Medical Law deals Essays

Medical Law deals Essays Medical Law deals Paper Medical Law deals Paper Medical Law deals with the ethical and philosophical issues medical profession encounters during the course of treatment of patients. There is no separate legislation as such but it encompasses contract law, tort law and criminal law mainly and in addition administrative law, procedural law, trusts, conflicts of laws, labour law, and personal and intellectual property law. All these relating to the human body â€Å"recognised as an immensely complex index of social attitudes, and ambivalence, cultural expression, and expectations, public representations, and regulation. Medical Law is not a subject but a responsibility and largely is a process of naming,blaming,claiming and declaiming each having ethical and philosophical dimensions. (Morgan 2001 p 4) Medical Ethics Medical Law can be construed as body of medical ethics giving rise to moral values conflicting with medical cases and covers many principles in the related branches of health care ethics and nursing ethics. Many a time medical community is confronted with issues touching the values of individual patient, family and non-medical community. The values arsing out of medical ethics are: 1) Beneficence ((Salus aegroti suprema lex. ) Best interest of the patient should be the utmost motive in the mind of the medical practitioner while treating a patient. 2) Non-maleficence (Primum non nocere) Doing no harm under any circumstances should be the maxim for the medical profession. 3) Autonomy (Voluntas aegroti suprema lex) Freedom should be available to patients to avail or decline a line of treatment. 4) Justice Optimum use of health resources which are scarce to be made available to the most deserving cases. 5) Dignity Dignity of the patient and the practitioner should not be sacrificed in the process of treatment. 6) Truthfulness and honesty This is arising out of concept of â€Å"informed consent† dictated by the historical events of Nuremberg trials and Tuskegee Syphilis Study. Often it becomes difficult to rigidly apply these values as they come into conflict with reality mostly concerning the patients’ well being even if it means that patient should die for good. In the United Kingdom Good Medical Practice guidelines have been given by General Medical Council to act under these situations. Philosophies in decision making in health care by Professionals, managers and policy makers Deontology It is the concept of duty or moral obligation. (Webster’s 1978) If person acts wrongly for good and rightly for a negative outcome, it is a violation of deontology. The theory of deontology was propounded by German Philosopher Immanuel Kant. He insisted that duty must be absolute and categorical which must be always carried out uninfluenced by circumstances. What is right must be upheld. This kind of duty is unlike contingent duty to be performed depending upon the need. This absolute duty called categorical imperative has been prescribed by Kant as follows. One’s action should be guided by the principles which should be universally applicable to all keeping in view that mankind is both means as well as an end and as if one is a law maker. Deontology argues for laying down of the rules for taking moral decisions to be applicable equally for all on the premise that God’s human creations are equal. And for who do not believe in God, still the all humans are equal as they share the same genes. Critics of Kant’s Deontology were Jeremy Bentham and John Stuart Mill. Jeremy Bentham maintained that Deontology is a euphemism for morality and that inflexible principles of Kant’s natural law or universal reason are subjective. John Stuart Mill held that since Deontology does not prescribe which shall prevail whether rights or conflict when both comes into conflict, Deontology does not guide us in such situations. â€Å"Shelly Kagan, a current professor of philosophy at Yale University, notes in support of Mill and Bentham that under deontology, individuals are bound by constraints (such as the requirement not to murder), but are also given options (such as the right not to give money to charity, if they do not wish to). His line of attack on deontology is first to show that constraints are invariably immoral, and then to show that options are immoral without constraints. Another, unrelated critique of deontological ethics comes from aretaic theories, which often maintain that neither consequences nor duties but character should be the focal point of ethical theory. The ancient Greek philosopher Aristotle, for example, sought to describe what characteristics a virtuous person would have, and then argued that people should act in accordance with these characteristics† ( Kant 1964) Consequentialism The theory of consequentialism is correctness or otherwise of an action depends on its outcome unlike deontological view of absoluteness of morality. Hence an action is not unethical if it results in greater advantage than the damage it causes. It is akin to approaching the issues by weighing cost against benefit resulting in best outcome by selecting the right action. This consequential-based decision is what is known as utilitarianism which examines utility as a measure of maximum benefit for the maximum number possible. Economising and better living standard are the other two cannons of consequentialism. Quality-adjusted-life-years (QALYs) or Disability-adjusted-life- years (DALYs) are the two measures that determine the measurement of living standard. Advocates of consequentialism do not