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The Worried Student's Guide to Medical Ethics and Law
Thriving, Not Just Surviving
By Deborah Bowman
BPP Learning MediaCopyright © 2012 BPP Learning Media Ltd.
All rights reserved.
Entering the Medical Moral Maze
Introduction: what is the subject of medical ethics?
Whatever the content of a curriculum, ethics education incorporates knowledge; cognitive skills such as reasoning, critique and logical analysis; and clinical skills whereby abstract ethical learning is integrated with other clinical learning and applied appropriately in practice. Indeed, unless students and clinicians are able to draw on learning in ethics to enhance daily practice and better serve their patients, ethics education has ultimately failed.
How is ethics learned and taught?
Medical schools are given considerable flexibility in how they ensure that students meet the prescribed learning outcomes described by the General Medical Council in Tomorrow's Doctors. Ethics is therefore, like other subjects, learned in diverse ways depending on the preferences of staff, the available resources, the educational philosophy of the course and practicalities. However, the most effective ethics learning is likely to occur when students experience a range of activities. Didactic, large group lectures are appropriate for sharing information efficiently, for example outlining the details of Mental Health legislation or the provisions for non-voluntary treatment in psychiatry. Small group tutorials or seminars enable students and tutors to discuss ideas in depth, to form and to challenge arguments and to explore intuitions. Clinical learning provides a window onto 'ethics in practice' as the neat, ordered and illusory clarity of textbooks yields to the uncertain, sometimes confusing and often memorable reality of daily practice. Individual mentoring allows students and their teachers the time to reflect on, discuss and explain the 'back story' to decisions, choices and practice. In short, if there is an opportunity to engage with the subject of medical ethics and law, seize it!
Ethical reasoning may sound terribly grand, but, in reality, it is nothing more than thinking through the available options (which, of course, depends on being sufficiently informed to know what options are available) and weighing the relative merits thereof in a logical and thorough manner. Whilst undergraduate education and training in ethics varies, one way of thinking about the process of learning in ethics is as shown below.
Why do students worry about ethics and law?
For most students, an ethical education will involve emotion, discomfort and perhaps irritation as personal responses are interrogated and constructively challenged with contrasting perspectives. All of us have our own values and opinions. A necessary part of learning in ethics and law is to become aware of the assumptions on which your personal values are based, to reflect on those values critically and to listen and respond to challenging or opposing beliefs. As Douglas Adams pointed out, assumptions are the things we don't know we're making. Over time, you will begin to realise that the 'intuitive' and apparently 'clear' response to an ethical dilemma is dependent on inherent assumptions and personal values that may never have made explicit before in education. As you progress, so you will become increasingly aware that there are varied ways of approaching disease. Likewise, the more you engage with the ethical dimensions of medicine, the more you will begin to see multiple perspectives on problems.
A frequently heard lament from medical students concerned about ethics is that there is 'no right answer'. Whilst it is the case that ethics often incorporates diverse analyses leading sometimes to a number of different conclusions, there are ways of approaching an ethical issue which are dependent on an accurate understanding of the relevant law, professional guidance and clear elucidation of the relevant moral questions. In other words, there is information that you need to know and ways of expressing your views that provide structure and rigour. Your personal views are important, but you also need to acknowledge other perspectives, be supported by reasoning and located in an accurate understanding of the current law and relevant professional guidance. In other words, there are answers and often the way in which you express that answer will be as important as the content of your response. Like mathematics, ethics is a subject where you are required to show your working!
In contrast to learning the basic and clinical science of medicine, ethics can sometimes appear to challenge the core of a person's belief system and therefore identity. As such, sometimes even gentle debate, questioning and challenge can feel, if not personal, certainly uncomfortable. This is neither unexpected nor is it unique to medicine. Few people like to be challenged or relish having the weaknesses in their arguments revealed. It is exposing and, if not done carefully, can result in feeling alienated and inhibited. The key point is that uncertainty, complexity and plurality of approach are signs of ethical competence not incompetence. With practice, confidence grows.
Teachers and students should be aware of the significance of emotion and its effects on a learner's willingness to participate in, and apply, even the 'best' education. Rather than being an 'irrational' or undesirable response, emotion is helpful because it indicates an important issue or significant problem. Your anxiety is linked to your commitment to becoming and being 'a good clinician'. And that is an achievement to be celebrated.
The vignettes below are obviously caricatures, but you may recognise some of the traits demonstrated by these students. Don't worry: this is not a 'what type of medical student are you?' exercise. These vignettes are included to emphasise that these responses to ethics and law are normal, valuable and can be managed by both students and teachers alike to demystify the world of ethics and law.
What does this book offer the worried student?
This book aims to be distinct from the many other titles competing for students' attention. Whilst the core curriculum in ethics and law is comprehensively covered, this title differs in that it reflects the preoccupations and concerns of the many students who have shared their experiences with me. Each chapter follows the same structure. First, the core concepts are discussed using illustrative activities and case studies to demonstrate reasoning and the application of key information to the clinical context. Secondly, there is a section dedicated to assessment of the topic in which sample Objective Structured Clinical Examination (OSCE) stations and written questions are provided. Finally, there is a discussion of how students might experience ethico-legal dilemmas prior to qualification. Whilst much of the information discussed in the pages of this book are based on conversations with students, care has been taken both to seek consent to use, and to anonymise, the material.
