal theorists have distinguished various types of legal rules, it has nevertheless been credited with 'charting the precincts of modern legal theory' (Wacks, 2006, p. 26).
Key point
Rules become law when they are recognised and applied by the state.
1.2 How the Law is Made - the Sources of Law
In this section, we look at how legal rules are made, i.e. the principal sources from which English law is derived.
1.2.1 Legislation
There are two types of legislation - primary and secondary (note that the terms primary and secondary are concerned with the law-making process and should not be confused with Hart's two categories of legal rules).
Primary legislation
Primary legislation (also called statute law) is the most important source of law for several reasons. Firstly, it is enacted by Parliament, the principal law-making body in the UK. Parliament passes about 50 statutes (also called Acts) a year. Secondly, Parliament has the right to pass any law it wishes, although it is subject to European law (see below). Thirdly, Parliament has the authority to delegate law-making powers to other bodies, such as government departments. All statutes have to pass through various stages (as bills) during which they are debated in both houses of Parliament before they reach the statute book.
Whatever its origins, a bill only becomes law when it receives the Royal Assent. Even then the Act may not be immediately implemented, i.e. be brought into force straight-away. Another complicating factor is that not all sections of an Act may come into force at the same time (and some may never be implemented). Much of the structure, organization and administrative framework of the health service is governed by legislation, some of the most important being the National Health Service (NHS) Act 2006, the Health Act 2006, and the Health and Social Care Act 2008 (note that all statutes passed since 1988 are on the internet and can therefore be easily accessed at http://www.direct.gov.uk).
Activity
Read the Explanatory Note of the Health Act 2006. Does it explain the background to the Act and its main aims clearly?
Secondary legislation
Secondary legislation (also called delegated or subordinate legislation) is the other major source of law. Parliament has the power to delegate to other bodies or persons such as government departments and local authorities. It typically exercises this power when much more detailed rules are needed to flesh out a particular Act. Delegated legislation consists of Statutory Instruments or Orders in Council in the form of rules, regulations and by-laws. Approximately 3000 such items are produced each year. Secondary legislation is clearly, therefore, a very important source of law. Yet, despite having the same legal force as primary legislation, it is not subject to the same rigorous parliamentary scrutiny (although it can be challenged in the courts). Secondary legislation plays an important role in regulating health care provision (e.g. the Abortion Regulations 1991 and the Medicines for Human Use (Clinical Trial) Regulations 2004.
1.2.2 Statutory interpretation
Once a statute has come into force, the courts may be involved in applying and interpreting it. Thus, although legal language is supposed to be precise, clear and unambiguous, all too often words, phrases or even whole paragraphs may be vague and confusing. Also, many modern statutes deal with very complex subjects. They can therefore be very long and complicated, and errors are almost inevitable - the NHS Act 2006, for example, has 278 sections and 22 schedules. Cases may therefore come to court in which judges have to decide whether a statute applies to the particular facts in question.
So how do judges interpret the words of a statute or find the 'intention' of Parliament as the process of statutory interpretation is often called? Over the years, the courts have developed a variety of techniques, presumptions and aids to interpretation - the so-called rules of interpretation. These rules are not, however, applied by judges in a rigid scientific way. Instead, they give judges a wide discretion to select the approach they think is the most appropriate. This raises a further important question, namely, how 'creative' should judges be in cases where there appears to be no 'right' answer. Given that there may be several different ways of interpreting a particular word or paragraph, all of which could be correct, this is not an uncommon scenario. And if, as it is generally now conceded, judges do have a far more creative role in 'difficult' cases than was previously acknowledged, what limits should be imposed on them to ensure that they do not frustrate the intention of Parliament? Clearly, there are no simple answers to these questions. But what is self-evident is that the process of statutory interpretation owes much to the outlook and influence of those who have the authority to apply the law (see further Elliott and Quinn, 2009, Part 1).
Activity
Read Hendrick (2004, p. 16), Law and Ethics: Foundations in Nursing and Health Care. Follow the guidance on how to read a statute.
Key points
There are two types of legislation: (1) statute law and (2) secondary legislation.
Statutory interpretation refers to the judicial process of interpreting confusing or ambiguous legislation.
1.2.3 Common law
Common law consists of a system of legal rules that has evolved through court cases over the past 800 years. It is also known as case law or judge-made law. Much of the law regulating the relationship between health care practitioners and patients has developed through case law (in particular, consent and negligence law). When a case comes before a judge, there are two tasks for the court. Firstly, it must decide what facts are relevant, i.e. it must establish what actually happened, and secondly, how existing law applies to the facts. Case law develops from this second task. So how do judges carry out it?
System of precedent
The basic rule is that judges are legally obliged to follow any previous decision that has been made in a higher court. Known as judicial precedent, this process essentially requires courts to interpret similar cases - i.e. cases raising similar legal principles and involving similar facts and circumstances - in a similar manner. The system of binding precedent is based on the hierarchy of the courts - i.e. in general, the lower courts are bound to follow the higher courts even though appeals are sometimes possible.
Precedent in practice
Although simple to describe, precedent is much harder to apply in practice. Firstly, it depends on clear and accurate written records being kept of the arguments used in important cases and the legal principles on which the decision is made. This has developed into a system of law reporting of which the two most widely used are the All England Law Reports (All ER) and the Weekly Law Reports (WLR). In addition to paper reporting, there are several legal electronic databases (and the internet can similarly be used to access up-to-date information). Secondly, despite the system of law reporting, it is not always easy to decide what the precedent is - perhaps because two decisions in the law reports are inconsistent. Problems can occur, too, if the legal principles are expressed too narrowly or too widely for them to be useful in later cases (see further McLeod, 2009, Chapter 7).
In the same way that statutory interpretation raises questions about the creative role of judges, so has the system of precedent provoked much debate about the precise role of the judiciary in developing common law. Are they just neutral decision-makers who simply 'discover' the law and then declare it - i.e. they find previous binding decisions and then apply them to the facts of the particular case in question - or do they actually make new law and so have a powerful law-making function? Few now take seriously the claim that judges do no more than find and apply existing legal principles. Indeed, the system itself gives judges wide choices - not just because they can make creative selections from the mass of relevant precedents but also, when faced with an 'inconvenient' precedent, they can resort to various techniques to avoid following it (e.g. by 'distinguishing' cases, see further McLeod, 2009, Part 2, especially Chapter 14).
(Continues...)
Excerpted from Law and Ethics in Children's Nursing by Judith Hendrick Copyright © 2010 by John Wiley & Sons, Ltd. Excerpted by permission.
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