Module 1- Course intro
Sunday, January 10, 2021 1:33 PM
⚫ Health law
○ Field that includes any legislation, statute, or legal case that affects the health of individuals and the public at large
○ 3 primary sources in Canada:
▪ Constitutional law
- Derived from the Canadian constitution : the charter of rights and freedoms
- Arguments based on constitutional law played a key role in the recent court decision to legalize medically assisted dying in Canada and in an
older legal decision to decriminalize abortion
▪ Statute law
- Laws enacted by elected government representatives in legislatures = statutes
- Serve as legal instruments used by legislatures to achieve particular policy goals
- Ex of a statute: Health Care Consent Act. 2 of its policy goals are to enhance patient/client autonomy and promote clear communication and
understanding between them and their healthcare providers
▪ Common law ("case law")
- Comes from the courts rather than legislatures and is derived from the rulings of judges in past cases
- Judges interpret and apply previous judicial decisions or "legal precedents" in which the facts were similar to the facts in a case currently befo
the court
⚫ Healthcare Ethics
○ Ethical issue when:
▪ You encounter conflicting values, beliefs, goals, and responsibilities
▪ You are concerned that people are not being treated respectfully
▪ You are worried about the fairness of a decision, action, or policy
○ Types:
1. Everyday ethics
2. Situations in which 2 or more equally important values appear to conflict
3. Situations characterized by moral uncertainty because they are novel or fall into a grey area
4. Situations in which people believe they know the right thing to do but encounter barriers
5. Conflicts between healthcare providers and their patients and families about what the right thing to do is
6. Conflicts within healthcare teams about what the right thing to do is
⚫ Ethics vs. Law
○ Law formally and systematically makes explicit the ethical commitments of a particular community
○ Law also has to take into account considerations besides ethics, including costs to the system, litigation process, and legal liability
○ Just because something is judged to be moral or immoral, doesn’t always mean that the law should permit or prohibit it
○ Also, just because something is legal, doesn’t necessarily mean that it is moral
⚫ Healthcare policy
○ Form of collective response that addresses an issue(s) affecting the health of a population or group of people
○ Policy can be a set of standards, guidelines, rules, principles, or directions that guide action
○ Often designed for 3 levels of social organization:
1. Macro level
▪ Policies that operate system-wide, across an entire community
- Ex, Health Canada guidelines laying out how hospitals are expected to respond to drug shortages
- Ex, federal policy guidelines governing publicly funded health research involving human subjects
2. Meso level
▪ Policies that operate within individual health care organizations and professional associations
- Ex, hospital's drug formulary policy that sets out which medications will be funded for in -patients and a hospital's policy on how instanc
of staff conscientious objection will be managed
3. Micro level
▪ Policies that operate at the bedside or in a clinical program
- Ex, emergency department policy on how to "triage" or prioritize patient treatments in overcrowded emergency rooms
⚫ Complex ethical issues identified
○ Physician-assisted suicide
○ Treatment in the face of futility
○ Allocating scarce medical resources on the basis of patient age
○ Willingness to prescribe a placebo
○ Whether insurance costs should be tied to patients' health behaviors
○ Romance with patients
○ Deciding whether or not to hide a harmful mistake
○ Impact of pharmaceutical company perks on prescribing habits
○ Disclosing or withholding patient information that could harm others
○ Impaired colleagues
○ Suspecting domestic abuse
○ Being pressured to give patients treatments they don’t need
○ Being pressured to withhold care due to cost containment
○ End-of-life care
▪ starting, continuing and withdrawing life-sustaining treatment (including nutrition and hydration)
▪ patient’s code status
LISC 373 Page 1
, ▪ patient’s code status
▪ use of physical and chemical restraints
▪ pain management
▪ organ donation, particularly after cardiac death
▪ advance care planning processes
▪ Ageism
▪ patient safety
○ Professional issues
▪ moral distress
▪ conscientious objection
▪ duty to provide care
▪ team dynamics related to professional and organizational hierarchies
▪ communication challenges
▪ confidentiality and reporting obligations regarding staff with communicable diseases
▪ staff attendance at funerals
○ Consent and substitute decision-making
▪ substitute decision makers perceived not to be making decisions in patients' best interests or consistent with patients' previously expressed wishes
▪ consent for/by youth
▪ pain management (sometimes with cultural/religious dimensions)
▪ end-of-life planning challenges when Public Guardian is the decision-maker
▪ emergency treatment of Jehovah’s Witness patients
○ Discharge planning
▪ patients returning to an unsafe community/home environment
