Medical law and medical ethics - Complementary or corrosive?

Medical Law International

Volumn 6, Issue 3, 2004, Pages 251-274

  Miola, José ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ABORTION; GENDER; LAWYER; LEGAL ASPECT; MEDICAL ETHICS; MEDICAL LIABILITY; MEDICAL LITERATURE; MEDICAL PRACTICE; MEDICOLEGAL ASPECT; MORALITY; PERCEPTION; REVIEW;

EID: 4143117926     PISSN: 09685332     EISSN: None     Source Type: Journal    
DOI: 10.1177/096853320400600304     Document Type: Review

References (74)

1. Jones argues that the statistics speak for themselves, and that out of the last six medical negligence cases to come before the House of Lords, "[t]he score reads: Plaintiffs 0; Defendants 6" (M. A. Jones, "The Bolam test and the Responsible Expert" (1999) Tort Law Rev. 226, 236). It is argued later in this article that intrinsic to many such cases are issues which are social or ethical in character, rather than clinical.
2. M. Brazier, Medicine, Patients and the Law (2nd Edition, Penguin, 1992), at pages 71-2.
3. S. Sheldon, "Rethinking the Bolam Test" in S. Sheldon and M. Thomson (Eds.), Feminist Perspectives on Health Care Law (Cavendish, 1998) at 21. On the other hand, Lord Woolf L.C.J. has recently argued that other, less theoretical reasons might be identified as reasons for the historically excessive deference by judges towards medical practitioners (see Lord Woolf, "Are the Courts Excessively Deferential to the Medical Profession?" (2001) 9 Med. L. Rev. 1).
4. S. Sheldon, "Rethinking the Bolam Test" in S. Sheldon and M. Thomson (Eds.), Feminist Perspectives on Health Care Law (Cavendish, 1998) at 21. On the other hand, Lord Woolf L.C.J. has recently argued that other, less theoretical reasons might be identified as reasons for the historically excessive deference by judges towards medical practitioners (see Lord Woolf, "Are the Courts Excessively Deferential to the Medical Profession?" (2001) 9 Med. L. Rev. 1).
5. R. H. Ebert, "A Twentieth Century Retrospective", in E. Ginzberg (Ed), Medicine and Society - Clinical Decisions and Societal Values (Westview Press, 1987), pages 15-16.
6. The B.M.A., for example, claims on its website that over 80% of doctors are members, and that it is the "voice of the [medical] profession" (http://www.bma.org.uk. The 'About the B.M.A.' section is particularly informative).
7. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
8. Indeed, it was only in 1997 that the House of Lords finally ruled that the expert evidence provided by the defendants needed to have "logical force" to be accepted by the court (see Bolitho v. City and Hackney HA [1997] AC 232). Previously, its mere existence was considered to be adequate justification of the defendant's actions. An example of this can be found in the case of Maynard v. West Midlands Area Health Authority [1985] 1 All E.R. 635. Referring to the fact that the trial judge had preferred the evidence of the plaintiff's expert, and found for him on that basis, Lord Scarman stated that: "I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, honestly expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law" (at page 639).
9. Indeed, it was only in 1997 that the House of Lords finally ruled that the expert evidence provided by the defendants needed to have "logical force" to be accepted by the court (see Bolitho v. City and Hackney HA [1997] AC 232). Previously, its mere existence was considered to be adequate justification of the defendant's actions. An example of this can be found in the case of Maynard v. West Midlands Area Health Authority [1985] 1 All E.R. 635. Referring to the fact that the trial judge had preferred the evidence of the plaintiff's expert, and found for him on that basis, Lord Scarman stated that: "I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, honestly expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law" (at page 639).
10. See F v. West Berkshire Health Authority [1989] 2 All E.R. 545.
