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(11) Ethics in medicine

BIOETHICS RESEARCH LIBRARY

JOURNAL OF MEDICAL ETHICS

EM101

Family medicine meets the House of Lords

Out of timber so crooked as that from which man is made nothing entirely straight can be built.

(Immanuel Kant)

Medical ethics deals, as we have seen, with some of the big issues of life, and death. It faces the extraordinary, both natural and man-made: conjoined twins, madness, assisted reproduction, cloning. Were you to base your understanding of medical ethics on the cases that hit the headlines you might think it a discipline concerned almost exclusively with the bizarre. Doctors need to make judgments involving ethical values in the day-to-day practice of medicine, even in something as mundane as the treatment of raised blood pressure. For example, at what pressure should the patient be offered treatment? A population perspective might suggest that treatment of quite mild hypertension would prevent many people from suffering a stroke. For an individual the small reduction in absolute risk of stroke may not be worth the side effects of treatment. What factors should influence the choice of anti-hypertensive? How many of the possible side effects should the doctor reveal? Is there a danger that by mentioning some of the possible side effects, such as lassitude, the patient will be more likely to suffer them? Should the doctor accept the free dinner, with educational talk, from the manufacturer of one of the principal anti-hypertensive drugs? Might this affect her prescribing decisions for the wrong reasons?

I want to look at two situations that most family doctors will have had to face. The ethical issues do not arise from any modern technology but from a problem only too familiar to health professionals: those families rarely enjoy the uncomplicated, easy, and unremittingly happy relationships that advertisements from the 1950s might lead you to expect. The sixteenth-century essayist, Montaigne, a man who could write as comfortably about male impotence as on the education of children, had 57 maxims carved on the wooden beams of his study. They included Terence’s bold statement, which should perhaps be engraved on the stethoscopes of doctors: ‘Nothing human is alien to me’. Difficult to achieve, of course, but a worthy aspiration for those whose jobs are aimed at helping people through difficult times. A tolerance of, perhaps even a fondness for, human frailty – Kant’s crooked timber of humanity – is an important virtue in a health professional.

The web of our life is of a mingled yarn, good and ill together; our virtues would be proud if our faults whipped them not, and our crimes would despair if they were not cherished by our virtues. (Shakespeare, All’s Well That Ends Well, Act IV. Iii. 68–71)

What should the family doctor do when faced with the following situation?

Case: Dementia

Mr C is a 70-year-old man with dementia and long-standing lung disease (chronic obstructive pulmonary disease). He is cared for at home by his 72-year-old wife. He has frequent chest infections for which he receives antibiotics and he requires oxygen at home because of his lung disease. His most recent chest infection has not responded well to antibiotic tablets and his general condition is deteriorating. He is not eating and is drinking little. It is possible that, with hospital treatment, including intravenous antibiotics and physiotherapy, he may recover from this infection, although he is bound to develop a similar infection again in the near future. Admission to hospital in the past has caused him distress because he does not cope well with changing environments. His wife, however, says that she thinks that he should go to hospital so he can be given maximum treatment.

Imagine that you are the doctor and you think that Mr C’s best interests would be served by his staying at home and being made comfortable. He is likely to die very soon at home; but he is likely to die within a few months whatever happens. Because of his dementia his life is much less rich than the life that he used to lead. A few months of extra life in his state is just not worthwhile, particularly given the distress that hospital admission will cause him.

You think it is best for him to remain at home; his wife wants him in hospital. Where do you go from there?

There are common variations on this situation.

Variation 1

Mr C’s wife agrees with you that the best thing to do would be for Mr C to remain at home, but their daughter, who lives close by, insists that he go into hospital to be given the best chance to recover from this episode of infection. Mrs C seems partly persuaded by her daughter, or perhaps a little bullied.

Variation 2

You, the doctor, think that if he goes into hospital he will recover and return to his usual level of health and that he may live for a year or so longer. You judge his life, although limited because of the dementia, to be nevertheless a happy one. This is partly because his wife looks after him so well. You think that it is in his best interests to go to hospital, but his wife says that she doesn’t want him moved from home. She wants to nurse him, even if he will soon die. Perhaps that is what he would have wanted. How should you think about the question of what is the right thing to do in these situations? In this book I have emphasized rational analysis. On such an approach a good starting place would be to identify some of the issues that might be important. For example, some of the issues that are raised by this case and its variations include the following.

