Medical Law

Jo Samanta, Ash Samanta

• Publisher: Red Globe Press
• Year: 2015
• Print ISBN: 9781137486585
• eBook ISBN: 9781137038265
• Edition: 2
• Topic: Law
• Subtopic: Medical Law
• Index: Law

The second edition of a major text provides a thorough exploration of medical law and ethics, written from the perspective of authors who are medical and health care practitioners as well as law lecturers. This unique combination of academic knowledge and professional experience provides a unique perspective through which the subject is examined with academic rigour underpinned by practical insights.

The text features an innovative series of scenarios threaded through each chapter to illustrate the practical realities behind the rules and concepts discussed. The format also includes mind maps, key terms, end of chapter summaries, self-test exercises and suggestions for further reading.

Chapter 1

The scope and nature of medical law and ethics

Key terms

Autonomy – the principle of self-governance that promotes self-determination free from controlling influences and limitations (and in the current context the principle that underpins free choice in making health-care decisions for oneself).

Beneficence – a moral obligation to act for the benefit of others.

Bioethics – a branch of applied ethics used to determine the ethical implications of the biological and medical sciences, offering a framework of universal application for decision making on moral grounds.

Consequentialism – an ethical framework that judges the right action to be that which produces an optimally good outcome, thereby identifying the consequences of an action as forming the basis for moral judgement.

Deontology – an ethical framework that judges the rightness or wrongness of actions based upon adherence to rights, duties and obligations, rather than the perceived benefit or otherwise of the action’s consequences.

Ethics – a set of moral principles.

Feminist ethics – a perspective aiming to address feminist and gender ethical issues in health care.

Justice – moral correctness based upon fairness and equity.

Medical law – the legal framework that pertains to the rights and duties of medical professionals and the rights of the patient.

Morals – the motivations behind human action and character that are judged to be good or bad, and which differentiate between right and wrong.

Non-maleficence – an obligation not to inflict harm on others.

Principlism – a framework for ethical decision making in health care that incorporates the concepts of autonomy, non-maleficence, beneficence and justice.

Rights – moral, social or legal claims that individuals (or groups) can make on other individuals or on society as a whole.

Utilitarianism – a consequentialist theory that holds that an action is right according to its potential for providing pleasure and maximising the value of well-being.

Scenario

Emily is 78 years old and has chronic rheumatoid arthritis with severe pain in her joints and deformity. She also has substantial co-morbidity with mild respiratory failure, hypertension, heart failure and impaired kidney function. She has now developed a severe chest infection and is visited by her general practitioner (GP), who wants to admit her to hospital. She is fully competent and tells her GP that she does not want further treatment and would prefer to die at home.

Emily’s GP insists that she is admitted because if she refuses the implications will be serious. She eventually acquiesces. The hospital consultant recommends a series of investigations to determine the cause of her infection. A junior doctor believes that the consultant has not fully taken account of Emily’s wishes but decides not to voice her objection.

Emily is very unhappy at having to undergo further tests. She speaks to the nurses who, whilst sympathetic, consider that she should follow medical advice. She asks to be ‘put down’ and a nurse agrees that it is a pity that euthanasia is illegal for humans.

The results reveal that Emily’s infection is caused by a virulent and resistant micro-organism that requires treatment with a new, potent and very expensive drug. The clinical team seeks advice from a microbiologist, who considers, in the circumstances, that the use of this drug is inadvisable. Emily is now critically ill and the doctors record a ‘do not attempt resuscitation’ order in her notes.

Emily’s condition improves and a decision is taken to transfer her to the Intensive Care Unit (ICU), where she can be monitored and given assisted ventilation if required. She will need to stay for at least a week. After two days the treating team is informed that she must be transferred to a low dependency ward because some of the beds in the ICU are to be closed temporarily for the weekend on account of staff shortages. There is a need to maintain at least one bed for an emergency and this could only be achieved if Emily is transferred.

