When Ethical and Legal Perspectives Differ: Moral Courage in the Face of Legal Risk
Friday, October 13, 2023
3:15 PM – 4:30 PM ET
Location: Galena (Fourth Floor)
Moral courage requires the ability to persevere in doing the right thing, acting for good moral reasons in responding to difficult ethical dilemmas. Acting with moral courage may be especially challenging when there is known legal risk involved, or when there is divergence in ethical and legal guidance for responding to a complex situation. This paper emphasizes the importance of acting with moral courage, even in the face of legal risk, through exploring a case that highlights ethical and legal tensions that may arise in medical decision-making. When a patient lacks capacity to participate in medical decision-making, care is supported by ensuring an appropriate surrogate is consulted to gain deeper knowledge of the patient’s goals and values. Where applicable, it is standard practice to defer to a patient’s court-appointed guardian as the presumptive surrogate to engage in decision-making. However, when interactions with a guardian introduce concern for the guardian's ability to represent the patient's values and support the patient's best interests, the guardian's ability to continue to support decision-making may have to be challenged. This paper argues that in situations in which a legal guardian has sufficiently demonstrated inability to serve as an appropriate surrogate, it is ethically justifiable (even morally obligatory) for medical professionals to forgo engaging the guardian in medical decision making, even in the face of legal risk. The authors identify opportunities for clinical ethicists to support medical professionals in developing risk tolerance, recognizing professional obligations, and cultivating moral courage to overcome obstacles in these circumstances.
Sirin Yilmaz, MA, MBE, HEC-C – Lead Clinical Ethicist, Medical Administration, Hennepin County Medical Center