THE PRACTICAL GUIDE TO MEDICAL ETHICS AND LAW

Second Edition

THE PRACTICAL GUIDE TO MEDICAL ETHICS AND LAW

Second Edition

Chlo-Maryse Baxter BSc(Hons) MB ChB (Manchester) MHPE (Maastricht) Mark G Brennan BA(Hons) (Surrey) MA (London) AKC DHMSA ILTM FRIPH Yvette G M Coldicott BSc(Hons) MB ChB (Bristol) Maaike Mller BSc(Hons) MB ChB (Bristol)

 2005 PASTEST LTD Egerton Court Parkgate Estate Knutsford Cheshire WA16 8DX Telephone: 01565 752000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the copyright owner. First published 2002 Reprinted 2003 Second edition 2005 ISBN: 1 904627 31 5 A catalogue record for this book is available from the British Library. The information contained within this book was obtained by the author from reliable sources. However, while every effort has been made to ensure its accuracy, no responsibility for loss, damage or injury occasioned to any person acting or refraining from action as a result of information contained herein can be accepted by the publishers or author. PasTest Revision Books and Intensive Courses PasTest has been established in the eld of postgraduate medical education since 1972, providing revision books and intensive study courses for doctors preparing for their professional examinations. Books and courses are available for the following specialties: MRCGP, MRCP Parts 1 and 2, MRCPCH Parts 1 and 2, MRCPsych, MRCS, MRCOG Parts 1 and 2, DRCOG, DCH, FRCA, PLAB Parts 1 and 2. For further details contact: PasTest, Freepost, Knutsford, Cheshire WA16 7BR Tel: 01565 752000 Fax: 01565 650264 www.pastest.co.uk enquiries@pastest.co.uk Typeset by Type Study, Scarborough, North Yorkshire Printed and bound by MPG Books, Bodmin, Cornwall

CONTENTS
About the authors Principal contributors Contributors Foreword Abbreviations Chapter 1 Introduction So why study medical ethics and law? How to study ethics and law How to revise and pass the exams Taking medical ethics and law further Picking a course How to teach medical ethics and law Teaching ethics and law in practice Some frequently asked questions about teaching medical ethics Designing an ethics course The basics of medical ethics and law Philosophical Legal The cases How to use this chapter 1 The DVLA and the epileptic patient 2 Withdrawal of ventilation 3 The incompetent adult and advance directives 4 The 15-year-old with diabetes 5 The 15-year-old Jehovahs witness 6 The negligent surgeon 7 The sick colleague 8 Death of a child 9 Organ donation vii ix x xi xiii 1 4 7 9 19 21 23 25 27 28 31 33 37 51 53 58 66 79 87 94 99 104 114 120 v

Chapter 2

Chapter 3

Chapter 4

Chapter 5

CONTENTS

Condentiality and duty of care The young mother The anorexic patient The suicidal patient Abortion Sexual abuse of minors Bone marrow transplant and fertility treatment Scarce resources Relationships with patients Performing intimate examinations Professional courtesy and foul play Is there such a thing as a free lunch? Publication ethics, data protection and freedom of information 23 Medicine in the developing world elective ethics? 24 Medical practice in the post-Shipman era 25 Medicine in the age of the Human Rights Act Chapter 6 Ethics and law in practice Practical ethics and law around the world Ethics and law in emergency medicine Ethics and law in general practice Ethics and law in occupational health Ethics and law in psychiatry Ethics and law in general medicine Ethics and law in sports medicine Ethics and law in paediatrics Ethics and law in intensive care Ethics and law in surgery Ethics and law in anaesthetics

10 11 12 13 14 15 16 17 18 19 20 21 22

127 132 140 151 158 167 172 181 188 192 205 209 214 219 227 231 237 239 239 244 251 253 254 262 264 274 284 294 297 299 301 305

