LAW AND ETHICS

IN HEALTHCARE
INTRODUCTION
 Healthcare law – definition
 Narrow – relationship between doctors and
hospitals on the one hand AND patients on
the other

 Wide – relationship of healthcare

professionals to each other and the consumers
of their services (e.g. patients, researchers);
concerned with individual patient issues but
also with public health
 Healthcare laws – enable healthcare providers
and managers to minimize the risk of criminal
and civil liability; patients have become aware
of personal and Constitutional rights; medical
paternalism is decreasing; State obligations

 New dilemmas are increasingly presenting

themselves – new technologies (e.g. E-Health,
telemedicine, etc), human rights, changing
societal morals; pandemic ethics
 Some pertinent issues for regulators and
policy makers:
 The rise in non – communicable lifestyle
diseases
 Rising life expectancy that may lead to
lifestyle changes
 Mental health issues
 Burnout and stress
 Industrial action in the health sector – the
balancing of rights – duty to treat vs. the right
to safe and healthy working conditions
 Healthcare financing and budgeting (in the context
of devolution)

 Health and consumer protection

 Health and environmental protection

 Health and food security

 The commodification of health

 Increased litigation and its effect on the cost of
healthcare; patient safety; dispute resolution
 Pandemic ethics and legal and human rights
issues (related to health)

 Public health Emergencies, pandemics and

public security

 Public health vs. Individual Rights

 Corruption and Health Service Delivery

DIFFERENCES BETWEEN PUBLIC
HEALTH LAW AND MEDICAL LAW
 What is Public health – its content, its
mission/functions and scope of its services?

 Who engages in public health – is it just the

state or the private sector, charities and
community based organizations?

 The answers to these questions provide

insight into the content, purpose and scope of
public health law – domestically and
internationally
Definition of Public health –
 WHO Constitution – health is the complete state of
physical and mental health and not just the absence of
disease
 (WHO) public health refers to all organised measures
whether public or private to prevent disease, promote
health and prolong life among the whole population
 It is not merely about the eradication of disease
(holistic view of health)
 Focuses on whole populations rather than
individual patients and diseases (what is of public
concern?)
Other definition:
 Charles – Edward A Winslow – “the science
and the art of preventing disease, prolonging life
and promoting physical health and efficiency
through organized community efforts for the
sanitation of the environment, the control of
community infections, the education of the
individual in principles of personal hygiene and
the organization of medical and nursing service
for the early diagnosis and preventive treatment of
disease.”
 More recent definitions focus on the complete well –
being of the person i.e. healthy body, high quality
personal relationships, a sense of purpose in life and
self – regard and resilience (see World Happiness
Report 2021)

 Public health is what we as a society do collectively

to assure the conditions for people to be healthy.

 Public health is less interested with the clinical

interactions between health care professionals and
patients and more interested in devising strategies to
prevent, ameliorate injury and disease.
  The three main public health functions
(WHO):
a) Assessment and monitoring of the health of
communities and populations – to identify
health problems and priorities
b) Formulation of policies designed to solve
national health problems
c) To ensure and assure that the public has
access to appropriate and affordable health
care, promotion and disease prevention
services
FUNCTIONS OF PUBLIC HEALTH
INTERVENTIONS
 The narrow (traditional) focus of public health
– proximal factors for injury and disease – role
of public health practitioners is to identify the
risks and harms and intervene to ameliorate or
prevent them

 This is done through powers of

surveillance(screening and reporting), injury
prevention measures (safe consumer products)
and infectious disease control(vaccination,
partner notification and quarantine)
 Broad view of the functions of public health
measures – equitable distribution of social and
economic resources because social status, race,
gender and wealth are important influences on the
health of populations (health equity) – dealing with
health disparities, differences, inequalities and
inequities

 The UN Special Rapporteur’s definition on the right

to health – states that the protection of the right to
health must take into account the social and
underlying determinants of health e.g. housing, food
and nutrition, gender, environment, work, etc
PUBLIC HEALTH LAW
 Public health law – is a tool that influences the
norms and values for healthy behavior,
identifies and responds to threats to health and
sets and enforces health and safety standards.

