Everyday Medical Ethics and Law

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• Publisher: BMJ Books
• Year: 2013
• Print ISBN: 9781118384893
• eBook ISBN: 9781118384848
• Edition: 1
• Topic: Medicine
• Subtopic: Ethics in Medicine

Everyday Medical Ethics and Law is based on the core chapters of Medical Ethics Today, focussing on the practical issues and dilemmas common to all doctors. It includes chapters on the law and professional guidance relating to consent, treating people who lack capacity, treating children and young people, confidentiality and health records. The title is UK-wide, covering the law and guidance in each of the four nations. 

Each chapter has a uniform structure which makes it ideal for use in learning and teaching. "10 Things You Need to Know About..." introduces the key points of the topic, Setting the Scene explains where the issues occur in real life and why doctors need to understand them, and then key definitions are followed by explanations of different scenarios. The book uses real cases to illustrate points and summary boxes to highlight key issues throughout.

Whilst maintaining its rigorous attention to detail, Everyday Medical Ethics and Law is an easy read reference book for busy, practising doctors.

1: A practical approach to ethics

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Picture this . . .

A senior police officer is asking for details of all patients on a certain drug. It could be in connection with a serious crime or an unidentified corpse, but the facts are vague. What do you think? Is patient confidentiality trumped by serious crime and, if so, how serious does the crime have to be? In another part of the building, an irate father is demanding to see his daughter’s record. Can he do that as a divorced dad without custody rights? Should the mother or the 12-year-old daughter herself be asked first? Another headache is that you are new to the area and keen to meet people. Surely there’s no problem in going to a local barbecue? You’ve already had a few flirty emails from one of the organisers who wants to be your Facebook friend and happens to be a patient. It seems quite innocent or is it? On top of that, a senior colleague wants to do some research involving a change of medication for your patients with early-stage dementia. It may do them some good, but doesn’t someone need to consent on their behalf or can they do that themselves? Also there’s a man who always stands far too close and keeps accidentally brushing against you. He’s booked in for a prostate examination and asked specifically for you to do it. Do doctors really still need chaperones? It sounds so Victorian and what if the patient objects? And you’re worried about the patient with the fractured ribs who makes a habit of falling downstairs but refuses to let you tell the police that or about the cigarette burns on her arms. She has young children who don’t look too good either. Shouldn’t you do something? The teenager waiting for stitches in his hand also gives an odd account of the accident. Aren’t you supposed to report all knife wounds even if, as he says, he was just showing off his chef’s chopping technique to his mum in the kitchen?

Common enough questions but the answer may not always seem immediately obvious. That is the point of this book. In the following chapters, we pull together some of the recurring queries that doctors raise. Many dilemmas appear relatively mundane, but some touch on life-changing decisions that need to involve the courts. In fact, all health professionals are likely to face situations in which they have to pause and consider. Their initial gut reaction is not always the right one and, if challenged, they need to be able to offer a reasonable justification for the decisions taken.

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Does medical ethics help and how?

When professionals have to work through a problem and feel justified about the options they take or recommend, they need some consistent benchmarks. Traditionally, codes of ethics helped by setting out a framework of duties and principles. Modern medical ethics still provides the framework but also needs to take account of professional regulation, law and quasi law. Frustratingly, ready-made answers are seldom available. Careful analysis and reasoning about the particular circumstances is usually needed, so that superficially similar cases may prompt different responses. This is because an ethical decision is not just about providing the best clinical outcome for the patient but may also include accommodating that person’s own wishes and values. It involves a search for coherent solutions in situations where different people’s interests or priorities conflict. It is often as concerned with the process through which a decision is reached as with the decision itself.