Appendix Useful online resources Case index Subject index

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ABOUT THE AUTHORS

Dr Chlo-Maryse Baxter BSc(Hons) MB ChB with European Studies (Manchester) MHPE (Maastricht) Chlo Baxter graduated from Manchester Medical School in 2001, MB ChB with European Studies, having also obtained an intercalated BSc in Health Care Ethics and Law. She was a pre-registration house ofcer in Edinburgh before heading to Sydney, Australia, to continue her clinical training in paediatrics. During this time, she studied for the Masters degree in Health Professions Education at Maastricht University in the Netherlands and completed this in 2003. Mark G Brennan BA(Hons) (Surrey) MA (London) AKC DHMSA ILTM FRIPH Mark Brennan obtained his MA in Medical Ethics and Law at Kings College London in 1991. He is currently head of division and senior lecturer in clinical education in the Kent Institute of Medicine and Health Sciences at the University of Kent. He was formerly a lecturer in medical and dental education and Education Tutor for Wales at Cardiff University, a visiting senior lecturer in medical ethics at the Royal College of Surgeons in Ireland and at Trinity College Dublin, and a lecturer in medical ethics and honorary research fellow at Bristol Universitys Centre for Ethics in Medicine. He has been the education adviser to the Medical Defence Union in the UK since 1996, with whom he has established a programme of ethics workshops for qualied doctors. Dr Yvette G M Colidcott BSc(Hons) MB ChB (Bristol) Yvette Coldicott graduated from Bristol University in 2002, where she also obtained an intercalated BSc in Bioethics. She was a pre-registration house ofcer at Bristol Royal Inrmary and is now a senior house ofcer in Medicine. She plans to continue her clinical career in anaesthetics. Dr Maaike Mller BSc(Hons) MB ChB (Bristol) Maaike Mller graduated from Bristol University in 2004 and was a pre-registration house ofcer in Cheltenham at the time of writing. She

vii

ABOUT THE AUTHORS

did an intercalated BSc in Bioethics and has retained an interest in the subject ever since. Her other particular interest is international medicine and she intends to work in the developing world in the future. She is currently a senior house ofcer in Homerton Hospital, London. Acknowledgements We dedicate this book to our families and friends; those who taught each of us about medical ethics and law in practice, and those whom we now teach; our patients and colleagues in healthcare and to our team of international contributors, with thanks for all their support, encouragement and inspiration.

PRINCIPAL CONTRIBUTORS
Deborah Bowman BA MA Deborah Bowman is Senior Lecturer in Medical Ethics and Law at St Georges Hospital Medical School, where she is also Personal and Professional Development Theme Lead on the Graduate Entry Programme in Medicine. She is a member of the Unrelated Live Transplant Regulatory Authority. Dr Richard Huxtable LLB(Hons) (Nottingham) MA (Shefeld) PhD (Bristol) Richard Huxtable is Lecturer in Medical Law and Ethics at the Centre for Ethics in Medicine at Bristol University. He teaches health professionals and students of Medicine and Law, and directs the intercalated BSc in Bioethics and MSc in Health Care Ethics. Professor Bill Shannon MD FRCGP MICGP Bill Shannon is Head of Department of General Practice and Family Medicine at the Royal College of Surgeons in Ireland Medical School in Dublin, RCSI Academic Lead at Penang Medical College in Malaysia, and Tutor and Co-ordinator of the Family Practice Residency Programme in Bahrain. He teaches medical ethics and law at both undergraduate and postgraduate levels.