give much credence to principles when dealing with materialism especially life and death matters as the so called principles are not capable of being recognised, given priority and validated. However critics hold the view that consequentialism results in the end justifying the means by surrendering rights of an individual for the common good. The above two theories of deontology and consequentialism play crucial roles in health care decision making which invokes morals. This branch of knowledge is biomedical ethics. As already discussed above, while taking health related ethical decisions, the four principles to be followed are respect for autonomy, beneficence, non-maleficence and justice for the patients and their family and community. (Beauchamp, T and Childress, J 2001) The physician should ask himself whether his action would violate the patient’s personal autonomy, whether all concerned have consented to his action and whether he respects their choosing differently. He should know whether his action results in benefits or any one will affected by his action in which case what he can do to mitigate the suffering. He should ask himself if he has informed the patient and or the patient’s family members of the risks frankly and in case of crisis how best he can avoid the harm likely to be caused. Further he should recognise all the parties likely to be affected by his action and whether his action will be justifiable and if there is any scope for making it more justifiable. (Carter 2002) Deontology and Consequentialism illustrated In hospitals it is a practice keep occasionally organs and tissues of infants and fetuses after post-mortem for the educational purposes. While informed consent for this is currently being taken from the parents, there was no such practice of taking informed consent 10 to 20 years ago. Lately it came to be known that some hospitals in England had kept the organs without informed consent which was discovered by the parents concerned. Hospital justified their action as paternalistic in order to avoid emotional problems for the parents and at the same time for the reasons of benefits accruing to society through research and education using the retained organs. This issue gives rise to discussion on moral relativism, utilitarianism, and Kantian ethics and biomedical ethics as these principles are relative to time and place. (Arcus and Kessel 2002) Moral relativism is about changes over time and place in that ethics depends on history, culture and context. Galen, the celebrated physicist of Rome used to carry out his research on pigs and dogs as it was regarded immoral to handle organs of humans in his time. By the turn of 19th century human cadavers became available to England Hospitals through clandestine sources from the graves mainly for their teaching purposes. Today that these practices cannot be justified without consent, is moral relativism. At the same time same analogy can not be used for Nazi experiments on prisoners during the world war II under moral relativism framework. This is so because principles are the same regardless of the time. Because retention of organs without consent was still ethical for its good intentions and Nazi experiments were unethical for the torture they perpetrated on humans. Moral relativism can not be applied even during the old time under the premise ‘value changes over time’. Deontology based on duty tells that people should be treated as ends in themselves and not as means to an end. Parents’ argument is that the organs of their babies are used for research and not as ends in themselves. In the countries of Buddhists and Hindus, state of bodies of the dead is important as they believe in reincarnation. Hence under Deontology retention of the organs is unethical. On the other hand consequentialism allows retention of the organs for the reasons of benefits to society. In situations such as these when morals and duties come into conflict, the above said four principles i. e. respect for autonomy, beneficence, non-maleficence and justice should be applied. â€Å"As Lindblom says, we need to incrementally muddle through in our decisions. We need to be aware of these underlying principles and continually monitor how they are being exhibited in practice. Guidance is available from the Royal College of Pathologists and the Nuffield Council, as well as from international mandates such as the Nuremberg Code and the Declaration of Helsinki. They all emphasise the importance of respect for peoples autonomy. The Declaration of Helsinki, for example, states that considerations related to the well-being of the human subject should always take precedence over the interests of science and society. (Arcus and Kessel 2002) Euthanasia Euthanasia is legal in Netherlands. A case study by Leget C (2004) reveals reactions from the Dutch medical students towards medical ethics on being shown a 1994 documentary ‘Death on Request’(Ikon Televison Network) portraying the case of a patient being put to death by Euthanasia for the reasons of his having been diagnosed with ‘amyotrophic lateral sclerosis’. These students had been asked to prepare themselves by reading the Dutch Medical ethics Handbook which with many arguments for and against Euthanasia does not take sides. Four kinds of responses from the students who are emotionally involved on the subject reflect four different concepts of ethics. The first response is that Euthanasia is lawful and has nothing to with ethics â€Å"This attitude is endorsed by a particular version of liberal individualism. Liberalism, as a