Understanding Medical Law

Brendan Greene

• Publisher: Routledge-Cavendish
• Year: 2012
• eBook ISBN: 9781135332792
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book gives the reader a flavour of the main issues arising in medical law, including the problems of consent to treatment, medical negligence, abortion and whether euthanasia should be legalized.

CHAPTER 1

INTRODUCTION TO MEDICAL LAW

INTRODUCTION

Medical law touches the lives of everyone and raises fundamental questions about life, death and many of the things which happen in between those two events in people’s lives. The law attempts to deal with a wide range of problems, such as what to do with patients who refuse treatment or patients who are unable to consent to treatment; how to respond to the increasing number of claims for medical negligence; and what rights children have in respect of treatment. There are many contemporary issues with which the law has to grapple. Should women have an automatic right to abortion? Should the 24 week limit on social abortions be reviewed, as foetuses of this age can now be kept alive? When may organs be removed from dead patients? Should the practice of euthanasia be made legal in the light of developments in Holland? The ethical and legal dilemmas confront us on an almost daily basis. Examples include: the discovery of the practice of removing organs from dead children at Alder Hey Children’s Hospital in Liverpool and at Bristol Royal Infirmary; in 2000 the case of the conjoined twins, Jodie and Mary; in 2002 the struggle and ultimate failure of Diane Pretty, paralysed by motor neuron disease, to obtain permission for her husband to help her to die; Natalie Evans who, in June 2004, lost her appeal to use her frozen embryos to have a baby; and in January 2005 when Brian Blackburn, who made a suicide pact with his wife who was dying of cancer and killed her, pleaded guilty to manslaughter, he was given a suspended sentence of nine months’ imprisonment.

ETHICAL THEORIES AND PRINCIPLES

Medical law is not simply a set of rules which can be applied to solve legal problems, because it frequently involves questions of morals – whether particular actions are the right thing to do – for example, the issue of abortion. Ethical rules are important because ethical principles sometimes underpin legal rules; for example, the law on consent to treatment is based on the principle of autonomy. Sometimes, there are no legal rules, or the rules are unclear and decisions have to be made on the basis of ethical principles; for example, if tissue is taken from a dead body. The Human Tissue Act 2004 sets out the circumstances in which tissue may be taken, but the substantive parts of the Act are not in force at the time of writing. There is also the question of individual moral perspectives – clearly, the law cannot satisfy everyone, as people have conflicting moral views. What should the role of the law be in such conflicts? Should it be a matter for the individual to decide, or should the law impose limits on people’s rights? Again, the example of abortion may be used. Should the law give women an absolute right to abortion or should it make abortion illegal and protect the foetus? A second example is the conflict between the parents of Jodie and Mary, who did not want the twins to be separated, and the doctors at St Mary’s Hospital, Manchester, who did want to separate the twins. The law is sometimes unclear and sometimes unsatisfactory. It is then that resort to ethical principles may help to determine how such problems should be approached, and the value of such principles can only be judged by their application in practical situations.

There are two main ethical theories: deontological – which is based on what is the right thing to do in any particular circumstances; and utilitarianism – which aims broadly to maximise happiness and evaluates an action on the consequences of that action:

• Deontological theory: ‘deon’ means duty and this approach determines whether an action is right by asking if there is a duty to do it or not to do it, for example, a duty not to kill. The focus is on the act and not the consequences. Immanuel Kant (1724–1804) was a proponent of this theory and believed that it could be used to judge whether any particular act was morally right or wrong. Kant believed that morality was based on reason and that human beings had rational powers. Kant argued that we should be moral for its own sake. Morality was an ‘absolute’ and people should not act on the basis that there was something in it for them or that it made the world a better place. To give an act moral worth we must act on the basis of duty or obligation and not for some other reason, such as self-interest. Kant’s test for an act was the categorical imperative, ‘I ought never to act except in such a way that I can also will that my maxim become a universal law’. Here ‘maxim’ means any principle which governs an individual’s act. Kant means that if someone decides on a particular principle it must apply to everyone. Kant also believed that one should act in a way which treated every person as an end and never as a means. Each person had an absolute moral value which meant that they were ends in themselves. To treat a person as a means to an end was not respecting their autonomy. The duty approach frames actions in terms of various duties to do or not to do certain actions, normally as negative duties. It also tends to look for principles which can be followed, for example, the principle of autonomy. Autonomy means ‘self-rule’ and its wider meaning is the capacity to think and act freely. In a medical context, the doctor would be under a duty to respect the patient’s autonomy, for example, by giving the patient enough information to make a decision whether to accept treatment or not. There are a number of problems with this theory. First, it provides no help regarding what action to take if there are two conflicting duties. Secondly, it ignores the consequences of an act.