ix

CONTRIBUTORS:
Dr Shrilla Banerjee, London, England Dr Jamiu Busari, Curaao, Netherlands Antilles Dr Kosta Calligeros, Edinburgh, Scotland Mr Michael Carmont, Oswestry, England Dr Stephen Child, Auckland, New Zealand Dr Alejandro Cragno, Buenos Aires, Argentina Prof Michel Gillet, Lausanne, Switzerland Dr Nermin Halkic, Lausanne, Switzerland Dr David Joseph, Sydney, Australia Prof Mitchell Levy, Providence (RI), USA Dr Vassilis Lykomitros, Athens, Greece Dr Dhruv Mankad, Nasik, India Prof Marcellina Mian, Toronto, Canada Dr Peter Mills, London, England Dr Elizabeth Morris, Edinburgh, Scotland Dr Emma Nelson, Dublin, Ireland Mr Jonathan Osborn, Chicago (IL), USA Dr Christina Panteli, Thessaloniki, Greece Dr Sophie Park, London, England Prof Graham Ramsay, Maastricht, The Netherlands Prof Peter Rosen, San Diego (CA), USA Dr Guy Routh, Cheltenham, England Dr Francesca Rubulotta, Providence (RI), USA Dr Joan Saary, Toronto, Canada Dr Adrian Sutton, Manchester, England Dr Andy Swain, Palmerston North, New Zealand Dr Bob Taylor, Belfast, Northern Ireland Dr Antony Toft, Edinburgh, Scotland Dr Hamish Wallace, Edinburgh, Scotland Associate Prof Merrilyn Walton, Sydney, Australia Prof Valerie Wass, Manchester, England

PERMISSIONS:
PasTest would like to thank the following for allowing material to be used in this book: British Medical Association General Medical Council

FOREWORD
Professor Jill Gordon MB BS (University of Sydney), BA (University of Newcastle), MPsychMed (University of New South Wales), PhD (University of Newcastle), FRACGP Director, Centre for Medical Humanities, University of Sydney In 1908, John Dewey and James Tufts wrote, the (moral) theorist . . . must take his departure from the problems which men actually meet in their own conduct. He may dene and rene these; he may divide and systematise; he may abstract the problems from their concrete contexts in individual lives . . . but if he gets away from them, he is talking about something his own brain has invented, not about moral realities. Its a great pleasure to see that this second edition of The Practical Guide to Medical Ethics and Law has retained this central characteristic of dealing with the real problems that confront us. You wont nd all of these ethical dilemmas on the front page of the newspaper or in the television news, but they affect more lives than most of the exotic issues in the headlines. Rather than portraying doctors as white knights or black demons, they capture the complexities of life as a medical student or junior doctor. The problem inherent in any dilemma can be found in the denition of the word itself. A di-lemma is concerned with two valid but opposed propositions. Because neither proposition can be totally invalidated, a dilemma can never be fully resolved. The problem of competing rights, such as the rights of the pregnant woman and of her unborn baby, is a classic example. Day-to-day practice is full of simple but important dilemmas whether or not to provide a patient with certain information, to recommend a test or to use a particular treatment. Even in the course of making ordinary clinical decisions, thoughtful doctors know that they might have made another, different choice. We cannot know where that other decision would have led us and our patients, and we cannot be certain of having done the greatest good and the least possible harm in every case, no matter how hard we try. Lawyers operate with the benet of the retrospectoscope, but doctors cope with the untidiness of the here and now.

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FOREWORD

Doctors can be tempted to seek a greater sense of certainty. They can: (a) fail to notice that an ethical dilemmas exists, (b) treat each dilemma as if it were simply a debate to be won or lost, or (c) behave as though ethical dilemmas can be resolved by technical means that given enough science, the right answer will eventually reveal itself. The real-life examples in this book illustrate why it is that these responses are unsatisfactory. Doctors who fail to notice the presence of ethical dilemmas also fail to grow, both personally and professionally. Doctors who think dilemmas can be won or lost like debates deny the subtlety and complexity of their human experience. The reductionists take the most frightening path of all, by failing to understand that value-free science has led to some of the worst ethical abuses in human history. By contrast, the contributors to this book show that they know just how uncertain and messy medicine can be. Medical students and junior doctors who wonder if they are the only people who have not yet found the One Right Answer can rest assured that dilemmas are just that unresolved questions that nevertheless demand action and practical responses. Paradoxically, the experiences described in this book do not lead to a position of ethical nihilism. They demonstrate, among other things, the importance of virtue as a guide to action. William Osler was drawn to the conclusion that, the greatest therapeutic gifts are kindness, human understanding, sympathy and common sense (which) in a continually changing scientic world . . . remain permanently desirable attributes. Congratulations to Chlo Baxter, Mark Brennan, Yvette Coldicott and Maaike Mller for gathering these stories together in this new edition. They have donated their wisdom, expertise and experience, both medical and ethical, to create a therapeutic gift for their readership.