1. Whether Mr C himself is able to form and express a view. This will depend principally on the degree of impairment from the dementia.

2. If Mr C is not now competent to form a view, is it possible to make some judgment about what he would have wanted in this situation?

3. What is in Mr C’s best interests? If Mr C is himself competent to decide then his view of his best interests should normally prevail, but if Mr C is not competent to decide for himself the doctor will have to come to a view on what are Mr C’s best interests. This may be a difficult issue. Is there a danger that the doctor will believe that because of the dementia Mr C’s current life is not worth living and therefore it is better for him to be kept comfortable at home? Or is the danger the reverse: that a doctor feels the imperative to treat the infection and to keep Mr C alive. How can any person who is healthy judge what it is like to suffer dementia?

4. Should Mrs C’s best interests be taken into account by the doctor or should he focus only on the patient’s best interests?

5. Does Mrs C have some kind of right to decide what should happen to Mr C because she is the next of kin?

6. In the case of a disagreement within the family (e.g. a disagreement between Mrs C and her daughter) should the doctor give more weight to the opinion of one person, e.g.

Mrs C, and if so under what circumstances and for what reasons?

Such a list of issues is only the beginning of the analysis. Questions will then arise as to how to balance different aspects; but it makes perfect sense to start with such an analysis.

An alternative to this analytic approach is that of negotiation. Many clinicians would start, not with analysis, but with discussion. Such clinicians might begin by asking Mrs C why she thought that Mr C should go into hospital. What is important for these clinicians is understanding the needs, wishes, and perspectives of all those involved, and working towards an agreed decision that avoids conflicts: not always possible, of course, but with skill and patience it is often successful. In other words, this approach involves negotiation between the key people. It is an approach that most of us are familiar with in our everyday lives. It is how many families might decide what to do on a Sunday afternoon.

The distinction between using analysis and using negotiation in order to come to a decision is not absolute. Both require a mixture of analysis and of discussion. But they are at different ends of a spectrum. Negotiation brings in a perspective on medical ethics that I have not discussed elsewhere in this book. Most of this book, if I can caricature my own position, sees medical ethics as a question of working out the right action to take through reasoning. The reasoning process can be complex and there is no single method for carrying it out. Different problems require different tools. But this view sees medical ethics as essentially an individualistic enterprise: it is for individuals to decide what they believe is the right thing to do. The negotiation approach sees medical ethics – and indeed ethics in general – as essentially a process of interactions between people.

The ways in which health professionals should engage with patients’ families are even more complicated when the patient is not yet fully adult. I want now to consider another situation familiar to family doctors: the case of the 15-year-old pregnant girl.

Case: 15-year-old pregnant girl

A 15-year-old girl comes shyly to her primary care doctor, with a school friend for support. She thinks she is pregnant. Tests reveal that she is: about ten weeks pregnant. She wants an abortion. She is adamant that she does not want her parents to know.

The family doctor should talk to her, of course, although there is an immediate issue of whether the friend should or should not be present. With support and kindness the pregnant girl may come to agree to include her parents in the discussion. Even then the doctor may face difficult ethical issues, for example, the fraught issue of abortion itself. Suppose the doctor has a profound moral objection to abortion, but works in a country where in these circumstances it is legal. If both the girl and her parents want her to be referred to a gynaecologist for an abortion what should the doctor do? Try and persuade the family to change its mind, in which case how persuasive should he be? Or is his moral duty to inform only of the issues and let the family decide? So, lurking behind this case are the complicated issues both of the morality of abortion, and of what doctors should do when faced with a conflict between professional duties and personal morality.

But neither of these issues is the one on which I want to focus. I want to look at the question of whether the doctor should ever refer the 15-year-old pregnant girl for an abortion without the parents’ knowledge. Does the girl have a right to confidentiality? Do the parents have a right to know?

Thucydides’ History of the Peloponnesian Wars, written in the 5th century bc is a treasure trove for those who love practical reasoning. The Athenian citizens expected carefully reasoned argument before waging war on their neighbors - how different from the sound-bite politics of modern democracies.

