Text, Cases and Materials on Medical Law and Ethics

Marc Stauch, Kay Wheat

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138051287
• eBook ISBN: 9781351685610
• Edition: 6
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Text, Cases and Materials on Medical Law and Ethics presents a valuable collection of materials relating to often controversial areas of the law. Comprising extracts from statutes, cases and scholarly articles alongside expert author commentary and guidance which signposts the key issues and principles, this book is an ideal companion to this increasingly popular subject.

Fully revised, this new edition incorporates expanded content, including:

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• updated coverage of consent and decision making, including the the Montgomery v Lanarkshire Health Board (2015) judgment;
• the impacts of the EC directive for clinical trials and GDPR on the research use of patient data; and
• discussion of other recent developments in the case law, including the 2017 Charlie Gard litigation, the 2016 Privy Council decision in Williams v Bermuda on negligence causation, and the UK Supreme Court judgment in A & B v SS for Health (2017) on funding for patients from Northern Ireland seeking terminations elsewhere.

Providing a comprehensive and up-to-date resource on this topical area of the law, this textbook is an invaluable reference tool for students of medical law as well as those studying medicine.

Part 1
General principles

1 Introduction to ethics

2 Healthcare in England and Wales

3 Consent to treatment

4 Treating the incapable patient

5 Confidentiality, privacy and access to medical records

6 Medical malpractice

Chapter 1
Introduction to ethics

Chapter contents

1.1 Why study ethics?

1.2 The doctor–patient relationship

1.3 The case for paternalism

1.4 The case for patient autonomy

1.5 Paternalism v autonomy – a false dichotomy?

1.6 Justice in the allocation of health resources

Summary of key points

Further reading

This chapter will examine the ways in which ethical issues are part of the practice of medicine. In this first section we will look, briefly, at a number of ethical theories and concepts and the ways in which they might relate to medicine. Next, we consider the doctor–patient relationship and the way in which medicine has given rise to particular ways of describing this relationship and its ethical implications. Although it is by no means a clear-cut dichotomy, generally it can be said that many of the problems in medical ethics, and certainly many of the conflicting opinions, are based upon the debate between paternalism and the patient’s right to autonomy. First, the view that paternalism is central to the doctor–patient relationship means that because of the doctor’s superior knowledge and his ethical obligation to do good, the medical view of what is best for the patient should prevail. The opposing view is that the patient has a right to autonomous decision-making and that this should not be overridden by ‘doctor knows best’. Later in the chapter we will study these two different ways of looking at the doctor–patient relationship, question whether it is helpful to use either of these models as frameworks for medical decision-making, and look at alternatives. Finally, we will look at justice and fairness in the allocation of treatment between competing patients when resources dictate that not all can be treated, and at the distribution of healthcare resources on a national level.

However, although the current chapter looks at general principles, when appropriate, ethical problems in particular areas of medical practice will be examined in other chapters.

1.1 Why study ethics?

Why should ethics be so important in medicine? In other fields of activity, such as commerce, ethics plays a small role. As long as business is operated on the right side of the law, little consideration is given to whether it is practised ethically. Although many may protest, for example, that ‘it isn’t fair’ for large supermarkets to put small shops out of business, the ‘ethics’ of this plays a minor role in the general discourse about such matters, which is much more likely to be concerned with convenience and consumer choice. That is not to say that it is not relevant. It is simply that the language of ethics has not permeated the world of business in the way in which it has the practice of medicine. The reason may be that much of medicine is about issues of life and death: for example, abortion, infertility treatment, the threat to life through negligent treatment, or insufficiency of health resources, the treatment of the terminally ill and so on. Perhaps the heart of the doctor–patient relationship is this: the doctor does things to the body of the patient, thereby invading his physical integrity. This is neither good nor bad in itself, but is instrumentally good if the likely effect is the cure or amelioration of the patient’s condition, and if it is done with the real consent and cooperation of the patient. However, in so far as it can be ascertained, it must be done in the patient’s best medical interests. If there is no real consent, or if the treatment is unsuitable or negligently carried out, then it could be regarded as a violation of the patient’s physical integrity.

Although, as we shall see, there is some argument that the doctor–patient relationship has been wrongly accorded this special status, there is no doubt that since the time of ancient Greece, it has given rise to ethical codes prescribing the extent of the doctor’s duties:

Mason, JK and Laurie, GT, Mason and McCall Smith’s Law and Medical Ethics ¹

The Hippocratic Influence

Hippocrates remains as the most famous figure in Greek philosophical medicine but he was not alone and it is probable that the Oath predates his own school. It therefore indicates a prevailing ethos rather than a professorial edict and it is still regarded as the fundamental governance of the medical profession… the Oath lays down a number of guidelines. First, it implies the need for co-ordinated instruction and registration of doctors – the public is to be protected, so far as is possible, from the dabbler or the charlatan. Secondly, it is clearly stated that a doctor is there for the benefit of his patients – to the best of his ability he must do them good and he must do nothing which he knows will cause harm.… Thirdly, euthanasia and abortion are proscribed; the reference to lithotomy probably prohibits mutilating operations (castration) but has been taken by many to imply the proper limitation of one’s practice to that in which one has expertise. Fourthly, the nature of the doctor–patient relationship is outlined and an undertaking is given not to take advantage of that relationship. Finally, the Oath expresses the doctrine of medical confidentiality.

