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Medical law and ethics: portrait of a partnership

The Sunday Times Oxford Literary Festival 2013 will be in full swing tomorrow, welcoming thinkers and writers from across the globe to our wonderful city of Oxford. We’re delighted to have over thirty Oxford University Press authors participating in the Festival this year! OUPblog will be bringing you a selection of blog posts from these authors so that  even if you can’t join us in Oxford this year, you won’t miss out on all the action. Don’t forget you can also follow @oxfordlitfest and check the event schedule here.

Charles Foster will be giving a free talk at the Oxford Literary Festival. The Very Short Introductions ‘soapbox’ talks will be running twice a day during the festival.

By Charles Foster

In many textbook titles and university courses, ‘medical law’ and ‘ethics’ are spoken of in the same breath, as one might speak of Darby and Joan. It’s often assumed that there’s a solid, uncomplicated marriage, in which each partner knows his or her function; or at least an efficiently commercial partnership governed by a clearly drafted document. But, like most real relationships, it’s not so simple.

Lord Donaldson reassured us that, though the law might technically allow a capacitous 17 year old girl to be forced to have an abortion against her will, we needn’t worry: ‘medical ethics’ would stop it. Lord Justice Hoffmann (as he then was) said: ‘I would expect medical ethics to be formed by the law rather than the reverse.’ Where does that leave us? If one is arguing about who is the senior partner, law or ethics, one can argue either side’s case equally convincingly and equally unconvincingly on the basis of the judicial dicta we’ve got.

When the Bolam test is employed in its most cringingly unreflective way, the ethical codes of the profession are simply imported into the law. It would then seem as if law has become ethics. But in fact if one looks at the origin of those codes, the ethicists often think that they’ve taken their cue from the law. We’re caught in a mad circularity; a confusing circus of chickens and eggs.

It’s important that we break out of this circularity.  It’s important for reasons of legal (and professional regulatory) certainty. People have a right to know whether they’re being judged by canons of law or ethics, and the origins of the principles that might condemn them. Challenge is impossible unless the sources are clear.

There are some areas of medical practice where some degree of deference to medical opinion is appropriate. Not all the jurisprudence encrusted on Bolam is wrong. These are areas where technical clinical competence is at stake.

However: in practice, debates within such areas about liability are decreasingly likely to centre on Bolam. This is simply because of the increasing importance of evidence-based medicine. We increasingly live in a world where a particular clinical approach is obviously either right or wrong. If the literature emphatically demonstrates that approach X is inferior to approach Y (and X and Y are financially comparable), no responsible doctor can endorse X. But even within the arena of technical clinical competence, Bolam will never become wholly redundant. Medicine will not (and should not) become entirely a science rather than an art.

But Bolam isn’t good for all clinical purposes. It’s not good for purposes that are obviously infused with ethics. It’s easier to recognise these when they occur than to set out the criteria that characterise them. But for legal purposes we’ve got to be clear. We won’t go far wrong by identifying as ‘ethical’ all questions to do with consent to treatment, confidentiality and (although I’m more agnostic about this), the ownership and use of body parts.

In such ‘ethical’ areas, who should take the lead? I think it’s clear: the law. The law has in place, as bioethics does not, structures and procedures for the detailed examination and adjudication of ethical questions. The courts are not as good as Parliament at taking societal temperatures, but they’re a lot better than the General Medical Council. And, having taken the temperature, they’re much better  ethical diagnosticians, therapists and prognosticians than the GMC. They take a wider and deeper view.

The law should set the minimum standard. If the regulators want to demand more of their professional members, then fine. If an individual doctor wants to be particularly morally scrupulous: fine.

Let’s go back to the unwilling 17-year-old whose parents think she should have an abortion. Should she? No. Nor should the law which at first blush might be thought to permit it be revoked. But it’s a counsel of despair and laziness to suggest that ‘ethics’ should be the final bulwark against the sort of nightmarish abuse of the law that might lead to a 17-year-old being tied to a table and subjected to a forcible abortion. Whose ethics should we use? Mine? Yours? Dr. Mengele’s? The GMC’s? Well, the GMC seems to think it’s following the judges, and, anyway, the courts already have the ability to review GMC guidelines, so the courts really can’t wash their hands of the problem for ever. The ignominious game of forensic pass the parcel has to stop, and it has to stop with the parcel in the hands of the judges. They’re paid to open it.

The law can and must do better than Lord Donaldson did. It’s not hard to see how it might. It might say (just by way of example), that Lord Donaldson’s feared conclusion needn’t follow because abortion is a rather special type of ‘treatment’. It can’t simply be lumped together with appendectomies. Surely a little bit of nuance, well within the bounds of creativity that the common law should allow itself, should be able to sort it out.

[Many thanks to Jose Miola for a helpful discussion.]

Charles Foster is a Fellow of Green Templeton College, University of Oxford, a tutor in medical law and ethics at the University of Oxford, and a barrister (practising in medical law) at Outer Temple Chambers, London. He read law and veterinary medicine at the University of Cambridge. He is the author, editor or contributor to over thirty five books.

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