This research work aims to discuss the relationships between criminal liability and professional regulations. In particular, it is necessary to define these concepts and identify the similarities and distinctions between them. In addition to that, we need to show how misconduct in the workplace can be connected with legal responsibility. The problem, which is still briskly debated by lawyers, is how to draw a distinct line between the violation of law and professional error. Most importantly, who should draw this line? There are several areas where these issues are extremely acute, for example, health care, law reinforcement agencies, insurance, pharmacy, social service, and so forth (Schneid and Schumann, 2006). Yet, it seems that this topic is vital for any field of business. Every person, who takes responsibility for the well-being of other people, has to avoid the pitfalls that may occur in the course of his or her career. Therefore, this discussion can be helpful from theoretical and practical standpoints. Although it is too early to jump to any conclusion, we may say that professional ethics and legislation are often incompatible with one another, which means that the same action can be treated as appropriate or inappropriate. It depends on the person or organization that has to decide, either judicial authorities or professional committees. Furthermore, the decision-making becomes even more complicated due to the discrepancies, existing in American legislation. In this respect, we need to speak about regional differences. All these questions require thorough examination.
On the whole, criminal liability can be interpreted as a legal obligation that arises out of wrongs, committed against the community: a person, group of people, government, or environment (Schneid and Schumann, 2006). To explain this question, we need to illustrate different forms of such behavior; it may include theft, forgery, fraud, murder, etc (Mercier, 2009, p 69). Unfortunately, this type of misconduct exists in the modern workplace, even in those organizations which are intended to serve for the benefit of the community. Normally, they are punished by the restriction of personal freedoms, like imprisonment, fines, and other penal measures. In their turn, professional regulations can be explained as a set of rules and principles, established among the representatives of a certain profession: lawyers; medical workers, policemen, etc. Very often these regulations may depend on the specific agency or company in which the person works. A companys statutes can profoundly affect the ethical and professional standards of performance. Nevertheless, we need to take into account that there exist external supervisory bodies[1] which perform the function of monitoring; they ensure that the practices of the company are consistent with the federal or national standards.
At first glance, one may suggest that there is no connection between these notions but it should be borne in mind that under some circumstances, violation of law and violation of professional regulations can produce the same effect. For instance, the error of a health care professional can easily result in the death of a patient, this error may entail both suspense of license and criminal punishment (Dekker, 2007, p 831). This is why it is of crucial importance to differentiate between them. The thing is that occasionally it is practically impossible to do it. The exact extent of guilt is not always obvious, and even experts who specialize in this field cannot agree while returning the verdict. Such controversies are very typical of the healthcare system and legal profession (Dekker, 2007; Schneid & Schumann, 2006).
We have previously mentioned that such crimes as theft, fraud, or forgery are extremely widespread in many fields of human activities. They contradict the ethical principles of every industry. Then the question arises of what should be done when this guilty person has served his or her sentence. In other words, does he or she have a right to continue professional activities? Thus, at this stage, we can argue that legal and professional crimes may bear a strong resemblance to one another. Yet, it is not always clear how they should be discussed, from a legal or professional perspective, or both.
To answer these questions we need to describe the situations that show how difficult it is to interpret such cases. One of the most notorious examples is the accusation of negligence, especially if we are speaking about health care professionals. First of all, it should be pointed out that American legislation gives the following definition to this term, “negligence is the failure to use a reasonable level of skill whether by omitting to do something that a prudent person would do or by doing something that no reasonable person would do” (Dekker, 2007, p 831). It has to be admitted that the negligence of physicians can be fatal and the possibility of the event should be reduced to a minimum. But we may also argue that this definition gives room for various interpretations because it is not quite clear what exactly constitutes a “reasonable level of skills”. In this regard, it should be noted that the criminal law of the United States does not offer clear guidelines for evaluating professional misconduct. As a rule, the verdict is returned by the colleagues of this individual. This is one of the reasons why such cases may be difficult to investigate. The thing is that professional ethics tacitly prohibits incrimination of one’s colleagues. Undoubtedly, this policy is not officially declared but some professionals can simply shield their co-workers against the law.