tradition in ethical and political thought, has contributed to peaceful coexistence and discussion in a situation of disagreement. The version of liberal individualism embraced by some of the students, however, lacks any awareness of the political dimension and importance of this tradition. This version inhibits ethical discussion by banning all ethical discussion to the personal sphere and subsequently reducing it to a matter of agreement† (Leget C 2004) Second response is death by progression of disease does differ much by euthanasia as consequences are the same. Hence refusing euthanasia is not justified as otherwise the patient is left with terrible possibility of suffocation. â€Å"This approach can be endorsed by various consequentialist theories as utilitarianism or pragmatism. Ethical discussion is inhibited here by the fact that the problem is considered to be medical rather than ethical. A good doctor should not deliver his patient to unnecessary suffering. †(Leget C 2004). The third response is argument on ethical basis is useless because it amounts to subscribing to personal choices. â€Å". In this particular case, the fact that so many arguments for and against euthanasia are listed in the medical ethics handbook confirms their conviction that ethical lines of reasoning can sustain and justify any possible viewpoint. Eventually, however, one’s stance is determined by personal factors like individual history and education that cannot be analysed or argued further. This approach is supported by emotivist theories that identify ethical stances as personal preferences. Again ethical discussion is avoided and made impossible† (Leget C 2004) Fourth response is based on religion. Though Dutch students are not religiously oriented, some of them come from religious background which prohibits euthanasia. While the latter strongly argues against, the former group thinks that it is their moral obligation to identify with latter’s religious sentiments. â€Å"Here the individual liberalism that promotes the respect of non-religious students strikes an alliance with deontologism by the common idea that the ethical viewpoints of a religious community are beyond argumentation. Again any ethical discussion is made impossible or rather suffocated under the veil of tolerance† (Leget C 2004) The same arguments can hold good for other controversial issues like selective abortion, surrogate motherhood, and cloning, subjecting humans to clinical trials etc. Conclusion When there can be an ethical theory for each response, it only shows that ethical theories do not offer any solution as they amount to nothing. On the other hand there are reasons outside the moral and ethical paradigm to make the relationship of medicine with ethics tricky and challenging. First reason, a science should be result oriented i. e. it should lead to recovery from sickness or promote well-being. Hence it can be by nature as art should produce results. Ethics as a philosophical sermon only defines the problem where as medicine seeks to solve the problem having to decide on issues within short time span and therefore accords with consequentialist theories. The second reason â€Å"Students, who are trained in approaching problems from such a perspective, are likely to adopt a pragmatist or consequentialist stance in ethics. All this has been described as the influence of the so called hidden curriculum: the process of socialisation by which students learn how to cease to be a lay person by . Hafferty F, Fanks R 2002 and by the role models, jokes, anecdotes by Paice E, Heard S 2002† (Leget C 2004) The third one is that medicine should be viewed a part of modern way of life.. â€Å"As North Atlantic culture is dominated by liberal individualism, the so called ethical questions are no longer primarily seen in their social dimension. Ethical decisions are delegated to the personal life sphere; a sphere that is very much individualised. †(Legit C 2004). The last being the age of doctors. Greek Philosopher Aristotle had opined that involvement with ethical issues matures with age. â€Å"Maturity helps seeing the tragic and complex nature of reality†. (Leget C2004) As a coping mechanism, detachment is a natural reaction. †(Finlay S, Fawzy M 2001) REFERENCES Arcus Kim, Kessel Anthony S Are ethical principles relative to time and place? A Star Wars perspective on the Alder Hey affair British Medical Journal 2002, 325:1493-1495 (21 December) Beauchamp, T. Childress, J. (2001) Principles of Biomedical Ethics, 5th Ed, Oxford University Press, Oxford. Carter Lucy 2002 Office of Public Policy and Ethics Institute for Molecular Bioscience The University of Queensland, Australia uq. edu. au/oppe October 2002 Finlay S, Fawzy M. Becoming a doctor. J Med Ethics: Medical Humanities 2001; 27:90–2 Hafferty F, Fanks R. The hidden curriculum, ethics teaching and the structure of medical education. Acad Med 1994; 69:861–71. [Medline] Ikon Televison Network, Death on Request, 1994. Immanuel Kant (1964). Groundwork of the Metaphysic of Morals. Harper and Row Publishers, Inc. ISBN 0-06-131159-6. Leget C 2004 University Medical Centre Nijmegen, Nijmegen, Netherlands Avoiding evasion: medical ethics education and emotion theory Journal of Medical Ethics 2004; 30:490-493 © 2004 BMJ Publishing Group Ltd Institute of Medical Ethics Morgan Derek 2001 Issues in Medical Law ad Ethics page 3 Cavendish Publishing Limited, London Paice E, Heard S, Moss F. How important are role models in making good doctors? BMJ 2002; 325:707–10 Websters New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).