What is the study of ethics about? The purpose of ethics is to try and find principles for living good lives. It will be seen that there is much overlap between ethical theories, and within each, there are contradictions and tensions. Words such as ‘equality’, ‘rights’ and ‘liberty’ all sound good, and we all like to think that we approve of these things. However, in deciding what we mean by them we may find that we are making all sorts of value judgments and interpretations which suit the end we would like to achieve.

1.1.1 Universalisation and relativism

A fundamental starting point in discussions about ethics is universalisation. This means that one must seek principles that can apply to everyone. Peter Singer describes the way this has permeated ethical thinking:

Singer, P, Practical Ethics ²

From ancient times, philosophers and moralists have expressed the idea that ethical conduct is acceptable from a point of view that is somehow universal. Kant developed this idea into his famous formula: ‘Act only on that maxim through which you can at the same time will that it should become a universal law.’ Kant’s theory has itself been modified and developed by RM Hare, who sees ‘universalisability’ as a logical feature of moral judgments. The 18th century British philosophers Hutcheson, Hume and Adam Smith appealed to an imaginary ‘impartial spectator’ as the test of a moral judgment… Utilitarians from Jeremy Bentham to JJC Smart take it as axiomatic that in deciding moral issues ‘each counts for one and none for more than one’; while John Rawls, a leading contemporary critic of utilitarianism, incorporates essentially the same axiom into his own theory by deriving basic ethical principles from an imaginary choice in which those choosing do not know whether they will be the ones who gain or lose by the principles they select….

This does not mean that a particular ethical judgment must be universally applicable.… What it does mean is that in making ethical judgments we go beyond our own likes and dislikes. From an ethical point of view the fact that it is I who benefit from, say, a more equal distribution of income and you, say, who lose by it, is irrelevant. Ethics requires us to go beyond ‘I’ and ‘you’ to the universal law, the universalisable judgment, the standpoint of the impartial spectator or ideal observer, or whatever we choose to call it.

Can we use this universal aspect of ethics to derive an ethical theory which will give us guidance about right and wrong?… The problem is that if we describe the universal aspect of ethics in bare, formal terms, a wide range of ethical theories, including quite irreconcilable ones, are compatible with this notion of universality; if, on the other hand, we build up our description of the universal aspect of ethics so that it leads us ineluctably to one particular ethical theory, we shall be accused of smuggling our own ethical beliefs into our definition of the ethical – and this definition was supposed to be broad enough, and neutral enough, to encompass all serious candidates for the status of ‘ethical theory’.

As Singer says, the principle of universalisation has appealed to many and it cannot be said to belong to any particular theory.

See Hart’s criticism of Mill, at 1.3.2

Nevertheless, it is arguable that we approach ethical problems from the standpoint of a white Western man. Increasingly, therefore, there are thinkers who want to move away from this and explore the issues from the perspective of women or of people from different cultures.

We commenced this section with the suggestion that ethical principles should be universal. Some would argue that this does not address the way in which cultural differences might give rise to different ethical norms:

Beauchamp, TL and Walters, L, Contemporary Issues in Bioethics ³

[Cultural] relativists defend their position by appeal to anthropological data indicating that moral rightness and wrongness vary from place to place and that there are no absolute or universal moral standards that could apply to all persons at all times. They add that rightness is contingent on cultural beliefs and that the concepts of rightness and wrongness are therefore meaningless apart from the specific contexts in which they arise…. patterns of culture can only be understood as unique wholes and that moral beliefs about normal behaviour are thus closely connected in a culture to other cultural characteristics, such as language and fundamental political institutions.

Similarly, some feminists have taken the view that the language of moral philosophy is male-centred, and dominated by an undue reverence for ‘reason’. This is particularly pertinent to medical ethics, as the medical profession has traditionally been dominated by men, particularly in its upper reaches. It has been said that the traditional approach to medical ethics reinforces the practice of patriarchal medicine and the patriarchal institutions within society (for example, by Susan Sherwin).⁴ Some feminist writers have spoken of the need for an ‘ethics of care’, whereby the emotions have an important role to play in ethical theories.⁵ Beauchamp and Childress describe the care ethic as follows:

Beauchamp, TL and Childress, JF, Principles of Biomedical Ethics ⁶

Having a certain emotional attitude and expressing the appropriate emotion in action are morally relevant factors, just as having the appropriate motive for an action is morally relevant. The person seems morally deficient who acts from rule-governed obligations without appropriately aligned feelings such as worry when a friend suffers. In addition to expressing their feelings in their responses, agents also need to attend to the feelings of persons toward whom they act. Insight into the needs of others and considerate attentiveness to their circumstances often come from the emotions more than reason.

In the history of human experimentation, for example, those who first recognised that some subjects of research were being brutalised, subjected to misery, or placed at unjustifiable risk were persons who were able to feel compassion, disgust, and outrage through insight into the situation of these research subjects. They exhibited emotional discernment of and sensitivity to the feelings of subjects, where others lacked comparable responses. This emphasis on the e...

Table of contents

• Cover
• Title
• Copyright
• Outline contents
• Detailed contents
• Acknowledgements
• Table of cases
• Table of legislation
• Table of statutory instruments
• Table of treaties and EU legislation
• Abbreviations
• PART 1 GENERAL PRINCIPLES
• PART 2 SPECIFIC AREAS IN MEDICAL TREATMENT
• Index