Medical Ethics Today: The BMA's Handbook of Ethics and Law

By British Medical Association

This is your source for authoritative and comprehensive guidance from the British Medical Association (BMA) Medical Ethics Department covering both routine and highly contentious medico-legal issues faced by health care professionals. The new edition updates the information from both the legal and ethical perspectives and reflects developments surrounding The Mental Capacity Act, Human Tissue Act, and revision of the Human Fertilisation and Embryology Act.

• Language: English
• Publisher: Wiley
• Release date: Jan 31, 2012
• ISBN: 9781444355642

Book preview

Preface to the third edition

This is the BMA’s handbook of ethical advice. It reflects the fact that doctors in England, Scotland, Wales and Northern Ireland work in separate healthcare systems with different administrative arrangements and, in some cases, different legislation. The period within which the book was drafted (2010–2011) saw proposals for considerable NHS change and, at the time of writing, it is not clear how these will develop. Our aim throughout is to provide advice which is practical and relevant to doctors’ daily lives and so, while recognising this is a time of flux and some uncertainty, the book sets out the law and best practice at the time of drafting. It also flags up, where possible, the likely direction of future change. More information is available on the BMA’s website and we have identified, in each chapter, other sources of ethical and medico-legal guidance.

The very first BMA ethics handbook appeared in 1949. Every subsequent version has increased the detail and practical orientation of the advice, including relevant aspects of law. This is the third update of the version called Medical Ethics Today, first published in 1993. Since then, much has changed within the profession and society. New challenges, or new twists on old dilemmas, have arisen. Some reflect developments within the health service, such as the challenge to ensure equity for patients as NHS services undergo radical change. Some echo the altered expectations of doctors and patients as healthcare is increasingly seen from a consumerist perspective, within which its role is partly about furthering patients’ personal goals, through cosmetic and lifestyle aids. Other dilemmas highlight apparent differences of views between many doctors and their patients on issues such as students’ reliance on drugs to enhance cognitive functioning or requests for assisted dying.

Most issues in this book are not entirely new but some broad attitudinal changes in society and the profession need to be reflected, as well as the practical changes since the last edition. Doctors now have to prove their competence in medicine and decision making through revalidation at more stages of their careers. They are exhorted to combine traditional professional values with an ability to meet expanding patient expectations. In the past, doctors based their decisions on conscience, intuition, received wisdom and codes of practice. Now they need to use reason, analysis and knowledge of the law. They should be able to explain and justify their decisions to patients, colleagues, the media, regulators and the courts. An awareness of ethics is central to this process and also important in doctors’ appraisal and revalidation. This book is designed to provide that background knowledge.

Through its confidential advice service for its members, the BMA remains aware of the changing ethical dilemmas confronting the profession. BMA policy on controversial subjects is thrashed out in debate at the annual representatives meeting (ARM) by members’ representatives. Briefings and background data to the discussions are provided by the BMA’s Medical Ethics Committee (MEC): a multidisciplinary group combining clinical, legal, philosophical, ethical and theological expertise. All BMA ethics publications are reviewed by MEC members, other BMA committees and a supervisory Board of Professional Activities. These bodies supply expert analysis, practical experience and intellectual rigour. BMA guidance and discussion papers have been quoted approvingly by courts, Parliament and policy-making bodies.

Among general trends since the previous version of this book, the courts have continued to increase their role in resolving medical cases. Such precedent judgments provide useful guidance, much of which is included throughout the book. Devolution has introduced many variations in practice and guidance throughout the UK. Its impact on statute law and quasi-law, such as NHS circulars and executive letters, is also reflected here. Charting trends which develop differently in the devolved nations, however, inevitably leads to some repetition in sections of the book dealing with issues, such as mental capacity.

Patients and the public generally are better informed than in the past about their rights and choices in medicine. More sources of information are open to them. The emphasis on patient choice has continued to increase and more recognition is demanded for the views of marginalised populations. Older people are demographically more important and feature more in terms of resource allocation, service planning and research. Patient confidentiality – a staple of professional codes since Hippocrates – has frequently been revisited and redefined in recent years to meet the needs of the electronic age and the ever growing requirement for data for research and administrative purposes. There is more awareness of cultural and religious diversity – among patient populations and also among health professionals.

Issues of rationing and commercialisation of the health service are ever more challenging in the midst of organisational change. Public health ethics increasingly commands attention, including debate about whether patients should be penalised for rejecting immunisation, for example, or offered rewards for taking positive steps to improve their health. Cross-border healthcare is a growing phenomenon which can raise some difficult ethical and practical issues as some patients choose to bypass UK rules and travel abroad for services such as assisted dying or fertility treatment using anonymous or paid gamete donors.

Most of the ethical issues discussed in the following chapters have arisen in enquiries submitted to the BMA by its members. They need a prompt workable solution for an immediate case and so much of the book focuses on practical responses to common questions but reference to philosophy and law is essential as background. Abortion, embryo research and euthanasia, for example, raise weighty moral issues that should be explored even though the actual procedures are regulated by law so that most questions about what is permissible can be answered briefly. Even superficially simple queries, such as how much information to give a patient, or whether children can choose treatment for themselves, cannot be answered fully without mentioning how legal cases and ethical discussions influence medical practice and vice versa.

Although ethics is more firmly embedded now in medical education and today’s doctors and students are probably more familiar than previous generations with the principles, applying them to changing circumstances can be challenging. In addition to the guidance provided here, the BMA provides an advice line for members who wish to talk through specific problems and a range of detailed guidance notes on law and ethics on its website at: www.bma.org.uk/ethics.

Bridging the gap between theory and practice: the BMA’s approach to medical ethics

The questions covered in this chapter include the following.

What is meant by medical ethics and what are the key principles?

Why do interpretations of terms, such as ‘harm’ and ‘benefit’ change?

How do ethics and law interact?

How do concepts of professionalism fit in?

What is the difference between moral rights and legal rights?

