MEDICAL LAW AND ETHICS REVISION GUIDE - 79% FIRST CLASS
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Course
Medical Law and Ethics
Institution
The University Of Kent (UKC)
FULL SET OF REVISION NOTES FROM FINAL YEAR (LAW LLB) AT UNIVERSITY OF KENT
79% FIRST CLASS ACHIEVED IN EXAM
Includes:
- ethical theory
- resource allocation
- medical negligence
- consent and incapacity (children and adults)
- confidentiality and privacy
- clinical research
Schools of Ethical Thought:
Consequentialism (e.g. Utiliarianism)
Deontology (e.g. Kantianism)
Common Morality Based Principalism (e.g. Beauchamp and Childress’s ‘Four Principles’)
Feminist Ethics (e.g. the Ethics of Care)
Consequentialism (Utilitarianism)
• The action which we are morally obliged to do is that which produces (overall, in the
long-run) the most good. Nothing but consequences matter.
• Which consequences count? For Utilitarianism, the consequences which matter are the
pleasure or pain that result from our actions.
• ‘Principle of Utility’: acts are right to the extent that they tend to promote utility
(pleasure or happiness), thus one should always act to promote the greatest happiness
of the greatest number (the Greatest Happiness Principle)
Advantages:
• Simple and intuitively compelling: should provide a clear answer to every case
• Democratic: no one’s preferences/values count for any more than anyone else’s.
BUT:
• Extraordinarily morally demanding.
• The utilitarian calculation is difficult.
• Utilitarianism claims that we should always act so as to maximise the amount of utility in
the world, but it doesn’t say anything about the distribution of that utility.
Deontology (Kantianism)
• Focuses on the action, rather than looking at consequences. Concerned with rules, or
principles, that ought to govern our actions.
• Intentions matter.
o I am only acting morally when I do my duty and to do my duty I must
intend to do my duty. It is also because in many cases an act will only
breach a particular rule if it was carried out with a certain aim or
intention in mind.
o Doing the same thing without that intention would not be breaking the
rule.
• Deontological theories are thus backward looking – they are concerned with what was
done and why it was done, not with what the outcome was.
• Kantianism is a branch of (absolutist) deontology.
Advantages:
• Responds to some of the problems identified with consequentialism and captures
the intuition that why we choose to do particular things matters.
,BUT:
• How do we decide on the right rules and what grounds these rules?
• Rigidly following the rules sometimes seems to result in our doing what appears to
be the wrong thing (e.g. Kant and the axe murderer).
• All deontological theories give us more than one rule that we ought to follow.
Because of this there will be times when one rule tells us to act in a certain way, and
a different rule tells us that we must not act in that way.
Common Morality Based Principlism
• Respect for autonomy: e.g. helping the patient to come to her/his own decisions
(providing important information), obtaining informed consent to any procedures or
treatment and respecting and following the patient’s decisions.
• Non-maleficence (non-malfeasance): avoiding harm.
• Beneficence: doing what is best for the patient. This principle is often taken to turn on
what an objective assessment by a competent health professional (who has all the
relevant information) would decide is in the patient’s best interests.
• Justice: a respect for rights and a concern for fairness. This is particularly important in
determining the distribution of resources (medical treatments, time, money, donor
organs etc.).
Ethics of Care
• Developed by feminist theorists.
• Emphasises relationships between persons, the particularity or individuality of these
relationships, care and emotional investment.
• Often contrasted to an ethic of justice which emphasises, in one way or another,
impartiality, abstract principles, duty (law) and ‘logical’ calculus.
Advantages:
• Offers a more optimistic (also more accurate?) view of the nature of human
relationships - not assuming hostile, arms lengths engagements to be the norm.
BUT:
• Sometimes relationships are arms length and conflictual – can this model offer the
same protection to the interests of each party?
Re A (Children) (conjoined twins: surgical separation) (2000) 57 BMLR 1 (Fam)
Johnson:
• Separation, like the withholding of food and hydration, would be an omission not a
positive action. The proposed operation (and cause of Mary’s death) would amount
to the interruption or withdrawal of the supply of blood which Mary receives from
Jodie.