Ethical theories and frameworks
As the subject of ethics has evolved so too have theories and frameworks which are used to explain and structure moral analysis. Like any other part of your medical training, you are learning a subject where experts have theorised, debated and analysed problems. Theories and frameworks are simply approaches to ethical reasoning which can be useful and need not be feared. Crudely put, there are frameworks and tools that tend to focus on the application of ethical theory to clinical problems and they are mostly derived from ethical theories. The box below summarises the key ethical theories that a medical student may encounter.
How persuaded you are by a particular theory is an individual and personal response. You shouldn't be afraid to experiment with different approaches. Indeed, it is worthwhile understanding other ethical approaches, even in broad terms, as it will help you to see how others might approach the same ethical problem.
Methods for analysing an ethical problem or case
1. The four principles
Many students encounter 'the four principles' approach in medical ethics education. The framework was originally proposed by two American bioethicists, Tom Beauchamp and James Childress, and it has become a dominant approach in Western medical ethics. Ranaan Gillon, one of the earliest advocates for ethics education in the United Kingdom, has published a shorter and developed version of a principles-based approach to medical ethics which is preferred by some. The four principles being:
Autonomy — literally 'self-rule' ie people are able to make their own choices and to decide what happens to them in healthcare
Beneficence — to do good ie to act in a patient's best interests, as determined by the autonomous patient him or herself
Non-maleficence — to avoid harm (derived from a well-known Latin instruction to doctors: 'first do no harm' or 'primum non nocere')
Justice — to treat people equitably and fairly
The four principles represent 'mid-level' principles and are intended to enable structured analysis of diverse moral problems and specific situations. In any given situation, the four principles can be systematically considered to explore the ways in which individual choices and preferences can be informed, respected and protected; risks can be minimised and balanced against benefits (which are more than merely medical benefits); and fairness, equity and parity achieved.
Although the four principles approach is common, even dominant, in UK ethics teaching, it is not without its critics. The four principles approach has been criticised for its formulaic ubiquity in ethics education, leading one commentator to describe the approach as 'utterly fatuous'. There is undoubtedly a risk for those who come to rely too unquestioningly on the four principles as the default and sole method of analysing an ethical problem. There is neither any inherent moral magic in using the words 'beneficence' or 'nonmaleficence', nor does the framework guarantee a comprehensive or intelligent analysis and resolution of an ethical issue. Often, particularly in written answers, students will write the principles down without explanation or even reference to the specific question. The four principles are a useful starting point but they are not the only way to approach an ethical problem. Indeed, most clinicians encounter bioethical problems in their daily work and rarely invoke the language of the four principles explicitly. Ideas and opinions about risk, benefits, fairness and personal choices inform discussions on the wards, but such discussions are not usually billed as 'applying the four principles'. This book aims to mirror clinical work and to demonstrate how judicious use of the four principles can be helpful whilst reassuring readers that the four principles is but one of many ways of approaching ethical dilemmas both in examinations and real life. As such, the language of the four principles is used in an applied way but only where it is directly relevant to the scenarios presented and discussed.
2. Structured case analysis
When approaching a problem, a scenario or a case study the following process might help order your thinking:
Summarise the case or problem
State the moral dilemma(s)
State the assumptions being made or to be made
Analyse the case with reference to:
– Ethical principles/frameworks/theories
– Professional codes of practice or national guidelines
– To the law
Acknowledge other approaches and state the preferred approach with explanation
3. The ethics 'work up' (Bowman 2010, after Jonsen, Siegler and Winsade 2006)
The American bioethicists Jonsen, Siegler and Winslade identified four 'topics' that they argue are basic and intrinsic to every clinical encounter, namely:
Medical indications — all clinical encounters include a review of diagnosis and treatment options;
Patient preferences — all clinical encounters occur because a patient presents before the doctor with a complaint or problem. The patient's values are integral to the encounter;
Quality of life — the objective of all clinical encounters is to improve, or at least address, quality of life for the patient; and
Contextual features — all clinical encounters occur in a wider context beyond individual doctor and presenting patient, to include family, the law, hospital policy, national regulations, etc.
These four topics are present in, and pertinent to, every case or ethical problem. In the interest of consistency, the order in which each topic is considered should remain the same. However, no topic bears more weight than the others. Each should be evaluated as shown in the box below:
Consider each medical condition and its proposed treatment:
(i) Does it fulfil any of the goals of medicine?
(ii) With what likelihood?
How do I know?
(iii) If not, is the proposed treatment futile?
What does the patient want?
Does the patient have the capacity to decide? If not, can anyone advocate the patient?
Do the patient's wishes reflect a process that is:
Quality of Life:
Describe the patient's quality of life in the patient's terms and from the care providers' perspectives.
Circumstances that can either influence the decision or be influenced by the decision.
