PROFESSIONAL ETHICS IN A SOCIAL WORK AND HEALTH CONTEXT David Anderson-Ford Chair: Brunel University Research Ethics Committee  Brunel University 2009

Ethics is concerned with how men and women ought to live their lives Morality concerns the process of deliberation about right and wrong. MoralImmoral (Right)(Wrong) Seedhouse D Ethical Issues in Health Care  Brunel University 2009

Two Forms: Everyday Ethics Everyday Ethics Technical Ethics: Technical Ethics: i.e. the attempt to design a theory which is internally coherent and which enables a person to “act morally” (according to the particular theory) whatever the situation in life which confronts her/him.  Brunel University 2009

Aspects of Technical Ethics 1. Moral philosophy as a quest to understand ‘good’ 2. Moral philosophy based on either consequences or duties Consequences (Teleology) Utilitarianism (JS Mill) Utilitarianism (JS Mill) Consequentialism Consequentialism Duties (Deontology) Right/wrong Right/wrong Duty/obligation – the Moral Imperative (Kant) Duty/obligation – the Moral Imperative (Kant) 3. Moral philosophy as a process of deliberation – Aristotle  Brunel University 2009

Principles of Ethics Jacques Thiroux (1980) – 5 Principles: The Value of Life The Value of Life At all costs? Abortion; Euthanasia; killing in self-defence; war; capital punishment; suicide; moral dilemmas: e.g. ‘quality adjusted life years’ – quantity rather than quality.  Brunel University 2009

Goodness or Rightness Goodness or Rightness Do no harm:- beneficence - non-malfeasance - malfeasance Justice or Fairness Justice or Fairness Dilemmas e.g. kidney transplants Truth-telling or Honesty – fraud/plagiarism Truth-telling or Honesty – fraud/plagiarism Individual Freedom Individual Freedom Respect for the autonomy of the individual  Brunel University 2009

Human Rights Act 1998 Convention Rights Convention Rights –Article 2: A right to life –Article 3: Inhuman or degrading treatment –Article 5: A right to liberty and security –Article 6: A right to a fair trial –Article 8: A right to respect for family life and private life –Article 14: Prohibits discrimination  NB: Any interference with convention rights must be lawful, necessary and proportionate  Brunel University 2009

LEGAL ASPECTS OF PROFESSIONAL ACCOUNTABILITY Professional Negligence Professional Negligence Confidentiality Confidentiality Consent Consent  Brunel University 2009

LIABILITY IN NEGLIGENCE Based on concept of duty of care  Brunel University 2009

3 ingredients The defendant owed the claimant a duty of care The defendant owed the claimant a duty of care The defendant was in breach of that duty by negligent conduct – i.e. a failure to act with reasonable care (+ concept of foreseeability) The defendant was in breach of that duty by negligent conduct – i.e. a failure to act with reasonable care (+ concept of foreseeability) The defendant’s negligent conduct caused damage to the claimant (concept of causation) The defendant’s negligent conduct caused damage to the claimant (concept of causation)  Brunel University 2009

Bolam v Friern Barnet Hospital Management Committee (1957) See now:Bolitho v City and Hackney Heath Authority (1997)  Brunel University 2009

THE STANDARD OF CARE The test is the standard of the ordinary skilled [social worker/health professional] exercising and professing to have that special skill. A professional need not possess the highest expert skill…. It is sufficient if s/he exercises the ordinary skill of the ordinary competent person exercising that particular art….”  Brunel University 2009

“A [social worker/health professional] will not be negligent if s/he acted in accordance with the practice accepted by a responsible body of [health professionals] skilled in that particular art.” “A [social worker/health professional] will not be negligent if s/he acted in accordance with the practice accepted by a responsible body of [health professionals] skilled in that particular art.”  Brunel University 2009

VICARIOUS LIABILITY The Local Authority/NHS Trust or employer has two forms of liability in negligence: Direct liability, i.e. the Local Authority/Trust itself is at fault. Direct liability, i.e. the Local Authority/Trust itself is at fault. Vicarious liability (indirect liability), i.e. the Local Authority/Trust is responsible for the faults of others – mainly employees, providing they were acting in the course of employment. Vicarious liability (indirect liability), i.e. the Local Authority/Trust is responsible for the faults of others – mainly employees, providing they were acting in the course of employment.  Brunel University 2009

COMPETENCE, CONSENT & COMPULSION AUTONOMY v PATERNALISM  Brunel University 2009

The Competent Adult/Child The Nature of Consent -Express -Implied ('need to know' basis)  Brunel University 2009

3 issues: Was the consent voluntarily given? Was the consent voluntarily given? Was the person giving consent appropriately informed beforehand? – issue of informed consent. Was the person giving consent appropriately informed beforehand? – issue of informed consent. Did the patient/client have capacity in law? Did the patient/client have capacity in law? -i.e. was the patient/client competent to give consent? -i.e. was the patient/client competent to give consent?  Brunel University 2009

Children Gillick v West Norfolk & Wisbech Area Health Authority (1986) Children Act 1989 Test of 'Gillick competence' ? But see: Re R (1992) Re W (1992) Re W (1992)  Brunel University 2009

Incapacity: Adults/Children Meaning of 'incompetence? Lack of capacity/ ‘decisionally incapable’/intellectually challenged Meaning of 'incompetence? Lack of capacity/ ‘decisionally incapable’/intellectually challenged Mental Health Acts 1983/2007 Mental Health Acts 1983/2007 Test of Competence: Test of Competence: Re C (1993) 1. Comprehension and retention of information 2. Believing such information 3. Weighing the information and balancing the risks. See now: B v An NHS Hospital Trust (2002)  Mental Capacity Act 2005  Brunel University 2009