What is Health Care Law 'For'? Flashcards
N v ACCG - FACTS
2017 SC case which gives useful understanding of how the courts conceptualise the role of health care law.
23 y/o disabled man who lived in a residential home and required constant supervision in case he needed emergency drugs to be administered. His parents wanted greater involvement and disagreed with the CCG about MN’s best healthcare plan. CCG refused to fund the alternative treatment plan put forward by MN’s parents.
ISSUE = what is the role of the Court of Protection when a patient lacks capacity and there is disagreement between health professionals and P’s family about best treatment option?
N v ACCG - Judgment
SC held in favour of the CCG. Lady Hale, giving sole judgment, said that it is not the role of the courts to prescribe what treatment patients should receive or mandate particular outcomes. The courts cannot choose treatments which the CCG is not willing to fund - court can only consider the options which are on the table by the health provider.
Since the parents’ plan was not on the table (CCG were not willing to fund it), the SC could not order that that treatment be carried out. Lady Hale said the role of the courts under the MCA 2005 is to step into P’s shoes and consider the available treatments - no right for P to demand treatment not on the table, so this also applies where P lacks capacity
N v ACCG - Analysis
SC roles of courts and the law:
1) Demarcating/allocating the different responsibilities between the appropriate actors. Court’s role is not to determine which treatment options are viable - this is the role of the doctors. Patients are decision makers; doctors are gate-keepers.
2) Establishing limits but not dictating decisions - set out parameters and key standards, but leave decision-making to the experts. Managing a process of oversight.
3) Resource allocation - need to secure socially-valued service. Limited resources so best left to the NHS how to ration this - not making judgments itself about how resources should be spent.
4) Provide last resort for dispute resolution - where there is an impasse e.g. between family and doctors of health professional, courts can provide a means of resolving the dispute. Vindicate P’s rights where seriously violated.
Fetal Abnormality Terminations
This is one of the grounds for abortion under s.1(1)(d) of the Abortion Act 1967. If there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to make it severely handicapped.
Fetal Abnormality Terminations - ANALYSIS
AA delegates issue of best interests here to the doctors - courts are resistant to the idea that there needs to be a codification of legal process regarding when this ground of abortion can occur. No statutory guidance - only medical guidance.
Courts do not see it as their role to indicate how treatment should be carried out - not experts. Set basic limits by policing the law as it is - doctors can theoretically be liable if s 1(1)(d) AA 1967 does not apply. But they have left the rest to medical profession to determine - set basic standards but allow discretion and self-regulation by doctors.
Allocate power to the professionals - clinical freedom. Reinforce and integrate professional ethics. Accountability framework established by the courts, and then delegation of responsibilities to doctors to allow clinical freedom and good medical practice - HFEA.
Jose Miola
‘Medical Law and Medical Ethics - Complementary or Corrosive?’ - gives powerful critique of what he describes as the failure of medical law. Medical law has failed to properly regulate the medical profession and is too deferential to doctors.
The law has’abdicated its responsibility’ to regulate medicine because it mistakenly believes that doctors can effectively self-regulate. Medical ethics do not play an effective regulatory role - points to the guidance of the GMC which he claims is regularly inconsistent and indeterminate. So no clear standards against which doctors are judged and as such they are left unregulated.
Kennedy and Miola - Role of the Law
Kennedy and Miola taking the view that medical law has failed appear to suggest that the role of the law is to determine what the appropriate treatment is and then ensure that this is carried out. Kennedy’s ethical consumerism - role of the law is a tool to get doctors to do what we believe to be ethically right. E.g. what rights/treatments patients should have.
Problems with Kennedy and Miola view
1) Assumes that judges are better placed than doctors to take decisions about clinical practice. This should really be left to doctors who have expertise. Even taking Miola at his best where GMC guidance is vague and indeterminate, the assumption is that the law and judges can create a better framework. Disagree - do not have expertise about medical practice and cases like Montgomery show the problems of their interpretation of medical law.
2) Courts clearly do not see this as their view currently - N v ACCG and James v Aintree. Judges themselves recognise that the medical profession is a value-based community of professionals who can self-regulate and have better expertise so should determine appropriate treatments.
3) Rights-based approach problems - link.
Unique nature of health care law
Heath care law is a unique area of law that justifies different treatment from other areas of law, e.g. property law and EU law. Expressly disagree that health care law must show the essential characteristics of laws.
1) Resource allocation - need to take into account only limited treatments can be funded.
2) Medicine is not always an exact science - legitimate disagreements in the medical profession about best treatments. Best to leave this to doctors rather than judges interfering.
3) Judges lack medical expertise, which doctors possess.
James v Aintree
J lacked capacity and hospital sought declaration that it would be in his best interests to remove life-sustaining treatment. J’s family disagreed with this and contended it was not in his best interests.
Lady Hale observed that the role of the courts under the MCA is to step into P’s shoes where they lack capacity. Court held that a doctor cannot be forced to provide treatment that they do not think is clinically indicated for P. However, doctor also cannot lawfully provide treatment when P lacks capacity if it is not in P’s best interests.
Therefore, the SC could not order either of these things. Key issue = was it in P’s best interests for treatment to be removed? If so, court cannot force doctors to proceed with treatment.
Affirms principle that the courts will not mandate or force doctors to proceed with treatment that they do not think is clinically indicated - leave decisions about treatment for clinical judgement, even if claims about P’s rights are made. Deference to medical judgement.
