The law, ethics and morals: What's the difference and why do physicians need to know?

I marvel at the fact that not long after passing the bar exam, a path opened up for me to teach bioethics to medical students. I have been teaching for thirteen years, and student exchanges often prompt me to think about certain items differently.

Recently, while discussing a case study, I had to explain the distinction between laws (and regulations), ethics, professional standards, and morals. Specifically, they arose in an instance where the hypothetical physician did not wish to provide the patient-requested medical treatment. Medical students are not alone in juxtaposing ethics with morals or professional standards with the law. Licensed physicians often use the incorrect terminology.

In order to dispel these common misconceptions for future and current physicians, an explanation follows.

First, laws are written by legislatures (i.e., U.S. Congress, State Congresses). For federal laws, a bill is introduced in either the House or the Senate and is required to pass both chambers before being sent to the U.S. President’s desk for his signature. The day that the passed bill is signed is the date it becomes law. Regulations, which are often referred to as “rules” are written by either U.S. agencies (e.g., the U.S. Dep’t of Health and Human Services, Federal Trade Commission) or similar agencies at an individual state level, to implement laws passed by Congress. Per the Administrative Procedure Act, 5 U.S.C. Chapter 5, Part 1 (APA), the proposed regulations must go out to the public via the “notice and comment” provision. Then a Final Rule is issued, which becomes legally binding. In sum, laws are binding and are required to be adhered to.

Second, ethics, as set forth by the American Medical Association (AMA), is a group of written standards. The AMA established the first national code of ethics for physicians (Code) to “[p]romot[e] adherence to the professional standards promulgated in the Code.” These are considered essential to preserving patient trust and public confidence in the medical profession.

Many of the opinions in the Code, while representing AMA policy, are not rigid and are not legally binding. Why? The scenarios are fact and circumstance specific and when one reads a variety of the Code’s opinions addressing various scenarios, there is allowance for variations in addressing a given situation. Hence, the outcome may be different depending on the totality of the facts and circumstances.

So, what’s the difference between ethics and morals? Both are predicated on notions of right and wrong; however, “ethics concerns rules from an external source and morals are based on each person’s own principles around right and wrong.” Morals are not legally binding and, again, an individual may have a general moral belief but there may be material facts and circumstances that cause the person to carve out an exception. I’m not talking about taking $5.00 versus taking $50,000 that is not lawful. A bright-line rule for some may be drinking no alcohol whatsoever if operating a vehicle or not using illegal drugs or prescription drugs illegally. While morals do and should come into play, “[c]rudely speaking, ethics are how society applies beliefs and values into short and long-term decisions.” Both ethics and morals contribute to greater societal goals and often have a religious component to them.

This brings us to the concept of conscientious objection or conscientious refusals, which often arise in the context of reproductive health care, both for men and women. The first starting point for physicians is whether the situation is an emergency. Importantly, there are a variety of different laws that address conscientious objection, including but not limited to The Church Amendments, 42 U.S.C. §300a-7, et seq., The Weldon Amendment, and the Affordable Care Act, §§1553 and 1303(b)(4).

There are also professional standards, which are not legally binding but are persuasive and may be included by a court in an opinion. The American College of Obstetrics and Gynecology (ACOG) is an organization dedicated to physicians who practice in the specialty of obstetrics and gynecology (OB/GYN). ACOG’s Committee on Ethics publishes standards for OB/GYNs, including Number 385. An excerpt of ACOG No. 385 states,

Conscientious refusals that conflict with patient well-being should be accommodated only if the primary duty to the patient can be fulfilled. All health care providers must provide accurate and unbiased information so that patients can make informed decisions. Where conscience implores physicians to deviate from standard practices, they must provide potential patients with accurate and prior notice of their personal moral commitments. Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request. In resource-poor areas, access to safe and legal reproductive services should be maintained. Providers with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place. In an emergency in which referral is not possible or might negatively have an impact on a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care. (emphasis added).

In sum, laws are binding and may have legal consequences. Physicians, like lawyers, are fiduciaries and profession’s primary obligation is to have the best interest of the client/patient. Ethics are written standards, which contribute to societal norms and laws, while morals are specific to an individual. The notion of conscientious objection brings all of these pieces together. The key-consideration, the totality of the facts and circumstances, where there is latitude in either the law or written ethics codes, must be considered because something that may initially look unethical may not be or vice versa.

Rachel V. Rose, J.D., MBA, advises clients on compliance, transactions, government administrative actions and litigation involving health care, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rose can be reached through her website, www.rvrose.com.