The British Medical Association (BMA) is a doctors’ professional organisation. Its guidance is not binding but supplements the rules set out by the regulatory body, the General Medical Council (GMC) as well as summarising relevant legislation. This chapter sets out the background for the BMA’s specific advice in following chapters. For readers who are particularly interested in the philosophy and theory that underpin the guidance, this chapter sketches out the main philosophical approaches to medical ethics and illustrates how they relate to modern day medical practice. Practical guidance is given on how to approach an ethical dilemma and a hypothetical case shows how different methodologies would approach the same issues.

What is medical ethics?

‘Medical ethics’ is one subset of the broader disciplines of ‘healthcare ethics’ and ‘bioethics’. It overlaps with both but focuses on the duties of doctors. The original Greek and Latin expressions for ‘ethics’ and ‘morals’ conveyed the same idea of a code of conduct acceptable to a particular group. Nowadays, ‘ethics’ can either mean conforming to recognised standards of practice or describe the general study of morality. The distinction is important. Traditionally, professional ethics was what doctors defined for themselves, from their own perspective. Their duty was to work to the standards established by their peers and avoid any action that would bring the profession into disrepute. Ethics, in this sense, has always been a central concern of medicine. Doctors were expected to observe the duty to provide ‘benefit’ to the sick, respect confidentiality and demonstrate integrity. Such values, often labelled ‘Hippocratic’, are echoed in the writings of philosopher-physicians in all cultures. Through history, professional codes called on doctors to adhere to such virtues which, by constant repetition, became seen as part of what it is to be a doctor. Such traditional concepts remain relevant because doctors generally want solutions that not only make logical and legal sense, but also do not contravene their intuitions about the core purpose of medicine.

The discipline of modern medical ethics is rather different. It involves adherence to similar values but they often need some interpretation. It does not attempt to provide ready-made answers but requires analysis and reasoning (see the discussion of the shift from ‘traditional’ to ‘analytical’ medical ethics on page 3). It requires critical reflection about ‘norms or values, good or bad, right or wrong, and what ought or ought not to be done in the context of medical practice’.¹ The object of medicine continues to be the provision of net health benefit with minimal harm but modern ethical thinking insists that this must also be done in ways that respect patients’ autonomy and that are just and fair. Modern ethics deals with everyday practice as well as with the unusual, dramatic and contentious. It involves a search for morally acceptable and reasoned answers in situations where different moral concerns, interests or priorities conflict. This involves critical scrutiny of the issues and careful consideration of various options. It is often as concerned with the process through which a decision is reached as with the decision itself.

Key concepts in medical ethics

Many of the most commonly used ethical terms are self-evident, others may require some interpretation.

Self-determination or autonomy: the ability to think, choose, decide and act for oneself constitutes self-determination or autonomy. There is a moral obligation to respect people’s self-determination as long as that does not impinge on the rights or welfare of someone else. Respect for autonomy means that competent and informed individuals can accept or refuse treatment without having to explain why. They can choose things that are harmful or bad for themselves but they do not have the same liberty to choose things that would harm others.

Honesty or integrity: this is much broader than just truth-telling. Doctors must ensure that their actions are not intended to deceive or exploit the recipient. The skills necessary for communicating effectively are also a key part of ethical consideration. A failure to communicate effectively can invalidate patient consent if information the patient needs to know is left unsaid and it can undermine trust.

Confidentiality: all patients are entitled to confidentiality but their right is not absolute, especially if other people are at serious risk of harm as a result. Cases arise where an overriding public interest would justify a breach of confidentiality. Although this is one of the oldest values reiterated in ethical codes, it is increasingly difficult to define in practical terms as notions of public interest change.

Fairness and equity: the individual patient is the main focus of concern but doctors also have to consider the wider picture and whether the impact of treating one person will foreseeably and detrimentally affect others. These values are closely linked with the practicalities needed to prioritise and ration the use of scarce communal resources.

Harm and benefit: notions of maximising benefit and minimising harm can be among the most tricky aspects of modern medical ethics. These values have always been central to traditional medical ethics and are expressed in professional statements in all cultures and epochs. Keeping people alive and functioning has been what most doctors understood by the obligation to avoid ‘harm’ and promote ‘benefit’ but although the terminology easily crossed cultural and historical divides, the interpretations of the terms has not necessarily done so. Nowadays, the usual interpretation is that an action is only harmful if the person experiencing it believes it to be so. Patients choose for themselves what is a harm or benefit in their own circumstances. Among the controversies brewing in medical ethics, for example, is that concerning the status of male infant circumcision which some people classify as a non-therapeutic and therefore harmful assault on a child and others see as conferring a range of benefits, including social integration and cultural acceptance. Although they can be slippery, notions of ‘harm’ and ‘benefit’ continue to feature strongly in the BMA’s problem-solving methodology and increasingly preoccupy the courts, even though there is no clear and universal definition. Interpretation of the terms depends in different contexts on a number of variables, including individuals’ perceptions as well as legal and professional benchmarks.

Looking back: how medical ethics developed from inflexible rules to reasoned analysis

The history of doctors’ professional ethics encompassed a radical shift in thinking within the profession and society in the mid-twentieth century. Prior to that, medical organisations set out brief principles of acceptable professional behaviour, codifying how doctors should respond in various circumstances. These were based on early instruction manuals, such as Thomas Percival’s Medical Ethics (1803)² which expanded upon traditional Hippocratic precepts. The guidance encouraged a benignly paternalistic way of thinking that reflected contemporary societal expectations. Patients were to be protected from information and the burdens of decision making were doctors’ duties, not patients’ rights. Professional codes of behaviour and etiquette explained the accepted rules but without any analysis of the issues. Major upheavals in the twentieth century increasingly showed that traditional codes were outdated as developments such as organ transplantation and reproductive technologies raised moral questions far outside the scope of traditional professional codes. Medical ethics had to develop a more analytical approach and started to do so in the 1960s when public confidence in medical research, for example, was threatened by publicity about unethical experiments³ and moral debate about the purpose of medicine was taken up by non-doctors: philosophers, lawyers and patient representatives. This led to guidance which was more analytical, less addressed to the routine practicalities of medicine and increasingly driven by notions of patient autonomy. In an influential series of broadcasts, Kennedy highlighted how doctors made moral as well as medical decisions and argued that medical ethics must be ‘part of the general moral and ethical order by which we all live. Decisions as to what the doctor ought to do must therefore be tested against the ethical principles of society.’⁴ Set rules and statements from medical organisations were superseded by patients and professionals expecting to have analysis and reasoned justifications. Patients were now seen as best placed to interpret what was in their own interests. For this, they needed truthful information which doctors had previously been taught was harmful to give. Looking back, among the most significant changes in medical ethics has been this transition from medical decision making to the recognition that healthcare works best as a doctor–patient partnership (see also Chapter 1, pages 22–26).

