BAnEthical Perspective ± Negligence and Moral Obligations
Harry Lesser
It is fairly clear that in a broad sense the legal and ethical uses of the term `neg-
ligence' are the same. Negligence is, roughly, failure to exercise the appropriate
level of care. Nevertheless, there are a number of important differences between
what is appropriate legally and what is appropriate ethically. These may be sum-
med up briefly by saying that the ethical standard ± the level of care required to be
doing what one ought to do ± is higher than the level required by the law. But there
are at least five ways in which legal and ethical duties of care are different; and one
way of improving our understanding of the ethical duty to avoid negligence and its
implications is to consider all five in turn.
6.7 Harm and risk
First ± and this is made very clear in part A of this chapter ± the courts come into
operation only if harm has been done. There is a legal duty of care, as well as an
ethical one, incumbent on, for example, nurses, health visitors and midwives. But
failure to meet this duty will concern the law only if some harm or damage
results. The law has to decide such things as whether harm has been done, who
is to be held responsible for the harm and in what ways compensation for the
harm should be calculated, and, sometimes, whether the negligence was so ser-
ious as to be criminal. But if no harm has been done, there is no place for the law.
Ethics, though, is different: a professional who exposes a patient or client to ser-
ious and unnecessary risk by, for example, failing to take standard precautions is
still morally to blame, even if by good fortune no harm is done. The law is con-
cerned essentially with redressing, and sometimes with punishing, the harm
done by negligence; ethics is concerned with the obligation to avoid negligence,
whether harm in fact results or not. To make a very obvious point, a professional
who has subjected a patient to unnecessary risk of this kind but without any
harm resulting is in no danger of legal action, but ought nevertheless to have a
`bad conscience' and )more importantly) to resolve that this should not happen
again.