 Can be defined as “The study of the legal power

and duties of the state to assure the conditions for
people to be healthy and the limits on that power to
constrain the autonomy, privacy, liberty, proprietary
or other legally protected interests of individuals for
protection or promotion of community health.”
DISTINGUISHING FACTORS BETWEEN
PUBLIC HEALTH LAW AND MEDICAL LAW
a) Emphasis on the role of the government in
promotion of community health
b) Population based perspective
c) The relationship between people and the
State
d) Emphasis on service provision
e) The role of coercion rather than on
autonomy based decision – making e.g.
education, incentives, deterrence,
behaviour change, information, physical,
business regulations and environments
 PUBLIC HEALTH AND
PUBLIC SECURITY
 What is the interface between public health and
public security?

 Threats to countries are now beyond being military

in nature – the extend to health, environmental,
resource based and demographical – “diseases know
no borders.”

 Health security measures – measures that a country

takes against external health threats from other
countries; but also within its own territory
“We are at war” – sloganisation of the fight against
pandemics
 Global health security measures are “the activities
required to minimise the vulnerability to acute public
health events that endanger the collective health of
populations living across geographical regions and
international boundaries”

 QUESTION: Identify some of the global health

security measures that have been adopted
recently and over the years in light of public
health emergencies/epidemics/pandemics – e.g.
HIV, SARS, Avian Flu, Ebola, COVID - 19
 QUESTION: What is the role of law enforcement
agencies and the military? What should their level of
engagement be? (Securitisation of epidemics and
pandemics) – enforcement of social distancing,
lockdowns, curfews, other health measures like
wearing of masks, etc
Research? Providing medical personnel? Bioterrorism
research and prevention?

 QUESTION: What are the challenges that have been

and are likely to be faced? Human rights abuses
(police brutality, suppression of other constitutional
rights); secrecy and lack of transparency, etc
 Note: Public health is an integral part of public safety
and security – it is intended to promote safety and
security

 there is need to develop strategic collaborations

between public health practitioners and public
security agencies

 Policing is not only about criminal justice and

maintaining law and order – it is also about
protection of the vulnerable and communities –
safeguarding public safety (sensitisation and training
of security agencies on this role)
PUBLIC HEALTH EMERGENCIES AND LEGAL
RESPONSES (COVID 19 AS A CASE STUDY)
 Global Legal Responses:
For example: WHO Regime:
 International Health Regulations 2005 (Rev.
2007) – “to prevent, protect against, control and
provide a public health response to the
international spread of disease in ways that are
commensurate with and restricted to public health
risks, and which avoid unnecessary interference
with international travel and trade.”
 Examples of State Obligations under the
Regulations
a. To establish National IHR focal points
b. Notification and reporting of events to
WHO
c. Notification of public health emergencies of
international concern (PHEIC)
d. Capacity building
e. Collaboration to prevent the international
spread of the disease
 Other Measures include:
 Pandemic Influenza Preparedness Framework
 Pandemic Influenza Risk Management WHO
Interim Guidance
 See also the Recent Measures and Protocols
developed in response to COVID – 19
Available at https://
www.who.int/news-room/feature-stories/deta
il/a-guide-to-who-s-guidance

 VACCINATION: Should it be Mandatory?

 Main Local Legal Responses
See: Public Order Act Cap 56 (a colonial relic)

 Legal Notice no 36 – The Public Order (State

Curfew) Order, 2020
 Legal Notice No 57 – Public Order (State
Curfew) Variation Order, 2020
 The various Presidential variations on curfew
times
The Public Health Act Cap 242
Part III and IV – Infectious Diseases
ss. 35 – 42: Formidable Epidemic, Endemic, or
infectious diseases
 Legal Notice No 49 – Public Health (Prevention,
Control and Suppression of Covid – 19) Rules 2020
 Legal Notices No 50 – 54; 58 - Public Health (Covid
– 19 Restriction of Movement of Persons and
Related Measures) Rules, 2020
Social distancing, facial masks, restrictions on social
gatherings, burial protocols, quarantine, isolation,
arrests and fines – consider the implications of this
 Ministry of Health Guidelines:
 Interim guidelines on the management of
COVID – 19 in Kenya
 Burial Protocols for COVID – 19
 Guidance for infection and prevention and
control for coronavirus disease in homes and
residential communities
 Guidelines on management of paediatric
patients during Covid – 19 pandemic
 Home based isolation and care guidelines for
patients with Covid - 19
 Public mental health education during Covid –
19 Pandemic