Each side is given time to put its case without interruption. We can still enjoy this measured oral tradition of ethical reasoning in the legal judgments of our more senior courts.

Parental rights and medical consent, with respect to children under 16 years, was at the heart of a key English legal judgment: the Gillick case.

The Gillick case

 The facts

 In England, in the early 1980s the government department responsible for the National Health Service (NHS) – the Department of Health and Social Security (DHSS) – issued written advice for doctors about family planning services. This advice included two statements.

(a) That a doctor would not be acting unlawfully if he prescribed contraceptives for a girl under 16 years old, provided that he was acting in good faith to protect her against the harmful effects of sexual intercourse.

(b) That a doctor should normally only give contraception to a girl under 16 with the consent of the parents and that he should try to persuade the girl to involve her parents. Nevertheless, in exceptional cases a doctor could prescribe contraceptives without consulting the parents or obtaining their consent if in the doctor’s clinical judgement it was desirable to prescribe contraceptives.

A private citizen, Mrs Victoria Gillick, sought assurance that none of her daughters would be given contraception without her knowledge and consent while they were under 16 years. The relevant NHS authority refused to give such assurance, saying that the issue was part of the clinical judgment for doctors. Mrs Gillick then brought legal action against the DHSS on the grounds that the advice to doctors was unlawful in allowing doctors to provide contraception to girls less than 16 years without parental consent.

The case was eventually heard in England’s highest court (equivalent to the US Supreme Court): the House of Lords. Five judges heard the case. There is no requirement that the judges agree. The final decision goes with the majority of judges. Each judge delivers his judgment, giving not only his decision but also the reasoning for it. Although the judges are answering the question of what is the correct legal position, and not the question: what is ethically right, the judgments are superb examples of ethical reasoning.

The judgments

 Lord Brandon

Lord Brandon came down on the side of Mrs Gillick. Indeed he went further. He concluded that to give contraception to a girl under 16 years, even with the knowledge and consent of the parent(s), was unlawful. His argument, in a nutshell, was as follows:

1. It is a legal fact (because of a statute in English law) that a man who has sexual intercourse with a girl under 16 years, even with the consent of the girl, commits a criminal act.

2. It is also a criminal act to encourage or facilitate a criminal act.

3. Giving a girl contraception or advice about contraception involves encouraging the girl to have sexual intercourse with a man. It amounts to encouraging a criminal act.

4. Some might argue that some girls will have intercourse whether or not they are given contraception, and in such a case the giving of contraception is not encouraging the girl to have intercourse. But this is mistaken for two reasons. First, the fact that the girl is seeking contraception shows that she is aware of, and potentially discouraged from intercourse by, the risk of unwanted pregnancy. Thus, Brandon argues, she and her partner are more likely to ‘indulge their desire’ if contraception is given. Second, if the law allows a girl under 16 years to get contraception if she convinces her parents and doctor that she will have (unlawful) intercourse anyway, then the girl can essentially blackmail or threaten her parents and doctor to get her own way. Brandon writes: ‘The only answer which the law should give to such a threat is, ‘‘Wait till you are 16’’ ’.

Lord Templeman

Lord Templeman also supported Gillick, although he took a different position from Lord Brandon. He did not consider it necessarily illegal for a girl less than 16 years to be given contraception if both the doctor and the parent(s) agree that this is in her best interests. He believed that there might be situations where a girl cannot be deterred from illegal sexual intercourse and that providing contraception for the purpose of avoiding an unwanted pregnancy was not encouraging or aiding the illegal act. But he did not believe that doctors should have the clinical discretion to provide contraception in this situation without the parents’ consent. He based this position on four arguments.

1. That a girl under 16 years is not competent to give consent to contraception. He wrote: ‘I doubt whether a girl under the age of 16 is capable of a balanced judgment to embark on . . . sexual intercourse.’ He gave legal reasons for this position. He argued that, since it is illegal for a man to have sexual intercourse with a girl under 16 years old even with that girl’s consent the law must consider such consent as invalid.

2. That the doctor can never be in a position to properly judge whether or not it is in the best interests of the girl to be given contraception without information from the parents.

