Disobeying laws and rules

"Laurie! " I heard someone calling to me. "I have a suggestion for your next column." It was Louise*, an emergency nurse. We went for coffee.

"I was struggling in my mind with the word 'legal' when the union was threatening an illegal strike vote, and then this letter came." Louise showed me a letter from the CEO of her hospital, reminding her that "any type of strike or job action (by nurses) in violation of the Labour Code is illegal under Alberta Law. "It outlined the consequences of illegal job action for employees of the hospital, and the disciplinary consequences "up to and including dismissal for serious misconduct."

"This letter really made me think about disobeying the law. I wondered if the union has a tight to make me do something that is illegal.

"When is it right to consider disobeying the law?" (*Not her real name)

Is it ever right to disobey the law? This question arises for nurses in many more issues than job action and strikes. Nurses might also extend the question to disobeying hospital or employers' policies and procedures.

Natalie Abrams (1980) examines a type of situation in which a nurse refuses to obey a rule. She tries to determine the underlying cause of a moral dilemma in which a nurse has to make an actual decision in the face of a disagreement with a health professional of higher rank and in which the nurse places some value on functioning within the existing system, therefore finding disobedience morally troublesome. The existence of two factors contribute to the moral dilemma:

1. A disagreement between the nurse and another health professional about the correct moral position and/or about the correct approach to health care;

2. The nurse's desire to function within the existing health-care structure.

Abrams calls assuming moral responsibility within such a situation "professional non-compliance," and points out its similarities to civil disobedience.

Civil disobedience is "a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or the policies of the government" (Rawls, 1971, p-364). It is an act guided and justified by the principles of justice which regulate the constitution and social institutions generally. In both civil disobedience and professional non-compliance there is an existing authoritarian structure that is thought to be legitimate, but there is a disagreement over a particular issue or decision.

Although an individual sees some value in obeying the system, he or she considers a particular decision of the system to be sufficiently against the underlying principles to justify disobedience. Performing an act of civil disobedience invokes the community's commonly shared conception of justice. Similarly, a nurse who refuses to obey a superior's orders may be able to appeal to commonly shared principles that underlie the health care system and the roles of health care professionals.

In such a case the individual does not appeal to his or her own set of moral or religious precepts, although these may coincide with and support such claims. The appeal is being made instead to the set of principles that everyone involved purportedly accepts. In other words, the charge is that the law or order is being rejected because it violates the underlying principles on which the law or order itself is based.

The important distinction between an act of civil disobedience, or professional non-compliance, and one of "conscientious refusal" is that in conscientious refusal the individual appeals to his or her own moral principles or individual conscience. There is no commonly shared ground or set of principles appealed to, which results in the problem of justifying individual conscience as a guide to action, an especially difficult problem when there is a clash between two individual consciences.

This distinction, which may be difficult to make in practice, is a very important one. If a disagreement between a nurse and administrator, for example, is seen as similar to conscientious refusal, the disagreement can be reduced simply to concerns over individual moral judgments, with a solution seen only in terms of a power struggle. if, on the other hand, the disagreement can be interpreted as civil disobedience, a claim will be made that the administrator has not respected and acted upon one of the principles which the administrator has implicitly or explicitly accepted, and there can be some attempt at a mutually agreeable solution.

Acts of civil disobedience and professional non-compliance are also committed as public acts with no attempt to hide what is being done. The constraints that Rawls (1971) places on civil disobedience might also be placed on acts of professional non-compliance:

1. If non-compliance is based on an appeal to a widely accepted set of professional standards, it should be limited to instances of significant violation.

2. Normal appeals to those in authority already should have been made.

3. Certain instances of professional non-compliance are clearly not justified, such as those in which disobedience itself violates an important underlying principle. For example, it would not be permissible in an emergency situation.