Exploitation, Ethics and Law

Violating the Ethos of the Doctor-Patient Relationship

Suzanne Ost, Hazel Biggs

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781315296876
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Focusing on a matter of continuing contemporary significance, this book is the first work to offer an in-depth exploration of exploitation in the doctor-patient relationship. It provides a theoretical analysis of the concept of exploitation, setting out exploitation's essential elements within the authors' account of wrongful exploitation. It then presents a contextual analysis of exploitation in the doctor-patient relationship, considering the dynamics of this fiduciary relationship, the significance of vulnerability, and the reasons why exploitation in this relationship is particularly wrongful. Two case studies – sexual exploitation and assisted dying – are employed to assess what the appropriate legal, ethical and regulatory responses to exploitation should be, to identify common themes regarding the doctor's behaviour (such as the use of undue influence as a conduit through whichto take advantage of and misuse patients), and to illustrate the effects of exploitation on patients. A recurring question addressed is how exploitation in the doctor-patient relationship is and should be dealt with by ethics, regulators and the law, and whether exploitation in this relationship is a special case.

The book provides a critical, interdisciplinary evaluation of exploitation in the doctor-patient relationship that will be of interest to health care lawyers, bioethicists, legal academics and practitioners, health care professionals and policymakers.

1Introduction

‘Exploitation’ has increasingly become a high-frequency word in health care ethics and law, often featuring in debates regarding surrogacy, organ donation and transplantation and clinical research, for instance. But it is rarely given centre stage. In fact, it is often the case that when the term exploitation is used, the very spectre of exploitation is powerful enough for it to be deemed unnecessary to provide further explanation. In this work, we shed light on this concept, bringing to the fore what is often left to operate in the background as a significant factor that underpins ethical opposition to certain practices.

Take, for instance, the British case of Diane Blood.¹ Hers is commonly conceived of as a case in which a wife succeeded in circumventing the strict legal regulations in England and Wales surrounding the use of gametes in assisted reproduction after death.² She was able to take her deceased husband's sperm abroad to use in her fertility treatment even though he had not consented to its extraction, and her case was thus presented as a victory for autonomy and assisted reproduction ‘rights’.³ However, whilst Mrs Blood attested that she and husband had been trying to conceive for some months prior to him catching meningitis, the fact remains that sperm was extracted from a dying patient without his consent, when he was incapable of consenting. True, much of the commentary surrounding the case considered whether this was ethical. But there is also the matter of a battery being committed on a comatose patient⁴ for his wife's benefit, for ends that Mr Blood may have desired (and certainly this is what Mrs Blood contended⁵). If, therefore, the case had been explored through the lens of exploitation, we suggest that it may have been viewed very differently. In another example, which came to court in Canada almost a decade earlier, a doctor agreed to provide his patient with a drug that he knew she was addicted to in exchange for sexual favours. The subsequent legal case brought against him was presented as a case involving a variety of wrongful acts: sexual assault, negligence, breach of fiduciary duty and breach of contract.⁶ Yet, in our view, the nub of the doctor's wrong was most aptly summed up by one of the Supreme Court Justices, McLachlin J, in her comment that the patient had a ‘striking personal interest in obtaining professional medical care free of exploitation for the physician's private purposes’.⁷ As we seek to demonstrate throughout this work, focusing on exploitation can draw attention to the crux of the issue, and may result in us arriving at a different legal and ethical place.

1 R v. Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151.

2 Under which written prior consent is required before gametes can be used after a person's death (sch.3 of the Human Fertilisation and Embryology Act 1990).

3 For examples in the literature, see Morgan and Lee 1997; Price 1997; Bennett 1999; Clare Dyer, ‘Diane Blood law victory gives her sons their legal father’ The Guardian (London, 19 September 2013).

4 Whilst Mrs Blood consented to the extraction of her husband's sperm, she was not entitled, at law, to consent: Biggs 1997.

5 R v. Human Fertilisation and Embryology Authority, ex parte Blood, 159.

This work explores the nature of exploitation in the specific context of the doctor-patient relationship, and considers what the ethical and legal responses to such wrongful behaviour are, and should be. In some instances where patients suffer physical or psychological injury at the hands of their doctors, this is the result of them being taken advantage of and misused, for their doctors’ own ends.⁸ This exploitation is facilitated by the nature of the doctor-patient relationship and, often, the harm that the patient suffers is exacerbated because of the abuse of trust that has enabled the doctor to take advantage of the patient. Traditional notions of harm do not convey the deep-seated nature of the effects of exploitation by their doctors that patients experience. In short, the harm suffered is intensified by the exploitation of the victim.

