Medical Law and Medical EthicsA (very) Brief Overview

Simon Mills BLIMO Conference, April 2013

Linking Law and Ethics

Law floats on a sea of ethics

Judge Earl Warren

[C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation. 

William Somerset Maugham

Law/Ethics: Overlap– I

There is a broad overarching common ground:

Both involve a process of inquiry

Both involve a process of reasoning and reflection

Both are aimed at getting to the “right” answer

Law/Ethics: Overlap– II

In law,

The inquiry is an adversarial hearing or a transparent process of lawmaking

Decisions of the courts will be reasoned and guided by previous experience

Legislative deliberations will be taken by “morally serious” persons, even if their moral outlooks are different

The “right” answer will, with any luck, be a just outcome: a fair decision of the courts or a law that is not invidious

Law/Ethics: Overlap – III In ethics, ethicists (often, but not always, philosophers)

engage in moral reflection & discourse and this is required because the law cannot give definitive answers to every ethical dilemma in medicine:

The issue may not have come before a court: eg, assisted dying (until recently)

The relevant area is not the subject of Statute: assisted human reproduction (here, the gap in the law also leads to legal cases)

Where the issue has come before a court or legislature statute, there may be a dispute about whether – morally speaking – the correct answer was reached or whether important questions remain unanswered.

There are significant disputes about foundational principles

But, deliberations must take place against backdrop of law

Law/Ethics: Overlap – IV

Practical consequences of the similarities:

Both have a role in telling doctors what to do and what not to do

Both use similar (but not identical) constructs in similar (but not identical ways)

Both build on bodies of accumulated thinking and experience

Law/Ethics: Differences - I

While there is – therefore – an overlap, the overlap is finite:

On the one hand: Ethics begins where law ends

On the other: Law may be needed to resolve an ethical dispute: eg, blood transfusion case

Law/Ethics: Differences - II

Law sets only minimum standards of conduct.

Law may provide no clear action guides in some clinical ethical situations

Law and ethics may directly conflict:

Actions permitted by law may be ethically controversial – statute of limitations?

While actions prohibited by law may be regarded as ethically defensible by many people – today’s topics?

Authority of law based on police power of state

Law/Ethics: Differences - III

Law, therefore, sets minimum standards for the operation of civil society, but it doesn’t legislate for all forms of unethical conduct: lying, for example.

Law also has to make “bright line” distinctions in the interests of legal clarity and certainty: statute of limitations.

Law/Ethics in Shorthand…

Medical Ethics – what ought I to do

Characterized by some as “how ought I live a life of moral excellence in my chosen profession”

Medical Law – generally, what do I have to do;

occasionally what ought I do in a given situation.

Problems with law

A number of obvious problems should be clear:

It may well be desirable to resolve ethical conflicts in as scaled-down a fashion as possible

When taking clinical ethical decisions, an over-emphasis on “what is legal?” may prevent a careful, nuanced analysis of matters.

Courts are not, save in unusual circumstances, the best place to have medical decisions made

Often a deference to medical practice, for obvious reasons;

However, where the problem is with medical practice, then than deference may be problematic, for equally obvious reasons

What happens when law no longer reflects the values of the society it governs?

Problems with ethics - I

Getting past the assumption that we do – or should – agree about what is right or wrong.

Getting past the – related – assumption that all “morally serious” people should reach the same conclusion about a given matter.

The struggle to agree about the things that we don’t instinctively morally agree about.

Abortion is perhaps the paradigm example of this problem in Ireland

Problems with Ethics - II

Taking a less controversial example

The Four Principles – supposedly a problem-solving tool for medical ethical dilemmas:

Respect for autonomy

Beneficence

Non-maleficence

Justice

Problems with Ethics – III

Working with principles:

Need to be applied to a problem: may involve several principles

Need to be “balanced”

Need to – in effect – check you get the “right” answer

Fundamental problem?

What does each of the principles mean and what weight do we accord to them when balancing them

What is the scope of the principles?

Problems with Ethics - IV

The four Principles are just one way of talking about ethics

Seek to provide a “common language”

May just be a common language in which to disagree

Reflective and morally serious people come up with diametrically opposed accounts of what is “right” especially on matters relating to human life: When does it begin?

How should we value it?

Why are some unnatural interventions unproblematic?

Ethical Codes

Hippocrates

Medical Council

Successive editions highlight the problem of thinking and talking about ethics

Closely linked to the law

Getting from Ethics to Law

How does one legislate for ethical hot topics?

Role for temperate debate, rooted in truthful arguments from both sides

Recollect that the simplest answer, most loudly shouted, is not necessarily the right one: this applies to all poles of debates

Moral seriousness and reflection are not the sole preserve of the theologian or the zealot

Recognition of pluralism

Recognition of democratic values

Pluralism in Ethical Debate

Changes in demography both within the indigenous population and from outside

Challenge to notions of moral consensus and to assumptions about specific norms of medical practice:

Traditionally, Western medicine ethics has exemplified a shift from paternalism (“beneficence”) to autonomy

Not a universal value: role of paternalism; family, communitarian decision making still important in many non-indigenous Irish.

Coming down the track…?

Abortion and Assisted Dying are the tip of the iceberg

Assisted reproduction

Commission report

No action

Finite resources

Growing populations

Aging populations

Simple solutions…?

X (insert complex area of policy here) is just wrong

"For every complex problem there is an answer that is clear, simple, and wrong.”

HL Mencken

Do hard cases really make bad law?