▪ patients returning home and being re-admitted to hospital on a cyclical basis
▪ patients and/or families feeling pressure to accept transfer to another care setting not of their choosing
▪ disagreement between family members about discharge planning
○ Ethical issues in business and management
▪ Medical program priority setting
▪ Treatment of unfunded patients
▪ Conflicts of interest
▪ Resource shortages related to staffing and impacts on quality of care
⚫ Different lenses to consider when dealing with ethical scenarios
1. Goods
○ For "Consequentialist" or outcomes-based approaches to ethics, what makes a decision/action right is determined by the good it creates in the worl
rather than whether particular prescribed duties or moral rules are being followed
▪ Ex, Utilitarianism/utility principle: actions are right to the extent that they promote happiness, and wrong to the extent that they diminish
happiness or produce suffering
▪ Greatest happiness principle: goal of ethical action is to bring about the greatest amount of good for the largest number of people
○ 4 components of utilitarianism: act is morally best if it brings about more good consequences that bad ones for all people affected by it
➢ Utility - most important thing in life is to achieve happiness (or pleasure, well-being) and to avoid unhappiness (pain, suffering)
➢ Egalitarianism- interests of everyone capable of experiencing happiness and suffering matter equally
➢ Maximization- the more happiness we can bring about for all those affected by a decision or action, on balance, the better
➢ Aggregation- the way to bring about the most "net" happiness is to add together the interests of everyone involved
2. Rights
○ Theories that emphasize duties do not assess the morality of actions and decisions by the states of affairs they bring about in the world
○ For "deontological" theories, a decision or action is praise worthy based on its conformity with a moral norm or rule
▪ Particular norms and rules are derived from a fundamental obligation to respect people as "ends-in-themselves"
○ (Immanuel Kant) Duty to behave ethically is closely tied to the human capacity for reasoning
▪ Leads to a single "supreme moral principle" that we are all bound by called the categorical imperative
- Only act on moral norms that you can consistently universalize
→ Does your action make sense to do - consider everyone doing this. Based on this consideration, is it still something you want to do
- Never treat people merely as a means to an external end but always respect them as individuals with their own interests, valu es , and
goals
3. Principles
○ Principles, duties, rights, and obligations are not rigid, absolute standards but require interpretation and balancing in light of particular circumstance
○ Led to a framework of moral norms, comprised of 4 clusters of prima facie principles:
➢ Autonomy - requires us to give weight to people's independent values and choices, and to refrain from interfering with them except in
circumstances where their actions are clearly detrimental to others
➢ Beneficence- healthcare providers have a moral obligation to act for the benefit of others
▪ In addition of helping them heal or cope with illness, there are many ways to aid patients, including defending their rights, protecting th
from harm, and rescuing them from danger
➢ Non-maleficence- moral obligation to avoid intentionally inflicting harm
▪ Finds expression in the Hippocratic Oath "I will use treatment to help the sick according to my ability and judgment, but I w ill never use
to injure or wrong them"
▪ Duty to care involves minimizing risks and maximizing the benefits of proposed interventions
➢ Justice (distributive)- conflicting interests must be weighed when deciding how to allocate benefits and burdens under conditions of resource
scarcity and competition
▪ Potential candidates include making decisions according to need, merit, ability, contribution, free -market exchange, and by lottery
○ Pluralism in practice
▪ Pluralism - there are many fundamental ethical values and principles which are not reducible to one another
▪ Prima facie principles - each principle involved in a particular situation is binding, all things being equal, but when 2 or more conflict, judgeme
is needed to choose between them or to balance them somehow
LISC 373 Page 2
, is needed to choose between them or to balance them somehow
- Often a moral value that has to be sacrificed
▪ Context matters - sensitivity to morally relevant features of individual situations is required to properly exercise this moral judgment
4. Stories
○ Narrative ethics
▪ Conviction that the ethics of everyday life unfolds through the medium of stories and that much of the moral labor that humans undertake is
learned and performed through their exchange and interpretation
▪ Descriptions of people, events and values are not neutral reflections of reality, they are choices that tell us about the subject describing and
what is being described
▪ Approaches to narrative ethics also seek to acknowledge rather than reduce discord, disunity, and disagreement between different perspectiv
and demand attentiveness to the multiplicity of stories and shared meanings that exist in tension with one another in a given situation