Most of the issues covered in this book are not new. In many cases, the law or well-established pathways and protocols point the way forward but as health care is constantly evolving, new challenges also arise. Ethical debate and the law may then lag behind practice for a while. Often new problems can be usefully addressed by reference to parallel scenarios for which best practice has already been defined but sometimes, a solution which works well in one instance cannot be applied to another, although it appears similar. As each patient is an individual with hopes and expectations that can differ from the norm, radically different solutions may be needed. Health professionals need the skill to analyse the particular problem they face in its own context. This chapter briefly sketches out the BMA approach to medical ethics, with some practical steps on how to approach an ethical dilemma.

Key terms and concepts

Throughout history, doctors have been seen to have special obligations. Sometimes labelled Hippocratic, similar moral obligations were expected of doctors in diverse cultures. As other caring professions attained recognition, they reiterated the same core virtues. One of the problems, as we discuss later, is how we currently interpret traditional concepts, such as the duty to benefit patients and avoid harm (see below). Qualities doctors and other health professionals are now expected to possess include integrity, compassion and altruism as well as the pursuit of continuous improvement, excellence and effective multidisciplinary working.

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Key concepts in medical ethics

Common ethical terms are generally self-evident but may require some interpretation when applied to specific cases. All of the terms listed below are explored further, with examples, in later chapters.

Self-determination or autonomy – The ability to think, decide and act for oneself is summed up in the concept of self-determination or personal autonomy. When patients have the mental capacity to make choices, their decisions should be respected as long as they do not adversely affect the rights or welfare of others. Adults with capacity who understand the options are entitled to accept or refuse them without explaining why. They can make choices that seem very harmful for them (as long as those things are lawful), but they cannot choose things that harm other people.

Mental capacity – In order to exercise their autonomy, people need to have the mental capacity to understand and weigh up the options so that they can make a choice. All adults are assumed to have this, unless there is evidence to the contrary and, in practice, most people (unless unconscious) are capable of making some decisions. Adults’ decisions can still be valid when they appear unconventional, irrational or unjustified, but health professionals may need to check that patients have the mental capacity to exercise their autonomy, when such choices have major life-changing implications.

Honesty and integrity – Health professionals are required to be honest and to act with integrity. This means more than simply telling the truth. Their actions should never be intended to deceive and there should be transparency about how decisions are reached. One of the major challenges in this context is giving patients bad news about their prognosis, when the temptation may be to imply more hope than is justified. Good communication skills are essential. A failure to communicate effectively can undermine trust and invalidate patient consent if information the patient needs and wants to know is left unsaid.

Confidentiality – All patients are entitled to confidentiality, but their right is not absolute, especially if other people are at serious risk of harm as a result. Cases arise where an overriding public interest justifies disclosure, even against the patient’s wishes. Although this is one of the oldest values reiterated in ethical codes, it is increasingly difficult to define its scope and limitations in practical terms, not least because notions of public interest change.

Fairness and equity – The individual patient is the main focus, but health professionals also have to consider the big picture and whether accommodating one person’s wishes harms or deprives someone else unfairly. General practitioners, for example, may be confronted with situations in which the needs or interests of different patients conflict and some doctors, such as public health doctors, are necessarily concerned with groups rather than individuals. The values of fairness and equity are closely linked with the practicalities needed to prioritise and ration the use of scarce communal resources, often summarised in the term distributive justice. There are various ways of approaching justice besides the obvious one about equality (trying to treat all similar cases the same), including the sufficiency view (what matters most is that everyone has essential care – although views can vary on what counts as essential – and beyond this, inequalities are less important). Fairness under the law is another aspect which is considered further below. Fairness to patients is also a consideration when conflicts of interest arise and doctors’ professional judgement risks being influenced by factors such as the prospect of personal gain.

Harm and benefit – Notions of maximising benefit and minimising harm are among the trickiest aspects of modern medical ethics, although the ancient ‘Hippocratic’ commitment to benefit patients and to do so with minimal harm remains central to medical ethics and, indeed, to other healthcare professional codes. Keeping people alive and functioning was traditionally understood to encapsulate the obligation to avoid harm and promote benefit but, although the terminology has not changed, the interpretations have. Actions are harmful if the person experiencing them believes them to be so or has clearly rejected them. An example would be the use of invasive technology to try and prolong the life of someone who has refused it. Although they can be slippery, notions of harm and benefit continue to feature strongly in any problem-solving methodology and increasingly preoccupy the courts. There is no clear and universal definition and interpretation of the terms depends in different contexts on a number of variables, including individuals’ preferences as well as legal and professional benchmarks.

