Legal aspects of health care

Our healthcare industry is constantly changing – and so is its legal landscape.

It’s well understood that legal and ethical considerations are integral to good medical practice, patient safety and care, and patient rights. Advances in medical care – together with increasing awareness of human rights and the sophistication of our modern legal framework – mean that medical staff can often face dilemmas resulting from everyday practice.

Issues can be contentious, divisive and conflicting, as statistics indicate: while 28% of UK adults report that they, or a loved one, have experienced poor care from the National Health Service (NHS), an overwhelming 93% of physicians believe that current healthcare laws need to be revised. Clearly, legal issues are not solely the remit of healthcare providers’ governance, risk and compliance (GRC) departments. Instead, healthcare professionals, patients, law and policymakers, together with other key stakeholders, must all be aware of – and be prepared to adapt to – the legal aspects of the health sector’s new realities.

As a result, organisations across the health sector are recruiting individuals with the skills, knowledge and expertise to help them navigate high-risk, high-stakes issues such as legal compliance.

What is the difference between legal and ethical issues in healthcare?

There are various laws, regulations, rules and ethical standards that govern the healthcare sector. Healthcare’s legal framework can take a number of forms, from statutory laws, contracts and case law, to regulatory, administrative and customary laws.

Legal standards are set by governmental laws, and clearly state what people are and are not allowed to do. Relevant authorities can use legal standards to enforce rules when an illegal act has occurred. Legal standards and actions apply to any individual who is present within a country or state that implements that specific set of laws.

Ethical standards, on the other hand, do not necessarily have legal grounding. Instead, they are primarily rooted in human principles of right and wrong, lack any formal regulation, and are deemed personal and voluntary acts based on an individual’s own perceptions.

What are the most common legal issues in healthcare?

While the main legal aspects of healthcare relate to medical negligence, confidentiality, and informed consent, the scope of medical law and medical ethics is continually expanding. It covers, as a brief example: regulations of medical practice, doctor-patient relationships, death and related issues, reproductive medicine and genetics, biomedical human research and experimentation, healthcare delivery and resource allocation and quality assurance.

Here are some examples of common legal issues affecting the healthcare system:

• Malpractice. Doctors take the Hippocratic oath to protect those they treat, but occasionally this oath is broken. Resulting from medical errors or negligence, medical malpractice causes permanent injury or death and leaves doctors and providers vulnerable to lawsuits. Malpractice cases can end in large settlements and even loss of medical license.
• Telemedicine laws. The COVID-19 pandemic saw a huge increase in telemedicine services, and they show no sign of stopping. Due to its popularity, and emerging laws governing its use, it can prove challenging for providers to remain up to date.
• False claims and whistleblower cases. An increase in whistleblower lawsuits indicates the corrupt and fraudulent nature of some providers and professionals. Some dishonest healthcare companies, suppliers and workers also attempt to defraud the government with false claims, knowing that insufficient resources can prevent them from properly investigating every case.
• Health Insurance Portability and Accountability Act (HIPAA) compliance and protected health information (PHI). All organisations have a duty to responsibly protect the data of their customers; in the medical industry, this is even more important due to the sensitivity of the information. Rises in cybercrime and changes in the way that modern healthcare operates have meant that medical data is more vulnerable to breaches than ever.

Other critical issues include antitrust issues and accountable care organisations (ACOs), and healthcare liability and safe working conditions.

In terms of ethical issues, common cases include patient confidentiality, informed consent, and physician-assisted suicide (PAS) and euthanasia.

Why is legislation and regulation important in healthcare?

Healthcare laws are designed with two aims in mind: to protect the rights of patients – and the decisions they make in relation to the treatment they receive – and to clarify the responsibilities of health professionals. Legal

According to the UK government, ‘the purpose of the regulation of health and social care professions is to protect the public from the risk of harm from the provision of health and social care services.’ Regulation aims to protect the health and safety of the public, maintain public confidence in the profession and uphold professional standards. In the UK, the Department of Health and Social Care (DHSC) is responsible for the health and care framework and its legislation.

There are a number of regulators who govern various areas of the health and social care sector including:

• Scottish Social Services Council
• Social Work England
• General Chiropractic Council (GCC)
• General Dental Council (GDC)
• General Medical Council (GMC)
• General Optical Council (GOC)
• General Osteopathic Council (GOsC)
• General Pharmaceutical Council (GPhC)
• Health and Care Professions Council (HCPC)
• Nursing and Midwifery Council (NMC)
• Pharmaceutical Society of Northern Ireland (PSNI).

These regulators perform four main functions all to ensure those on their registers are fit to treat the public: setting standards of competence and conduct; checking the quality of education and training courses; maintaining a register of professionals; and investigating complaints.

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