Medical Law and EthicsIntroductionProf Orla Sheils

Department of HistopathologyTCD

Course Timetable• Course Timetable and Lecture Notes

– http://www.tcd.ie/Histopathology

– Students click here for our new section containing timetables, downloads, and other exciting new features.

– 4th/5th medical year Jurisprudence course

Course Outline:• Medical Ethics

– End of life, Start of life and in between– Ethics and new technologies – genetic enhancement– Resource allocation and justice in health care delivery

• Medical Law– Consent– Battery– Negligence

• The Coroner System– When to notify the coroner– What to do if you encounter a suspicious death

Course Outline:

• Forensic Medicine– Types of injury– Preserving evidence– Record keeping– Assault victims

• Human Rights and Medical Law

Medical Legal Training

• Legal aspects of clinical practice confront healthcare professionals in many facets of their daily work from routine to more unusual situations:

Legal Intervention in Medicine

• Medical Practice– Rapidly advancing technology– Strongly research orientated environment– Increasingly hedonistic and materialistic

society.

Legal Intervention in Medicine

• Law moves more slowly than medicine or social mores

• Rules of doctoring are developed within a moral framework– Constantly restructured by society– Operating in an atmosphere of legal uncertainty

• Promotes confrontation within the triangular relationship of Medicine, Law and Society

• Major function of Medical Jurisprudence is to break down barriers of latent hostility.

Examples for Requirement of a Degree of Medico-legal Knowledge

– Completing a driver’s license application– Respecting a patient’s decision to refuse

treatment– What to do (and not to do) with a dead

body where there is suspicion of an unnatural death

– Certification of the dead– Role of the coroner and knowing which

cases need referral

Introduction to Law

What is Jurisprudence?• Not an easy term to define, • `jurisprudence' is used in a number of

different ways. • __________________________________

1. used to denote the study of law in the abstract –academic law. • In this sense, jurisprudence is not the study of any

actual law or system of laws, • but of features that legal systems have in common, • or what distinguishes one system from another.

What is Jurisprudence?• 2- it means the philosophy of law.

– Used in this sense, students of jurisprudence set out to answer fundamental questions about the nature of law.

• What distinguishes a law from a custom? • What are human rights? • What does it mean, to have a `duty'?

What is Jurisprudence?

• 3- it denotes a particular theory of law, set out by a particular commentator or group.

Sources of Law

• Statute Law –government (Dáil)• Courts (Common Law)• European Community

• Also– European Convention on Human Rights

• Government – is a source of modern law (statute)– Gives power of law making to other bodies

(e.g council, local government)

• A statute is a document which contains laws made by parliament following defined procedures.

Common Law • Describes all those rules that have

evolved through court cases.– e.g. Laws on Negligence and Consent

have been built up through common law• WHERE STATUTE SPEAKS

COMMON LAW FALLS SILENT• Statute law can be used to codify

common law

Doctrine of precedent• Based on the assumption that the higher

courts know better than the lower judiciary.• Thus there are courts whose decisions must

be followed by lower ranking courts.• Precedent may be:

– Binding– Persuasive

Criminal Law vs Civil Law

• Criminal case - somebody is prosecuted for conduct considered harmful to society as a whole

• Prosecution is usually brought by the state• Civil law describes those areas of law governing the

relationship between persons such as contract, employment or tort (umbrella term covering negligence, libel, trespass etc)

• Civil cases are between private interests (individual, company, organisation etc). An individual sues another for some harm caused to him personally.

Law of Torts• Philosophical principle that people are expected to

conduct themselves in such a way as to minimize the harm or injury they do to others.

• Principle reflected in the large body of `tort law'. – derived from the Latin word `tortus', meaning a

`wrong' • `Tort' is the body of law concerned with allowing the

victims of harmful actions, whether caused deliberately or by negligence to claim compensation from the perpetrator.

Tort Law • Historically much of the law of tort was

concerned with trespass of one form or another.

• These days, ‘actions of the case’ have been subsumed into the general law of negligence, and the distinction between trespass and negligence now rests on the motive of the defendant, not the directness of the action.

Example

• Three men are crippled as a result of 3 different accidents.

1. Accident at work2. Hit by a car3. Damaged during surgery

– What are the relative chances of winning compensation?

Work accident victim• Best off• Employers have statutory duties• If they fail in these duties, employee is

entitled to compensation without proving negligence.– (can also sue for negligence)

Car accident victim

• Can only rely on negligence• May be hard to prove

Medical Mishap

• Most difficult to prove fault• Many cases on border between mere

error of judgement and negligence• Additional hurdle – must establish the

negligence CAUSED the injury

Negligence• To succeed in a claim for negligence, the claimant must establish that

he was owed a duty of care, and that the defendant was in breach of that duty.

• Whether a breach occurred is a question of fact to be established on the evidence, but the standard of care expected is a matter or law.

– If I hold myself out as possessing a certain skill, or carry out activities that represent me as having that skill, then I must display a level of competence associated with that skill.

• In medical cases, for example, a doctor's judgement will be measured against the standards of the profession as a whole. It does not matter that there is a body of opinion, even perhaps a substantial body, that would not have come to the same conclusion

Duty of Care• the law cannot make every individual responsible for

harm that befalls any other individual, even where there is some causal relationship between the acts of one person and the injury or loss to another.

• Somewhere the law has to distinguish between acceptable careless acts that cause loss or injury to another, and unacceptable careless acts. The notion of `duty of care' is used in law to fulfil the purpose of making such a distinction.

