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Medical Law and Ethics Introduction

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Title: Medical Law and Ethics Introduction


1
Medical Law and Ethics Introduction
  • Prof Orla Sheils
  • Department of Histopathology
  • TCD

2
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

3
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

4
Course Outline
  • Forensic Medicine
  • Types of injury
  • Preserving evidence
  • Record keeping
  • Assault victims
  • Human Rights and Medical Law

5
Medical Legal Training
  • Legal aspects of clinical practice confront
    healthcare professionals in many facets of their
    daily work from routine to more unusual
    situations

6
Legal Intervention in Medicine
  • Medical Practice
  • Rapidly advancing technology
  • Strongly research orientated environment
  • Increasingly hedonistic and materialistic society.

7
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.

8
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

9
Introduction to Law
10
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.

11
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'?

12
What is Jurisprudence?
  • 3- it denotes a particular theory of law, set out
    by a particular commentator or group.

13
Sources of Law
  • Statute Law government (Dáil)
  • Courts (Common Law)
  • European Community
  • Also
  • European Convention on Human Rights

14
  • 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.

15
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

16
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

17
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.

18
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.

19
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.

20
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?

21
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)

22
Car accident victim
  • Can only rely on negligence
  • May be hard to prove

23
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

24
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

25
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.

26
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.

27
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.

28
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.

29
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.

30
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.''

31
  • This neighbour principle' was, and to a certain
    extent still is, the foundation of the modern law
    of negligence.

32
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.

33
Medical Ethics
34
Schools of thought
  • Deontology
  • Consequentialism
  • Virtue

35
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36
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

37
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.

38
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.

39
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.

40
  • 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.

41
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).

42
Are these theories relevant?
  • Peter Singer the traditional western ethic has
    collapsed.
  • What do you think?

43
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

44
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

45
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?

46
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
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