Consequentialism and the Law in Medicine

This chapter discusses consequentialism. There are two broad schools of ethical theory: consequentialism and non-consequentialism. According to consequentialism, the right act is that act which has the best consequences. According to non-consequentialism, the rightness of an action is not solely determined by its consequences. The most famous version of non-consequentialism is deontology, which holds that an individual has an absolute duty to obey certain rules. Medical law exists at the intersection between consequentialism and deontology. Much of medical law is consequentialist in nature. However, having evolved from a set of Christian values and principles, it retains certain deontological characteristics. In particular, it retains a commitment in many jurisdictions to the Sanctity of Life Doctrine, though this is being shed or modified as assisted dying becomes legalized. The chapter finishes with a description of some examples of the influence of consequentialism over current medical law.

Feminism, Ethics of Care, and Medical Ethics

This chapter explores the nature of ethics of care, which has become a highly influential approach to ethical questions. It summarizes its intellectual history and provides a definition of the concept of care. It then sets out the main themes of the approach and considers some of the objections that have been raised to it. The chapter provides some examples of ways in which ethics of care could be used to resolve difficult issues that arise in medical law and ethics. It also explores other feminist approaches to bioethical issues and the significance of ethics of care for medical law.

The Emergence of Family Agreements in an Ageing World

In response to the ageing population, the need for adult children to care for their older parents is increasing. As reliance on adult children to provide care increases, family agreements are increasingly being entered into. Family agreements are, in essence, arrangements whereby an older parent transfers property to their adult child in exchange for a promise of ‘care for life’. This chapter identifies ways in which the law has responded to population ageing and outlines areas that require further attention. In particular, this chapter explores the emergence of family agreements to better understand whether (if at all) they adequately protect older people and their caregiving adult children from harmful outcomes.

Proportionality in Medical Law

The chapter surveys the use of proportionality reasoning in medical law, attempting to analyse the different requirements entailed by proportionality, and highlight some potential deficiencies of proportionality reasoning in the domain of medical law. The chapter suggests some jurisprudential, moral, and institutional questions raised by the application of proportionality. It focuses on a prominent use of proportionality in this field: the application of the proportionality test in human rights cases concerning assisted suicide and euthanasia. It concludes that although the use of proportionality in human rights cases is open to important challenges, other uses of proportionality in medical law and ethics are less problematic.

The Beginning and Ending of Life

This chapter identifies several respects in which medical law in England and Wales suffers from a lack of ethical coherence in relation to its protection of human life. It argues that it is philosophically incoherent for the law to calibrate its protection of human life according to arbitrary stages of human development such as birth, viability, the fourteenth day after fertilization, and implantation. To the extent that the law permits life-sustaining treatment to be withheld or withdrawn from incompetent patients on the ground that their ‘quality of life’ is insufficient, and even with an intent to hasten death, it again displays ethical incoherence. If legislators or judges were to make it lawful for physicians to intentionally assist suicidal refusals of treatment, or to endorse a right to physician-assisted suicide for the ‘terminally ill’, the law's ethical incoherence would be seriously aggravated.

Dignity in Medical Law

However suspicious or dismissive of the notion of dignity one is, the notion is unavoidable. Not only is it embodied in many national and international instruments, laws, declarations, and codes, it sometimes does legal and philosophical work that no other concept can do. There are classically two broad ways in which dignity has been understood: as an inalienable status, common to all humans, and in an aspirational sense. One cannot lose ‘status’ dignity, but not only can one fail to acquire ‘aspirational’ dignity, but one can lose it. It is argued here that these two ways of seeing dignity are really two sides of the same coin, and that dignity should be seen as humanization: as objective human thriving. Seen that way, dignity escapes its critics, and can take its place as the foundational principle in medical law and ethics, from which all other principles are ultimately derived.

Abortion, Feminism, and ‘Traditional’ Moral Philosophy

Feminist ethics approaches to abortion have a tendency to be critical of the methodology employed by mainstream philosophical treatments of the abortion problem. In particular, they impugn the latter’s reliance on abstract theorizing and general principles, advising that only a focus on the particular and concrete details of real-life ethical problems such as abortion can direct us towards the truth of the matter. This chapter attempts to defend so-called ‘traditional’ abortion ethics from such criticisms. More fully, it sets out to explain and vindicate the aim of mainstream abortion ethics to discern and apply more general moral principles to the particular case of abortion, as well as the centrality of foetal moral status to many of those accounts. It also works towards showing that mainstream and feminist ethical approaches are more aligned in both their methods and their claims than might first appear.

The Natural Law Foundations of Medical Law

This chapter seeks to identify the basic human goods that are the foundational principles of the natural law; a derived set of moral norms that emerge from consideration of the integral directiveness or prescriptivity of those foundational principles; and the implications of these norms for medical practice and medical law as regards four questions. First, how should medical practice and medical law be structured with respect to the intentional taking of human life by members of the medical profession? Second, who, in the clinical setting, has authority for medical decision making, and what standards should guide their decisions? Third, what standards should govern the distribution of health-care resources in society, and do those standards give reasons for thinking, from the natural law standpoint, that there is a ‘right to health care’? Fourth, what concern should be shown in medical practice and medical law for the rights of ‘physician conscience’?

Introduction

This introductory chapter argues that the advent of personalized medicine, precision medicine, and new consumer-focused services—such as personal genomics—is changing the nature of the traditional doctor–patient relationship. If trust was the ethical value guiding the traditional doctor–patient relationship, now other considerations such as market efficiency are aggregated to the considerations of the relationship between the patient and the health-care provider. Also, if medical law traditionally focused on the regulation of the doctor–patient relationship, nowadays medical law also encompasses the regulation of institutional relationships involving health-care providers of different sorts and at various levels. Some new services also pose challenges for medical lawyers and ethicists, because they are not being offered within the traditional clinical setting and thus sit outside the traditional governance frameworks established in medical settings. The chapter then provides an overview of the general theories on the philosophical foundations of medical law.

Priority Setting, Judicial Review, and Procedural Justice

The justification for the judicial review of priority-setting decisions in the NHS is premised upon a distinction between substantive policy decisions and matters of procedural fairness, with courts themselves perceiving their function as restricted primarily to assessments of procedure. This approach finds normative ground in the ‘procedural turn’ in the philosophical literature on justice in health, in particular in the influential idea of ‘Accountability for Reasonableness’. However, this chapter will argue that relying on the substance/procedure distinction to identify the appropriate role for the courts in the control of allocative decisions in health care will attract to judicial review a series of concerns raised in the philosophical literature with regard to the idea of securing just priority setting through procedural means.