11. Airdale N.H.S. Trust v. Bland [1993] 1 All E.R. 821.
12. See Chatterton v. Gerson [1981] Q.B. 432 and Sidaway v. Board of Governors, Bethlem Royal Hospital [1985] 1 All ER 643.
13. See Chatterton v. Gerson [1981] Q.B. 432 and Sidaway v. Board of Governors, Bethlem Royal Hospital [1985] 1 All ER 643.
14. See M. Brazier and J. Miola, "Bye Bye Bolam: A Medical Litigation Revolution?" (1999) 8(1) Med. L. Rev 85.
15. I. Kennedy, The Unmasking of Medicine (George Allen & Unwin, 1981), page 78.
16. Ibid. page 77.
17. Ibid, at 84.
18. Ibid, at 85.
19. Ibid, at 84. Emphasis added.
20. Report of the Select Committee on Medical Ethics (HL Paper 21-I).
21. Ibid., para 196, page 41.
22. Ibid. Emphasis added.
23. This myth has traditionally been the cornerstone of theories of medical ethics - see R. Gillon, Philosophical Medical Ethics (John Wiley and Sons, 1986), page 30.
24. T. Szasz, The Theology of Medicine Oxford University Press, 1979).
25. R. H. Ebert, "A Twentieth Century Retrospective", op cit n4, page 18.
26. D. Callahan, "Bioethics as a Discipline" in J. M. Humber and R. F. Almeder (Eds), Biomedical Ethics and the Law (Plenum Press, 1979), page 6
27. C. B. Chapman, Physicians, Law and Ethics (New York University Press, 1984), page 133.
28. I b i d.
29. BMA, Withholding and Withdrawing Life-Prolonging Medical Treatment (BMA Books, 1999).
30. Ibid., page (xi).
31. R. Gillon, Philosophical Medical Ethics, op cit n20, page 2.
32. Ibid, page 31.
33. J. K. Mason and R. A. McCall Smith, Law and Medical Ethics (5th Edition, Butterworths, 1998), page 4.
34. P. M. Strong, "Collegial Authority", in N. Abrams and D. Buckner (Eds.), Medical Ethics: A Clinical Textbook and Reference for the Health Care Professions (MIT Press, 1983), page 124.
35. A. MacIntyre, "Patients as Agents", in S. Spicker and H. T. Englehardt (Eds.) Philosophical Medical Ethics: Its Nature and Significance (D. Reidel Publishing Co., 1977), page 207.
36. Ibid, page 206.
37. J. Glover, Causing Death and Saving Lives (Penguin, 1990), page 27.
38. Airedale NHS Trust v Bland [1993] 1 All ER 821
39. Report of the Select Committee on Medical Ethics (HL Paper 21-1).
40. Re W (A Minor)(Medical Treatment: Court's Jurisdiction) [1992] 4 All E.R. 627.
41. See Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All E.R. 177.
42. The reason for this is that previously there had been a House of Lords case which had asserted that minors have a right to consent to treatment on their own behalf if they were found to have sufficient maturity to do so (see Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All E.R. 402). In both Re R and Re W, Lord Donaldson distinguished Gillick on the basis that it did not apply to the converse right of minors to refuse treatment. Kennedy, for example, labelled this approach as "driving a coach and horses through Gillick".(I. Kennedy, "Consent to Treatment: The Capable Person" in C. Dyer (Ed.), Doctors, Patients and the Law (Blackwell, 1992) at 60. The Re R judgment and its implications are eloquently discussed at pages 58-60). More surprisingly, perhaps, in Re W, Lord Donaldson actually begins his judgment by naming certain articles which have been published expressing disapproval at the decision in Re R (see Re W at page 632)
43. The reason for this is that previously there had been a House of Lords case which had asserted that minors have a right to consent to treatment on their own behalf if they were found to have sufficient maturity to do so (see Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All E.R. 402). In both Re R and Re W, Lord Donaldson distinguished Gillick on the basis that it did not apply to the converse right of minors to refuse treatment. Kennedy, for example, labelled this approach as "driving a coach and horses through Gillick".(I. Kennedy, "Consent to Treatment: The Capable Person" in C. Dyer (Ed.), Doctors, Patients and the Law (Blackwell, 1992) at 60. The Re R judgment and its implications are eloquently discussed at pages 58-60). More surprisingly, perhaps, in Re W, Lord Donaldson actually begins his judgment by naming certain articles which have been published expressing disapproval at the decision in Re R (see Re W at page 632)