Looking ahead to new challenges

Each chapter of this book attempts to identify foreseeable areas where new dilemmas are likely to occur but providing advice for such future challenges is particularly difficult when the provision of health services faces significant reorganisation. This has been the situation at the time of drafting the book in 2010–2011 and, in all cases, the most recent BMA guidance on any ethical issues can be found on its website. Under plans for the NHS put forward by the Coalition Government⁵ in 2010, it seems likely that dilemmas involving maintaining equity and managing conflicts of interest may become more prominent for some doctors (see also page 6). Good quality patient care and choice remain key aims but there is some anxiety that these may come into tension with commercial interests. The Government’s proposed changes to the NHS in England constitute the most radical restructuring of the service since its foundation in 1948 and may also have an impact on the devolved nations. Proposed changes in NHS structure include:

the abolition of Strategic Health Authorities and Primary Care Trusts

transfer of their functions to a central Commissioning Board and local commissioning groups

encouraging an ‘any qualified provider’ approach to provision of services

increasing private sector provision of NHS services

abolishing NHS Trusts in favour of NHS Foundation Trusts

transferring local health improvement functions to Local Authorities

abolishing a number of arm’s-length bodies, including the Human Fertilisation and Embryology Authority and the Human Tissue Authority.

Despite the proposed reorganisation, core concepts and aspirations which had been accepted as central to NHS care were reiterated, including:

the importance of the NHS remaining free, based fairly on patient need

continuing commitment to evidence-based policy making

continuing to give patients choice, personalised care and information as part of shared decision making

keeping services patient-centred

using valid Patient-Reported Outcome Measures and patient experience data

focusing on clinical outcomes and clinically justified, evidence-based measures

incentivising quality and inspecting against essential quality standards

continuing to develop quality standards at national level

making payment to providers reflect quality of care and outcomes, not just volume

ensuring clinical values direct managerial activity

aligning clinical decisions with the financial consequences of those decisions

producing comparative information on safety, effectiveness and experience to support choice and accountability

promoting integration and partnership working between the NHS, social care and public health

developing coherent urgent care services including GP out-of-hours services

empowering health professionals to use their clinical judgement

devolving power and commissioning responsibility to local commissioning consortia

focusing on general practice leadership

promoting better self-care by patients.

Practical anxieties about the proposed structural changes focused on issues such as the possibility of greater inequality for patients, reflecting the priorities and expertise of the doctors who would be new to commissioning; greater conflicts of interest for GPs who would have to balance patient choice with scarce resources; financial competition within the NHS which might impact on the quality of care and fear the NHS would become increasingly privatised. The BMA produced a series of guidance notes for the profession, addressing issues such as the principles of GP commissioning and these can be found on the BMA website.

Professionalism and core values

From the time it was first established in the mid-nineteenth century, the BMA has been deeply concerned with maintaining the reputation of the profession but this was not always necessarily labelled as ‘ethics’. Rather, it was seen as a facet of professionalism. Debates about the nature of ‘professionalism’ and core values re-emerged as topics of significant concern at the start of the twenty-first century at a time when the profession was under considerable scrutiny, following a series of medical controversies. The King’s Fund published a report on professionalism in 2004,⁶ followed by another from the Royal College of Physicians (RCP).⁷ This defined professionalism as ‘a set of values, behaviours and relationships that underpins the trust that the public has in doctors’ and so closely mirrored what doctors perceived as their ethical duties. It focused on partnership with patients and with other disciplines but also reiterated many of the same core virtues that the traditional codes had listed centuries earlier. Qualities doctors should strive for included integrity, compassion, altruism, continuous improvement, excellence and multi-disciplinary working.

The BMA’s Medical Ethics Committee (MEC) conducted its own discussions about professionalism and the core values of medicine. It recognised the need to preserve traditional values such as the service ethos and altruism which should be demonstrated by all doctors, regardless of whether they work in management, academic or public health roles, or caring for patients. It also highlighted the fundamental concept of professionals having special obligations as part of an implicit social contract whereby they corporately bind themselves to high standards of behaviour rather than focus on their own self-interest. In this sense, the concept of professionalism is closely allied to virtue ethics and traditional notions of ethical behaviour, corporate responsibility, ‘professional conscience’ and shared values such as compassion and non-discrimination. Crucial aspects are seen to be the notion of medicine serving and promoting the welfare and goals of society. In the MEC’s view, the primary focus of all professional groups should be a sense of special commitment rather than just working to a contract. For doctors, the essential attributes they need to exhibit include commitment to vulnerable groups, awareness of their own and others’ duty to provide competent care, compassion and active adherence to shared core values (see also the box below). This MEC discussion contained echoes of a previous BMA-wide debate about core values that had taken place in the 1990s when representatives of medical bodies debated how the core values of the profession were changing.⁸ Over 800 doctors from a range of grades and disciplines helped to define, and rank in order of importance, the values they saw as most relevant to the profession. At that stage, the core values most doctors saw as enduring and relevant medical principles, combining both skills and virtues, were: competence, caring/compassion, commitment, integrity, responsibility, confidentiality, spirit of enquiry and advocacy.

Core elements of medical professionalism

There are numerous definitions of professionalism but most include the same elements.

specialised knowledge

specialised training

self-regulation

altruism and a service ideology

a clear code of ethics

a sense of vocation

core values: integrity, caring, empathy, respect for others and trustworthiness

accountability

responsiveness to changing societal expectations

an explicit recognition of duties to patients and to the community

a discipline taught and evaluated.

