Teaching law to students in the health care professions.

• Author: Nelson, Erin
• Position: Canada

The survey results clearly suggest that most of the participating radiologists did not have a fundamental understanding of the legal definition of negligence..., most physicians obtained information on malpractice from the medical or lay press. Importantly, no physician reported reading the common law on malpractice cases, or even knowing what the common law was. Overall, the survey suggests that the participating physicians spent little or no time learning the mores of the legal system... in addition to having incomplete information regarding the legal definition of negligence, it also appears that some surveyed radiologists had incorrect information. (1)

"I say there are some things we don't want to know -- important things!"

--Ned Flanders (The Simpsons) (2)

1. Introduction

   Do students in the health care professions need legal education? (3) And are they getting what they need? In light of the above quoted survey results, (4) and in light of some of the questions I have been asked to address in my role as an educator of health care professionals, (5) it certainly appears that students in the health care professions are not being taught adequately and effectively about the law. (6) As one professor of legal medicine has noted,

   Legal issues have pervasively entered the modem medical school classroom. This phenomenon is perceived by many, if not most, traditional medical educators as at best a necessary evil. This is a viewpoint that is probably fostered by the fact that legal issues are frequently taught poorly and inadequately to medical students, reinforcing legal myths rather than conveying accurate information and encouraging clear thinking and productive attitudes. (7)

   It seems, at least, that there is room for improvement in the ways in which legal education is currently provided to students in the health care professions.

   As the author of a recent study has noted, "It has been long observed that non-lawyers appear to internalize certain "myths" about law and the legal system." (8) In this "information age", the lay public has access to voluminous amounts of information about the law from sources such as the news media, the internet, and popular culture (including television, movies and literature). In spite of this very high level of information, however, the lay public seems woefully uninformed, at least in the sense that much of what people think they know about the law is partially or wholly inaccurate. The concerns that led to Bowal's study are based on broad public legal education concerns; my focus here will be on a particular subset of the public -- students in the health care professions. While many of the issues raised by the public legal education study are relevant to this smaller population, there are a number of additional concerns that arise in this context and some of the consequences of the lack of knowledge ab out the law and the legal system are distinct.

   Much of the academic work that has been done to date in this area has focussed largely on what should be taught to students in medical schools. The limitation of the focus to physicians and medical schools is narrow; in my view, a contemporary examination of the issue must include other health science disciplines as well, in recognition of the growing role these professions play in modem-day health care service delivery. (9) While most of the data relied on in this paper comes from the medical education context, much of what has been said in that context is applicable to other disciplines as well. Another facet of the question of legal education for health care professionals that has been largely neglected is the process of the teaching of the law to students in the health care professions--when, how and by whom should legal education be provided?

   In Part II of this paper, I argue that students in the health care professions have a need for legal education and that, as a group, law professors ought to take an active role in the provision of this education. In Part III, I address very briefly the question of who should teach law to students in health science faculties and then consider some of the aspects of course design that require attention in the context of legal education for health professional students.

2. Why Teach Law to Health Care Professionals?

   This question can be considered from at least two perspectives. The first: "why do students in the health care professions need to learn about law?" is the one that has been more commonly addressed in the sparse literature on the topic. (10) Although this issue will be discussed, the primary focus of this section of the paper is to consider why law professors should care about teaching law to students in the health care faculties.

   (i) Why do health care professionals need to learn about the law?

   At the risk of stating the obvious, the primary reason is because health care professionals (like most of the rest of us) do not have an innate understanding of the law. As professionals who work in an extensively regulated industry, it is essential that health care providers appreciate relevant legal structures and processes. The sweeping changes that have begun to take place in the health care system have rendered more important than ever a sound understanding of relevant legal issues. (11) To date these changes have been a much more pressing issue in the United States than in Canada, but managed care (along with its various related organizational structures) is becoming a more prominent aspect of the health care landscape in Canada and a focus of concern for health care provider governing bodies.

   As one health law professor has framed the traditional (12) response to the question of why health care professionals need to be taught about the law:

   Almost everything the doctor does in the practice of medicine is in some manner governed by the legal system. The law defines what the doctor can or cannot do in terms of medical practice and the geographic bounds of his authority. It defines his relationship with his patient in terms of contract and implied contract, and it defines his duty to his patients in terms of obtaining both consent and informed consent. The law governs what drugs a doctor may prescribe and in what quantities. It defines the rights of patients and prescribes remedies for patients who are injured by doctors... .Wherever a doctor turns, he is confronted by law--statutory, case and constitutional--which governs or limits his conduct in one way or another. (13)

   Health care professionals, be they doctors, nurses, social workers, or occupational therapists, need to be conversant with the law. There will obviously be some variation in the level of understanding required and the types of law a specific individual needs to be aware of, (14) but at a basic level, all need to be familiar with laws that might affect their patients and those that might affect the conduct of their relationships with their patients. As has been noted elsewhere, "[t]he high cost of physician ignorance or misperception of the law can be measured both monetarily...and in terms of physicians' unnecessary anxiety and its potential to jeopardize the quality of patient care and the physician/patient relationship itself." (15)

   (ii) Why should law professors teach law to students in the health care professions?

   Whether teaching law to health care providers really matters to law schools and law professors depends to some extent upon one's conception of the role of the law school. If the purpose of law school is professional training geared toward the production of lawyers, then the teaching of law to health care professional students seems beside the point. If, however, one adopts a broader and more inclusive view of the role of the law school, then the importance of this kind of teaching becomes more apparent. The ongoing debate about the role of the law school is not a topic I will pursue in detail in this paper, (16) but it bears mention in this context as a part of the foundation for the inquiry into the law school's role in the provision of legal education outside its own walls.

   Law teachers as a group ought to take more seriously the responsibility to participate actively in the provision of legal education to the lay public. (17) Professor Bowal's study confirms the consequences of the current lack of interest in public legal education on the part of the legal profession:

   What is the level of accurate legal knowledge in the lay population of Canadian society? Canada may be in a special position due to the confusing influence of, inter alia, mass entertainment media from the United States. This study shows that junior undergraduate students are somewhat capable of distinguishing between Canadian and American legal events and legal terms. They are, however, markedly more familiar with the American legal genre than with the Canadian legal genre. They may be even more seriously deficient in the broad strokes of legal content which are most likely to affect them. (18)

   The provision of public legal education can be conceived of as the responsibility of those who are privileged to have the legal knowledge that law professors do, along the same lines as the expectation that lawyers do pro bono work. As Deborah Rhode notes, "[t]he primary rationale for pro bono contributions rests on two premises: first, that access to legal services is a fundamental need, and second, that lawyers have some responsibility to help make those services available." (19)

   How does this relate to students in the health care professions? This group of students is a subset of the broader public community, a group that has a substantial need for legal education. Further, this is a group that will have extensive contact with large numbers of the lay public; thus, through teaching health care professionals, law professors have an indirect opportunity to provide legal education to a larger population. Once health care...