Medical Law and Ethics

Introduction
Prof Orla Sheils
Department of Histopathology
TCD
 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 work
2. Hit by a car
3. 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.''
• This `neighbour principle' was, and to a certain extent
still is, the foundation of the modern law of
negligence.

31
 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
35
 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