• Utilitarian theory: this judges an action by what its consequences are, with the aim of maximising happiness. Jeremy Bentham (1748–1832) and John Stuart Mill (1806–73) were exponents of this theory. Bentham believed that an act could be judged by whether it produced more pleasure than pain. The right act was the one which produced more pleasure than pain. This can be seen as a ‘goal-based’ approach, the goal being to maximise the benefit, welfare or happiness to society. An action is right if it has good consequences and the nature of the action does not matter. The utilitarian approach does not take a stand on principle, but simply looks at the consequences of an action. For example, it would not consider abortion wrong in itself because it offends the principle of the ‘sanctity of life’, but would judge it on its overall effect on society, and whether it produces more pleasure than pain. A utilitarian approach would not distinguish between an act and an omission, so would not distinguish between killing someone and letting them die. A utilitarian approach will breach duties and violate rights if this maximises the good. In short, the end justifies the means. There are, however, some problems with this theory. It assumes that everyone knows what happiness is, there are difficulties with calculating the consequences of an action and it pays little regard to the individual in any particular case.

Apart from ethical theories, there are a variety of moral principles which play an important part in medical law and ethics. Four important principles relevant to medical ethics have been identified by Beauchamp and Childress in Principles of Biomedical Ethics (5th edn, 2001, Oxford: OUP). They include respect for autonomy, beneficence, non-maleficence and justice:

(a) Respect for autonomy: the word autonomy comes from the Greek, and literally means ‘self-rule’. Autonomy is the capacity of an individual to think freely and to act on the basis of that thought. A doctor treating a patient can respect the patient’s autonomy by keeping information about the patient secret – the duty of confidentiality. Another way would be to take note of whether the patient wishes to have treatment or not.

(b) Beneficence: this means to do good. It is a positive duty to help others. In a medical context, the doctor must act in the best interests of the patient. This will also involve respecting their autonomy.

(c) Non-maleficence: this means to do no harm and is a general moral duty not to harm others. A doctor must not harm his patient. However, as Gillon has pointed out, in the context of medical care the two principles of beneficence and non-maleficence must be considered together (‘Medical ethics: four principles plus attention to scope’, BMJ, Vol 309, 16 July 1994). A doctor treating a patient has a duty to produce a net benefit over harm. Many types of medical treatment involve harm, for example, surgical procedures or if a patient with cancer is given chemotherapy, but the net benefit in both cases may be to prolong their life for a number of years.

(d) Justice: this is the moral obligation to act fairly between competing claims. It is important in healthcare because resources are limited. A doctor treating a patient should not waste resources, for example, by prescribing an expensive drug if a cheaper one will have the same effect.

The traditional approach in medicine was based on the principle of beneficence, in that doctors saw their role as helping patients. All too often this became ‘doctor knows best’ and many doctors took a paternalistic approach to their patients. Over the last 30 years, patients’ rights have grown more important and the principle of autonomy now has an important place in medical care.

THE WIDER CONTEXT OF MEDICAL LAW

Civil and criminal law

Although medical law is now recognised as a separate branch of law, it must be remembered that it operates in the wider context of the legal system. The distinction between civil and criminal law must be borne in mind. A civil matter is a dispute between individuals or between an individual and an authority, for example, an NHS hospital trust. The main aim of a civil claim is to obtain compensation or redress for an injury suffered. A criminal matter is a wrong committed by an individual against society in general and the State will take action. The aim with criminal law is mainly to punish the person committing the act. Most matters in medical law will be civil ones, for example, a patient suing a hospital trust for negligence. However, the criminal law will sometimes be relevant: for example, Harold Shipman, a general practitioner, was convicted of the murder of a number of his patients. This distinction between civil and criminal is reflected in the court structure and medical staff may need to attend both civil and criminal courts. One act may involve both civil and criminal liability; for example, if a member of staff hit a patient (or, increasingly more likely, a patient hit a member of staff!), this would be both a battery in civil law and a criminal assault under the Offences Against the Person Act 1861. Minor criminal matters such as assault will go to the magistrates’ courts and more serious offences, such as manslaughter, will be dealt with at the Crown Court. A violent, unnatural or sudden death must be reported to the coroner, who may order a postmortem or hold an inquest. An inquest will take place in a coroner’s court.