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ABBREVIATIONS
A&E AIDS ATN AVR BAL BMA BMI BSc CMO COPE CT DNAR DVLA ECHR ECT EU FBC GCS GMC GP HFEA HIV ICU IUD IVF MCQ MHAC MHRT MMR NHS NICE ODP OSCE PIGD PLAB PSA QALY accident and emergency department acquired immune deciency syndrome acute tubular necrosis aortic valve replacement broncho-alveolar lavage British Medical Association body mass index Bachelor of Science comfort measures only Committee On Publication Ethics computed tomography do not attempt resuscitation Driver and Vehicle Licensing Authority European Court of Human Rights electro-convulsive therapy European Union full blood count Glasgow Coma Scale General Medical Council general practitioner Human Fertilisation and Embryology Authority human immunodeciency virus intensive care unit intra-uterine device in vitro fertilisation multiple choice question Mental Health Act Commission mental health review tribunal measles, mumps and rubella National Health Service National Institute for Clinical Excellence operating department practitioner Objective Structured Clinical Examination pre-implantation genetic diagnosis Professional and Linguistic Assessment Board (test) prostate-specic antigen quality-adjusted life-year xiii

ABBREVIATIONS

SHO SpR SSC SSM UKRC ULTRA UTI

senior house ofcer specialist registrar student selected component special study module United Kingdom Resuscitation Council Unrelated Live Transplant Regulatory Authority urinary tract infection

xiv

Chapter One

INTRODUCTION

INTRODUCTION

Welcome to The Practical Guide to Medical Ethics and Law! Although the book is primarily intended for doctors and medical students, it will also be of interest to other health professionals, to teachers of medical ethics and law, and other medical teachers and medical scientists, to those studying bioscience and other disciplines, and to those who have an interest in the subject. While preparing this second edition of the book we have responded to feedback from readers, as well as from our colleagues and students. A considerable amount of new material has been added. The rst edition was aimed at medical students and junior doctors. However, it has become clear that our readership is broader than we had rst envisaged and includes more senior doctors too, as well as teachers of ethics and law and others. We have therefore included a new chapter on how to teach medical ethics and law. By their very nature, ethics and law are dynamic subjects and changing all the time. We have sought to include recent legislation and other developments, updating the original text where appropriate and adding new cases which illustrate some of the current advances in medicine as well as the concomitant ethical and legal challenges. The writing team has been expanded and now comprises four authors and three principal contributors, representing practising clinicians, medical ethicists and qualied lawyers. We are all involved in teaching the theory and practice of medical ethics and law. The main body of the book is made up of case studies. Studying clinical cases is the most efcient way to learn anything in medicine, and ethics and law is no exception. The cases in Chapter 5 have been worked out for you, giving a clear structure for approaching ethical and legal problems. All of these cases are based on real-life situations either known to the authors or described to us by friends and colleagues. Mostly, they are a composite of incidents and events involving a range of patients, doctors and medical students in both hospital and primary care settings. Details of both patients and doctors have been altered to ensure anonymity and protect condentiality where appropriate. You can use these cases in a variety of ways:

p p

You can work through them on your own, in stages. You can work through them with others in a group. This is the most efcient way of covering the issues because you can discuss and debate various points of view together. Working in a group is obviously good practice for working life as a doctor, because it requires you to tolerate and accept the existence of alternative views, 3

THE PRACTICAL GUIDE TO MEDICAL ETHICS AND LAW SECOND EDITION

p p

and yet justify and defend your arguments to yourself and others. It is also good practice for exams. You can read through them as a revision exercise. Key revision points are indicated so that you can easily spot them, and at the end of each case there is a summary. Teachers may choose to use the cases as triggers for a discussion.

