The Tensions in Medical Law and Code of Ethics

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This essay will debate on series of discrepancies and tensions between what is ‘legal’ and what is “ethical” or “moral” in the context of medical law, which may be confusing for healthcare professionals and patients alike. Ethics in medical practice is way of thinking that guides action and helps to determines the right best course of action and guides as to what is ‘right’ and ‘wrong’. Ethics are often expressed as codes of conduct, rules that guide action, they do not always have the force of law. Professional medical bodies defines Ethical conduct the aim for best practice and patient care. In medical profession ethics is defined in three fundamental principles which are utilitarianism, Kantianism, principlism. On the utilitarian view one ought to maximize the overall good — that is, consider the good of others as well as one's own good. As Kantianism view -a person should not be treated solely as a means to an end and on principlism view one should have freedom to decide about his own medical treatment and medical professionals should act for the benefit of the patient. One might argue that as adults, we have the right to decide upon and ultimately reject potentially lifesaving treatment if we feel it isn’t in our best interest. This essay will turn to consider that sometimes what may be not ethical may be legal (i.e. abortion) and what may not be legal may be ethical in the eyes of some (i.e. assisted suicide of someone who is terminally ill intractable pain and close to death). To decide who has the ultimate right upon what constitutes the ‘best interest’ of the patient in Medical law this essay aims to consider the ethical and legal issues surrounding the case of Noel Conway,67, A retired lecturer who is paralysed from the neck down by progressive motor neurone disease (MND) said that he wants a doctor to help end his life by prescribing a lethal dose when he is ready to die without the fear of prosecution.

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Noel Conway requested an emergency appeal for permission before the Supreme court to let terminally ill man choose when he dies with dignity, his lawyers argued that the 1961 Suicide Act, which criminalises anyone assisting a death, is incompatible with his human rights. The campaign group Dignity in Dying argues that the current law is not compatible with the Human Rights Act 1998, which confirms that individuals should have respect for a private and family life. Noel Conway’s lawyer requested in appeal before highest court of UK to let terminally ill man with full mental capacity and consent decide for his best interest. David Pannick lawyer of Noel argued that “This is a question of whether it’s a breach of his human rights to impose a blanket ban on assisting death”. Mr Conway contends that because of the need to respect freedom and dignity, the government must show compelling justification for preventing someone with full mental capacity from receiving assistance to end their life. Paul Lamb, 58, from Leeds and Tony Nicklinson (Late) 58, also had (NMD) disease which Led to Tony Nicklinson stop eating food and died after he lost his High Court case to allow doctors to end his life. Lord Pannick (Conway lawyer) argued that someone with full mental capacity had a settled view, made an informed decision and was expected to live for less than six months should be allowed to receive assistance to die. The concept of a terminally ill patient at any time if suffers from a progressive disease and the person’s death in consequence of that disease can reasonably be expected within 6 months already exists in section 82(4) of the 2012 Welfare Reform Act. The UK’s highest court turned down the request of Noel Conway stating that any change to the law would have to be for parliament although it would be within the Supreme Court’s powers to make a declaration that UK law was incompatible with Conway’s rights under the European convention on human rights. One can argue that if bill of assisting death is passed in parliament it will give power to medical professionals to decide patient’s life.

The assisted dying bill was rejected in parliament many times. Bingham, J (2014) argued that if assisted suicide is legalised the vulnerable disabled elderly people will be treated as if their lives are “worth” less than those of everyone else. Baroness Grey Thompson a group of peers and charity campaigners argued that it will bring a new move to relax Britain’s euthanasia laws putting frail Britons under pressure to end their lives. Bingham, J(2014) suggested that killing of someone or assisting someone to die is criminal offence and such an offence is liable to imprisonment for a term not exceeding 14 years[(Suicide Act 1961 2(1c)]. The notion of ‘best interest’ assumes that the law has the final say. However, the consenting and capacity to get the choice of treatment or refusing to have it is different in medical law. The first question therefore has to be, when is a person under the age of majority entitled to make such serious decisions about their healthcare. The Family Law Reform Act of 1969(section 8) argues that the consent to medical treatment of a child of 16 is as valid as that of an adult (section 8). The act has no application for the refusal of treatment. An example exists for those children under 16 (Gillick v West Norfolk and Wisbech AHA [1986] AC 112). This states that a minor has to be judged to be “Gillick competent” before they can consent to treatment. It suggests that they must have sufficient intelligence and understanding to enable him/her to understand the treatment and implications of that treatment. It can also be suggested from “Gillick v west Norfolk” case that age of majority doesn’t seems important when it comes to consenting to treatment. However refusal of treatment is different than accepting. Panting, G(2007) argued that Adult competent patients are entitled to reject treatment option. If the doctor does not accept his decision he/she may face disciplinary action by the General Medical Council, plus possible civil and criminal proceedings in battery. However “refusal of treatment” can be under the 1999 Mental Health Act Code of Practice overridden by the parents or the proper authorities.

Coggon J (2016) argues on the similar line suggesting that medical professionals should apply where possible the patients’ own values, where patients lack capacity, decide in accordance with reasonable inferences on what the patient would consider her best interests to be. The difficulties come with patients whose values cannot be ascertained, be that because of an emergency situation, because of the patient never having had or demonstrated applicable values, or because of an internal conflict of personal values. But for patients who once had, and now lack, relevant capacity, this problem does not arise. As such, it might be argued that the onus is on the decision-maker to establish that the patient’s values should be set aside if that is her view. However, the Court of Protection has developed a problematic situation wherein the rights of people who lack capacity have been weakened. One can argue on that the Mental Health Act creates inconsistencies between law and good clinical practices. However, there are cases where the law and health authorities need to take a wider view and realise that sometimes the lack capacity patients, especially one who has been through great suffering their whole life, is competent enough to make serious decisions. The ultimate right to decide what constitutes best interest should still rest with the courts but there needs to be a slight rethink into how this is applied. Less weight should be given to medical evidence and more considerations should be given into how the proposed treatment may impact on the long term quality of life and welfare of the patient.

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