Medical Law Lecture Notes
The Relationship between Medical Law and Medical Ethics
Reasons for importance of ethics for medical law
tradition of self-regulation based on ethics (Hippocratic oath) this idea is very old
indeed.
questions go to the heart of the meaning and value of human life
the practice of medicine affects us in a particularly intimate way i.e. some of the subject
matter of this course will be personal in a way that land law or trusts law is not.
If no shared religion, we look to secular ethical principles or moral theories which
become more important
From Medical Ethics to Bioethics
Medical ethics = ethics of good medical practice i.e. what it means to be a good doctor
Bioethics is wider than medical ethics and has broader dimension than just the doctor
and patient.
Rise of bioethics:
o Rapid technological progress poses complex dilemmas e.g. what do you do if
parents refuse to allow brain-dead child to be taken off the ventilator?
o Technology like ventilator developed means new questions are posed. Should
parents be allowed to choose the gender of their children?
These are not just about patient and doctor relationship but has wider
public implications.
o Medical paternalism challenged, the principle of patient autonomy ascendant.
The idea that patients have autonomy and rights they should be able to
exercise. Challenge to the doctor knows best model.
How do we make difficult decisions?
The ‘Yuk factor’: is this the ‘wisdom of repugnance’? Or ‘nasal reasoning’?
o Poor reasoning for how make difficult ethical decision based on our emotional
reactions.
o Some bioethicists do try to argue for the wisdom of repugnance that the feeling
of revolt holds some deeper moral truth.
o Others have said it is nasal reasoning and it covers for prejudice.
Religious and cultural bioethics: religious bioethics tends to emphasise the intrinsic
rightness or wrongness of an action
o Religious perspectives tend to be less individualistic than secular bioethics; so
less about autonomy but more about the greater public good.
o Religious perspectives often start from the premise that life is a gift which is not
ours to destroy.
o Every religion confronts the question of how far man should be allowed to
‘interfere’ with nature
o Religious bioethics more strongly normative than secular bioethics, ie looks for
the right answer
o Religious perspectives consist in the interpretation of past authority, and
constrained by it
, Moral theories:
o Teleological or consequentialist theories (eg utilitarianism)
Judge the rightness or wrongness of an action in terms of its likely
consequences. What is the overall consequences.
Quantitative approach
Will assisted suicide minimise suffering overall?
o Deontological theories
The rightness or wrongness of an action depends only on whether it is
consistent with certain basic moral principles.
e.g. Kantian imperative
So act as to treat humanity, whether in your own person or in that of any
other, never solely as a means but always also as an end.
o Virtue ethics
emphasis on good character traits
apprentice model of medical education: decisions are made by asking
what a good and experienced doctor would do in this situation
rejects the idea that patient autonomy is an absolute or overriding virtue
importance of context.
Scenario: Couple have had a baby who has genetic catastrophic condition.
They have asked doctors about whether a second baby would also have
the condition and doctor finds out first baby was not the father’s child, it
is another man’s child, what should he do?
Doctor could
Tell couple that if they have a child, it will not have the condition
(which is true)
Tell mother that it is not the husband’s child and she can have
baby without problem with her husband but problem child with
other man.
Could tell them/one of them this is not your child
Asking what a good person would do in this scenario does not
solve the problem as answers vary.
Principlism: One of the most influential approach is principalism. Four principles were
applicable to ethical dilemmas.
o Autonomy: individual self-governance, liberty, privacy and freedom of choice
o Cluster of interests to do with making decisions for yourself and to do with
freedom. Might engage privacy issues like information on your health conditions
stored.
o Non-maleficence: duty to “above all do no harm” (primum non nocere)
o Much depends on what is meant by harm.
o Beneficence: Duty to “do good”. Care for their patience is first priority.
o Justice: Treating like cases alike. Example is where there is a need for organ
transplant, people who are selected must be done on the same criteria and
treated equally.
o NB: Most dilemmas involve a clash of principles.
Casuistry: Case-based reasoning - begin with our response to concrete cases and reason
by analogy
o Depends upon shared intuitive response to so-called paradigm cases.