Causation in Negligence • In a claim for negligence, the claimant must

establish not only that he was owed a duty of care, and that the defendant was in breach of that duty, but that the breach was the cause of the injury or loss he suffered.

• There are two parts to this question of causation: – causation in fact, and – causation in law.

`but for' test• if the loss would not have been occasioned but for

the defendant's breach, then there is a prima facie factual causation.

• In addition, a criminal conviction in the same case is (now) admissible as evidence in civil proceedings that the defendant did cause the harm or damage alleged by the claimant.

• In all cases, the burden is on the claimant to show, on the balance of probabilities, that his loss or injury was caused by the defendant's breach.

Causation in Law• If factual causation is established, it remains

necessary to establish causation in law. • In general, this requires that the damage be not so

remote from the breach that it is unjust to hold the defendant liable. – foreseeability; few judges have supported the

view that a defendant should be liable for losses or injuries that were completely unforeseeable.

• how much of the actual damage experienced by the claimant, assuming that some is foreseeable, can be legally attributed to the defendant.

Contributory Negligence (UK)

• Until 1945 it was a complete defence to a claim of negligence that the claimant was himself to blame, even slightly, for the loss or damage he suffered.

• As a result, a person who was badly and obviously wronged could end up losing out in a tort action.

• The Law Reform (Contributory Negligence) Act (1945) eliminates the defence of contributory negligence, and in its place gives the courts the power to reduce the award of damages in proportion to the claimant's share of the blame.

Negligence• Negligence occupies a prominent place in modern tort law. This

was not always the case: until the early 20th century, while there was a well-developed law of trespass, a person who had suffered loss or damage indirectly was left to pursue a residual action on the case, or `action in case'.

• Lord Atkins : • ``You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.''

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• This `neighbour principle' was, and to a certain extent still is, the foundation of the modern law of negligence.

Negligence• To succeed in an action for negligence,

the claimant must show on the balance of probabilities that the defendant's breach of a duty of care was causative of his (the claimant's) loss or injury.

Medical Ethics

Schools of thought

• Deontology• Consequentialism• Virtue

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Deontological Moral theory

• emphasis on notions such as – 'rights', – 'duties' and – 'obligation'

• Immanuel Kant– rationality of mankind– Categorical Imperative

• Never use human beings as a means to our own ends

Deontology –emphasis on duty

• Stresses the wrongness of contravening certain rules, which are taken to be morally fundamental.– There are some things it is ALWAYS wrong to do

• In the context of medical practice:– preclude breaches of professional codes of conduct such

as • the duty to avoid harming a patient• to respect patient confidentiality.

– emphasis within this view of moral matters, on the duty to act in the best interests of the patient at all times.

Deontology –emphasis on rights

• focus of concern is rational and autonomous persons and the respect that is due to them.

• A rational and autonomous person is said to possess rights

• focus of concern shifts from the moral agent and whether he obeys certain moral rules to the way his actions impinge upon other autonomous individuals.

Consequentialist/utilitarian moral theory

• A good action is one that the good is yields the greatest utility.– Jeremy Bentham, JS Mill

• Objective: the consequences of the action should produce as much good for as many people as possible in the circumstances.

• The right action, morally-speaking, is the one that leads to the most benefit, or the least harm, for the largest number of people.

• A utilitarian is prepared both to break moral rules and to violate rights if he/she can be certain that the total welfare will be increased by so doing.

Virtue Theory• Aristotle• virtues are those qualities a person has

which enable her to achieve well-being i.e. to live a flourishing life.

• each person must develop the virtues in himself and thereby learn to judge what is appropriate in each circumstance.

• Practical Wisdom (phronesis) as opposed to Knowledge (Sofia).

Are these theories relevant?

• Peter Singer –” the traditional western ethic has collapsed”….

• What do you think?

Peter Singer• Feb 1993 – Britain’s High Court ruled that

doctors could lawfully act to end the life of a patient (Bland).

• Nov 1993 – Netherlands’ parliament put into law guidelines for giving lethal injections.

• USA 1994 – Dr Jack Kevorkian acquitted on charge of assisted suicide.– He supplied CO gas, tubing and a mask to his

patient (Hyde) who was suffering with ALS

Medical Ethics

• Value of Life– Healthcare represents a visible expression

of society’s attitude – Serves as an algorithm for the value we

place on human life and the respect we believe we owe one another.

• By saving lives when we can• Selecting those we consider worth saving

Selection• Scarce Resources

– Differential value put on candidates for rescue• Decide some people are more worthy of

saving than others– Occurs across the spectrum of healthcare

• DNR elderly or terminally ill patients• Decision not to feed or treat infection in seriously

handicapped babies– Are these actions justified?

Suggested Reading• Medical Law

– Ian Kennedy and Andrew Grubb

• Law and Medical Ethics– Mason, McCall Smith,

Laurie • Medicine Ethics and the Law

– Deirdre Madden• Medicine Patients and the Law

– Margaret Brazier• Modern Tort law

– Vivienne Harpwood• Clinical Practice and the Law

– Simon Mills

• Causing Death and Saving Life– Jonathan Glover• Rethinking Life and Death– Peter Singer• The Value of Life– John Harris• Aiming to Kill– Nigel Biggar• Medical Ethics and Law – the

Core Curriculum– Hope, Savulescu and Hendrick• http://www.medicalcouncil.ie