The cases in Chapter 6 come from doctors all over the world. They are real-life examples of ethico-legal dilemmas in clinical practice, which illustrate that even the most experienced clinicians can nd such dilemmas difcult to deal with. Again, patient details have been altered to maintain condentiality.

SO WHY STUDY MEDICAL ETHICS AND LAW?

A young vet from Bristol once said: Your patients wont care how much you know, but they will know how much you care. He was talking about caring for animals but he might just as well have been talking about people. Part of caring for people as a doctor is behaving in a way which is both ethically and legally acceptable. You could be the most knowledgeable doctor in the world, or the most technically competent in a given clinical area, but without an ethical base to your medical practice, how good a doctor will you really be? It wasnt all that long ago that the sum total of teaching for the average British medical graduate consisted of a one-hour lecture by the dean in which the students were exhorted:

p p p

not to advertise their services not to get drunk on duty not to seduce their married patients.

These were popularly known as the three As (Advertising, Alcohol and Adultery). There was little, if any, opportunity for students to engage in formal discussion of ethical problems in medicine. Rather, it was assumed that the new medical graduate would be able to cope, surrounded as he or she was by what Professor Len Doyal has described as well-disposed physicians. Of course these discussions still occurred informally, on or off the ward, in the bar, in the mess and in the library, but often without any authoritative teaching to assist the students or young doctors in dealing with their inevitable concerns.

INTRODUCTION

We rmly believe that most people who choose to study and practise medicine do so with the best of intentions and motivations. They want to be and be recognised by others as good doctors. We asked a group of junior doctors how they dened the qualities of a good doctor. They dened these as being:

p p p p p p p p p p

a good communicator clinically competent and aware of their own limitations an improver of other peoples health and facilitator of access to healthcare a teacher of patients, families, other doctors and medical students, other health professionals and themselves too as a lifelong learner good listener and able to explain clearly empathetic and sympathetic patient and tolerant; non-discriminatory genuine and kind non-judgemental fair and trustworthy.

The list is not comprehensive or exclusive, nor does it mean that you will display all of these qualities on any one given day. Contrary to the unreasonable expectations of some, doctors and medical students are human beings too, and so they are fallible, imperfect, and likely to underperform or even fail on occasions. Sometimes the pressures of working in medicine and in the health service can affect ones ability to be as good a doctor as one would want to be or should be. Patients can be amazingly forgiving and tolerant when doctors make mistakes, if that doctor displays some humility, says sorry when appropriate, appears caring and keeps the patient informed of what is happening. However, the above list is aspirational. It shows that, despite all the pressures and the all-too-frequent criticism of the medical profession, the majority of doctors regard what they do as more than just a job, and now and then recognise what a huge privilege it is to be part of one of the most respected professions. Most doctors are conscientious individuals who reect on the way they practise, occasionally to the point of obsession they are concerned about getting it right. Ethics (like the practice of medicine) is rarely about black and white, it is about learning to discern the shades of grey, dealing with uncertainty and nding the best possible course of action under the circumstances. We hope that this book will help you to think through possible courses of action or inaction in relation to the cases we have presented, the majority

THE PRACTICAL GUIDE TO MEDICAL ETHICS AND LAW SECOND EDITION

of which are drawn from personal experience and real life. This book is intended to help doctors and students preparing for college and medical school examinations, as well as helping those preparing for the ethical components of the General Medical Councils (GMCs) PLAB test; students may nd it useful for coursework. We hope it will also help to reduce some of the anxiety when you are faced with an ethical dilemma at 3 am. Although the book is aimed primarily at readers based in the UK, we hope that the range of cases presented from around the world will make it useful to a wider audience. However, we should point out that, throughout the text, references will be made to the UK legal systems, the GMC and the National Health Service (NHS). Readers in other jurisdictions will need to clarify the prevailing law and ethical guidelines pertaining to their location. We thank the readers of the rst edition for their continued support and welcome any comments which could help us further improve the content of this book for future editions.