Ethical and legal dilemmas in healthcare

Like any profession there are dilemmas that occur in health care where it is hard to determine the right solution. Below are some of the top ethical and legal dilemmas in healthcare today.


To prove that malpractice has occurred a person must prove that the care was below the standard for the condition, a professional relationship occurred between the practitioner and the patient, and the patient was harmed because of the deviation from the care. Doctors are very concerned with malpractice and may consider tests and procedures that may harm than benefit for the patient to avoid malpractice lawsuits; the best way to prevent malpractice and deliver quality and establish good relationships with patients. If you’re looking to bring a legal action, a medical malpractice attorney could assist you. 


There are two kinds of circumstances when determining if a person is capable of making their own healthcare decisions. The first is legal incapacity, which is when a court will declare that a person is no longer fit to look over their own health. This occurs when someone is physically or mentally not able to take care of themselves. This is common of patients with mental illnesses including dementia but can also come into affect if someone is chronic user of certain drugs. A guardian is appointed to a person is deemed legally incapable.

The second type of incapacity comes is clinical incapacity, which is when a doctor or health care practitioner deems the person is incapable of understanding their medical condition or lacks the ability to communicate about their condition. Another tricky example is that of a person in a coma, the person cannot make decisions which make medical decisions often fall on family members. Doctor’s cannot go against patient’s will unless a court has deemed the patient mentally incapacitated.

Decision making

If a person is deemed mentally incapacitated either legally or clinically the decision making responsibility falls to another person, who is officially titled the surrogate decision maker; in adults this person is usually the person’s spouse. There are some areas that also accept domestic partnerships to make a decision but this is not always the case and can cause many issues. Adult children, parents, siblings, other relatives in some cases close friends become the next in line to become decision makers. Issues arise because each state have different rules on who becomes decision makers and there is often conflict between potential decision makers such as between family members.

Acting as a decision maker means that you have act in the patient’s best interest and get all information from the doctors and the hospital. If a doctor is not comfortable with the decisions being made they may transfer the patient to another healthcare practitioner.


A major issue in healthcare is confidentiality. It is an ethical and legal responsibility for doctors to keep all information between the patient and themselves even if there is a well-intentioned family member. Obviously there are some circumstances that allow the doctor to share information with family members such if a person is comatose or have been deemed incapacitated either clinically or legally.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) set national standards for health care transactions, security, and health identifiers. This act was put into motion due to the advancement of technology so that medical information could be more protected.  Compliance with the Privacy Policy began in April 2003 for health care providers, health care clearinghouses, and health plans. Compliance with the Security Rule began in April 2005 which sets standards for confidentiality, integrity, and electronic protection.

Violation of confidentiality does happen and there is a way to file a complaint. By going to the HIPAA website and filling out a complaint form, anyone can file a complaint within 180 days that the violation occurred.


Consent is extremely important in health care and a health care practitioner has to get voluntary and informed consent to perform treatment on a patient. Obviously if the person is not able to give consent the practitioner will go to the power of attorney or the surrogate decision maker. An exception to this rule is emergency care, consent is presumed in these cases.

Patients also have the right to refuse care, which cannot be seen as proof that a person is incapacitated. An example of this is a patient having a heart attack can refuse care even if the care could save his or her life. This is difficult for doctors and they often have to ask why the patient does not want to receive care even if the care could be extremely beneficial.

Malpractice, capacity, decision making, confidentiality, and consent are five of the largest legal and ethical dilemmas in healthcare. Knowing about these dilemmas can help anyone when they occur in your life.

Lilly Currently represents who specialize in private health insurance  and writing on the legal issue’s within health care.



I'm Lilly Sheperd, an occasional guest-blogger and a full time freelance communication consultant. When not blogging, I like to travel and read a lot, especially about education and law.
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