• Separation was in Mary’s best interests: her life was not simply worth nothing but
would become hurtful. To prolong it would thus be to her disadvantage.
, • Therefore, the court could authorise separation surgery along the lines set out in
Bland: withdrawal of treatment is lawful where such withdrawal is in the patient’s
best interests (see Airedale NHS Trust v Bland [1993] 1 All ER 821).
RESOURCE ALLOCATION
ETHICAL BASIS FOR RESOURCE ALLOCATION DECISIONS
What kinds of decisions are involved?
PUBLIC/PRIVATE HEALTH SECTORS
NHS is increasingly becoming privatised – started in 80s and accelerated since HSCA
2012
Removing purchaser/provider split
HSCA 2012 – enabled foundation trusts to earn 49% of income from private sources
Increasing pressure on hospitals and healthcare services
o A&Es overcrowded, lack of beds, long waiting times, queues of ambulances
stacked up outside unable to hand over their patients
Drugs are paid for in UK
o Canada – have to pay for prescription as this is not covered by any healthcare
o Some are not funded e.g. expensive drugs for cystic fibrosis and cancer
Now being funded (£100,000 a year) by Scotland, but England, Wales
and N.I are not
Distributive justice issue
What is more important life or budgets?
o In UK – pay for dispenser, NOT the drug itself
AVASTIN (DRUG)
A bowel cancer drug costing £20,800 per patient.
A clinical trial shows that Avastin extends survival on average from 19.9 months to 21.3
months (i.e. by six weeks).
o On this basis, NICE recommended not funding Avastin for bowel cancer.
NOT a cost effective drug
Cancer sufferer, Eugene Saxton argues, however, that you ‘shouldn’t put a value on
people’s lives’ and that people’s lives are ‘more important than a budget’.
And any average figure will cover a spectrum of success, including some who will live for
considerably longer than six weeks …
Barbara Moss was diagnosed with bowel cancer in 2006, had regular treatment and paid
herself to supplement that with Avastin
o She was alive four years later, and attributes her remission to Avastin
Cancer drugs particularly expensive
, CYSTIC FIBROSIS DRUG – ORKAMBI
High cost drugs are not just cancer drugs
Cystic fibrosis – 40% of all patients will benefit from this drug
o Extends life considerably but cost is very high
Not just high in UK
Orkambi drug costs 2 x more in US (£200,000), Canada (£150,000)
10,500 people with cystic fibrosis in UK
controlling cost?
o Rising 7% a year – cost of drug
o Not getting increase of 7% in budget
o NICE must ensure that there is value for money in drugs we use
Too expensive for the value
Parents of children with CF want to set aside Vertex pattern of drug making and allow a
cheaper version to be made
o Company refused to accept any cost reductions
o No discounts when buying in bulk
Vertex didn’t pay for early research for drug – came from donations from federally
funded institutions of health, parents with kids suffering from C.F, charities
All of us have a genetic disposition and these drugs are expensive due to them being
genetically targeted
Principles which may guide decision-making:
On the basis of:
Contribution/Insurance (Nozick)
Equality
o How do we get a fair distribution of sources?
o Every person gets x % of GDP for health?
o Equality of access?
o What about if one person is more sick than someone else?
o What does it tell us about people that have lifestyles which encourage poor
health?
o Is everyone entitled to a poor standard of care?
Need
o Construct hierarchy of needs?
Life-saving has a greater priority than life enhancing – coma patient
would keep having life prolonged but normal functioning person
would be denied a knee replacement?
Do we privilege hip surgery over cosmetic surgery? What about if the
cosmetic surgery is for a burn victim?
The ‘Veil of Ignorance’ (Rawls)
o Plan healthcare not knowing what each of us may need from it
o Should not put in charge those people who are ill to design the healthcare
system e.g. prioritizing cancer treatment due to family history
Maximising Welfare:
o Utilitarian approach - quality adjusted life years (QALYs) attempt to quantify
costs/health gains which can be expected from different treatments in terms of
both quantity and quality of extra life that a particular treatment might generate
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