In 2010, many doctors again expressed concerns about the impact on professionalism of the expansion into the UK of market models of healthcare delivery. Traditionally in the NHS, the impact of direct monetary interests on the provision of care had been muted. Although NHS doctors have always had an ethical obligation to consider the impact of clinical decisions on resources, their personal remuneration was largely unlinked to clinical decisions about patient care. Increasingly, however, the use of more commercially oriented tools, including incentives and the adoption by some providers of commissioning responsibilities has led to concerns about how potential conflicts of interest should be managed. More generally, concerns have been expressed that a broader cultural shift towards a more consumer-led model of healthcare could undermine the core values of medical professionalism. Outside the medical profession, commentators suggested that ‘the introduction of markets creates huge layers of bureaucracy and often brings a de-professionalising of the people who are at the heart of the service, teachers, doctors, nurses, social workers. [The] introduction of the market to services is … bringing about a shift in ethics.’⁹ The traditional public service ethos that had long underpinned the professions was perceived to be eroded by an increasing focus on financial rewards. Key challenges for the future include looking at ways in which values such as compassion, beneficence and a strong obligation to promote the interests of patients can still guide the therapeutic encounter in a more commercially oriented and consumer-led health environment.

Summary – what is medical ethics?

Medical ethics has evolved from sets of inflexible rules to an analytical exercise.

The facts and context of a dilemma are crucial.

Superficially similar dilemmas may have very different solutions, depending on context.

Concepts of professionalism draw on traditional principles of doctors’ codes.

The framework of good practice

The General Medical Council (GMC)

As well as reflecting traditional values and making reasoned judgements in specific cases, doctors must also work within the law and the rules of the GMC, which are binding on them. Failure to comply can result in a finding of serious professional misconduct with a range of sanctions including, ultimately, erasure from the medical register. It is essential that doctors familiarise themselves with GMC guidance which is also flagged up in the following chapters of this book.

GMC guidance on the duties of a doctor

‘Patients must be able to trust doctors with their lives and health. To justify that trust, you must show respect for human life and you must:

Make the care of your patient your first concern

Protect and promote the health of patients and the public

Provide a good standard of practice and care

keep your professional knowledge and skills up to date

recognise and work within the limits of your competence

work with colleagues in the ways that best serve patients’ interests.

Treat patients as individuals and respect their dignity

treat every patient politely and considerately

respect patients’ right to confidentiality

Work in partnership with patients

listen to patients and respond to their concerns and preferences

give patients the information they want or need in a way they can understand

respect patients’ rights to reach decisions with you about their treatment and care

support patients in caring for themselves to improve and maintain their health

Be honest and open and act with integrity

act without delay if you have good reason to believe that you or a colleague may be putting patients at risk

never discriminate unfairly against your patients or colleagues

never abuse your patients’ trust in you or the public trust in the profession

You are personally accountable for your professional practice and must always be prepared to justify your decisions and actions.’¹⁰

The relationship between ethics and law

Problems referred to the BMA frequently involve both law and ethics and much guidance for doctors has evolved through court judgments. Therefore, case examples illustrating the law are included in the book. The judgments in these cases often contain a large amount of critical analysis. Some ponder fundamental moral questions such as what it means to be ‘alive’ and when ‘human life’ begins or begins to count morally. Increasingly, the issues addressed by medical law have important philosophical, ethical, sociological, religious and political dimensions as well as legal ones. The relationship between ethics and law has been a reciprocal one: ‘law frames the setting within which ethical choices may be practically exercised, but ethics frames the limits within which law is voluntarily obeyed and respected as an expression of the values and aspirations of the society in which it applies’.¹¹ The two are, to a large extent, inseparable and it is difficult to disengage moral considerations from legal rules.

The medical profession is also often involved in debates about what the law is and whether it should be changed. In many past high profile medical cases, the role of the court was to issue a declaration about the lawfulness of a proposed action, taking into account the views of patients and doctors. In many instances, the courts issue guidance to doctors for future cases. In the chapters that follow, examples are given of the types of cases in which, if agreement cannot be reached between the parties involved or if the law is unclear, a court declaration may be required. Statute governs many contentious areas such as abortion, reproductive technology and the use of human tissue but much remains common (judge made) law. In these cases, judges note the precedents in previous cases and rules are extracted from those decisions. Recognising the difficulty for busy doctors of keeping up to date with changes in the law, this book draws attention to relevant legal provisions. Major developments following its publication will be included on the BMA’s website. Where relevant, differences in the law applicable in England and Wales, Scotland and Northern Ireland are highlighted in the text.

Medical ethics and human rights

Guidance for doctors generally reflects and merges several sets of values: the traditional duties from professional codes, the analysis supplied by theorists and the concepts of ‘rights’ that are incorporated in modern culture. Any discussion of ‘rights’ needs to distinguish between ‘moral’ rights and legally enforceable ones. Many of the rights we recognise are essentially moral claims which we intuitively consider appropriate in the context of the case (‘he had a right to know his child was ill’). Human rights, however, are more formal, legally enforceable and generally non-negotiable, although some legitimate interference with rights is permitted, as long as it is proportionate. In ethical analysis, the concept of a ‘right’ may be derived from statements of human rights or reflect them closely, even if couched in terms of a moral claim. Problems arise when the rights or moral claims of different individuals clash (A’s right to confidentiality conflicts with B’s right to know). Ethical analysis is a problem-solving tool that takes into account the context of the dilemma in order to balance out such conflicts of moral rights. Since they are set out in law (see below), human rights are not dependent upon context in the same way as moral rights. They are less flexible even though there is scope for interpretation in some contexts. Many aspects of the way in which concepts of human rights are reflected in law have implications for medicine.¹² The language of human rights and the underlying principle that all people have the same legal rights have affected medical ethics. The United Nations’ Universal Declaration of Human Rights of 1948¹³ ushered in an era in which ideas of personal autonomy and ‘rights’ came to be seen as central in many parts of the world, including Britain and Europe. The international and legal concepts about human dignity, self-determination, freedom from interference and welfare protection articulated in the UN Declaration were defined further in international covenants.¹⁴ These detailed two broad categories of human rights: ‘liberty’ rights (freedom from certain things) and ‘entitlement’ or ‘welfare’ rights (to receive certain benefits). Freedom from torture or unfair punishment is a typical example of the former. Rights to education and the highest attainable standard of physical and mental health exemplify the latter. Some (but not all) of these basic notions of human rights were enacted in European and domestic legislation. The UK passed the Human Rights Act 1998 which focuses more on being free from interference than the right to receive specific benefits.