From A Developing (LMIC) Country Perspective:

a. Surge Capacity Preparedness – are the counties
prepared? A fifth wave? Closing of isolation
centres; testing capacity?
b. Human rights and rule of law protection as
public health measures are put in place
c. Other public health issues that need to be
addressed:
 The pandemic has brought out many other public
health concerns:
 Gender based violence
 Alcohol and drug dependence
 Mental health – suicide
 HIV infections
 Teenage pregnancies and abortions
 Maternal and infant health; other vulnerables
 Social inequalities – rifts are deepening

d. Vaccination and Mandating – implications

e. Costs of management of the pandemic and its effect
on the socio – economic structure
f. Within a Right to Health Framework – how is
the government meeting its constitutional and
international obligations in dealing with the
pandemic? Right to health is NOT just about
healthcare services but also the Underlying
determinants of health

g. How will the Universal Health Coverage

Agenda deal with the issues raised by the
pandemic? Quality health services, affordability
of services
HEALTHCARE LAW AND ETHICS
 Healthcare law and ethics examines the role of
doctoring and policy making within moral
parameters (Whose morals? Public conscience?)
 Law may not be enough to deal with moral
dilemmas.
 Ethical principles thus complement legal
principles and rules
 Medical ethics – self imposed codes of conduct
that are accepted voluntarily within the
healthcare profession; they are an ethical
framework – what is right and wrong
 public health ethics is the determination of
what ought to be done in the pursuit of the
good of public health. What is the right
action to take

 It is the application of relevant principles

and values (moral considerations) to public
health decision making
• The functions of public health ethics are:
• To identify and clarify the ethical dilemmas
posed
• To analyze the ethical dilemmas and see any
alternative courses of action and their
consequences
• To resolve the dilemma by deciding which
course of action best incorporates and
balances the guiding principles and values
QUESTION: What ethical issues have been
raised by the current COVID – 19 Pandemic?
 For example:
a. Costs of medical care in a pandemic
b. Allocation of scarce resources – who should
be prioritised? What criteria should be used?
c. Patient centred care (autonomy;
confidentiality) vs public health
considerations
d. Advance care planning; palliative care
e. Research ethics and vaccine trials
f. Reporting ethics – how to determine reliable
data; what to report and how to report
• The values that define public health are different from
the values that define clinical practice and research

• Medical ethics has traditionally been aimed at

protecting individual interests in the context of the
physician – patient relationship – But should patients
have responsibilities too?

• Medical ethics evolved in the 1960’s and 70’s into

bioethics which moved beyond the doctor – patient
relationship and medical professionalism into the new
territory of among other things genetics, organ
transplants and reproductive technologies.
 Law – rules that have been formulated to
implement a certain kind of social order

 Note: law and ethics are dynamic –

constantly changing due to the nature and
values of society; they are also different in
different countries – culture, religion,
political opinion, social standards
 It is good to differentiate between medical
ethics, public health ethics and bioethics
RELATIONSHIP BETWEEN
HEALTHCARE ETHICS AND LAW

“In a civilised life, law floats in a sea of ethics.

Each is indispensable to civilisation. Without
law, we should be at the mercy of the least
scrupulous, without ethics law could not
exist.”
Earl Warren
 The two work closely together to guide
healthcare practitioners
 However, if an ethical principle is not
enshrined into law it is not enforceable in a
court of law
 Note: an action may be ethically appropriate
but may breach a legal duty
 An action may be ethically inappropriate but
not breach a legal duty
 The standard of proof – in an ethical action and
in a legal action seem to be different
 Not every moral obligation involves a legal
obligation, but every legal duty is founded on
some moral obligation.
 Consider this:

“Law tends to concentrate on rights, ethics on

values. Law tells us what we must do, ethics
tells us what we ought to do.”
 Question: To what extent should law
regulate the medical profession and practice?

 Question: Is law the best way to solve

disputes between patients and HCP’s?

