ETHICAL STANDARDS SHARED BY LEGAL AND HEALTH PROFESSIONALS: OVERLAPPING CODES OF ETHICS
Professional Ethics is a term that is not exclusive to attorneys. Health providers, like legal service providers, are subject to codes of ethics, and are also more particularly influenced by laws and regulations than other professionals. Both legal and health services providers share similar ethical duties regarding informed consent, privacy and confidentiality, and effective communication.
The basis of the lawyer-client or health provider-patient relationship starts with informed consent. Rule 1(e) of the Maine Lawyers Rules of Professional Conduct carefully defines informed consent as a person’s “agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 1.2 is related to Rule 1, as it requires the lawyer to “abide by a client’s decisions concerning the objectives of representation.” Similarly, Ethics Opinion 8.08 of the American Medical Association (“AMA”) states: “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice. The patient should make his or her own determination about treatment. The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.” The Guidelines for Ethical Conduct for the Physician Assistant Profession also deal with informed consent: “Physician assistants have a duty to protect and foster an individual patient’s free and informed choices. The doctrine of informed consent means that a PA provides adequate information that is comprehensible to a competent patient or patient surrogate. At a minimum, this should include the nature of the medical condition, objectives of the proposed treatment, treatment options, possible outcomes, and the risks involved. PA’s should be committed to the concept of shared decision making, which involves assisting patients in making decisions that account for medical, situational and personal factors.” Maine law protects providers who comply with standards for informed consent. See 24 M.R.S.A. § 2905. Keep in mind that, unlike the AMA language, the Maine Supreme Court confirmed that, a patient (or by analogy a client) may choose to do nothing at all even if the provider would disagree. See also Downer v. Veilleux, 322 A.2d 82 (1974).
Privacy and confidentiality are also concerns common to the lawyer-client and health provider-patient relationship. Rule 1.6 of the Lawyers Rules of Professional Conduct protects against disclosures of client confidences or secrets except in clearly defined circumstances. Interestingly, there is a specific AMA medical ethics opinion (5.09) that governs confidentiality by industry-employed physicians and independent medical examiners: “When a physician renders treatment to an employee with a work-related illness or injury, the release of medical information to the employer as to the treatment provided may be subject to the provisions of the workers’ compensation laws. The physician must comply with the requirements of such laws, if applicable. However, the physician may not otherwise discuss the employee’s health condition with the employer without the employee’s consent . . .” See also AMA Ethics Opinion 5.05, Confidentiality (generally constrains release by the physician of confidential information). This is echoed by the PA Ethical Guidelines: “Any communication about a patient that is conducted in a manner that violates confidentiality is unethical.” Maine law governing health care confidentiality is quite detailed. See 22 M.R.S.A. § 1711. In addition, the employer, under the ADA and MHRA, is prohibited from obtaining medical information other than an opinion whether an employee can perform a job with or without reasonable accommodation. Unlike a HIPAA violation, breach of the Maine Confidentiality Law may give rise to a private civil action sounding in defamation, negligence, or invasion of privacy.
As Maine becomes more diverse, providers of both legal services and health services face communication challenges. Rule 1.4(5)(6) of the Lawyers Rules of Professional Conduct links the duty of effective communication to the effectiveness of informed consent: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In addition to the common sense requirement that effective medical consultation and treatment is based upon effective communication, certain providers, or their institutions, may be subject to state and federal requirements governing public accommodations, including services performed for persons with limited English proficiency. The Maine Human Rights Act, for example, imposes a duty on public accommodations to be accessible to all, regardless of national origin, disability, gender, and more. A public accommodation must therefore hire an interpreter if a client/patient does not understand English or a sign language interpreter if the client/patient speaks only sign language. See HHS Regulations set forth at 45 CFR § 80.3(b) (2). See also 5 M.R.S.A. §§ 4553 et seq. (2011).
The fundamental lesson of these shared ethical standards is that communications with clients and patients, and communications of client and patient information to others, must be thoughtful, informative, and based on client and patient needs and consent. Time spent on consideration of the ethical duties arising from such requirements is time well spent by all of us.
The author of this article, Jon Oxman, provides legal services to doctors, nurse, and other healthcare practitioners.