44. Re W at page 635.
45. Gillick. at page 413.
46. I b i d.
47. I b i d.
48. http://www.gmc-uk.org/
49. GMC, Good Medical Practice (1998), at para 12.
50. I b i d.
51. I b i d.
52. GMC, Seeking Patients' Consent: The Ethical Considerations (GMC, 1998). The document can also be found, reprinted in full, within the GMC's website (http://www.gmc-uk.org/standards/standards_frameset.htm).
53. GMC, Seeking Patients' Consent: The Ethical Considerations (GMC, 1998). The document can also be found, reprinted in full, within the GMC's website (http://www.gmc-uk.org/standards/standards_frameset.htm).
54. Ibid. In the other guidance mentioned (Serious Communicable Diseases (GMC, 1997)), the advice is the same (see paras 4-7).
55. "Consent, Rights and Choices in Health Care for Children and Young People" (BMJ Books, 2001).
56. Ibid at (xxviii).
57. Ibid at 172. Emphasis added. It is more than likely that the quote also presumes that the minor is attempting to consent to the termination, but cannot do so due to a lack of capacity. Nevertheless, it is submitted that it gives a sufficient amount of information to notify a reader of what the situation would be if the minor were to be attempting to refuse consent. Furthermore, it is perhaps interesting to note that, according to the BMA guidance, the test for whether overriding the minor's consent should occur is unequivocally legal rather than ethical in character. No attempt is made to engage the reader with any notion that what is legal might not necessarily also be an ethical course of action.
58. Ibid at 10.
59. Ibid at 10-11.
60. Ibid at 18. Emphasis added.
61. Ibid at 18-19. Emphasis added. It is perhaps worthy of note here that the BMA guidance at this point appears not so much to strive to give autonomy to minors but, like the law in this area, merely give the illusion that there is such autonomy.
62. Ibid at 39.
63. Ibid at 40.
64. I b i d.
65. I b i d.
66. I b i d.
67. 'Abortion and Conscientious Objection', in the 'Ethics' section of the Christian Medical Fellowship website - www.cmf.org.uk.
68. The Voice for Choice website can be found at http://www.vfc.mailbox.co. uk, or through a link on the Marie Stopes website's 'campaigns' section (http://www.mariestopes.org.uk/uk/advocacy-cur-uk-camp.htm
69. The Voice for Choice website can be found at http://www.vfc.mailbox.co. uk, or through a link on the Marie Stopes website's 'campaigns' section (http://www.mariestopes.org.uk/uk/advocacy-cur-uk-camp.htm
70. The organisation's objectives can be found in the 'What is Voice for Choice' section of the website.
71. This is not a new idea. Indeed, its origin can be traced back to the work of Plato, who argued that the medical practitioner may face a conflict of interest due to her concurrent status as a wage-earner. He argues that the loyalty of the doctor to the patient might thus be brought into question - a key criticism of the Hippocratic ideal. For an excellent critique of Plato's medical ethics, see T. Szasz, The Theology of Medicine (op cit).
72. See A. Caplan (Ed.), When Medicine Went Mad: Bioethics and the Holocaust (Humana Press, 1992)
73. G. Scorer, "The Moral Values, Law and Religion" in G. Scorer and A. Wing (Eds) (Edward Arnold, 1979) at 1-2.
74. This was recognised as far back as 1984, when none other than Lord Donaldson argued in the strongest possible terms that the courts must stop allowing the medical profession to effectively set its own standard of care. He said that the courts "cannot stand idly by if the [medical] profession, by an excess of paternalism, denies its patients a real choice. In a word, the law will not permit the medical profession to play God" (Sidaway v. Board of Governors of Bethlem Royal Hospital [1984] 1 All E.R. 1018, 1028.