 Question: Which should take the lead – Ethics

or Law?
“Ethical standards of professionals often
exceed those required by law. A physician
charged with ill conduct may be acquitted or
exonerated in criminal or civil court
proceedings, yet disciplinary proceedings
may be initiated against him with reference
to the same conduct on the ground that his
conduct was unethical.”
David Frenkel
 QUESTION: How easy is it to apply ethics to
practical and concrete problems?
(particularly in the context of the pressure
under which critical decisions need to be
made or in the context of inadequate
resources.)
KEY PRINCIPLES IN ETHICAL
BEHAVIOR
 AUTONOMY – self determination; individuals
are to be respected as independent moral
agents with the right to choose how they
should live their own lives
 Protection of the dignity of the person – the
quality/state of being esteemed
 Personhood – freedom(the power and capacity
to self – determine); Identity (how to
perpetuate oneself into wholeness and
uniqueness); Contextuality (one’s relevance –
one’s self identity in the context of other
people and prevailing circumstances)
 Cultural influences on autonomy (African
cultural perspectives vs western cultural
perspectives of individualism).
 Autonomy can also be said to be respected
after patients have been persuaded and have
the opportunity to negotiate (not merely
deferring to patients wishes) – this entails
treating the patient as a person and giving
them the chance to air their views and see
other perspectives before making their final
decisions = RATIONAL AGENCY
 Respect for autonomy may conflict with the
ethical duty to promote the health and well
being of the patient i.e. beneficience- e.g.

a. Where the patient is reluctant or refusing

to have medically motivated intervention
b. Where the patient requests an intervention
that is medically uncertain
 The question that may arise within the issue
of Autonomy is:
A. What should be the overriding
consideration? Should it be the promotion
of health OR the respect for patient self –
determination
B. What are the factors to be taken into
account? Age, information levels, levels of
persuasion, culture, religion, etc
 HCP’s should grant their clients the freedom
to choose and the freedom to act
 The ability to participate in decision making
 Consent should be based on accurate and
proper information and knowledge on the
treatment
 Autonomy entails treating the illness and not
judging the person
 POINT FOR THOUGHT:
A non – autonomous action seems to be
UNINTENTIONAL, LACKING IN
UNDERSTANDING or EXTERNALLY
CONTROLLED
However: there may be other ways that a
decision can be non autonomous – where
there is a challenge or faltering of self – rule:
e.g. Due to Weak Will, Irrationality or failure
to adhere to authentic self
Should these be taken into account?
 VERACITY: Means truthfulness on the part of
both the HCP and the patient.
 They should share all pertinent information
(what entails pertinent information?)
 The HCP should also accurately record and
keep all information properly – safety,
quality and efficacy
 But what about Benevolent Deception?
Withholding information for the patient’s
good(protection from emotional and mental
distress).
 What is the importance of truth telling?
 The promotion of trust and respect for the
patient
 The respect and protection of the rights of
the patient
 Removal of uncertainty
 Emphasis should be on truth telling
techniques – the manner in which the
information is relayed to the patient
 Note: Truth telling can be a PROCESS rather
than a one time event
 Some factors that may influence truth
telling:
1. The condition of the patient
2. The need for privacy and confidentiality
3. The patients expectations
4. The complexity of the medical condition
5. Implications of the illness
6. The nature of interaction of the patient
and health provider
 BENEFICIENCE – all actions should be aimed
at doing good and to benefit the
consumer/patient (should be seen from the
patients point of view); creation of safe and
supportive environment; protect the rights of
vulnerable patients
 The HCP is to actively promote and
contribute to the health and wellbeing of
consumer

 Quality of life is to be taken into account –

What is quality of life? Is it about merely
prolonging the life of the patient? What
about comfort? Dignity?

 One tool to exercise beneficence is the tool

of ADVANCE DIRECTIVES
 An Advance Directive – document that allows
a person to make advance decisions about
their healthcare – including whether or not
to consent to treatment.

 It is usually communicated in advance to the

HCP to give directions as to what should be
done to the patient when they are no longer
able to communicate their intentions and
desires
 Two types of Advance Directives: Living Wills
AND Power of Attorney
 What is the difference between the LW and
POA?
 Living Will – provides instructions when a
person is facing a terminal condition or when
there is no likelihood of regaining
consciousness
 Like a normal will (in succession) the LW is
made by the patient himself/herself.
 It must be very specific and as detailed as
possible
 Power of Attorney (Healthcare): - This
instrument names a proxy (or agent) to make
decisions concerning the healthcare of the
patient after a situation where the patient is
incapacitated.
 The proxy may be a relative, a spouse, a
close friend who can be trusted to make
these decisions.
 NON – MALEFICIENCE – To do no harm – do not
cause pain or suffering; do not deprive people
of what is due to them; do not kill; do not
incapacitate