LISC 373 Page 3
, Module 2- Medical decision making
Wednesday, January 20, 2021 2:21 PM
⚫ Informed consent
○ Power to make important life decisions -to provide informed consent- and have these decisions protected in law is a fundamental part of exercising one
autonomy as a Canadian citizen
○ In the healthcare setting, people have the right to make decisions about their medical treatments, their personal care, and to some extent, where they
wish to live if unable to live at home
○ 3 pieces of legislation that make up the framework governing matters related to mental capacity and informed consent in Ontario are;
1. The Health Care Consent Act
2. The substitute Decisions Act
3. The mental health act
⚫ Elements of informed consent
○ Legal consent requirements can differ by jurisdiction within and between countries
○ 3 elements commonly included in healthcare consent legislation in NA and parts of Europe are:
1. The person must be capable
▪ Capable person= able to understand the information that is relevant to making a particular medical decision AND to appreciate the reasona
foreseeable consequences of their decision
2. The person must be informed
▪ Person must have access to the medical information necessary for them to make the best medical decision
▪ The healthcare practitioner must provide an explanation to the patient of
a) The nature and purpose of the proposed treatment
b) Alternative courses of action
c) Material side effects
d) Risks and benefits of undergoing treatment
e) Likely consequences of not having treatment
3. The decision must be voluntary
▪ Peron's consent must be freely given and not obtained under duress, compulsion, fraud, or misrepresentation
⚫ Exceptions to informed consent requirements
1. Emergencies
○ Circumstances that involve a serious threat to life for a patient who is unable to consent at the time
○ Exception to this * : prior known refusal to a particular intervention by the patient
2. Incapacity
○ When a patient lacks the capacity to make their own decisions, their authority to do so transfers to a surrogate decision-maker who decides on the
behalf
3. Patient "waiver"
○ A patient may be able to "waive" aspects of the decision-making process, by deferring to a family member who may receive information on their
behalf, for example
4. Socially imposed treatment
○ Patient consent is not required for non-voluntary mental health assessments and to defend the public's health in special circumstances
*Informed consent tools*
- NICE tool on consent and capacity
https://ltctoolkit.rnao.ca/node/1284
- Informed Consent Flow Chart
LISC 373 Page 4
Sunday, January 10, 2021 1:33 PM
⚫ Health law
○ Field that includes any legislation, statute, or legal case that affects the health of individuals and the public at large
○ 3 primary sources in Canada:
▪ Constitutional law
- Derived from the Canadian constitution : the charter of rights and freedoms
- Arguments based on constitutional law played a key role in the recent court decision to legalize medically assisted dying in Canada and in an
older legal decision to decriminalize abortion
▪ Statute law
- Laws enacted by elected government representatives in legislatures = statutes
- Serve as legal instruments used by legislatures to achieve particular policy goals
- Ex of a statute: Health Care Consent Act. 2 of its policy goals are to enhance patient/client autonomy and promote clear communication and
understanding between them and their healthcare providers
▪ Common law ("case law")
- Comes from the courts rather than legislatures and is derived from the rulings of judges in past cases
- Judges interpret and apply previous judicial decisions or "legal precedents" in which the facts were similar to the facts in a case currently befo
the court
⚫ Healthcare Ethics
○ Ethical issue when:
▪ You encounter conflicting values, beliefs, goals, and responsibilities
▪ You are concerned that people are not being treated respectfully
▪ You are worried about the fairness of a decision, action, or policy
○ Types:
1. Everyday ethics
2. Situations in which 2 or more equally important values appear to conflict
3. Situations characterized by moral uncertainty because they are novel or fall into a grey area
4. Situations in which people believe they know the right thing to do but encounter barriers
5. Conflicts between healthcare providers and their patients and families about what the right thing to do is
6. Conflicts within healthcare teams about what the right thing to do is
⚫ Ethics vs. Law
○ Law formally and systematically makes explicit the ethical commitments of a particular community
○ Law also has to take into account considerations besides ethics, including costs to the system, litigation process, and legal liability
○ Just because something is judged to be moral or immoral, doesn’t always mean that the law should permit or prohibit it
○ Also, just because something is legal, doesn’t necessarily mean that it is moral
⚫ Healthcare policy
○ Form of collective response that addresses an issue(s) affecting the health of a population or group of people
○ Policy can be a set of standards, guidelines, rules, principles, or directions that guide action
○ Often designed for 3 levels of social organization:
1. Macro level
▪ Policies that operate system-wide, across an entire community
- Ex, Health Canada guidelines laying out how hospitals are expected to respond to drug shortages
- Ex, federal policy guidelines governing publicly funded health research involving human subjects
2. Meso level
▪ Policies that operate within individual health care organizations and professional associations
- Ex, hospital's drug formulary policy that sets out which medications will be funded for in -patients and a hospital's policy on how instanc
of staff conscientious objection will be managed
3. Micro level
▪ Policies that operate at the bedside or in a clinical program
- Ex, emergency department policy on how to "triage" or prioritize patient treatments in overcrowded emergency rooms
⚫ Complex ethical issues identified
○ Physician-assisted suicide
○ Treatment in the face of futility
○ Allocating scarce medical resources on the basis of patient age
○ Willingness to prescribe a placebo
○ Whether insurance costs should be tied to patients' health behaviors
○ Romance with patients
○ Deciding whether or not to hide a harmful mistake
○ Impact of pharmaceutical company perks on prescribing habits
○ Disclosing or withholding patient information that could harm others
○ Impaired colleagues
○ Suspecting domestic abuse
○ Being pressured to give patients treatments they don’t need
○ Being pressured to withhold care due to cost containment
○ End-of-life care
▪ starting, continuing and withdrawing life-sustaining treatment (including nutrition and hydration)
▪ patient’s code status
LISC 373 Page 1
, ▪ patient’s code status
▪ use of physical and chemical restraints
▪ pain management
▪ organ donation, particularly after cardiac death
▪ advance care planning processes
▪ Ageism
▪ patient safety
○ Professional issues
▪ moral distress
▪ conscientious objection
▪ duty to provide care
▪ team dynamics related to professional and organizational hierarchies
▪ communication challenges
▪ confidentiality and reporting obligations regarding staff with communicable diseases
▪ staff attendance at funerals
○ Consent and substitute decision-making
▪ substitute decision makers perceived not to be making decisions in patients' best interests or consistent with patients' previously expressed wishes
▪ consent for/by youth
▪ pain management (sometimes with cultural/religious dimensions)
▪ end-of-life planning challenges when Public Guardian is the decision-maker
▪ emergency treatment of Jehovah’s Witness patients
○ Discharge planning
▪ patients returning to an unsafe community/home environment
▪ patients returning home and being re-admitted to hospital on a cyclical basis
▪ patients and/or families feeling pressure to accept transfer to another care setting not of their choosing
▪ disagreement between family members about discharge planning
○ Ethical issues in business and management
▪ Medical program priority setting
▪ Treatment of unfunded patients
▪ Conflicts of interest
▪ Resource shortages related to staffing and impacts on quality of care
⚫ Different lenses to consider when dealing with ethical scenarios
1. Goods
○ For "Consequentialist" or outcomes-based approaches to ethics, what makes a decision/action right is determined by the good it creates in the worl
rather than whether particular prescribed duties or moral rules are being followed
▪ Ex, Utilitarianism/utility principle: actions are right to the extent that they promote happiness, and wrong to the extent that they diminish
happiness or produce suffering
▪ Greatest happiness principle: goal of ethical action is to bring about the greatest amount of good for the largest number of people
○ 4 components of utilitarianism: act is morally best if it brings about more good consequences that bad ones for all people affected by it
➢ Utility - most important thing in life is to achieve happiness (or pleasure, well-being) and to avoid unhappiness (pain, suffering)
➢ Egalitarianism- interests of everyone capable of experiencing happiness and suffering matter equally
➢ Maximization- the more happiness we can bring about for all those affected by a decision or action, on balance, the better
➢ Aggregation- the way to bring about the most "net" happiness is to add together the interests of everyone involved
2. Rights
○ Theories that emphasize duties do not assess the morality of actions and decisions by the states of affairs they bring about in the world
○ For "deontological" theories, a decision or action is praise worthy based on its conformity with a moral norm or rule
▪ Particular norms and rules are derived from a fundamental obligation to respect people as "ends-in-themselves"
○ (Immanuel Kant) Duty to behave ethically is closely tied to the human capacity for reasoning
▪ Leads to a single "supreme moral principle" that we are all bound by called the categorical imperative
- Only act on moral norms that you can consistently universalize
→ Does your action make sense to do - consider everyone doing this. Based on this consideration, is it still something you want to do
- Never treat people merely as a means to an external end but always respect them as individuals with their own interests, valu es , and
goals
3. Principles
