Broad Connections between ethics and Law

Law: A set of rules made by a government or ruling body.

Ethics: A system of moral principles used to judge human action
Macquarie Dictionary

Within their role law and ethics significantly overlap.

‘For example consider that both disciplines address:
– access to medical care
– informed consent
– confidentiality of health care information and exceptions to
confidentiality (mandatory reporting obligations such as: child and elder
abuse, infectious disease.)
– advance directives
– abortion
– doctor-assisted suicide ‘

• Significant distinctions between law and medical ethics in philosophy,

function and power.
• E.g. an ethical pronouncement that is not adopted into law may be a
significant professional and moral guidepost but it generally
unenforceable
• Quite often when making laws policy statements of professional bodies
and suggestions of professionals are taken into account, thus legal
standard are affected by professional ethical standards.
• Good ethics has been described as “beginning where the law ends”

“Unlike science, the law seldom gives absolute ‘black and white’, answers. There
is always a grey area – hence the Law’s emblem is a Swinging scale.

Broad Principles of Australian Legal system as it pertains to Medical

Practitioners
2 systems of law governing medical practitioners in NSW
1. NSW state law: Governs most matters relating to medical practitioners;
contract, personal injury, the medical board, public offences. Cases heard
at local courts, disctrict courts and the Supreme Court of NSW
2. Australian Federal Law. Covers specific areas eg. Trade practice, Medicare,
super, tax, family law. Less complex cases usually heard by state court
system, more complex cases heard in Federal Court.
NB: High Court of Australia hears final appeals from both systems.
NB2 As well a formal court system also a system of tribunals
Differences
• Less formal
• Decide on merits of a dispute

Categories of Law, Range of legal processes to which doctors and

institutions can be subject.

Matters of dispute can be:

1. Civil: between 2 private citizens. Outcomes usually financial, level of
evidence does not need to be as convincing.
2. Criminal: government vs. an individual. Outcome can be jail time/or
financial. Evidence needs to be more convincing.

Process Avenues
• Complaints: Number of different bodies, Health Care Complaints
Commission (NSW Health), Australian Medical Association (Federal and
state branches), the NSW Coroner, employers and direct to doctors. These
bodies can make recommendations for further action.
• Civil Claims e.g. For Malpractice. Only a very small percentage of cases
make it to trial. Most are settled out of court and a small number are
discontinued.
• Tribunals: Can be convened by Medical Board/NSW HCCC. Have both
informal and formal hearings about alleged professional misconduct.
• Criminal Cases: Criminal action can be taken on the recommendation of
NSW Medical Board/Health Department in cases of medical negligence.
Current example in press = Dr Jayant Patel