The four topics described above give you a map or visual overview of the case or problem ensuring that relevant perspectives are captured consciously and with structure. Having mapped the case or problem, a series of questions should be considered:
What is at issue?
Where is the conflict?
What is this a case of? Does it sound like other cases you may have encountered?
What do we know about other cases like this one? Is there clear legal or practice-based precedent? If so, it is a paradigm case ie one in which the facts are well-known and about which there is professional and/or public agreement concerning its resolution.
How is the present case similar to the paradigm case? How is it different? Is it similar (or different) in ethically significant ways?
There are three legal systems within the United Kingdom, namely the legal systems of i) England and Wales; ii) Scotland; and iii) Northern Ireland. Although in practice there is a great deal of similarity, it is important for students intending to move around the United Kingdom to remember that there are three distinct legal systems. This book focuses only English and Welsh law.
England and Wales operates a common law system which essentially means that law is made via judicial decisions in cases which establish precedents that are applied to future cases. Whether a judicial decision constitutes a precedent depends on which court made the decision with higher level courts having authority over the lower level courts. The diagram below is taken from Her Majesty's Court Service and shows the court hierarchy.
Within the legal system, there are two broad categories, namely criminal and civil law. Whilst the majority of cases involving healthcare take place in the civil system, occasionally medical cases become criminal eg when a patient dies in circumstances that may constitute manslaughter. The burden of proof differs in criminal and civil cases. A criminal case must be proved beyond reasonable doubt in order for there to be a conviction, whereas in a civil case eg a claim of negligence, the claim must be proved on the balance of probabilities.
In addition to case law, you will also encounter Statutes or Acts of Parliament that set out law in particular areas of clinical practice such as the Abortion, Mental Health and Mental Capacity Acts. Statutes can be amended by parliament (eg the Abortion Act 1967 has been amended by the Human Fertilisation and Embryology Act 1990) consolidated into subsequent legislation or repealed by another Act of Parliament. A statute is described as primary legislation and will often be supplemented by implementation guidance in the form of Codes of Practice eg the Mental Health Act Code of Practice or delegated legislation such as statutory instruments.
When you encounter legal references, you are likely to be bemused. It can take law students many years to become familiar with the myriad referencing systems for cases. For most medical students, it is sufficient to know that court proceedings are transcribed and will appear in a 'law report'. Those law reports may be published in a newspaper, online in a legal database and in bound volumes. Law reports are referenced in abbreviated form immediately after the names of the parties and the date of the report. There are many different abbreviations depending both on the nature of the case and where it is published but you do not need to worry about those.
Reading about ethics and law
The amount of reading you do about ethics and law will depend on the nature of your course and your own interest in the subject. Students have often said that they find the subject fascinating in the teaching room but when they go off to do their own research they encounter papers that are impenetrable or, even worse, dull. Whilst there is limited advice to be offered about dull papers (apart from perhaps avoidance), it may be useful to have a structure in mind when reading a paper. Soon, these steps will become automatic, but at the beginning it can be useful to work through a checklist similar to that shown in the box below.
Professional codes and guidance
As well as ethical theories and frameworks, and the law, you will also find standards and ethical guidance in codes of practice. Codes differ both in how much they are included in medical education and status. For example, the standards set out by the General Medical Council ('GMC') are the basis on which doctors are regulated. If a doctor falls below the expectations of the General Medical Council, he or she is vulnerable to disciplinary procedures irrespective of the harm caused or whether legal action ensues. Recently, the GMC has turned its attention to the standards expected of medical students. The publication Medical Students: Professional Values and Fitness to Practise is an important document and sets out how medical students are expected to behave and why. In contrast, the Hippocratic Oath, although well-known, is outdated and something of an ethical curiosity meaning it is rarely, if ever, sworn. The symbolic value of taking an oath of some kind remains and significant numbers of medical schools expect students to make a declaration or commitment to maintaining ethical standards, often at graduation.
Excerpted from The Worried Student's Guide to Medical Ethics and Law by Deborah Bowman. Copyright © 2012 BPP Learning Media Ltd.. Excerpted by permission of BPP Learning Media.
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Table of Contents
ContentsAbout the Publisher,
Free Companion Material,
About the Author,
Chapter 1 Entering the Medical Moral Maze,
Chapter 2 Morality Tales: Ethics and Medical Education,
Chapter 3 It's My Life: Capacity and Consent,
Chapter 4 Trust Me, I'm A Medical Student: Confidentiality,
Chapter 5 New Beginnings: Reproductive Ethics,
Chapter 6 Minor Morality: Children and Adolescents,
Chapter 7 A Meeting of Minds: Mental Health Ethics,
Chapter 8 I Blame My Parents: Genethics,
Chapter 9 Death, Distress and Decisions: End of Life,
Chapter 10 Rights and Wrongs: Human Rights and Global Ethics,
Chapter 11 Fallibility, Being Human and Making Mistakes,
Chapter 12 Publish or Perish: Research and Publication Ethics,
Chapter 13 It's Another World: Healthcare Policy, Resource Allocation and Ethics,
Chapter 14 Putting It Together: Concluding Thoughts,
Appendix A Literary Potpourri: Recommended Reading and Further Resources,