The Human Rights Act 1998

The Human Rights Act 1998, which came fully into force in October 2000, incorporated into UK law the bulk of the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. This did not result in a major change in practice, however, since the requirements of the Act reflect pre-existing good practice. Doctors’ decisions based on existing ethical standards, such as respect for patient dignity and good communication, were likely to be compliant with the Act. Nevertheless, doctors need to be generally aware of it and act in conformity with this legislation. This is not always straightforward as some of the human rights that are particularly relevant to medicine (see list below) do not necessarily appear so. Also, some which seem central to healthcare require some interpretation. The right to life, for example, does not mean that life must be prolonged by medical technology at all costs and the right to found a family does not imply a universal right to fertility treatment. Legal cases about withdrawing life-prolonging treatment have been argued under the right to freedom from torture and degrading treatment. The right to respect for privacy and family life is applied to cases about confidentiality and information sharing. The BMA has issued specific guidance on the impact of the Human Rights Act on medical decision making and throughout the following chapters reference is made, where appropriate, to areas of practice that could be open to challenge under the Act. In brief, when making decisions, doctors must consider whether an individual’s human rights are affected and, if so, whether it is legitimate to interfere with those rights. Any interference with a right must be proportionate to the intended objective. This means that, even if there is a legitimate reason for interfering with a particular right, the desired outcome must be sufficient to justify the level of interference proposed. Where different rights come into conflict, doctors must be able to justify choosing one over the other in a particular case.

European Convention for the Protection of Human Rights and Fundamental Freedoms

The following articles are the most relevant to health professionals:

right to life (Article 2)

prohibition of torture, inhuman or degrading treatment or punishment (Article 3)

right to liberty and security (Article 5)

right to a fair trial (Article 6)

right to respect for private and family life (Article 8)

freedom of thought, conscience and religion (Article 9)

freedom of expression (Article 10)

right to marry and found a family (Article 12)

prohibition of discrimination (Article 14).

Summary – the framework of good practice

Doctors are bound by the GMC’s guidance and need to be aware of it.

Law and medical ethics are often very closely inter-related; some court judgments debate the ethical principles in detail and generally reflect current ethical guidance in medical cases.

There is also considerable overlap between medical ethics and human rights; doctors need to be generally aware of how their practice is affected by the Human Rights Act 1998.

The theoretical and philosophical background

Part of the fascination of medical ethics derives from the interplay of different perspectives and principles in the search for morally coherent solutions to ethical dilemmas. Practical problem solving involves verifying the facts as accurately as possible before weighing up the different values and interests to reach an acceptable balance. Although there may be various ways of doing this, practical approaches tend to come up with fairly similar solutions as, despite cultural nuances, ethical decisions in medicine draw upon the same pool of established values. For the practical decision maker as opposed to the theoretician, legal boundaries and societal mores also increasingly delimit the range of choices that can be made even before we begin to examine the ethical arguments. Indeed, in some situations, the legally viable options are so clearly stated that it seems pointless to look beyond them when the aim is to provide practical advice. The obligation to look beyond statute and legal precedents, however, springs from the need to ensure that ethical advice is morally consistent and justifiable in different contexts, regardless of whether or not the law has pronounced upon all the relevant scenarios. Practical ethical advice must also be consistent with society’s changing expectations, especially in areas where the law is open to interpretation.

For those who are interested in examining the theory underpinning the ethical discussion in the book, brief and simplified accounts of some of the main philosophies and methodologies used in medical ethics are given below.

Consequentialist ethics

Consequentalist arguments (such as utilitarianism) focus on consequences, with the basic aim of maximising welfare, or utility, or in some way achieving ‘the greatest good for the greatest number’. It is clearly important for doctors to take account of the consequences of their decisions and to provide the maximum net benefit for their patients. Leaving aside some of the inherent difficulties of deciding what is meant by ‘welfare’ or ‘happiness’ and how it should be measured, a major criticism of a solely consequentialist approach is that it can result in morally counterintuitive outcomes. In theory, some people can be sacrificed, if the outcome benefits a much greater number. So moral principles that intuitively seem essential, such as respect for other people, can be dispensed with when greater overall welfare would derive from ignoring those principles. Some variations of consequentialism, such as rule utilitarianism, attempt to overcome this problem by weighing the consequences of acting according to general moral rules.

Communitarian ethics

Communitarianism focuses on the fact that people have responsibilities as well as rights. It advocates policies based on consensus rather than compromise. It asserts that individuals need to concentrate not only on their own rights, but also their responsibilities to people close to them and to community. Communitarian arguments expect a concern for others to be taken into account when decisions are made. This approach comes to the fore when considering the health of communities rather than individuals. It is particularly relevant to public health ethics, genetics and any situation in which an important factor is the interrelatedness of individuals and of their interests. Theories based on notions of community, however, tend to have difficulties explaining why practices such as female genital mutilation or sexual abuse would be wrong if a particular community approves of them. They also raise concerns about conflict and discrimination within the group and questions about the extent to which individuals may and should be sacrificed for the good of the community.

