Whenever we think about the law and ethics we often include them in the same breath, rolling them together as one interchangeable concept, and while they are inextricably linked, naturally, it is possible to have one without the other.
With the passage of time, the dental profession has been subjected to increasing regulation across the world, and whilst there are some at the fringes of our practising cohort who would benefit from enhanced guidance, many practitioners find the increased rigidity of these regulatory frameworks restrictive, with little or no room to move.
So, what is ethics? How does it connect to and interact with the law? and; with all of the regulations and obligations that are imposed on a registered dental practitioner as an condition of their registration, have ethics become a moot concept, belonging in the past with cassette tapes, car phones and other superseded notions?
In order to explore this idea, it would be helpful to start by defining both the law and ethics, and seeing if there is room for, or a need for both in contemporary society.
The law can be broken into two clear arms; criminal and civil law. Criminal law polices the boundaries of what is acceptable to society as a whole, for example, governing extreme 'offences' such as murder or rape and imposing appropriate punitive measures for breaches of the law. In contrast, civil law specifically focuses on matters between two individuals, an alleged breach of contract, or perhaps more pertinently to our profession, matters of negligence would be illustrative of this. The law is comprised of a series of Acts, regulations and Statutes, fixed at a specific point in time to reflect the current position of society and the policy makers. There are however many areas in which the law cannot envisage the future, or 'end point', and none more so than within medical practice, especially the more contentious areas of medical research such as cloning and gene therapy. The law has been written with a view to what might happen, but in reality, areas such as medicine are evolving so rapidly that the law simply cannot keep up.
Rather than being a strict, enforceable written paradigm, ethics is best defined as the voluntary framework of guiding principles which acts to bring order and purpose into what could otherwise be left as voids or gaps between the laws. Reflect again on our colleagues researching and exploring the human genome, if not specifically prohibited by a law, what is there to make them take pause if not their moral code? Interestingly, while ethics sit in a position, grounded within personal morality and are voluntary when contrasted to, for example, drink driving legislation, Professional Ethics are enforceable through our regulatory bodies, with many a practitioner finding themselves suspended, not through a breach of law, but a breach of ethics.
One could then think of the law and ethics as a wall comprising of bricks and mortar; with the bricks representing the body of the law and the gaps between those bricks, or mortar, being filled by ethics. Surely then, ethics is an essential component of contemporary society, and certainly contemporary practice, as regardless of the obligations required of dental practitioners, without ethics, qualities and values such as fairness, decency and honesty, could we truly provide the standard of care to our patients that they deserve?
In summary, a delicate relationship between the law and ethics does exist, with ethics stepping in to fill the breach when a practitioner may not have a 'rule' about what to do next. Professional Ethics are as enforceable by our professional and registration bodies as the laws which govern us, and even if they were not, every practitioner has a duty of care to their patients, to 'first do no harm' in keeping with the four guiding principles of medical ethics; autonomy, beneficence, nonmaleficence and justice. An Australian High Court Judge once said that 'the law is marching with medicine, but in the rear and limping a little1 and if we accept this concept, we should all be grateful that ethics is there to lend a hand and act as a crutch for the law when needed'.
1. Windeyer J; Mt Isa Mines v Pusey (1971) 45 ALJR 88 at 92