Unlocking Medical Law and Ethics 2e

Claudia Carr

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317743507
• Edition: 2
• Topic: Diritto
• Subtopic: Diritto medico

Unlocking Medical Law and Ethics will help you grasp the main concepts of Medical Law with ease. Containing accessible explanations in clear and precise terms that are easy to understand, it provides an excellent foundation for learning and revising.

The information is clearly presented in a logical structure and the following features support learning helping you to advance with confidence:

• Clear learning outcomes at the beginning of each chapter set out the skills and knowledge you will need to get to grips with the subject
• Key Learning Points throughout each chapter allow you to progressively build and consolidate your understanding
• End-of-chapter summaries provide a useful check-list for each topic
• Cases and judgments are highlighted to help you find them and add them to your notes quickly
• Frequent activities and self-test questions are included so you can put your knowledge into practice
• Sample essay questions with annotated answers prepare you for assessment
• Glossary of legal terms clarifies important definitions

This second edition has been updated to include discussion of recent changes and developments within the module, such as updated case law, including: Birmingham Children's NHS Trust v B 2014 EWHC 531; NHS Foundation Trust v A 2014 EWHC 920; A NHS Trust v DE 2013 EWHC 2562; Re P-M (Parental Order: Payments to Surrogacy Agency) 2013 EWHC 2328; R v Catt (Sarah Louise) 2013 EWCA 1187 and Doogan v Greater Glasgow and Clyde Health Board and others 2013 CSIH 36.

The books in the Unlocking the Law Series get straight to the point and offer clear and concise coverage of the law, broken-down into bite-size sections with regular recaps to boost your confidence. They provide complete coverage of both core and popular optional law modules, presented in an innovative, visual format and are supported by a website which offers students a host of additional practice opportunities.

Series editors: Jacqueline Martin LLM has over ten years' experience as a practising barrister and has taught law at all levels. Chris Turner LLM is Senior Lecturer in Law at Wolverhampton University and has taught law at all levels.

1

Introduction to ethical theories

AIMS AND OBJECTIVES

After reading this chapter you should be able to:

■ Understand the role of ethical theories in context of the study of bioethics

■ Be able to demonstrate an appreciation of different ethical theories

■ Demonstrate an ability to apply the theories to ethical dilemmas

1.1 Introduction

Medical ethics is the term used to describe traditional dilemmas within the doctor–patient relationship. An example of this could be concerned with the question of confidentiality or a patient’s consent. It is the study of moral dilemmas as they are applied to the field of medicine. There is an overlap between medical ethics and bioethics, the latter being the more modern and progressive term that reflects twenty-first-century issues. The term ‘bioethics’ comes from the Greek word bios, meaning life, and ethos, behaviour. The remarkable advances in medical technology over recent years mean society now faces much more complex dilemmas than the more traditional dilemmas found in the doctor–patient relationship. For example, whether a person should be allowed to sell their kidney is not a question that can be resolved in a doctor–patient relationship, as it has profound implications for the whole of society. This is precisely the type of dilemma that needs to be considered. Other issues we will consider in this book include:

■ Whether it is ethically permissible to turn off a patient’s life support machine.

■ If a minor child can consent to medical treatment why can they not refuse treatment?

■ Can an adult refuse treatment even if it will lead to their death?

■ Can a person seek another’s help to end their own life?

■ Is the abortion of a disabled child ethically permissible?

How do we start to approach these complex issues? One often instinctively knows whether something is ethically permissible without any recourse to ethical theories. We may have a ‘gut instinct’ response to whether something is ethically acceptable or not, but caution should be applied when relying on instinct alone. It is important to be able to substantiate a view by support and explanation to a theory. One cannot simply say ‘selling a kidney is wrong because I feel strongly about it’; it is necessary to provide an explanation of why it is wrong.

Challenge your own initial belief in the following chapter. If you feel strongly that an act is (not) ethically permissible, there is nothing wrong with maintaining this view, provided you can support it by reference to an ethical principle and, most importantly, provided you can see the other argument as well. You can then reject the argument if you feel so inclined, and explain why you reject it. One can either take a secular approach or a religious approach, but it is important to note that many modern medical technologies, such as pre-implantation genetic diagnosis, are, with some limited exceptions, supported by religious groups. Abortion however, remains one of the most controversial areas where religious views can still dominate.

We begin by considering the more secular and dominant theories.

1.2 The secular perspective

1.2.1 Consequentialism and utilitarianism

QUOTATION

‘A consequentialist is someone who thinks that what determines the moral quality of an action are its consequences.’ (RM Hare, A Utilitarian Approach, A Companion to Bioethics edited by H Kuhse and P Singer.)

