[2.1.1] Why is it important to identify legal issues that arise in clinical practice?

Doctors and medical students confront ethical and legal issues in clinical practice every day. Many of these never become the focus of attention because they are dealt with unconsciously, and because, for the most part, a doctor practising good medicine will be acting morally and within the law. But this cannot be assumed. Doctors cannot intuitively know how to respond in all clinical situations and may not be aware of relevant law, particularly in complex areas of practice and in areas where both the medical science and the regulatory environment are developing rapidly.

It is also increasingly expected that doctors should be able to explain and justify their decisions to their patients, other health professionals, the media, regulators and, in some situations, the courts. To do this, doctors need to be both clinically competent and ethically sensitive, and to have an understanding of the law.

While many situations that raise legal and ethical concerns can be quickly resolved by reference to the relevant law, in other, more complex cases, such as where duties to different parties conflict, more explicit and detailed examination is needed to ensure that all relevant perspectives are considered and all possible responses critiqued. This requires the doctor to:

[2.1.2] What is the relationship between ethics and law in medicine?

Every clinical issue, from the most complex to the simplest, ultimately has some relationship to ethics (moral philosophy) and law. Whether the clinician is responding to a patient’s request for withdrawal of treatment, considering what is in the best interests of a child, or deciding how much information to give a patient, there is an obligation to identify and reflect upon relevant law and moral norms. Medicine, law and ethics are inextricably intertwined, and each influences the others. As Bernard Dickens has noted in relation to the laws surrounding assisted reproduction, ‘law frames the setting within which law is voluntarily obeyed and respected as an expression of the values and aspirations of the society in which it applies’ (Dickens, 1997). It is important, therefore, for clinicians to recognise that medical law has not emerged from a vacuum and does not operate in isolation, and that cases that raise issues of legal significance invariably raise philosophical, political, cultural and sociological issues as well (Morgan, 2001).

The relationship between medical law and these other disciplines, or ways of thinking, is exceedingly complex. This is particularly the case with ethics, as ethics both forms the basis of law and is shaped or enriched by it. Ethics and law share many characteristics, such as a commitment to reasoning, discretionary decision-making, justification through logical argument and critical reflection; but they also differ in important ways, particularly in relation to punishment and legal sanction. In the end, at least in medicine, it is not possible to ignore the relationship between ethics and law, as ethics is ultimately concerned with ‘what ought or ought not to be done in the context of medical practice’ (Gillon, 1985), relies upon a critical process through which different (and sometimes conflicting) moral issues, concerns, interests and priorities are analysed, and is informed by a wide variety of perspectives and disciplines, including law, the social sciences, theology, feminism and moral philosophy, that are applied within particular cultural, political and legal contexts (Kennedy, 1981).

[2.1.3] How are cases used to illustrate law in medical interactions?

Doctors do not need to be experts in philosophy or law to successfully practise medicine. Nor is it necessary for them to give primacy to the law, or frame their decision-making or clinical management around the law. What is required is that doctors are able to see where a case raises legal issues, where legal guidance may be necessary, and that the law constitutes one of the contexts of accountability in which medicine is practised.

The hypothetical cases discussed in the next section give an indication of how legal questions emerge from both the simplest and the most complex clinical situations. A number of them are loosely based on published legal cases; others are archetypes in the sense that they are representative of many of the cases that trouble students and health professionals.

Remember that the details of the answers to many of the legal questions posed will depend on the jurisdiction in which the case occurs.

[2.2.1] What enquiries from a patient’s friends and relatives can be answered?

Melissa is a 31-year-old woman with cystic fibrosis who has been admitted to hospital for treatment of an infective exacerbation of her chronic lung disease. These occur two or three times each year, and have recently been more severe and harder to shake off.

Melissa is single, but has recently begun a relationship. She has a very loving and supportive family and a wide network of friends. Whenever she is admitted, the ward receives frequent phone calls from friends and family anxious to know how she is progressing and desperate for reassurance that she is not developing respiratory failure and is not at risk of dying.

[2.2.2] Can a patient with a mental illness refuse life-saving treatment?

Graeme Rogers, aged 47, has been living in shared community housing for people with mental illness for 28 years. His paranoid schizophrenia is generally controlled with antipsychotic medications, but on around 10 occasions he has required inpatient psychiatric care because of the risk of self-harm. He has attempted suicide three times. When his symptoms are well controlled he remains distrustful of doctors and of pharmacotherapy. He is estranged from his family, and is not in a relationship.

Late one evening Graeme is admitted to the Emergency Department with acute cholecystitis. He is advised by the on-call surgeon that he needs an immediate cholecystectomy but refuses to consent to surgery, saying that he would rather die than have an operation. He also seeks reassurance that he will not be operated on without his consent should he become unconscious.

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