 What does harm mean? Anything that worsens

the condition of the patient (negligence?
Failure to supervise effectively? Inadequate
equipment? Shortage of staff? Failing to
respect autonomy?)
 (BUT see the Principle of DOUBLE EFFECT
– justifying harm based on a greater good
 Situations where it may be morally
legitimate to cause harm in the pursuit of
good
 Distinction needs to be drawn between
intentionally causing harm AND foreseeing
harm as a consequence of an action
 Conditions for the Principle of DE to be
applicable:
1. The act in and of itself cannot be morally
wrong or intrinsically evil
2. The bad effect should not be used to bring
about the good effect
3. The agent cannot intend the bad effect
even if it is foreseeable
4. Proportionate Reason: the bad effect
cannot outweigh the good effect
EXAMPLE
 78 Year old male – advanced stages of
prostrate cancer and also cancer that has
spread to the bones and bone marrow
 He has severe bone pain in his back
 Complications of the bone marrow means
that his blood does not clot easily
 He is taking diclofenac (a non – steriodal
anti-inflammatory drug that controls bone
pain) BUT it inhibits blood clotting further
increasing the risk of bleeding
 JUSTICE- People should be treated fairly
although this does not mean treating people
the same; respect for the rule of law and
respect for the rights of individuals
 It also entails the fair and equitable
distribution of scarce resources – distributive
justice – rationing, etc
 It also includes compensatory justice –
damages for injuries caused
 CONFIDENTIALITY – This entails keeping
secret the all the information that HCPs
obtain in the treatment of their patients.
 See the Constitutional Provision under
Article 31 – The right to privacy (seems to
entail the right to confidentiality – although
privacy and confidentiality are not the
same: see Leland Salano v Intercontinental
Hotel (Industrial Cause No 805 of 2012)
 Privacy and confidentiality – linked to
autonomy and dignity
 It is also in the public interest that the right
to privacy and confidentiality is protected
 QUESTION: Are there situations where a
breach of confidentiality can be justified
legally?
NB: This right is NOT absolute
See: JLN and 2 others v Director of Children
Services and 4 others (Petition No 78 of 2014
– disclosure of surrogacy agreement)
 See: W v Egdell [1990] 1 All ER 835 Per Lord
Bingham – sets out three instances:
a) Where there is a real and serious risk of
danger to the public
b) Disclosure must be to a person who has a
legitimate interest to receive the
information
c) Disclosure must be confined to that which
is strictly necessary
See also: rule 8 of the KMPDB Rules
 Other instances when information may be
disclosed:
i. The information is not confidential (does
not have the quality of confidence about
it and is not given in a the context of a
relationship of confidence)
ii. The information is no longer confidential –
e.g. If the information has become public
iii. There is consent in the release of the
information
iv. The information is needed for the proper
running of the hospital
v. A serious threat of harm to others
vi. Child protection
vii. Assisting police investigations – must be
obtained with a court order
viii. For the best interests of incapacitated or
incompetent persons
ix. Public interest – The Catch All reason
x. If required under Statute
 See the case of David Lawrence Kigera
Gichuki v Aga Khan University Hospital
(Petition Number 195 of 2013)
 The petitioner had been involved in an
accident in which there was a fatality
 He was charged in a criminal case for causing
death by dangerous driving
 The lawyer for the estate of the deceased
asked for the notes of triage of the
petitioner
 The question was whether there was a
breach of privacy and confidentiality?
 Was there a public interest in the hospital
releasing his medical notes to a third party
without his consent?
 To whom should the medical notes have been
released?
 What is the procedure for releasing this
information?
See the controversial practice of disclosure
of HIV status to insurance companies
GSN v Nairobi Hospital & 2 Others (2020) Eklr

EMA v World Neighbors & Ano (Case No 007

HAT 2015)
Set out the strict guidelines and conditions
under which HIV status can be disclosed by
medical facility to insurers.
 ROLE FIDELITY – This entails the respect of
HCP’s of the different roles and
responsibilities that each of them have
 It is about knowing the limits of their powers
and actions
 Performing duties assigned to them and not
others/ outside the scope of their practice
 How to work as a team for professional,
efficient and effective healthcare services
QUESTION