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Professionalism

Professionalism is closely linked to modern ethical precepts and reflects traditional core values. Defined as a set of values, behaviours and relationships that underpins the trust that the public places in health professionals, it focuses on health professionals’ partnerships with patients and with each other. Some commentators express concerns about the way market models in health care might affect how we define professionalism. For example, although NHS doctors always had an ethical obligation to consider resources, their own income was generally not linked to their clinical decisions. Increasingly, the use of more commercially orientated tools, including incentives, has led to concerns about how potential conflicts of interest should be managed. (Conflicts of interest are discussed in Chapter 2.) More generally, concerns have been expressed that a broader cultural shift towards a consumer-led model of health care could undermine the core values associated with medicine. Key challenges include finding and maintaining ways in which core values, such as compassion, beneficence and a strong obligation to promote the interests of patients, can still underpin and guide practice in a commercially orientated and consumer-led health environment.

Duties and rights

Traditional ethical codes were all about doctors’ duties without spelling out any explicit rights (or responsibilities) for patients. By inference, if doctors and other health professionals have certain duties, such as to avoid harm and provide benefits, logically patients have concomitant rights, but until relatively recently, health care was not primarily seen from the patient’s perspective. (See Chapter 2, which discusses this change of focus, including the notion of patients’ responsibilities, and Chapter 3, which describes some of the legal cases leading to the current emphasis placed on informed consent.) Now, rights – especially those linked to patient autonomy and self-determination – are often the main focus of ethics and law. A distinction can be made between moral rights and those which are legally enforceable. Many rights are moral claims which we intuitively consider appropriate (‘he had a right to know his child was ill’), but because these are not always clear-cut and as the moral claims of different individuals often clash, much depends on the context of the case. In ethics (unlike law), few rights are absolute and often one person’s moral rights may be overridden in exceptional cases in order to prevent a greater harm. (This is discussed in detail in Chapter 6 Confidentiality, as that is one of the areas most commonly affected by a clash of rights.) Ethical analysis can provide a useful problem-solving tool, taking into account the context of the dilemma in order to balance out such conflicts.

The public interest

The public interest is another factor which affects patients’ rights and health professionals’ duties as it limits individuals’ freedom to act, or keep information secret, in situations where other people might be harmed. The public interest is usually defined by law and is the basis of all public health legislation, such as the duty to report infectious diseases. Other common examples of the public interest argument arise when a disclosure of information from medical records is needed to prevent accidental harm, such as when a patient with bad eyesight continues to drive, or to detect a serious crime (see Chapter 6). The General Medical Council (GMC) also advises that, in some circumstances, a disclosure without a person’s consent can be justified in the public interest to enable medical research.¹ In all cases, the facts must be subject to close scrutiny as to whether there is a genuine public interest at stake. Although ‘public interest’ is the usual terminology and is used throughout this book, some people prefer to think of it in terms of ‘the public good’ to emphasise that there is a clear distinction (particularly in relation to information disclosure) between what is in the public interest and what the public is interested in.

Medical law and healthcare law

Ethical decisions in the NHS are guided by legislation, the NHS Constitution, guidance from professional and regulatory bodies, as well as local guidance and pr...

Table of contents

• Cover
• BMA
• Title page
• Copyright page
• Medical Ethics Committee
• List of case examples
• Preface
• 1: A practical approach to ethics
• 2: The doctor–patient relationship
• 3: Consent, choice and refusal: adults with capacity
• 4: Treating adults who lack capacity
• 5: Treating children and young people
• 6: Patient confidentiality
• 7: Management of health records
• 8: Prescribing and administering medication
• Index