Deontological ethics

Deontology focuses primarily on duties (‘deontology’ comes from the Greek for ‘duty’ or ‘what is due’). Such theories are based on principles, such as respect for other people. The philosopher Kant, the most significant exponent of this view, held that people should never be treated merely as means to an end but always as ends in themselves. He also said that people should act as if they were legislating for a kingdom of such individuals who are ends in themselves. Kant’s views influenced the development of medical ethics because they fitted well with modern concepts of respect for individuals and their autonomy. Nevertheless, Kant’s notion of autonomy is a highly demanding one in which people are only autonomous insofar as they act in the pursuit of their moral duty. Modern concepts of autonomy are broader than Kant’s and rights to autonomy now are not seen as restricted to self-determination only in the pursuit of one’s moral duty. Kantian notions of respect for individuals’ autonomy also take into account the autonomy of all other potentially affected people in the ‘kingdom of ends’. Many of the moral dilemmas that arise in medical practice are those in which doctors’ duties to different people conflict.

The ‘four principles approach’ to ethics

This is not a philosophical approach but rather a methodology for ensuring that all facets of a dilemma have been considered. Many ethicists adopt this method of problem solving¹⁵ or some modification of it. At its core are the principles of promoting benefit (beneficence) and avoiding or minimising harms (non-maleficence) which directly reflect Hippocratic values and traditional codes. Two more modern principles are respect for other people’s choices (respect for autonomy) and fairness (the principle of justice). Assessing the relevance of each of these principles to a particular situation provides a mechanism for analysing it. Many doctors see the four principles as providing a very familiar moral language regarding the duty to produce net medical benefit with minimum harm, respect patients’ choices and work in an unprejudiced way. Difficulties can arise because of the different ways that individual doctors interpret these duties or because the duties come into conflict. Also, although it may seem that only four factors need to be considered, the framework is more complex and can require consideration of other values, guidelines, codes and legislation. In very general terms, however, the principles approach prioritises respect for autonomy if the patient is informed, competent and not a risk to others. Beneficence comes more to the fore if the patient has impaired mental capacity. In both cases, there would generally be a strong resonance in the outcome between the BMA’s methodology (discussed on pages 13–17) and the four principles, even though the approaches are different. This is not unexpected since most moral approaches draw on a set of common values but may categorise them under different headings. Differences between the BMA’s methodology and the four principles approach, or indeed other practically viable approaches, may be largely semantic.

Narrative ethics

Another practical approach is to use narrative or storytelling in order to give the problem context and clarify the ethical crux of it. This has been described as ‘the oldest way of exploring and expounding ethical issues’ through myth, parable or biography.¹⁶ It approaches problems by looking at the patient’s situation as a whole rather than considering a particular facet in isolation. It can involve an overview of the patient’s life, values and experiences of illness. Different health professionals and family members may present the picture from different angles and considering the same dilemma from such various viewpoints provides a way of ensuring that all relevant perspectives and perceptions are considered.

Virtue ethics

Virtue ethics is derived from Aristotelian ethics and embeds ethics in people’s characters rather than in general principles. In medicine, it is concerned with the virtuous character traits of doctors rather than their actions. So doctors who are kind, caring, respectful of others, honest and compassionate comply with everything expected of a role model. Such traits clearly form an important part of what it means to be a good doctor and they are traits echoed in traditional codes and currently in the GMC’s Good Medical Practice.¹⁷ The benefit of virtue theories to those confronted by ethical dilemmas is that they question what a virtuous person would do in such circumstances. They also highlight what is expected of doctors by society and by their peers. Although theorists who concentrate on moral principles do not deny the importance of virtue and virtues, they argue that the very decision that a character trait is virtuous requires reference to some general moral principle or norm and that both principles and virtues are needed for moral life.

Why is it useful to have different approaches to ethical dilemmas?

While philosophical theories can appear remote from daily practice, in reality they underpin the decisions made in healthcare and some ethical frameworks seem particularly suited to certain areas of ethical debate. Despite the different approaches that individual doctors may adopt, their actions must be consistent with the law and with the expectations of the society in which they practise. In the UK, this means that greater emphasis is generally placed on autonomy relative to other values. Genetic knowledge, however, highlights the inter-connectedness of individuals who share the same DNA and can challenge notions of the primacy of personal choice and individual privacy. In this sphere, individuals’ decisions are particularly likely to impinge on others and that fact differentiates them somewhat from other spheres of medicine where personal choice is the main determinant. For dilemmas about the confidentiality of genetic information or notions of inter-generational justice, an approach reflecting communitarian values and mutual responsibilities rather than autonomy alone might be helpful and also reflect how many patients do take account of people close to them when deciding. Other approaches and methodologies might be suited to particular spheres of medical, psychiatric, psychological or nursing care.

Although we have highlighted a few of the main approaches above, a range of other problem-solving frameworks can be used, such as feminist ethics, casuistry, contextualism, intuitionism, pragmatism, relativism and liberalism as well as rights and duties-based methodologies. To practising doctors and medical students, this range of philosophical and methodological approaches can be a daunting prospect. Arguably, however, having a range of approaches available can aid debate in the context of teaching or be helpful in clarifying the nub of a problem in particular contexts. Even when the law apparently gives a clear direction, a solution for one patient’s case may not necessarily be applicable to another superficially similar case if the context and the patient’s views are different. Although general rules and precedents are illuminating, the particular circumstances of the case are often crucial. As is discussed in the hypothetical case at the end of the chapter, general understanding of different moral theories can help to show how and why ethical problems in medicine are often formulated and resolved in different, and sometimes competing, ways.

Summary – the theoretical and philosophical background

Different methods of analysing ethical dilemmas exist but the method used must also be consistent with the law and GMC guidance.

It can be useful to apply different methods to clarify the nub of a problem.

Despite their differences in approach most methods, when combined with awareness of the law and best practice guidance, produce similar conclusions.

The BMA’s approach

Bridging the gap between theory and practice

In its guidance, the BMA takes a reasoned eclectic approach, combining practicality with moral theory and law. Ethical problems are addressed with an awareness of widely accepted general principles, professional guidelines and previously settled legal cases. Principles and virtues, duties and consequences, community-orientated perspectives and individual or patient-orientated perspectives are considered. To provide a very practical approach, the BMA uses the concepts and case examples familiar to practising doctors.

