#15652 - Introduction - Medical Law

Learning Objective: How should law respond to complex ethical dilemmas in medicine?

Learning Goals:

What is meant by medical ethics, and bioethics

What different kinds of ethical reasoning modes are there

What common appeals are made in justifying one mode of ethical reasoning over another

Central Issues:

Conventional medical ethics focused on doctor-patient individual encounter. Bioethics encompasses dilemmas new technologies may raise for society.

Religious perspectives on bioethics tend to be less individualistic than secular approaches. Medical progress is generally supported by religious bioethicists.

Deontological reasoning is concerned with prioritising rights. Utilitarians are concerned with consequences. Virtue ethicists are concerned with what a virtuous person would do.

The principalist approach is top-down, based on four principles: autonomy, non-maleficence, beneficence, and justice (and maybe common good too). In contrast, casuistry is bottom up, and reasons by analogy.

Feminist ethics of care rejects models of ethics based on patient autonomy, and emphasises relationships and interdependence.

Slippery slope claims are essentially empirical claims, and regulation might be the best way to accommodate them.

Medical Ethics

Medical ethics dates back to the Hippocratic Oath in 5th century BC, which concerned what it means to be a good doctor, from the perspective of the doctor himself (e.g. how should the doctor get consent, when can a doctor breach confidence etc.). Back then, it was the doctor decided the patient’s best interests (paternalistic), and acted accordingly (as a ‘good doctor’ would).

Conventional medical ethics is argued by Sherwin to marginalise both patient’s perspectives, and the broader social causes of ill health:

patients get sick because of a range of factors, some of which are so intimate and best known only to the patient. This makes it difficult for others to make choices which suit the patient’s own value system.

discussion about patient autonomy is focused on individuals, and ignores the broader social context within which their symptoms/conditions may have arisen.

Draper and Sorrell also argue that conventional medical ethics ignores obligations of patients:

little or nothing in medical ethics is said about the choices patients ought to make, or their responsibility for making such choices - importantly, their responsibility not to use health services casually, and not to commit a double wrong of ignoring doctor’s advice which then aggravates the patient’s symptoms/illness (given limited resources etc.).

the patient is simply treated as an autonomous agent who must be allowed to decide for themselves what course of option they should pursue, and such a decision is ‘good’ simply by virtue of being made by the patient.

Bioethics

A more recent concept, first used in 20th century, concerned with complex ethical issues in life sciences generally, due to technological advancements e.g. perform organ transplants on brain-dead (but still alive) patients.

Kuhse and Singer argue bioethics was a response to the decline of medical paternalism and rise of patient autonomy:

From 1960s onwards, with increased scientific developments (spearheaded by scientists and doctors) and rising concern about the community being involved in decisions that affect them, public awareness grew re the value-laden nature of medical/scientific decision making.

Bioethics was born from this climate, and its goal is to better understand the complex ethical issues, and ask deeper questions about the nature of ethics, the value of life etc. It also embodies the issues of public policy and direction/control of science.

Callahan and Jennings have argued that the scope of bioethics is growing still, to incorporate wider public heath concerns.

How should we make difficult ethical decisions

Gut instinct? Yuck factor? The moral sniff test for short. Leon Kass has admitted that revulsion is not an argument, but concedes that it may express a deep emotional wisdom beyond articulation. On the other hand, Harris has argued that ‘olfactory moral reasoning’ is unreliable (e.g. people used to feel disgusted by Jews, black people and women as equals).

Bioethicists try to find out what mechanism is behind resolving our ethical dilemmas, something that goes beyond our gut instinct:

a) Religious Bioethics

Unclear what role religion should play in bioethics, given the status of religion as a private matter, and the various religions that exist. In this regard, Callahan argues that the secularisation of religion has lead to the public relying on law as a source of morality, and bereft of accumulated wisdom and knowledge that are the fruit of long-established religions.

Similarities can be identified between the religious bioethical approaches (e.g. focus on right or wrong, belief in sanctity of life, and the golden ‘love your neighbor’ rule). These common elements lead to the approach that life is not ours, and we are not fit to alter or destroy it (i.e. no patient autonomy).

However, there has been a shift in attitude re the altering of life (e.g. surgery), and now, most Christian churches have modified their teachings, away from the ‘doctors playing god’ view. Contrast this with the Judaism and Muslim approach, which encourages preventative medicine, and treatment of illness (i.e. man is encouraged to look after and complete the imperfect work of the creator). Note: these religious views do not necessarily justify the use of all forms of medical treatment, and in this regard, it is actually unclear how far these views can be taken.

b) Utilitarianism - A teleological approach

Born from the work of Jeremy Bentham and John Stuart Mills, utilitarianism promotes the maximisation of welfare (the greatest good for the greatest number), on a case-by-case basis, and is consequence based morality. Rule utilitarianism is a variant which asks which rule would provide the best consequence in general, and resolves the difficulty of making a case-by-case analysis re large scale concerns. In contrast, act utilitarianism is a variant which requires that each individual action must maximise utility.

Concerns with utilitarianism involve: what counts as utility, how to accurately predict utility outcomes in the future, how to rank different outcomes against each other (as explained by Wildes in the medical context), how to manage the demanding nature of utilitarianism, and the quantitative aggregate approach to measuring utility in cases where multiple parties are involved.

c) Kantianism - A deontological approach

[Two aspects of] Kant’s categorical imperative provides that we must act consistently and justly, and not treat others (or allow ourselves to be treated) as a means to an end.

O’Neill argues that Kant was interested in principled autonomy:

Autonomy is the attempt to conduct thinking on principles which all others would also conduct their thinking, and acting on principles which others would act.

Secker criticises the usefulness of autonomy in the medical context:

Actual patients are likely to be dependent, or interdependent, and their decision making capacity not always based in reason.

Autonomy also places a premium on independence, which goes against the nature of patient-hood

Realistically, the practise of medicine is both deontological and utilitarian. Doctors must prioritise the needs of the patients, against the needs of society, and balance that with the availability of finite resources. Garbutt and Davies explains that historically, the relationships of individual doctor/patient are based in deontological roots, which have become reinforced by professional codes of conduct. These are then nestled within a larger healthcare system, which must provide for the needs of the many. This creates an obvious tension.

d) Virtue Ethics

This concerns whether an action is ‘the right thing to do’, with a central feature being the rejection of patient autonomy as a supreme virtue. As Foot has argued, wanting to die is not a good enough reason. Rather, causing death is only virtuous if the person’s life lacks the most basic human goods.

So what are virtues exactly? Traits necessary for human flourishing, like honesty, compassion, kindness, justice, courage, fairness etc. These virtues may point us in different directions, and often don't help with making decisions (or could in fact lead to the wrong decision being made e.g. a doctor withholding a cancer diagnosis out of compassion), especially in light of the plurality of human culture and beliefs. Arguably this problem is somewhat bypassed if the relevant virtues considered are those which appeal to the natural facts about human beings (but this simply begs the question as to what those facts are).

There is also the problem of generality here - virtue ethics seems to work best in the context of individual decisions, and not decisions to be made by society. Who is the relevant virtuous agent in the latter situation? Might the better question, as proposed by Holland, be to ask whether a particular regulatory policy is a virtuous exercise of state power? In this sense, virtue ethics evolves into virtue politics, but this begs the question whether virtue politics collapses into one of the other moral approaches e.g. consequentialism. Arguably though, a virtue politics approach identifies the kinds of consequences which are relevant to a consequentialist’s reasoning, and so in this sense, even if at a higher level, virtue politics collapses into...