Law and Morality Flashcards
Orthodox view
Medical/health care law should be closely connected to ethics. Ian Kennedy is a key proponent of this view, which JM has dubbed ‘ethical consumerism’. The idea behind the traditional view is that the fundamental role of HC law is to get doctors to do the right thing. Need to consider what morality requires in terms of outcomes, and then the law is utilised as a tool to achieve these outcomes.
Subset of HR - thus focuses on the patient and discretion in this area should not be entirely left to clinicians.
Criticisms of orthodox view
Connection between legal rules and their moral foundations is often tenuous. Indeed, in some cases the law may be viewed as actively running contrary to the ethical views of the majority.
E.g. R v HFEA, ex p Blood - disconnect between the consensus of the general public that B should not be allowed to use her dying husband’s sperm for IVF without his consent, and the position of the law which claimed that B could due to her rights under EU law.
Also, need to think about the nature of the common law and role of the judiciary. It is clear that the judges do not think they are dealing with matters of morality, even if sometimes that may not be proven to be the case. They are generally, at least, formulating and applying legal rules.
Jonathan Montgomery
‘Law and the Demoralisation of Medicine’ - criticises the orthodox approach that the role of the law is to get doctors to do what we believe to be morally correct.
1) Orthodox view depends on accepting a technocratic understanding of medicine as an applied science, rather than a value-based professional community. JM argues that doctors exercise clinical judgement on the basis of professional ethics - they are under powerfully duties and there is self-regulation.
2) Whilst ‘ethical consumerism’ might fit a marketised healthcare system e.g. the USA, it does not apply to the UK’s unique socialised healthcare system under the NHS. There is a single provider in the UK as well as a publically funded service, which differentiates the UK from other single payer systems such as Canada. Since there is just one provider in the UK which has extreme financial pressures, health care law needs to account for this in how its rules are applied.
JM says that the shift away from medical ethics in favour of an amoral commitment to consumer choice distorts the priorities of the NHS.
3) Tension of orthodox view with the traditional approach that the law has taken - judges see themselves as integrating and reinforcing professional ethics, rather than mandating particular treatments in order to achieve ethical outcomes. See e.g. recent SC cases of James v Aintree and N v ACCG.
4) Wealthy claimants e.g. Blood can effectively play the system at the expense of the allocation of resources for everyone else. Rights-based approach places too great an emphasis on the individual in the UK’s unique socialised healthcare system and comes at the expense of redistributive justice.
JM - Judicial Approaches to HC Law
Generally two types of approaches judges have used for health care law:
1) Sought to construct a legal framework in which doctors operate.
2) More sophisticated approach of non-interventionism in order to ensure doctors are free to practice good medical ethics.
Courts have aligned more closely with the second strand of judging in practice - courts generally see themselves as reinforcing and integrating professional ethics under the law. E.g. Bolam test.
However, he notes that some judges such as Munby J have taken a more rule-based and legalistic approach to health care law - lengthy legal analyses of precedent in order to reach conclusions, rather than allowing doctors to practice good medical ethics.
Arguments against a rights-based system
1) Sets up the doctor-patient relationship as confrontational, rather than being a relationship of joint efforts.
2) Nature and scope of rights/duties can be difficult to define, which may lead to unintended and far-reaching consequences. E.g. Montgomery v Lanarkshire Health Board.
3) Rights-based system does not fit the UK’s unique socialised healthcare system under the NHS.
4) Rights-based system may lead to doctors practising defensive medicine. E.g. extremely high rates of caesarean sections in the USA due to doctors’ fear of being sued - may not necessarily be in P’s best interests.