○ Principles, duties, rights, and obligations are not rigid, absolute standards but require interpretation and balancing in light of particular circumstance
○ Led to a framework of moral norms, comprised of 4 clusters of prima facie principles:
➢ Autonomy - requires us to give weight to people's independent values and choices, and to refrain from interfering with them except in
circumstances where their actions are clearly detrimental to others
➢ Beneficence- healthcare providers have a moral obligation to act for the benefit of others
▪ In addition of helping them heal or cope with illness, there are many ways to aid patients, including defending their rights, protecting th
from harm, and rescuing them from danger
➢ Non-maleficence- moral obligation to avoid intentionally inflicting harm
▪ Finds expression in the Hippocratic Oath "I will use treatment to help the sick according to my ability and judgment, but I w ill never use
to injure or wrong them"
▪ Duty to care involves minimizing risks and maximizing the benefits of proposed interventions
➢ Justice (distributive)- conflicting interests must be weighed when deciding how to allocate benefits and burdens under conditions of resource
scarcity and competition
▪ Potential candidates include making decisions according to need, merit, ability, contribution, free -market exchange, and by lottery
○ Pluralism in practice
▪ Pluralism - there are many fundamental ethical values and principles which are not reducible to one another
▪ Prima facie principles - each principle involved in a particular situation is binding, all things being equal, but when 2 or more conflict, judgeme
is needed to choose between them or to balance them somehow
LISC 373 Page 2
, is needed to choose between them or to balance them somehow
- Often a moral value that has to be sacrificed
▪ Context matters - sensitivity to morally relevant features of individual situations is required to properly exercise this moral judgment
4. Stories
○ Narrative ethics
▪ Conviction that the ethics of everyday life unfolds through the medium of stories and that much of the moral labor that humans undertake is
learned and performed through their exchange and interpretation
▪ Descriptions of people, events and values are not neutral reflections of reality, they are choices that tell us about the subject describing and
what is being described
▪ Approaches to narrative ethics also seek to acknowledge rather than reduce discord, disunity, and disagreement between different perspectiv
and demand attentiveness to the multiplicity of stories and shared meanings that exist in tension with one another in a given situation
LISC 373 Page 3
, Module 2- Medical decision making
Wednesday, January 20, 2021 2:21 PM
⚫ Informed consent
○ Power to make important life decisions -to provide informed consent- and have these decisions protected in law is a fundamental part of exercising one
autonomy as a Canadian citizen
○ In the healthcare setting, people have the right to make decisions about their medical treatments, their personal care, and to some extent, where they
wish to live if unable to live at home
○ 3 pieces of legislation that make up the framework governing matters related to mental capacity and informed consent in Ontario are;
1. The Health Care Consent Act
2. The substitute Decisions Act
3. The mental health act
⚫ Elements of informed consent
○ Legal consent requirements can differ by jurisdiction within and between countries
○ 3 elements commonly included in healthcare consent legislation in NA and parts of Europe are:
1. The person must be capable
▪ Capable person= able to understand the information that is relevant to making a particular medical decision AND to appreciate the reasona
foreseeable consequences of their decision
2. The person must be informed
▪ Person must have access to the medical information necessary for them to make the best medical decision
▪ The healthcare practitioner must provide an explanation to the patient of
a) The nature and purpose of the proposed treatment
b) Alternative courses of action
c) Material side effects
d) Risks and benefits of undergoing treatment
e) Likely consequences of not having treatment
3. The decision must be voluntary
▪ Peron's consent must be freely given and not obtained under duress, compulsion, fraud, or misrepresentation
⚫ Exceptions to informed consent requirements
1. Emergencies
○ Circumstances that involve a serious threat to life for a patient who is unable to consent at the time
○ Exception to this * : prior known refusal to a particular intervention by the patient
2. Incapacity
○ When a patient lacks the capacity to make their own decisions, their authority to do so transfers to a surrogate decision-maker who decides on the
behalf
3. Patient "waiver"
○ A patient may be able to "waive" aspects of the decision-making process, by deferring to a family member who may receive information on their
behalf, for example
4. Socially imposed treatment
○ Patient consent is not required for non-voluntary mental health assessments and to defend the public's health in special circumstances
*Informed consent tools*
- NICE tool on consent and capacity
https://ltctoolkit.rnao.ca/node/1284
- Informed Consent Flow Chart
LISC 373 Page 4