Consequentialism allows us to decide whether an act is ethically or morally permissible according to its consequences (hence the term ‘consequentialism’). The more favourable the consequence, the more the act should be encouraged. If the act allows favourable or good consequences then it should be encouraged but if it allows bad consequences then it should be discouraged. In order to determine the value of an act, one must weigh up the alternatives of each of the actions and decide which has the best consequence. On a superficial level, this is an attractive theory as it addresses issues on a basic level – what will give me greater pleasure, a visit to the cinema or a trip to the theatre? What will give the patient the greatest pleasure, having a kidney transplant or not? Obviously, assuming the kidney is not rejected by the patient, the favourable consequences are that he receives a transplant.

Figure 1.1 The balancing act of consequentialism

One popular form of consequentialism is utilitarianism, which has been ‘regarded by many as underpinning modern ethical medicine’ (JK Mason and GT Laurie, Law and Medical Ethics, 8th edn (OUP) p 6).

Figure 1.2 Consequentialism

Act utilitarianism is concerned with the moral value of an act, and this is judged by assessing its utility. Its objective is that the consequences of any action should be only favourable so that a person experiences pleasure. A good consequence is one that results in pleasure not pain. Happiness and pleasure is the ultimate goal and what does not make a person happy or pleasurable should not be adopted or pursued. The moral value of an action is judged only by its potential outcome; the consequences of the act.

Historically, the most significant proponents of utilitarianism and the development of the wider notion of consequentialism are John Stuart Mill and Jeremy Bentham (1748–1832). The Bentham principle can be defined as the moral act which produces ‘the greatest good for the greatest number of people’. In 1789 Bentham wrote The Principle of Morals and Legislation, in chapter 4 of which he described a formulaic approach or ‘felicific calculus’, to be applied in order to determine the greatest happiness to the greatest number of people. By this approach, he has been described as ‘Bentham’s way of becoming the Newton of the moral world’ (Wesley C Mitchell (1918) 33(2) Political Science Quarterly pp 161–83).

Bentham said:

QUOTATION

‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. Hence to know what men will do, to tell them they should do, or value what they have done, one must be able to measure varying “lots” of pleasure or pain.’

Therefore, in order to determine whether an action is correct, the pleasures and the pain that may be derived from it should be determined according to their:

■ Intensity – how strong is the pleasure?

■ Duration – how long will the pleasure last?

■ Certainty – how certain is it that there will be pleasure?

■ Propinquity – how soon will be the pleasure happen?

■ Fecundity – the probability that the pleasure derived from the action will recur.

■ Purity – the probability that pleasure will not be followed by pain.

■ Extent – the extent to which people will be affected.

The ‘felicific calculus’ was to be applied to a multitude of utility areas such as economics and criminal justice. We will refer to its application to modern day medical ethics shortly.

Figure 1.3 The felicifi c calculus

If we attempt to apply act utilitarianism in practice, there are possibilities of unsavoury outcomes the consequences of which invade our social values and principles of justice. For example, an often-quoted scenario is of a doctor presented with several ill patients, all of whom are waiting urgent transplants without which they will surely die. If however, the doctor was to kill a single healthy visitor, then all three patients would survive. A utilitarian may be satisfied by this approach, as it would cause the greatest happiness to the greatest number of people. Imagine also that all three of the patients have partners, dependent children, valuable jobs, and the healthy visitor has no family at all and few friends. From a consequentialist point of view, three patients’ survival would outweigh one person’s death, as the greatest happiness would be derived from all those family members and friends that would celebrate the transplant.

In order to combat this clear injustice and almost radical application, rule utilitarianism seeks to provide a balance. This principle suggests that a set of rule is adopted to assist with what creates the best possible outcome.

Rule utilitarianism

As an alternative to considering the potential consequences of an action, the rule utilitarian considers the rules of the action in order to determine how right or correct the act would be. Once the correct rule is applied, the consequences of the outcome with the rule are considered. The rule with the best consequences is the one that should be morally adopted. The difference between the two rules is that act utilitarianism considers the most favourable outcome by an application of the act and rule utilitarianism considers the outcome by an application of rules.

Rule utilitarianism can be self-contradictory. If we adopt the rule that one should not kill, on the face of it we should be content with such a fundamental principle. However, if we consider the rule a little further, we start to challenge ourselves. As a society we largely consider it acceptable to kill another who we are lawfully at war with and indeed it is not unlawful to do so, but as a rule utilitarian it would not be ethically permissible to do so even though it would cause happiness to the greatest number of people. Another such example is the act of self-defence, if a person may not kill then it follows it would not be ethically permissible to kill another in self-defence even though it is legally permissible to do so.

In order to remedy the significant defect that appears in rule utilitarian, John Stuart Mill introduced the idea of weak rule utilitarianism, which states that although rules are relied upon in order to determine what benefits society to the greatest extent, the rule need not be followed if it creates the greatest happiness not to follow that rule. Weak rule utilitarianism offers the greater opportunity of justice, as opposed to strong rule utilitarianism, which imposes an absolute position where rules exist for the benefit of society and should not be broken under any circumstances.

1.2.2 Criticisms of consequentialism and ...