Emily is transferred and feels very much better. She asks one of the doctors whether she will be able to return home soon. Although her prognosis is poor, the doctor does not wish to upset her and misinforms her that she is fine. Emily makes a brief recovery and then deteriorates. She is placed on a ventilator, but two days later the ventilator is switched off and she dies.

1.1 Introduction

Medical law is firmly grounded in ethical and moral principles. This chapter provides an overview of medical law and its key ethical underpinnings. The relationship between doctor and patient is a fundamental component of good clinical care and this association is considered alongside the ethical principles that engage for contemporary health-care practice.

1.2 What is medical law?

Medical law conveys different meanings to different people and to some extent that meaning depends on one’s own frame of reference. To elicit perceptions about medical law one of the authors conducted an informal survey during three separate teaching sessions. Respondent medical students felt that medical law was essentially about litigation and efforts to obtain redress and compensation when clinical care led to bad outcomes. Non-health-care respondents tended to perceive that medical law was primarily concerned with ‘bad doctors’ and ‘bringing them to book’. Novice law students considered medical law to be an aspect of tort law. Such perceptions are perhaps unsurprising, particularly when one considers typical media reports of an increasingly litigious society and a compensation culture. However, although such straw-poll views are not wrong, the scope of medical law encompasses far more than just negligence litigation or regulation. In fact, medical law is a pervasive subject that extends to a myriad of issues that span all stages of life. It is continually evolving and incorporates tenets and principles from tort law, family law, public law, criminal law, European law and human rights law.

In the next four subsections we attempt to provide a general overview of the way the law operates in medicine and health care. This is intended to provide the reader with a ‘flavour’ of medical law, and the issues are examined in greater depth in subsequent chapters. Medical law has grown rapidly in recent years, as evidenced by the ubiquity and burgeoning size of core textbooks, monographs, articles and compendia, and it now exists as a specialist branch of law in its own right. In the way that health-care needs are apparent throughout life, medical law is all-encompassing.

1.2.1 The beginning of life

For many women, pregnancy and childbirth represent a routine aspect of life. Yet for some, childlessness is for reasons other than personal and lifestyle choice. Infertility may be due to a specific cause although it is more often due to a complex interplay of factors such as the inability to produce gametes or difficulties with fertilisation or implantation and development of an embryo. Infertility may be due to male or female factors and can lead to significant emotional difficulties for individuals and couples, with implications for society. A range of interventions are available to facilitate reproduction, and the United Kingdom was one of the first jurisdictions to appreciate the extent of the legal and ethical problems that are associated with the so-called reproductive revolution, particularly in the context of in vitro fertilisation. As a result, Parliament passed the Human Fertilisation and Embryology Act 1990 (HFEA) which established the Human Fertilisation and Embryology Authority. The main function of the Authority is to act as the statutory regulator for controversial and emotive issues such as assisted reproductive technologies, embryo research, and the storage and use of gametes and embryos (see Section 5.18.2).

Imagine the controversy caused when Mr Quintavalle brought an action claiming that embryos derived from somatic cell nuclear replacement were not provided for within (and therefore not subject to) the terms or regulations of the 1990 Act (as in theory, this could mean that human cloning would be legally permissible). The Court of Appeal and the House of Lords took a purposive approach to this litigation and declared that the purpose of the legislation was to prohibit cloning (R on the application of Quintavalle v Human Fertilisation and Embryology Authority [2003] 2 All ER 105). Subsequent legislative changes have defined the offence of placing in a woman an embryo that has been created ‘other than by fertilisation’, thereby making human cloning for reproductive purposes unlawful, although ‘therapeutic cloning’ for the replacement of defective organs is permissible under licence (see Section 5.23.2).