Given the contexts in which a patient's encounters with her doctor take place, the possibility of exploitation occurring in the health care setting is not remote, as alluded to by Colt et al:

the risks for patient exploitation exist in virtually every aspect of the medical system … the sexualisation of the doctor-patient relationship; the involuntary incarceration of those labelled mentally disturbed; … the advancements in technology that prolong death rather than life; the (very human) prejudices and biases of physicians; … the use of pharmaceutical choices based on drug company incentives … direct financial incentives for recruitment of patients from a physician's practice, so-called ‘finder's fees,’ for participation in research protocols …⁹

Contemporary examples demonstrate a wide range of exploitative behaviour, with instances in the UK including surgeon Simon Bramhall, who branded his initials on the organs of two patients during transplant surgery;¹⁰ Ian Paterson, who provided unnecessary and inappropriate surgery to patients for cancer treatment in a private hospital;¹¹ and a doctor's alleged profiting from the sale of private tests for COVID-19 in 2020.¹² Whilst our primary jurisdictional focus is the UK, in the Netherlands, there is the example of a fertility doctor using his own sperm in assisted reproduction treatment that he offered his patients,¹³ and in the United States, gynaecologist Dr Nikita Levy took covert, explicit photographs of his patients during pelvic examinations over a 25-year period.¹⁴

6 Norberg v. Wynrib [1988] 6 WWR 305; [1992] 2 SCR 226.

7 Norberg v. Wynrib [1992] 2 SCR 226, [74] (emphasis added).

8 We are not concerned with cases with no element of exploitation, e.g. where the harm caused to patients is due to their doctors’ negligence, or medical error which falls short of negligence.

9 Colt and others 2011: 299.

10 See chapter 3, n.232; Ost 2019; Ost 2020.

Although most of the cases that we examine in this work involve doctors perpetrating exploitation, this is not always the case. It is the patient's wife in the afore-mentioned Blood case who might be perceived as the exploiter; one of our case studies on assisted dying also focuses on the patient's relatives as potential exploiters, and we recognise too the patient can, on occasion, be the exploiter.¹⁵ This raises the question of why we have chosen to focus, primarily, on exploitation occurring in the doctor-patient relationship. This is a more selective approach than, for instance, Pattinson's analysis of undue influence in the context of medical treatment decisions, which extends to both doctors and nurses as potential perpetrators of undue influence, viewing both as ‘medical advisors’ who could look ‘to press [their] own ethical views upon the patient’.¹⁶ Similarly, whilst we recognise that other health care professionals can be the ones who are exploited rather than, or as well as, patients,¹⁷ this is not our chosen focus. We have chosen to be more discriminating chiefly because we wish to explore the particular dimension of power within, and the intimate nature of, the doctor-patient relationship, and subject exploitation within this relationship to a more intense scrutiny than would have been possible had we extended our focus to include nurses and other health care professionals.

1) Our key themes

i) What makes exploitation wrongful?

Although not all exploitation is considered to be morally wrong, it is a term commonly used to condemn a certain practice or behaviour. Yet whilst the concept has a powerful moral impact, ambiguity remains as to what exactly it is that makes exploitation normatively wrong.¹⁸ Thus, one of our core objectives is to provide a theoretical account of exploitation. As should become apparent, the conceptualisation of wrongful exploitation that we provide is distinctive in revolving around misuse of another rather than taking unfair advantage of, or degradation, with taking advantage of another's vulnerability for one's own ends being a common example of misuse. The matters of both wronging and harming are also central to our account. This account grounds our subsequent analysis of exploitation in the doctor-patient relationship, thereby enabling us to evaluate when a doctor's behaviour is exploitative, and what the appropriate ethical and legal responses to instances of exploitation should be.

11 See chapter 3, text accompanying nn.93–94.

12 Rupert Neate, ‘GMC concerned about doctors exploiting coronavirus fears’ The Guardian (London, 22 March 2020).

13 Anon, ‘Dutch fertility doctor used own sperm to father 49 children, DNA tests show’ BBC News (12 April 2019), at https:/​/​www.bbc.co.uk/​news/​world-europe-47907847 accessed 9 April 2020; chapter 3, text accompanying n.97.

14 See chapter 3, text accompanying nn.34–35.

15 See chapter 7 and chapter 5, section 4.

16 Pattinson 2002: 311. Although Pattinson's analysis is not directed towards exploitation it still bears relevance since, as we will discuss in subsequent chapters, some instances of exploitation can occur through the vehicle of undue influence.

17 On junior doctors and exploitation, see Parker 2019. For an anecdotal account of exploitation of junior doctors by consultants, see Kay 2018. On sexual exploitation of doctors by their colleagues, see Launer 2018; Minkina 2019.

ii) The connection between exploitation and vulnerability

In exploring the nature of exploitation in the context of the doctor-patient relationship, we say much on vulnerability and its connection to exploitation. The general relevance of this theme becomes apparent through our consideration of the nature of wrongful exploitation and how instances of wrongful exploitation can involve taking advantage of a person's vulnerability. We also focus more specifically on the particular vulnerabilities that patients may possess within the doctor-patient relationship which can be taken advantage of.

In light of the popularity of universal vulnerability theories, the analytical position that we take may be controversial, since we reject the notion of the universal vulnerable subject as our starting point. As we see it, this goes too far in assuming the omnipresence of vulnerability. However, we accept that vulnerability can readily arise in relationships where there is an unequal balance of power, and we see the concept of shared vulnerability in universal vulnerability debates as providing a valuable means of approaching the questions of whether a patient is vulnerable to exploitation and, if so, what the implications of this should be. For us, the starting point should be one of potential vulnerability.¹⁹ All of us are potentially vulnerable, and there are situations such as poverty, illness, addiction or certain relational statuses which make anyone more likely to be vulnerable to exploitative tactics. These are situations and contexts where our shared vulnerability is apparent. What we seek to avoid in our analysis of the relational connection betwe...