3. One of the duties of parents is to protect their children from illegal intercourse through persuasion, the exercise of parental power, or through influencing the relevant man.

If the doctor gives contraception without informing the parents then he is interfering with the parents’ ability to carry out their duty.

4. That parents have rights to know by virtue of being parents.

. . . the parent who knows most about the girl and ought to have the most influence with the girl is entitled to exercise parental rights of control, supervision, guidance and advice in order that the girl may, if possible, avoid sexual intercourse until she is older. For a doctor to keep the girl’s confidence ‘would constitute an unlawful interference with the rights of the parent’ to make that decision and with ‘the right of the parent to influence the conduct of the girl by the exercise of parental power of control, guidance, and advice’.

‘There are many things which a girl under 16 needs to practice’, he writes, ‘but sex is not one of them’. I suppose he was thinking of piano practice.

Two judges in favour of Gillick. Three judges to go.

Lord Fraser

Lord Fraser disagreed with both the previous judges and with Gillick and came down in favour of the DHSS. He distinguishes three strands of argument.

1. Whether a girl under the age of 16 has the legal capacity to give valid consent to contraceptive advice and treatment.

2. Whether the giving of such advice and treatment to a girl under 16 without her parents’ consent infringes the parents’ rights.

3. Whether a doctor who gives such advice or treatment to a girl under 16 without her parents’ consent incurs criminal liability.

He considers these in order. On the question of legal capacity to give valid consent Lord Fraser considers various pieces of legislation and concludes that none gives legal grounds for necessarily considering someone under 16 as lacking capacity to consent to medical treatment, including contraceptive treatment. With regard to the argument made by Lord Templeman he draws the opposite conclusion. He argues that ‘a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape’ (although he still commits a lesser crime).

Lord Fraser argues that the legal basis for parental rights to control a child exists for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child. . . . the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognize these facts. Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance.

After considering various previous judgments Lord Fraser goes on to write: Once the rule of parents’ absolute authority over minor children is abandoned, the solution to the problem in this appeal can no longer be found by referring to rigid parental rights at any particular age. The solution depends on a judgment of what is best for the welfare of the particular child. Nobody doubts, certainly I do not doubt, that in the overwhelming majority of cases the best judges of a child’s welfare are his or her parents. Nor do I doubt that any important medical treatment of a child under 16 would normally only be carried out with the parents’ approval. But . . .

Mrs Gillick . . . has to justify the absolute right of veto in a parent. But there may be circumstances in which a doctor is a better judge of the medical advice and treatment which will conduce to a girl’s welfare than her parents. It is notorious that children of both sexes are often reluctant to confide in their parents about sexual matters . . . There may well be . . . cases where the doctor feels that . . . there is no realistic prospect of her [the girl under 16] abstaining from intercourse. If that is right it points strongly to the desirability of the doctor being entitled in some cases, in the girl’s best interest, to give her contraceptive advice and treatment if necessary without the consent or even the knowledge of her parents.

He dismisses the view held by Lord Brandon that a doctor would be committing a criminal offence under the Sexual Offences Act 1956 by aiding and abetting the commission of unlawful sexual intercourse in giving contraception, or contraceptive advice, to girls under 16.

It would depend on the doctor’s intentions; this appeal is concerned with doctors who honestly intend to act in the best interests of the girl, and I think it is unlikely that a doctor who gives contraceptive advice or treatment with that intention would commit an offence . . .

Lord Scarman

Lord Scarman considers the issue of the capacity of children under 16 years in more detail than Lord Fraser: I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. He concludes that the guidance from the DHSS can be followed without involving the doctor in any infringement of parental right. Scarman is in agreement with Fraser. Two all with one to go.

Lord Bridge

Lord Bridge raises an issue that is not covered directly in any of the other judgments. He is concerned with the role of legal judgment in cases where there are ethical and social issues, as in the case being examined. He writes: if a government department . . . promulgates . . . advice which is erroneous in law, then the court . . . has jurisdiction to correct the error of law . . . In cases where any proposition of law . . . is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to deciding whether the proposition of law is erroneous and avoid . . . expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority . . .

Having given this warning he takes issue with Lord Brandon and agrees with Lords Fraser and Scarman. The DHSS wins, Gillick loses: three Lords to two.

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