 WHAT ARE THE VARIOUS ETHICAL DILEMMAS

THAT HEALTHCARE PROVIDERS, MANAGERS
AND POLICY MAKERS FACE?
PHILOSOPHICAL THEORIES
A.Paternalism
 Intervention by the State/person in a position
of responsibility to prevent a person from
harming himself/herself
 Medical Paternalism: Doctor Knows Best
 See the following quote by philosopher Robert
Goodin:
“We do not leave it to the discretion of
consumers, however well informed, whether or
not to drink grossly polluted water, ingest
grossly contaminated foods, or inject grossly
dangerous drugs. We simply
Prohibit such things on the grounds of public
health…to a very large extent…the
justification of public measures, in general,
must be baldly paternalistic. Their
fundamental point is to promote the well
being of people who might otherwise be
inclined to court certain sorts of diseases.”
 Paternalism starts from the basic premise
that individuals want to live long and well
 It therefore seeks to impose measures on
those who are reluctant or those who are
“foolish” that will achieve the result of long
life or a healthy life
 Seeks the best interest of the patient
 However, the question arises – can someone
be forced to be free? Can someone be forced
to be healthy? Who determines the best
interests of the patient? How far can
paternalism be used as a justifying ethical
principle in public health policy and in
healthcare?
 For example, can it be used to justify health
communication campaigns? censorship (e.g.
in advertising campaigns)? Taxation designed
to discourage consumption? Prohibitions on
certain behaviors? Forced treatment of
patients?
 A critique of paternalism is provided by John
Stuart Mill who is the main proponent of
individual liberty.
 He states:
“The only purpose for which power can be
rightfully exercised over any member of the
civilized community, against his will, is to
prevent harm to others. His own good,
whether physical or moral, is not sufficient
warrant. He cannot rightfully be compelled
to do or forbear because it will be better for
him to do so, because it will make him
happier, because in the opinion of others to
do so would be wise or even right.
 These are good reasons for remonstrating
with him or reasoning with him or
persuading him or entreating him (but not
for) compelling or visiting him with any evil
in case he do otherwise. The only part of
the conduct of anyone, for which he is
amenable to society, is that which concerns
others. In the part which merely concerns
himself, his independence, is of right,
absolute. Over himself, over its own body
and mind, the individual is sovereign.”
 However, one can rebut the “individual
liberty” thinking of Mill by taking the
position of John Knowles of the Rockefeller
Foundation
“The idea of individual responsibility has been
submerged in individual rights or demands to
be guaranteed by government and delivered
by public and private institutions. The cost
of sloth, gluttony, alcoholic intemperance,
reckless driving, sexual frenzy and smoking
 Is now a national and not an individual
responsibility. This is justified as individual
freedom – but freedom in health is another
man’s shackle in taxes and insurance
premiums. I believe that the idea of a
“right” to health ought to be replaced by an
obligation to preserve one’s health – a
public duty if you will.”
 Perhaps some guidance is useful in making
decisions as to whether public health
warrants decisions and actions that override
values such as individual liberty or justice:

1. Effectiveness – it is necessary to show that

infringing on one or more general moral
considerations will most probably protect
public health
2. Proportionality – general public health
benefits outweigh the infringed moral
considerations (e.g. Breach of autonomy or
confidentiality)
3. Necessity – there must be a bona fide reason
to take a coercive and paternalistic
approach. There are no other alternatives
4. Least infringement – paternalistic agents
need to minimise the infringement of
individual freedoms as much as possible
5. Public justification – paternalistic agents
need to explain and justify their actions
There needs to be accountability and
transparency in order to maintain trust and
confidence in public policy makers and
Health care providers.
B. Consequentialism
 This principle stresses that in assessing the
morality of an action one must judge the
consequences of it.
 One must weigh up the good and all of the
bad consequences of each alternative
course of action
 One popular consequentalist theory is
utilitarianism – this argues that the most
important good is that people have to be
happy or have the most pleasure(the most
good)
 Therefore in deciding what is ethical or not,
one must ask “which act will increase the
sum of human happiness?” which act will
provide the most good?
 Utilitarianism has been used as an ethical
principle particularly in resource allocation
 Resources should be distributed in a way
that maximizes welfare of the most people
 But what about other theories of distributive
justice in resource allocation? Is welfare
maximizing the most important
consideration?
 See: egalitarian principle of distribution –
where every person should have exactly the
same level of material goods or services
 See: dessert – based distributive justice –
where resources are distributed to those
who deserve certain benefits or rights in
light of their actions (their contribution,
their effort, or their need for compensation
e.g. war veterans)
 See: the difference principle of distributive
justice – this states that resources are to be
distributed in a way that the least
advantaged people receive the maximum
possible gain
 Another criticism of utilitarianism – not all
decisions are based on good vs. evil.
Therefore not all decisions are based on a
balancing act
 There are other considerations that may be
taken into account other than whether a
decision is going to achieve good or whether
it is going to do harm
C. Social Justice
 This takes into account the fact that in any
society there are inequalities in health and
well being
 Which inequalities matter the most and
which are the most urgent to address?
 Social justice requires that the State must
provide conditions for health and a
reasonable life span to all individuals ;
States must guarantee a level of health to
their citizenry
 This theory will help States to determine
how to prioritize resource allocation
 For example: the State can use the social
justice theory to prioritize the health and
overall well being of children when the
State is forced to make trade offs between
the health interests of children and other
subpopulations
 The prioritization of children in this respect
is not based on utility (that children have
more years ahead of them) but on the
reasoning that the health of a child is a
necessary prerequisite of the enjoyment of
health when they reach adulthood
 Another example is that the State can use
social justice principles to prioritize socially
disadvantaged groups
D. Personalism
 Is not to be confused with individualism
 Based on our common shared human nature
 Based on the premise that all human beings
deserve respect because a human being is
the only being that is capable of self –
reflection and comprehension of the
meaning of life
 Personalism strongly advocates for the
protection of the weakest and the sickest
persons in society
 The dignity of the human being is of
fundamental importance. It takes the Kantian
view that a person should never be treated as a
means to an end but as an end it themselves
 How does it apply to health? It emphasizes the
respect of individual autonomy, the safeguard
of confidentiality and the safeguarding of
efforts to guarantee social equity and equality
 It advocates that any limitations to
individual freedom must be exercised in the
most minimalist manner and only in
emergency situations e.g. in the case of an
epidemic where one needs to be inoculated
or where there needs to be the forcing of
behavior like the compulsory wearing of
seatbelts.
E. Deontological Ethics – duty based ethics
 Deontology theory – holds that certain kinds
of actions are good not because of the
consequences that they produce but because
they are good and right in themselves
 The main proponent of this theory is
Immanuel Kant
 But how do you determine what is right and
not right? Categorical imperative- an ethical
decision is universal and applies consistently
over time and cultures and norms.
 Virtue Ethics – this is closely related to
deontological ethics
 The question asked here is ‘what would a
virtuous practitioner or decision maker do in
this situation?’
 Based on moral values/virtue
 The criticism is that moral values are
changing in a dynamic society
F. Communitarian Ethics
 Communitarians place an emphasis on the
interests of the community rather than the
interests of the individual
 They argue that as members of society we
have an obligation to make some sacrifices
in order to promote it
 There is a willingness to allow acts to be
done without the consent of the individual
if it is necessary to further the interests of
society
  Criticisms of this ethical principle:
a) One argument is that the key to living in a
decent society is actually the respect of
individual rights
b) The argument that we should be willing to
interfere with individual rights for the
“greater good” might be used to introduce
oppressive measures
c) There is also the danger that working for
the greater community good may be
disadvantageous for those who are
marginalized and vulnerable
d) It may also be impossible to implement
policies based on this ethical principle
because there is a wide range of groups
within society.
HUMAN RIGHTS IN HEALTHCARE
ETHICS AND LAW
 Enshrined in the Constitutional right to
health
 Healthcare sector becoming consumer
oriented
 Medical paternalism vs. patient centered
medical care
 Right to health – seen from the patient point
of view
 Right to emergency medical treatment
 Right to dignity
 Right to non – discrimination
 Right to fair administrative action
 Right to privacy/confidentiality
 Right to information
 Right to consumer protection
 Social determinants of health – water, food,
shelter, environment, safe working
environment
 THE END
THANK YOU FOR YOUR
ATTENTION!