The Relationship between Medical Law and Medical Ethics
Reasons for importance of ethics for medical law
tradition of self-regulation based on ethics (Hippocratic oath) this idea is very old
indeed.
questions go to the heart of the meaning and value of human life
the practice of medicine affects us in a particularly intimate way i.e. some of the subject
matter of this course will be personal in a way that land law or trusts law is not.
If no shared religion, we look to secular ethical principles or moral theories which
become more important
From Medical Ethics to Bioethics
Medical ethics = ethics of good medical practice i.e. what it means to be a good doctor
Bioethics is wider than medical ethics and has broader dimension than just the doctor
and patient.
Rise of bioethics:
o Rapid technological progress poses complex dilemmas e.g. what do you do if
parents refuse to allow brain-dead child to be taken off the ventilator?
o Technology like ventilator developed means new questions are posed. Should
parents be allowed to choose the gender of their children?
These are not just about patient and doctor relationship but has wider
public implications.
o Medical paternalism challenged, the principle of patient autonomy ascendant.
The idea that patients have autonomy and rights they should be able to
exercise. Challenge to the doctor knows best model.
How do we make difficult decisions?
The ‘Yuk factor’: is this the ‘wisdom of repugnance’? Or ‘nasal reasoning’?
o Poor reasoning for how make difficult ethical decision based on our emotional
reactions.
o Some bioethicists do try to argue for the wisdom of repugnance that the feeling
of revolt holds some deeper moral truth.
o Others have said it is nasal reasoning and it covers for prejudice.
Religious and cultural bioethics: religious bioethics tends to emphasise the intrinsic
rightness or wrongness of an action
o Religious perspectives tend to be less individualistic than secular bioethics; so
less about autonomy but more about the greater public good.
o Religious perspectives often start from the premise that life is a gift which is not
ours to destroy.
o Every religion confronts the question of how far man should be allowed to
‘interfere’ with nature
o Religious bioethics more strongly normative than secular bioethics, ie looks for
the right answer
o Religious perspectives consist in the interpretation of past authority, and
constrained by it
, Moral theories:
o Teleological or consequentialist theories (eg utilitarianism)
Judge the rightness or wrongness of an action in terms of its likely
consequences. What is the overall consequences.
Quantitative approach
Will assisted suicide minimise suffering overall?
o Deontological theories
The rightness or wrongness of an action depends only on whether it is
consistent with certain basic moral principles.
e.g. Kantian imperative
So act as to treat humanity, whether in your own person or in that of any
other, never solely as a means but always also as an end.
o Virtue ethics
emphasis on good character traits
apprentice model of medical education: decisions are made by asking
what a good and experienced doctor would do in this situation
rejects the idea that patient autonomy is an absolute or overriding virtue
importance of context.
Scenario: Couple have had a baby who has genetic catastrophic condition.
They have asked doctors about whether a second baby would also have
the condition and doctor finds out first baby was not the father’s child, it
is another man’s child, what should he do?
Doctor could
Tell couple that if they have a child, it will not have the condition
(which is true)
Tell mother that it is not the husband’s child and she can have
baby without problem with her husband but problem child with
other man.
Could tell them/one of them this is not your child
Asking what a good person would do in this scenario does not
solve the problem as answers vary.
Principlism: One of the most influential approach is principalism. Four principles were
applicable to ethical dilemmas.
o Autonomy: individual self-governance, liberty, privacy and freedom of choice
o Cluster of interests to do with making decisions for yourself and to do with
freedom. Might engage privacy issues like information on your health conditions
stored.
o Non-maleficence: duty to “above all do no harm” (primum non nocere)
o Much depends on what is meant by harm.
o Beneficence: Duty to “do good”. Care for their patience is first priority.
o Justice: Treating like cases alike. Example is where there is a need for organ
transplant, people who are selected must be done on the same criteria and
treated equally.
o NB: Most dilemmas involve a clash of principles.
Casuistry: Case-based reasoning - begin with our response to concrete cases and reason
by analogy
o Depends upon shared intuitive response to so-called paradigm cases.