While much emphasis is placed on the virtues and qualities expected of doctors, it needs to be acknowledged that many work in far from ideal environments where discussion of abstract values can seem divorced from the raw reality of trying to maintain partnerships with violent or difficult patients. All discussion of medical ethics centres attention on doctors’ duties rather than their rights or the practical limitations they face. Modern ethics focuses on the need for a well-balanced relationship between patients and doctors but rarely discusses if, and how, both sides of the relationship have obligations. Doctors must be truthful, respectful and willing to discuss various options but so ideally should their patients. (This is discussed in Chapter 1, page 38.) If there is a social contract which is at the centre of professional status, both sides have responsibilities and rights. Often, doctors’ freedom to define matters such as standards of care is curtailed and they may have little opportunity to input into structural reorganisations that significantly affect the way they interact with patients. Ethically, they are urged to put individual patient interests first while simultaneously ensuring that limited resources are well used, patients’ rights to access care and to exercise preferences are respected and futile measures avoided. Some of these expectations are in tension with each other. Part of the aim of this book is to help doctors find good answers to dilemmas, accompanied by an understanding of the pressures and limitations they often face in real life.

The way in which a dilemma is approached depends, in part, on the complexity of the question. Many decisions raise ethical issues but can nonetheless be easily and quickly resolved. This could be by reference to the general duties of a doctor, such as the duty of confidentiality, or by referral to relevant law or professional guidance, such as to determine who may give consent on behalf of a young child. In more complex cases, particularly where duties to different parties conflict, more detailed consideration is needed to ensure that the dilemma is given a thorough critical analysis and all relevant perspectives are considered. There are various ways of doing this. Over a number of years the BMA’s ethics department has developed its own methodology for helping doctors to analyse and resolve ethical questions. This approach involves up to six separate stages.

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1. Recognise the situation as one that raises an ethical issue or dilemma

Although it sounds self-evident, many difficulties arise because professionals fail to recognise that there is an ethical issue or a conflict of interest at play, or they understand the principles but do not see their relevance to a particular case. Responding to a relative’s enquiry about a patient’s health, without the patient’s consent, is a mundane example in which a breach of confidentiality can occur unintentionally. Doctors may not articulate the dilemma in the language of ethics, perceiving it as mainly a clinical problem, but complex issues of clinical judgement can also have ethical dimensions. The two categories of problems are not mutually exclusive but the complexity of the former may distract attention from the latter. Deciding whether to offer an expensive new treatment, for example, may require not only a clinical assessment of the patient, but also consideration of the opportunity costs for others when resources are limited. Ethical reflection is needed when the situation involves a conflict of interests, values, rights or civil liberties. If the general principles that would normally be relied upon for dealing with such issues are of no help or conflict with one another, an ethical dilemma arises. These are situations where there are good moral reasons to act in two or more different ways, each of which is also in some way morally flawed.

2. Break the dilemma down into its component parts

Many ethical enquiries to the BMA’s ethics department are complex and detailed. Although it is necessary to consider the dilemma in context, it is also important mentally to clear away the excess information to identify the key issues raised by the dilemma. When various different rights and interests compete, it may still be clear which should take precedence, especially if a particularly vulnerable person is involved. When child protection concerns arise, for example, parents’ preferences often take second place to the child’s interests.

3. Seek additional information, including the patient’s viewpoint

Having identified the key issues, the next stage is to analyse them. This needs clarity about the facts. If, for example, the issue is about the treatment or confidentiality of a child or young person, it is crucial to know whether that person is sufficiently mature to make a valid decision. If the child is competent, he or she should be involved. If the child is very young, it is important to know who has parental responsibility. In most cases, it is also essential to take the patient’s viewpoint into account rather than relying on one’s own assumptions. In the past, this was frequently overlooked. It was assumed, for example, that it was ethically acceptable to publish case studies, provided patients’ names were removed although patients and their families could still recognise the facts of the case. The option of obtaining patient consent to publication was often overlooked, even though interesting cases in professional journals are sometimes picked up and publicised by mainstream media.

4. Identify any relevant legal or professional guidance

In each case, part of identifying the relevant factors includes the law and guidance issued by the GMC. With some ethical dilemmas, this information provides a straightforward answer. Others are more complex and require a careful balancing of the competing interests. Depending upon the complexity of the issue, information may be needed from a range of sources, including relevant:

statute or case law about the subject

guidance from the GMC

guidance from professional bodies, such as the BMA or the Royal Colleges

advice issued by authorities in England, Scotland, Wales and Northern Ireland

guidance from organisations regulating the area of enquiry, such as the Human Fertilisation and Embryology Authority or the Human Tissue Authority

advice from the medical defence organisations.

5. Subject the dilemma to critical analysis

When considering difficult ethical decisions, doctors may need to involve other members of the healthcare team who may have a different perspective, particularly if they have more contact with the individual or family. The key issues and facts that have been identified are analysed to balance the competing interests. Decisions often have to be made quickly and in stressful circumstances. In such cases, doctors are not expected to be omniscient but to act reasonably on the facts and to be able to justify their decisions. Knowing where to find professional guidance when it is needed can be good preparation for difficult dilemmas. (It was with this in mind that the BMA has published on its website a range of brief ‘tool kits’, summarising the main points of law and GMC guidance on a range of issues.)

Duties owed to different parties often conflict. A common enquiry, for example, concerns requests from the police for full access to patients’ medical records. The duty of confidentiality has to be balanced against doctors’ duty to protect others from foreseeable harm. The factors that need to be taken into account in deciding how to proceed are the following.

Is it possible or desirable to obtain the patient’s consent?

Is the crime or threat sufficiently serious for the public interest to prevail?

Is someone at risk of death or serious harm?

Would a refusal to disclose seriously hinder the investigation?

Is the information available elsewhere without a breach of confidentiality?

Is any information on the medical record relevant to the crime?

Based on an assessment of these types of factors, the doctor needs to decide whether to accede to the request. In some cases disclosure to the police is justified; in others it is not. Sometimes the police will seek a court order if access is refused (see also Chapter 5, pages 196–197, where disclosure authorised by a court is discussed).

