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Medical Law and Medical Ethics A (very) Brief Overview. Simon Mills BL IMO Conference, April 2013. Linking Law and Ethics. Law floats on a sea of ethics Judge Earl Warren [ C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation.
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Medical Law and Medical EthicsA (very) Brief Overview Simon Mills BL IMO Conference, April 2013
Linking Law and Ethics • Law floats on a sea of ethics Judge Earl Warren • [C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation. William Somerset Maugham
Law/Ethics: Overlap– I There is a broad overarching common ground: Both involve a process of inquiry Both involve a process of reasoning and reflection Both are aimed at getting to the “right” answer
Law/Ethics: Overlap– II • In law, • The inquiry is an adversarial hearing or a transparent process of lawmaking • Decisions of the courts will be reasoned and guided by previous experience • Legislative deliberations will be taken by “morally serious” persons, even if their moral outlooks are different • The “right” answer will, with any luck, be a just outcome: a fair decision of the courts or a law that is not invidious
Law/Ethics: Overlap – III • In ethics, ethicists(often, but not always, philosophers) engage in moral reflection & discourse and this is required because the law cannot give definitive answers to every ethical dilemma in medicine: • The issue may not have come before a court: eg, assisted dying (until recently) • The relevant area is not the subject of Statute: assisted human reproduction (here, the gap in the law also leads to legal cases) • Where the issue has come before a court or legislature statute, there may be a dispute about whether – morally speaking – the correct answer was reached or whether important questions remain unanswered. • There are significant disputes about foundational principles • But, deliberations must take place against backdrop of law
Law/Ethics: Overlap – IV • Practical consequences of the similarities: • Both have a role in telling doctors what to do and what not to do • Both use similar (but not identical) constructs in similar (but not identical ways) • Both build on bodies of accumulated thinking and experience
Law/Ethics: Differences - I • While there is – therefore – an overlap, the overlap is finite: • On the one hand: Ethics begins where law ends • On the other: Law may be needed to resolve an ethical dispute: eg, blood transfusion case
Law/Ethics: Differences - II • Law sets only minimum standards of conduct. • Law may provide no clear action guides in some clinical ethical situations • Law and ethics may directly conflict: • Actions permitted by law may be ethically controversial – statute of limitations? • While actions prohibited by law may be regarded as ethically defensible by many people – today’s topics? • Authority of law based on police power of state
Law/Ethics: Differences - III Law, therefore, sets minimum standards for the operation of civil society, but it doesn’t legislate for all forms of unethical conduct: lying, for example. Law also has to make “bright line” distinctions in the interests of legal clarity and certainty: statute of limitations.
Law/Ethics in Shorthand… • Medical Ethics – what ought I to do • Characterized by some as “how ought I live a life of moral excellence in my chosen profession” • Medical Law – generally, what do I have to do; • occasionallywhat ought I do in a given situation.
Problems with law A number of obvious problems should be clear: • It may well be desirable to resolve ethical conflicts in as scaled-down a fashion as possible • When taking clinical ethical decisions, an over-emphasis on “what is legal?” may prevent a careful, nuanced analysis of matters. • Courts are not, save in unusual circumstances, the best place to have medical decisions made • Often a deference to medical practice, for obvious reasons; • However, where the problem is with medical practice, then than deference may be problematic, for equally obvious reasons • What happens when law no longer reflects the values of the society it governs?
Problems with ethics - I Getting past the assumption that we do – or should – agree about what is right or wrong. Getting past the – related – assumption that all “morally serious” people should reach the same conclusion about a given matter. The struggle to agree about the things that we don’t instinctively morally agree about. Abortion is perhaps the paradigm example of this problem in Ireland
Problems with Ethics - II • Taking a less controversial example • The Four Principles – supposedly a problem-solving tool for medical ethical dilemmas: • Respect for autonomy • Beneficence • Non-maleficence • Justice
Problems with Ethics – III • Working with principles: • Need to be applied to a problem: may involve several principles • Need to be “balanced” • Need to – in effect – check you get the “right” answer • Fundamental problem? • What does each of the principles mean and what weight do we accord to them when balancing them • What is the scope of the principles?
Problems with Ethics - IV • The four Principles are just one way of talking about ethics • Seek to provide a “common language” • May just be a common language in which to disagree • Reflective and morally serious people come up with diametrically opposed accounts of what is “right” especially on matters relating to human life: • When does it begin? • How should we value it? • Why are some unnatural interventions unproblematic?
Ethical Codes • Hippocrates • Medical Council • Successive editions highlight the problem of thinking and talking about ethics • Closely linked to the law
Getting from Ethics to Law • How does one legislate for ethical hot topics? • Role for temperate debate, rooted in truthful arguments from both sides • Recollect that the simplest answer, most loudly shouted, is not necessarily the right one: this applies to all poles of debates • Moral seriousness and reflection are not the sole preserve of the theologian or the zealot • Recognition of pluralism • Recognition of democratic values
Pluralism in Ethical Debate • Changes in demography both within the indigenous population and from outside • Challenge to notions of moral consensus and to assumptions about specific norms of medical practice: • Traditionally, Western medicine ethics has exemplified a shift from paternalism (“beneficence”) to autonomy • Not a universal value: role of paternalism; family, communitarian decision making still important in many non-indigenous Irish.
Coming down the track…? • Abortion and Assisted Dying are the tip of the iceberg • Assisted reproduction • Commission report • No action • Finite resources • Growing populations • Aging populations
Simple solutions…? • X (insert complex area of policy here) is just wrong • "For every complex problem there is an answer that is clear, simple, and wrong.” HL Mencken • Do hard cases really make bad law?