We may speak about other examples such as the automobile industry. It is possible to construct such a hypothetical scenario: the company releases the vehicle, containing some defects, which may be very dangerous for the safety of the passengers. The management knows about the drawback yet, nothing is done to rectify this problem[2]. This is one of those situations when judicial officials find it rather hard to prove negligence and demonstrate that it could be avoided. Again, this evidence tells that the distinctions between crime and violation of professional regulations are often untraceable.
There is another peculiar feature that makes it rather difficult to fix a border between a legal and professional crime. American legislation varies from one state to another, and the same behavior can be regarded differently. One of such cases is euthanasia. Assisted suicide has achieved legal status in some parts of the United States, like Texas, Oregon, or Montana, certainly, only if all the requirements are met and the patient is eligible for this procedure. However, in the rest of the country, euthanasia is still prosecuted by the state (Cavan & Dolan, 2000). Furthermore, even medical workers themselves cannot fully agree on this point. Some theorists argue that assisted suicide entirely contradicts the major ethical tenets of the medical profession, namely the principle of nonmaleficence[3], whereas others believe that a physician must facilitate the sufferings of the patient (Cavan & Dolan, 2000, p 22). Thus, we can say that there are situations when neither legal nor professional regulations give virtually no explanation about professional misconduct. In the eye of the law, euthanasia is an actual murder, and normally, such a deed entails either life imprisonment or even capital punishment. Yet, it can be observed that under some circumstances this practice can be justified by the state.
The discussion of these cases indicates that sometimes law and professional regulations can come into direct conflict. In other words, the same behavior might be permissible in terms of professional ethics, yet, it is not tolerated by the law. On the whole, we should not speak only about healthcare services, because the representatives of other trades have to face similar pitfalls. An unintentional mistake of a construction engineer or a pilot can lead to the deaths of a great number of people. Ironically, he or she may be acquitted by the court but there is very little likelihood that this person will ever continue his practice.
As for the prevention of unethical or illegal behavior in the workplace, we may say that various federal and national institutions aim to identify and eliminate misconduct in companies and other organizations. These institutions are extremely diverse, we may enumerate only some of them such as BBB (Better Business Bureau, the organization which ensures that private enterprises comply with the standards set by the government), IRS (Internal Revenue Service), AMA (American Medical Association). These agencies may be of lesser scale, like city boards and committees. Still, they intend to investigate both legal and professional implications of the misconduct.
It would not be an exaggeration to say that there are very few guidelines for the prevention of professional or legal malpractices. In some cases, preventive measures are limited only to the suspension of license for a certain period. This individual will not be eligible to work in the capacity of practitioner, accountant, policeman, etc. One should not think that this is mere termination of the contract because, the person who has been found guilty, cannot work in any organization that provides similar services, for instance, a hospital or law firm. Afterward, his or her case can be reviewed, but the verdict may be the same. Criminal punishment can be imposed only if the degree of misdemeanor is so severe that it poses an immediate threat to the welfare of the community.
The differences between professional and legal misconduct are not always observable. Sometimes, they may fully coincide, if we are speaking about crimes committed in the workplace. But as a rule, they belong to entirely separate dimensions. Felonies are much conspicuous; the law clearly defines them; while the interpretation of workplace misconduct may depend on the ethical views of the specific profession. Finally, legislation and professional regulations can treat the same behavior differently.
Reference List
Cavan S., & Dolan S. (2000). Euthanasia: the debate over the right to die. NY: The Rosen Publishing Group.
Dekker, S. W. (2007). “Criminalization of Medical Workers: Who draws the Line?” ANZ Journal of Surgery, vol. 77, pp 831-837.
Huber P.W. & Litan R.E (1991). The Liability maze: the impact of liability law on safety and innovation. Brookings Institution Press.
Mercier. C.A. (2009). Criminal Responsibility. New York BiblioBazaar, LLC. Schneid, T. D. & Schumann, M.S.(2006). Legal Liability: A Guide for Safety And Loss Prevention Professionals. New York: Jones & Bartlett Publishers.