Law Express: Medical Law

Jonathan Herring

• Publisher: Pearson
• Year: 2021
• ISBN:
  9781292295572
• Edition: 7
• Topic: Law
• Subtopic: Legal Education
• Index: Law

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Jonathan Herring is a Professor of Law at Exeter College, University of Oxford.

1

Basic principles of medical law and ethics

Revision checklist

Essential points you should know:

• •Some of the key approaches to medical ethics
• •The key legal principles governing medical law
• •How ethical principles and medical principles interrelate

Topic map

Long Description

The main topic is ethical principles of medicine with branches as principlism, rights, casuistry, feminist ethics, and virtue ethics. The principlism has sub topics as autonomy, non malfeasance, beneficence, and justice.

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Introduction

‘Doctor knows best.’

In the past, doctors told patients what to do and patients obeyed. But nowadays there is much talk of the rights of patients and the responsibilities of doctors. What has not changed are the heated debates over the complex ethical issues that medicine raises. Some medical ethicists have produced a series of principles which they suggest can be applied to provide guidance in difficult cases. Other ethicists are less convinced that general rules can be developed and argue that it is better to fashion results that are right for individual cases. Although the law is influenced by ethical principles, it does not follow that the law and ethics match. It is unlikely that the law would require a medical professional to act in an unethical way. On the other hand, it cannot be assumed that just because something is legal it is also ethical.

Assessment advice

An essay question is likely to ask you to assess some of the leading ethical principles. You will need to describe them and give examples of how they are reflected in legal principles. You may also need to consider whether there are problems with the principles and the clashes that arise between them. For example, should autonomy be regarded as an overarching principle? There is also the debate over whether it is desirable to have general principles that are applied, or whether it is preferable to treat each case individually. An essay question might require you to consider how the law interacts with the different ethical principles. Should legal responses always match the ethical ones? Good answers will show how the disputes over these general principles are reflected in real cases, using examples from the case law.

Consequentialism and deontology

Don’t be frightened by these long words; the basic concepts behind them are not too difficult to grasp.

• •Consequentialism: This approach decides whether an act is ethically right or wrong by looking at its consequences. Quite simply, if it produces more good than bad, the act is ethically right.
• •Deontology: This approach says that it is right or wrong to infringe certain principles, regardless of the consequences. For example, some people believe it is never right to intentionally kill another person, however much good may be produced as a result.

A good example of where these two approaches might produce a different result is this. A doctor finds out that his patient is HIV positive. The patient refuses to tell his wife and intends to carry on having sexual relations with her. Should the doctor tell the wife about the husband’s condition? A consequentialist may well answer ‘yes’. The benefit of this will be that it will protect the wife from infection. Although the patient may be distressed, this will be less harm than that suffered by the wife. A deontologist may say there is an absolute principle that doctors must respect their patients’ confidentiality. This principle should not be broken just because it will produce more good than harm.

Impress your examiner

A standard answer will explain the differences between consequentialism and deontology. A really good answer will argue that actually the distinction between the two is not as clear-cut as may, at first, be thought. For a consequentialist, are we to take into account that if the doctor tells the wife, patients as a group may start to trust their doctors less? This may have seriously bad consequences. Indeed, if a doctor breaches a moral principle (even if it produces a good result), this may lead to a loss in trust in the medical profession and so produce harmful results. This may mean that there is less difference between the approaches than may be thought. And might not the deontologist say that the governing principle is that, unless very serious harm will otherwise result, a confidence should be respected? This will lead to a position closer to that taken by the consequentialist.

Four key ethical principles

In a highly influential book, Tom Beauchamp and James Childress (2019) have suggested four principles which they say are a ‘common morality’. In other words, they are principles which all societies should be able to accept. Their four principles are:

• •Respect for autonomy
• •Non-malfeasance
• •Beneficence
• •Justice.

The principle of autonomy

Many ethicists believe that autonomy is the most important of all principles for medical ethics. It states that patients have the right to make decisions over what medical treatment they should receive. It is never permissible for a doctor to give a patient treatment without the patient’s consent, unless the patient is incompetent, or maybe because it is necessary to ...