Medical Law and Ethics Introduction

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Medical Law and EthicsIntroduction

• Prof Orla Sheils
• Department of Histopathology
• TCD

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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

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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

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Course Outline

• Forensic Medicine
• Types of injury
• Preserving evidence
• Record keeping
• Assault victims
• Human Rights and Medical Law

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Medical Legal Training

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

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Legal Intervention in Medicine

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

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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.

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Examples for Requirement of a Degree of
Medico-legal Knowledge

• Completing a drivers license application
• Respecting a patients 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

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Introduction to Law
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What is Jurisprudence?

• Not an easy term to define,
• jurisprudence' is used in a number of different
  ways.
• __________________________________
• 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.

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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'?

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What is Jurisprudence?

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

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Sources of Law

• Statute Law government (Dáil)
• Courts (Common Law)
• European Community
• Also
• European Convention on Human Rights

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• 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.

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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

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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

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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.

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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.

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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.

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Example

• Three men are crippled as a result of 3 different
  accidents.
• Accident at work
• Hit by a car
• Damaged during surgery
• What are the relative chances of winning
  compensation?

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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)

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Car accident victim

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

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Medical Ethics
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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

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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.

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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.

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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.

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• 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.

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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).

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Are these theories relevant?

• Peter Singer the traditional western ethic has
  collapsed.
• What do you think?

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Peter Singer

• Feb 1993 Britains 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

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Medical Ethics

• Value of Life
• Healthcare represents a visible expression of
  societys 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

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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?

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Suggested Reading

• 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

• 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