Litigating Ethics and Applying Ethics to Law: The Relationship between Medical Law and Ethics Prof José Miola

Ethics and Law: A Dysfunctional Relationship? Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All E.R. 402 Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All E.R. 177

Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All E.R. 627 “Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of the parents and despite the refusal of consent by 16 or 17 year olds. Whilst this may be possible as a matter of law, I do not see any likelihood, taking account of medical ethics [that it should be allowed to occur]”.

What Did the Guidance Say? where a competent child refuses treatment, a person with parental responsibility or the court may authorise investigation or treatment which is in the child's best interests. The position is different in Scotland, where those with parental responsibility cannot authorise procedures a competent child has refused. Legal advice may be helpful on how to deal with such cases. GMC, Seeking Patients’ Consent: The Ethical Considerations (GMC, 1997), para 23

What Did the Guidance Say? a person with parental responsibility can legally consent to her undergoing the termination. In all cases, the patient’s views must be heard and considered. If an incompetent minor refuses to permit parental involvement, expert legal advice should be sought. This should clarify whether the parents should be informed against her wishes BMA, Consent, Rights and Choices in Health Care for Children and Young People”(BMJ Books, 2001), p172

What Did the Guidance Say? the medical procedures that are least essential to … [the minor’s] … wellbeing are generally the most amenable to informed refusal. Where the law permits, those [medical procedures] that are immediately life-prolonging or essential to maintain the young patient’s health are least likely to be withheld simply on the basis of the child’s refusal. In the latter case, questions arise about the child’s competence and moral authority to make such a grave decision. Ultimately, the matter may need to be referred to the courts (Ibid, pp18-19)

A Typology of Medical Ethics ‘Formal’ Medical Ethics (General Medical Council) Semi-Formal’ Medical Ethics (British Medical Association, Royal Colleges) ‘Informal’ Medical Ethics (eg academics, pressure groups, religious organisations)

A Typology of Decision-Making Morals Ethics Law

Doctors make decisions about what is to be done. Some, but only some, of these decisions are matters of technical skill. I submit that the majority of decisions taken by doctors are not technical. They are, instead, moral and ethical. They are decisions about what ought to be done, in light of certain values. I. Kennedy, The Unmasking of Medicine (George Allen and Unwin, 1981)

Blyth v Bloomsbury [1993] 4 Med. LR 151 “[n]either Lord Diplock or Lord Bridge [in Sidaway] were laying down any rule of law to the effect that where questions are asked by the patient, or doubts are expressed, a doctor is under an obligation to put the patient in possession of all the information... The amount of information to be given must depend on the circumstances, and as a general proposition it is governed by what is called the Bolam test.”

Chester v Afshar [2004] 4 All ER 587 “The starting point is that every individual of adult years and sound mind has a right to decide what may or may not be done with his or her body. Individuals have a right to make important medical decisions affecting their lives for themselves: they have the right to make decisions which doctors regard as ill advised. Surgery performed without the informed consent of the patient is unlawful.” “[the] right to autonomy and dignity can and ought to be vindicated”

Rogers v Whittaker [1993] 4 Med LR 78/Montgomery v Lanarkshire HB [2015] UKSC 11 “A risk is material if in the circumstances of the particular case a reasonable person in the patient’s position if warned of the risk would be likely to attach significance to it; or if the medical practitioner is, or should reasonably be aware, that the particular patient, if warned of the risk, would be likely to attach significance to it.”

Montgomery v Lanarkshire HB [2015] UKSC 11 “The social and legal developments … point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”

Montgomery v Lanarkshire HB [2015] UKSC 11 “patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services”

Montgomery v Lanarkshire HB [2015] UKSC 11 “once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear … that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values.”

“The discipline of healthcare law is at risk of being transformed — moving from a discipline in which the moral values of medical ethics (and those of the non-medical health professions) are a central concern, to one in which they are being supplanted by an amoral commitment to choice and consumerism. In other words, that the morality is being taken out of medicine by legal activity.” J. Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Studies 185, 186.

A Typology of Decision-Making Morals Ethics Law

Law’s Intervention … It is entirely reasonable and appropriate for the law to intervene in ‘ethical’ matters Law should maintain, if at all possible, the correct structural form BUT law should only intervene if it is capable of improving what medical ethics can achieve without intervention (ie content)

Chester v Afshar [2004] 4 All ER 587 “Part of the imbalance between doctor and patient is due to the patient's lack of information, and, on one view, it is the function of the law to redress the imbalance by providing patients with the "right" to be given that information, or perhaps more accurately imposing a duty on doctors to provide it. … [A] patient with no rights is a citizen who is stripped of his or her individuality and autonomy, as well as her clothes, as soon as she walks into the surgery or the hospital.”

Content … Al Hamwi v Johnson and Another [2005] EWHC 206 J. Coggon and J. Miola, “Autonomy, Liberty and Medical Decision-Making” (2011) Cambridge Law Journal 523

Conclusion It is vital that medical law and ethics ‘talk’ rather than compete Lack of communication leads to dysfunctional relationship Key to marking out boundaries is legitimacy – which supports legal involvement But an under-considered aspect of law’s involvement is its own legitimacy Law’s intervention is not a panacea