6. Be able to justify the decision with sound arguments

Sometimes it is helpful to discuss the dilemma, on an anonymous basis, with a colleague, the BMA or a defence body. Ultimately, however, the doctor who is responsible for the patient’s care must make the decision about how to proceed, be prepared to justify it and explain his or her reasoning. For example, doctors who decide to withdraw treatment that is prolonging life should be able to demonstrate, from both a clinical and an ethical perspective, on what basis the decision was reached. Any discussions that took place with the patient should be noted in the medical record. If the patient lacked capacity and left no valid advance decision, the doctor needs to be able to explain why continuing treatment was not in the patient’s best interests. Information should be recorded on the medical record about any guidance referred to or any advice sought. In some cases, it is not possible for the healthcare team and the patient to resolve the dilemma, either because there is an apparently irresolvable conflict or because the law is unclear. In such cases it may be necessary to seek a court declaration.

Summary – the BMA’s approach

In making decisions, there is a framework of factors that doctors need to take into account. These include the GMC’s guidance, the law and advice from professional bodies. They need to be able to identify and analyse the morally important aspects of any situation and arrive at a reasonable conclusion.

In providing guidance, the BMA considers and balances a range of philosophical approaches to address different situations. It takes account of duties and consequences, autonomy and the needs of the community, as well as reflecting the principles and virtues that make a good doctor. It provides information on the law and professional guidance.

A hypothetical case on refusal of life-prolonging treatment

Ms X, a 36-year-old mother of two, has a close-knit extended family. Paralysed from the neck down after a traffic accident, she is unable to breathe unaided. After extensive investigations, doctors tell her that she will remain ventilator-dependent for the rest of her life. Ms X has capacity, is articulate and able to interact with her family. Protracted discussions about her prognosis have taken place, involving the healthcare team, her family and, at her request, a priest. Now Ms X says she wants to have the ventilator disconnected, after she has said goodbye to her family, knowing that her death will result. The family is distressed by her decision, believing that she should continue with treatment at least until her children are old enough to understand. The family insists that treatment should continue contrary to her wishes but doctors explain that patients with capacity are legally entitled to make this decision and that treatment cannot be given without her consent. There is a clear legal answer but personal views in the healthcare team and the family are mixed about the ethical position.

Some doctors believe that they should focus on maximising the health and welfare of their patients, rather than following what they perceive to be the unwise and harmful wishes of an individual. A focus on the consequences of intervention may lead them to believe it morally wrong to comply with this patient’s wishes. They think her decision unacceptably harmful because it would result in her death. Taking this approach of focusing on the consequences, the doctors are relying on one form of utilitarian moral reasoning. Despite knowing that continuing the treatment is unlawful, they feel unable to withdraw it because that offends their own moral views. It would be misleading, however, to imply that a consequentialist approach would inevitably be morally opposed to withdrawing treatment. Some doctors may focus on the consequences of ignoring individuals’ wishes and argue, also on utilitarian grounds, that more satisfaction would be produced for more people by following individuals’ wishes.

Other doctors place more moral emphasis on the autonomy right of patients. They recognise the right of Ms X to plan her own life and decide what represents a ‘harm’ and ‘benefit’ for herself, even if others disagree. To do otherwise than comply with her informed decision would be an affront to their values. Respecting her reasons and her choice is part of respecting her. Doctors who see their primary duty as being to respect the patient’s views, despite the consequences for her, could be seen as taking a version of the deontological approach to ethics. They concentrate on their perceived duty rather than the consequences. Another doctor, however, might take the opposite view on deontological grounds. He might see that the primary duty of doctors is not to respect autonomy but to save human life.

Although personal autonomy and individual decision making generally take precedence in modern liberal democracies, this is not always the case. A more communitarian approach to ethics might focus less on the individual’s wishes and more on the needs of others close to her. More weight might then be given to the family’s views and the needs of her children, to whom she owes some duty. Ms X could be encouraged to consider her responsibility for the well-being of her family. She might be thought to have a moral obligation to continue treatment for their sake. The fact that individuals are perceived to have moral obligations, however, does not mean that they can be obliged to fulfil them.

Another important moral perspective focuses on the moral character of doctors, arguing that the virtues they exhibit in their professional lives are as important as their clinical competence. The ability to do what is ‘right’ (however defined) requires certain attitudes and personal skills. Decisions about how to break bad news to patients like Ms X, and explain the severity of the condition, are influenced by the degree to which doctors take seriously the rights of patients. Recognising that patients need such information, however, is not the same as having the courage and honesty to give it. Fear of distressing or burdening the patient might deter a doctor who wants to act virtuously. On the other hand, believing that Ms X needs accurate information might require another virtuous doctor to have the strength of character and compassion to tell her in a sensitive manner. Courage, prudence and compassion are examples of the virtues emphasised by those who argue that it is just as important to build moral character in medical students and young doctors as it is to teach them philosophical theories about the moral basis of good clinical practice.

The purpose of this hypothetical case is to illustrate that a particular philosophical approach may not lead inevitably to a particular outcome. By recognising the moral approach underpinning their views, however, doctors can be clearer about what their beliefs are and why. It may help them to articulate their reasons for advocating one course of moral action rather than another. Ultimately, however, doctors must be able to reconcile their own approach with both the expectations of society and the requirements of the law and their regulatory body.

References

1 Gillon R. (1985) Philosophical Medical Ethics, Wiley, Chichester, p.2.

2 Leake CD. (ed.) (1927) Percival’s Medical Ethics, Williams & Wilkins, Baltimore.

3 British Medical Association (2001) The Medical Profession and Human Rights: Handbook for a Changing Agenda, Zed Books, London, Chapter 9.

4 Kennedy I. (1981) The Unmasking of Medicine, George, Allen & Unwin, London.

5 Department of Health (2010) Equity and Excellence: Liberating the NHS, The Stationery Office, London.

6 The King’s Fund (2004) On being a doctor: redefining medical professionalism for better patient care, King’s Fund, London.

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