In civil law, negligence claims may be brought on the basis of a conditional fee agreement (‘no win, no fee’). The client does not pay a fee unless they win the case. The lawyers for the winning side may claim a success fee of up to 100% for the case and this applies to all civil claims, including clinical negligence (formerly medical negligence), with the exception of family matters. Although the losing party did not have to pay their own lawyer, they did have to pay the other side’s lawyer. To cover this cost, the claimant can take out an insurance policy.

Following Lord Woolf’s reforms, the ‘Clinical Negligence Protocol’ was introduced to try to settle claims before they reach court. The claimant sends a ‘preliminary notice’ to the other side, setting out brief details and the value of the claim, and the other party must acknowledge this within 21 days. The parties may then decide to go through an alternative dispute resolution (ADR) procedure, under which they try to settle the claim. The next stage is a more detailed letter of claim, which must be acknowledged within 21 days. The parties should then conclude negotiations within six months. If the case should continue to court, then the procedure is set out in the Civil Procedure Rules 1998. These provide a common set of rules for both the county court and the High Court. The court now takes an active part in the management of cases and also allocates each case to one of three ‘tracks’:

(a) the small claims track, which deals with claims under £5,000. Claims for personal injury must be no more than £1,000 to be allocated to this track. Parties cannot claim their legal costs from the other side;

(b) the fast track, which is for claims up to £15,000 where the trial is not expected to last for more than one day. Only one oral expert is allowed for each party;

(c) the multi-track, for claims over £15,000 and for complex cases. Most medical negligence claims will be multi-track claims and, if they are for over £50,000, will be heard in the High Court.

Claims in contract

Patients who suffer harm as a result of NHS treatment can sue in tort for negligence. But can they sue for breach of contract? A contract is a legally binding agreement between two people or between a person and an organisation. A patient receiving treatment from the NHS does not have a contract with the NHS and therefore cannot sue for breach of contract if they suffer harm as a result of the treatment. Arguments have been put forward that a contract does exist with the NHS. In Pfizer v Ministry of Health (1965), the House of Lords considered whether a patient paying for a prescription under the NHS was a contract. It appeared to be a contract because the patient was paying for the prescription. The House of Lords said that there was no contract between a patient and the NHS, even though a payment was made. A contract was marked out by the fact that it was a voluntary agreement, but pharmacists were under a statutory duty to provide the drugs required, so they did not do so voluntarily.

In Reynolds v Health First Medical Group (2000), the claimant consulted her GP (the defendants) in 1996 and was told that she was not pregnant, even though she was. When she realised that she was pregnant, it was too late to have an abortion. After having a baby, she claimed damages for pain and suffering, loss of earnings and the cost of bringing up the child. Although the original claim was made in negligence, the decision of McFarlane v Tayside Health Board (2000) prevented claims for bringing up the child in such circumstances and the claimant therefore claimed for breach of contract. This was based on the argument that a GP received a fee (capitation fee) for each patient on his or her list and, hence, consideration was provided. It was held by the county court that the fact that a GP received payment for each patient was not consideration. Even if it was consideration, there was still no contract because the relationship was controlled by statute (the National Health Service Act 1977) and there was no room for bargaining between the doctor and patient. Also, either the doctor or the patient could end the relationship unilaterally, which could not be done in a contract.

If a patient paid for treatment at a private hospital and suffered harm as a result, they would have a claim for breach of contract. A patient suing in contract would have to show that the doctor did not reach the required standard of skill. At common law, the courts have said that the standard required is the same as that in negligence. I...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Table of Cases
• Table of Statutes
• Table of Other Legislation
• Introduction
• 1 Introduction to Medical Law
• 2 Consent to Treatment
• 3 Children and Consent
• 4 Medical Negligence
• 5 Confidentiality and Medical Records
• 6 Infertility
• 7 Abortion
• 8 Medical Research
• 9 Death
• 10 Property in the Body and Transplants
• Appendix A: Model Consent Form
• Appendix B: Useful Websites
• Index