Introduction
It is interesting how many law degree courses and textbooks are entitled āMedical Law and Ethicsā. It would be unthinkable to write a textbook on medical law or design a course on it without including a discussion of general ethical theories, often as the opening chapter or seminar. Indeed, that is exactly what we have done with this book. But our colleagues donāt do that with other subjects on the legal curriculum. Books on contract law, land law or constitutional law, for example, do not tend to emphasise ethical principles in the same way. It would look odd to have a book entitled āTort Law and Ethicsā, although that is de rigueur for medical law.
In one sense it is not surprising that medical law and medical ethics are linked. After all, we would not want the law to be requiring medical professionals to act in an unethical way. Indeed, we would hope that the law would reflect and reinforce the general moral principles which should guide doctors. It is also an acknowledgement that medical professionals will be seeking to comply with both their legal and ethical requirements at the same time. It therefore makes sense that they should be integrated.
On the other hand it is important to realise the differences between the way the law works and the way ethics work. First, generally the law sets down the minimum that must be done to avoid committing a legal wrong. Ethics, by contrast, is often asking a different question and is seeking to ascertain what is the ideal moral behaviour in these circumstances. If you like, the law tells you how not to be a devil, while ethics often asks what it means to be an angel.
Second, the law must be enforced in courts. This means it must be susceptible of legal proof. Its requirements and regulations tend, therefore, to focus on matters capable of evidence in a courtroom. Ethicists do not worry about proof and are more likely to discuss matters (such as motive) which are less capable of objective assessment.
Third, the law must be capable of providing guidance. People need to know in advance what the law requires. For medical professionals, ethical issues often arise in an emergency and so the lawās requirements need to be relatively straightforward and simple to follow. This is less of a concern for ethicists, who in their analysis will want to tease out every ambiguity in providing an authoritative discussion. In brief, legal regulations tend to be short and somewhat crude, lacking the length and sophistication that a full ethical analysis can provide.
In this chapter we shall explore the ethical foundations of medical law. We shall look at four important issues, examining some of the key themes in medical ethics: autonomy; paternalism; utilitarianism; and relativism. Inevitably these topics are huge and there is much that could be said.
Debate 1
Is respect for autonomy the most important ethical principle?
This question is particularly appropriate in a liberal, pluralist society. As such a society, we place considerable importance on people freely forming and following their own choices about how to live.1 In simple terms, we donāt like being told what to do. To some degree the legal system takes the approach advocated by John Stuart Mill, that we should have the maximum freedom to make choices about our own lives, but not to the extent that othersā similar degree of autonomy should be impinged upon. According to Mill, the āonly purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to othersā.2 This reflects the principle of autonomy. Each person should be free to develop and live out their vision of the āgood lifeā.
This approach has also found favour with many contemporary writers on ethics. Ronald Dworkin has argued that people have a right, and a responsibility, to āconfront the most fundamental questions about the meaning and value of their own lives for themselves, answering to their own consciences and convictionsā.3 The alternative would be for the government, or the law, to tell people how they should choose to live. Most people think that is unacceptable.
In this debate we will explore whether respect for autonomy should be the most important ethical principle. To get you thinking, here is a scenario to consider:
Scenario to ponder
Mildred suffers from body dysmorphic disorder. This is a recognised condition which causes people to feel a part of their body is alien to them and they strongly wish to have it removed. Mildred detests her legs. She asks a doctor to remove them. She emphasises it is her body and she should be able to do what she wants to with it. She relies on the principle of autonomy to claim the doctor should be permitted to remove her legs.
Why is Autonomy so Important?
The freedom to make our own choices is important because what we choose, and the goals and values we have, are themselves important to us.4 Further, as Will Kymlicka rightly points out, āfreedom of choice, while central to a valuable life, is not the value which is centrally pursued in such a lifeā ā it is the projects that we value that are important, and therefore freedom to choose to pursue them is crucial to our being able to live fulfilled lives.5 We need to be allowed to choose to pursue them, not to have other goals and values that we do not value forced upon us. That is true even if the goals that are imposed upon us are worthwhile.
Freedom to make our own choices is also important because, in doing so, we are able to experiment with life, as John Stuart Mill argued, and to grow in the process by testing our ideas about what we want, re-evaluating and thereby determining which projects will make our lives go best. In addition, exercising these capacities of choice and reasoned decision making is in itself an aspect of self-fulfilment, because in exercising them we improve them. As Mill stated:
The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice. ā¦ The mental and moral, like the muscular powers, are improved only by being used.6
For each of these reasons, interventions that override this capacity to choose may decrease our quality of life, and should be presumed to be objectionable. This capacity should be overridden only where sufficient justification can be found.
What is Autonomy?
The basic idea behind autonomy is straightforward. It is about people being free to determine for themselves how they wish to live their lives. This is why, for example, a law forbidding consensual same-sex activity would infringe the principle of autonomy. It would prevent people pursuing activities they want to do. However, the concept is far more complex than it at first appears. We will now explore some of the ambiguities around it.
Autonomy and capacity
Autonomy requires that we respect the choices that people make, but only if they are āautonomous choicesā. What does that mean? Antonia Cronin suggests:
Autonomy is the capacity of persons to reflect critically upon their first-order preferences, desires, wishes and so forth and then readiness to accept or attempt to change these in the light of higher-order preferences and values. By exercising such a capacity, persons define their nature, give meaning to their lives and take responsibility for the kind of person they are.7
But to other commentators this is far too demanding. Consider, for example, Simon reaching out for his tenth chocolate truffle. In one sense he has chosen to eat ten chocolates, and that was his autonomous choice. Imagine, however, that his friend Thia grabbed the chocolates away at the last minute. Thia might argue that Simon had recently started a diet and determined to eat fewer calories. She might say she was acting in Simonās autonomy interests in promoting his autonomous decision to eat healthily. Indeed, she might refer to Croninās quote and say that she was promoting Simonās āhigher-order preferenceā (to eat healthily) over his ādesireā (to taste the delicious chocolate).
We will be exploring this issue further in Chapters 3 and 4. But for now notice that even if you decide to respect someoneās decision, it is not always clear what their decision is, or which decision you should respect.
What is the difference between autonomy and liberty?
It can be helpful to distinguish between autonomy and liberty, or between positive and negative autonomy as it is sometimes called. It is one thing to say āI should be left alone to do what I want with my lifeā (liberty or negative autonomy) and another to say āI should be enabled to do what I want with my lifeā (autonomy or positive autonomy). This distinction is especially important in the area of medical treatment.
The law certainly protects liberty strongly. If you do not consent to medical treatment, a doctor cannot force that treatment upon you (provided you have the capacity to refuse treatment). However, this does not mean you have the right to demand certain treatment.8 In short, the law may strongly protect your right to say ānoā to treatment, but it does not give you the right to demand it.
However, debates over autonomy can be more complex than this. Some commentators believe that the state can have a duty to enable people to pursue their life goals in some circumstances.9 Disabled people have the right to have their disability accommodated; those with infertility may have a right of access to assisted reproduction; children may have the right to education so that they have the skills they need; and so on. What is generally agreed, however, is that the right to be left alone (liberty) is more strongly protected than the claim that you should be given the services you need to fulfil your goals (autonomy...