One therapeutic approach to unwanted childlessness is artificial insemination, a technique rooted in antiquity. This intervention has led to considerable controversy in the circumstances of using sperm after the donor’s death. Much publicity accompanied the Court of Appeal decision in R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 All ER 687. On the facts, Mr Blood contracted meningitis and lapsed into a coma. Once it became clear that he was not going to recover, Mrs Blood arranged for sperm samples to be obtained for artificial insemination. The Human Fertilisation and Embryology Authority refused to permit Mrs Blood to receive treatment with the samples on the grounds that Mr Blood had not given his consent for the removal, storage and use of his sperm. On appeal it was held that the Authority had no discretion to permit post-mortem use of the sperm in the United Kingdom but Mrs Blood was entitled to receive health care in another state. This meant that Mrs Blood was able to receive treatment in Belgium and now has (posthumously) two children by her late husband. The Blood case is a poor precedent for what the law should be in circumstances such as these, particularly in the twenty-first century and in the context of great advances in medical technology. The Blood litigation has since been followed by L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam) (see Section 5.21.1).

Abortion is another controversial area that has generated polarised and protracted debate. Rights-based arguments are typically referred to alongside the right to reproductive choice and recognition of the woman’s right to choose. Against these arguments are those that pertain to the interests of the unborn child and what has become loosely termed as foetal rights to life. Foetal interests are created by attributing qualities of human personhood to early life, thereby distinguishing a ‘human being’ from ‘human tissue’. From the perspective of some, such as adherents of the Roman Catholic Church and certain other faith groups, human life ought to be protected by law from the time of implantation or, even more radically, from the point of fertilisation. In addition to abortion issues, these arguments have relevance to considerations of the legitimacy of embryo research. For abortion law, viability is considered to be a key point in foetal development since this represents the time following which the foetus would be capable of independent life outside the uterus. Viability is to some extent a context-specific concept that depends upon the availability of specialist neonatal staff and the existence of state-of-the-art health-care equipment. Whereas viability was traditionally considered to occur at 28 weeks’ gestation, this has been brought back to 22 weeks in some centres of clinical excellence.

The concept of viability was recognised as a key determinant in the landmark decision in Roe v Wade [1973] 410 US 113 in the United States. In essence, the US Supreme Court divided pregnancy into three periods of time known as trimesters. During the first trimester (up to the first 12 weeks of pregnancy), the woman was considered to have the right to choose an abortion; during the second trimester, the state could intervene in a woman’s right to choose, in the interests of the pregnant woman; in the third trimester, the foetus was presumed to be viable and the state could intervene to prevent the abortion taking place.

The precise point in time following which a foetus becomes viable is difficult to identify and has been left to the medical profession to determine. Modern technology has advanced greatly and the ability to maintain the lives of very early neonates has increased such that the time of viability is incrementally being pushed back. Inevitably this has created tensions in respect of late termination of pregnancy, particularly where an abortion is sought during the second trimester but still falls within the time limit of current legislation. In C v S [1987] 1 All ER 1230, a single woman who was pregnant with a foetus of between 18 and 21 weeks’ gestation wished to terminate her pregnancy. The father sought to prevent the abortion on the grounds that the foetus was sufficiently mature to be born alive. The Court of Appeal held that although a foetus of this maturity was likely to show demonstrable signs of life, such a foetus would be incapable of an independent existence. This requirement that the foetus should be capable of an independent existence has the attraction of setting an anatomical and physiological point of development as a conceptual foundation for decision making. However, on the downside, this decision is perhaps questionable since nowadays it is relatively commonplace to sustain a neonate on a ventilator. If assistance was continued for 48 or 72 hours and to the extent that the foetus could rely on its own lungs, then justification argued on the basis of viability seems less persuasive. The father of the foetus has no right to veto a termination of pregnancy carried out in accordance with the law. Paton v UK (1980) 3 EHRR 408 clearly established that a pregnant woman’s right to self-determined choice with regard to her body (and also that of her unborn foetus) trumped the rights of her ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface
• Table of cases
• Table of legislation
• 1. The scope and nature of medical law and ethics
• 2. The contemporary health-care environment
• 3. Clinical negligence
• 4. Capacity and consent to medical treatment
• 5. The beginning of life
• 6. Children
• 7. Clinical research
• 8. Human tissue and transplantation
• 9. Mental health law
• 10. The end of life
• 11. Future challenges
• Bibliography
• Index