When the Legal ‘Floor’ Doesn’t Match the Ethical ‘Ceiling’

Ethicists sometimes distinguish between that which is legal and that which is ethical using the metaphor of a room. The law can be considered the floor, providing the minimum standard, and professional codes of ethics can be considered the ceiling, providing the aspirational goals. We usually work somewhere in between the two. And, occasionally, like an M.C. Escher print, the floor and the ceiling don’t match because the law may be unethical. This column discusses two situations in which complying with the law may conflict with professional ethics.

Section 3, Article 1, of the Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry exhorts psychiatrists to respect the law because “a psychiatrist who is a law-breaker might be ethically unsuited to practice his or her profession.” This article, however, also notes, “It is conceivable that an individual could violate a law without being guilty of professionally unethical behavior.”

Presently, at least two situations demonstrate when compliance with a law may actually be less ethical than noncompliance with the law. First, in 18 states and territories, it is legal to discriminate against people based on their gender identity. Second, at least three states have tried to ban physicians from asking patients about gun ownership.

Transgender patients routinely experience discrimination in health care settings. As detailed in a previous column (Psychiatric News), transgender patients are harassed in medical settings, refused treatment, or avoid seeking medical care for fear of discrimination. According to findings from the 2016 National Transgender Discrimination Survey, 24% of respondents reported not receiving equal treatment, 25% reported being harassed or disrespected, and 2% reported being physically assaulted at a doctor’s office or hospital. The corresponding rates of discrimination, harassment, and assault in mental health clinics are, respectively, 11%, 12%, and 1%. Due to discrimination, 28% of respondents reported that they postponed medical care, and 50% said they had to teach their health care providers about transgender care. Transgender patients may also face discrimination and harassment at pharmacies, where they encounter difficulty obtaining their prescribed hormone treatments.

Is this discrimination legal? Unfortunately, yes. The federal government does not offer legal protection from discrimination based on gender identity, which means that unless a state passes a protective law, it is legal to discriminate against people who identify as transgender or gender nonconforming.

According to the Transgender Law Center’s National Equality Map, 20 states do offer robust legal protection against discrimination based on gender identity. While the particular laws vary from state to state, they generally extend the same protections against discrimination in housing, employment, and public services that are afforded to people based on race, ethnicity, age, gender, religion, and disability.

Is this discrimination ethical? Obviously not. It is a physician’s duty to treat every patient with dignity and respect and to prioritize the patient’s welfare even if the patient’s appearance, identity, or diagnosis causes discomfort. Section 1, Article 2, of APA’s Principles asserts, “A psychiatrist should not be a party to any type of policy that excludes, segregates, or demeans the dignity of any patient because of ethnic origin, race, sex, creed, age, socioeconomic status, or sexual orientation.”

At the moment, our Principles do not extend their umbrella of protection to people based on gender identity; however, APA has repeatedly spoken out against discrimination against trans individuals in the military and recently joined with other physician organizations to oppose weakening of federal protections for transgender patients. It is hoped that the APA Ethics Committee will revise Section 1, Article 2, to reflect this position.

Another area where the ceiling and floor don’t match is gag rules about guns. Although struck down in the courts, several states have tried to prohibit physicians from asking their patients about firearms. For an excellent review, read “Law, Ethics, and Conversations Between Physicians and Patients About Firearms in the Home.” Again, APA has joined with other physician organizations to defy efforts to silence physicians’ voices in the national conversation about guns, for example, following the Marjory Stoneman Douglas High School shooting last year and the more recent shootings in El Paso, Texas, and Dayton, Ohio.

If the gag laws in Virginia and West Virginia had passed and if the Florida law had been upheld in the courts, it might have been illegal for a psychiatrist to ask a patient who is manifesting suicidal or homicidal behavior if they have access to a gun. All psychiatrists know that this question is absolutely critical to assessing patient safety and that failing to ask it and failing to document the answer is below the standard of care. Essentially, the laws would have mandated a form of malpractice. In this situation, the ethical course of action would have been to break the law to protect patients and public safety.

As psychiatrists aspire to ethical excellence—that is, reaching for the ceiling—awareness of ethical challenges posed by laws is important. APA has been responsive to recent cultural and legal shifts that create hazards for patients and the public. When individual psychiatrists recognize a dilemma posed by a mismatch between the law and professional ethics, they would do well to seek consultation from their malpractice carrier, an attorney, a colleague, the district branch ethics committee chair, or another trusted and knowledgeable adviser in order to thoughtfully determine the best course of action. ■