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LAW AND ETHICS IN MEDICAL PRACTICE - AN OVERVIEW
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LAW AND ETHICS IN MEDICAL PRACTICE - AN OVERVIEW
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LAW AND ETHICS IN MEDICAL PRACTICE:AN OVERVIEW
Dr. HAU Kong-lung, Consultant Forensic Pathologist (Kowloon)
Forensic Pathology Service, Department of Health
Introduction Obviously, this was to protect the public from quackery.
Fees for the doctors were paid by the State. If
It is now a firmly established belief that legal and ethical unsatisfactory results followed a course of treatment that
considerations are integral to medical practice in the had departed from the orthodox, the doctor responsible
planning for the care of the patient. With the advances in would be liable to punishment, which could be very harsh.
medical sciences and growing sophistication of the legal Similar legal restrictions on medical practice were also
framework in modern society as well as increasing found in other early civilizations such as Babylon and
awareness of human rights and changing moral principles India.3
of the community at large, doctors and other healthcare
workers alike are now frequently caught in difficult Throughout the history of mankind, medical legislation
dilemmas in many aspects arising from daily practice. has continuously evolved to regulate the practice of
Examples are plenty such as the duty to respect informed medicine. The fundamental objective is to safeguard the
consent, truth-telling, breach of confidentiality, disclosure standards of the medical profession and to protect the
of medical errors, rationing of scarce health resources, public against unskilled vendors of medicine who would
biomedical research, organ donation, etc. Besides, there be as injurious to the community as other criminals. The
is also growing anxiety both within the medical profession Justinian Code of the Byzantine Empire in 529 AD is
and in the community regarding increasing trends of probably the earliest law code found to contain clauses
complaints and lawsuits against doctors. From the bitter to require educational standard and proof of competence
experience of many doctors who were engaged in of doctors by examinations. It also restricted the number
complaint or lawsuits in the past, many of them had of doctors in each town and penalties were imposed for
resulted from failing of their doctor-patient communication malpractice. By 12th century, there were well established
skill or inadequate ability to comprehend and resolve medical legislations in Italy, namely the edict of Roger II
dilemmas in clinical settings. of Sicily in 1140 and Frederick II in 1224, to prescribe
organized medical teaching, set courses, examinations
Medical ethics has developed into a well based discipline and qualifications.3
which acts as a "bridge" between theoretical bioethics
and the bedside.1 The goal is "to improve the quality of In Hong Kong, laws on public health and medical practice,
patient care by identifying, analysing, and attempting to essentially an adoption of the English Acts, had been
resolve the ethical problems that arise in practice".2 In introduced from the early days. In 1884, the first Medical
addition to our moral obligations, doctors are also bound Registration Ordinance was enacted to regulate the
by laws and official regulations which form the legal practice of medicine in the territory. Nowadays, the Hong
framework regulating medical practice. It is now a Kong Medical Council is established and empowered by
universal consensus that legal and ethical considerations law to perform the following major functions: (a)
are inherent and inseparable parts of good medical assessment of qualifications and maintenance of Register
practice across the whole spectrum. The disciplines of of Medical Practitioners, and registration is the only valid
law and ethics in medical practice overlap in many areas licence to practise medicine; (b) formulating guidelines
and yet each has its unique parameters and distinct focus. on the ethical and professional standards; (c) investigation
of complaints of professional misconduct; (d) supervision
of medical education and training; and (e) assessment of
Legal and Ethical Regulations of Medical fitness to practise where a doctor's health is of concern.4
Practice in History
In addition to legal regulation, there were also codes of
In ancient Egypt, practice of medicine was subject to legal medical ethics to guide the doctors for proper conduct.
restrictions. The right to practise was restricted to The earliest code of medical ethics is the "Hippocratic
members of a certain class, and all doctors had to learn Oath" originated in Greece in the 5th century BC, which
and follow the percepts laid down by their predecessors. evolved to regulate the standard of conduct and care by
3
, MEDICAL SECTION August 2003
the medical profession at that time.3 Indeed, the spirit of of changing circumstances and belief. Nevertheless, over
this 25-century old Oath was restated in the Declaration the years, there are certain fundamental principles that
of Geneva by the World Medical Association in 1948. The have won a general acceptance as guideposts in the
Declaration is the basis of the modern version of the moral analysis of ethical dilemmas in medicine. The
International Code of Medical Ethics, which was first fundamental principles that apply generally to medicine
formulated by the World Medical Association in 1949 with or health care at large are: (a) respect of patient's
subsequent amendments by the World Medical Assembly autonomy; (b) the principle of nonmaleficence, i.e., the
in 1968 and 1983 in Sydney and Venice respectively. duty to avoid harm or injury to patients; (c) the principle
of beneficence, i.e., the duty to do good to your patients,
relieve their pain and suffering and to save life if you can;
Meaning of Law and Medical Ethics in a and (d) the principle of justice and act fairly.
Nutshell
The values that encompass the four fundamental
In its simplest context, law can be defined as enforced principles in medical ethics are self-evident. They are
rules devised by the State to govern the behaviour of its considered to be doctor's prima facie duties to the patients
members for the mutual benefits of all. Observance of and society. It is necessary for a doctor to take all of them
the rules must be guaranteed by some kinds of sanction into account when they are applicable to the clinical case
directed against the rule breakers. In addition to laws for under consideration. Not infrequently, when two or more
the general public, doctors are bounded by certain specific principles apply, they may be in conflict. For instance,
rules stipulated in statutes as well as code of professional the decision to operate on a case of acute appendicitis
conduct laid down by the official regulating authority, involves at least two competing prima facie duties on the
namely the Medical Council, and administrative codes part of the doctor. At one end, the doctor is obliged to
set by the institutions. Together, they form the legal provide the greatest benefit to the patient by performing
framework regarding the practice of medicine, violation an immediate appendectomy. At the other end, surgery
of which may lead to criminal or civil liability, or disciplinary and general anesthesia carry risks and the doctor is under
actions. the obligation to avoid causing harm to the patient. The
resolution adopted must base on a balance between the
In addition to legal obligations, there are also expectations demands of the competing principles by determining
of society for the doctors and the goal of the profession which carries more weight in the particular case. In the
based on long established moral principles of self-evident case of appendicitis, a generally accepted rational
value, which define the moral framework of medical calculus holds that the patient is in far greater risk of harm
practice. Medical ethics can be defined as a self-imposed from a ruptured appendix if the doctor do not act, than
code of conduct accepted voluntarily within the medical from the operation and anesthesia if the doctor proceed
profession, the observance of which depends on one's to surgery.
conscience and moral values.
Law and medical ethics are both dynamic and are in a Law and Medicine
constant state of change with time due to changing
circumstances and societal values. Thus, new legislation Broadly speaking, medical matters come into interaction
and court decisions give rise to changes of the law and with law in four aspects: (a) legislation and administrative
new ethical issues emerge in response to challenges regulations affecting medical practice; (b) court judgments
created by new technology, law or other influence. There on problematic or controversial ethical issues in medicine;
is also wide difference in law from country to country (c) medical matters or personnel may become subjects
because of factors regarding religion, culture, traditions, of lawsuits when issues of medical malpractice or alleged
political systems and social standards. medical negligence arise; and (d) use of medical matters
as evidence in courts for other criminal or civil proceedings
such as cases of homicide, rape, wounding, workman's
Fundamental Principles in Medical Ethics5 compensation, insurance claims and the like.
Medical ethics is an applied ethics which involves
examining specific controversial issues such as abortion, The Interaction of Law and Ethics in Medical
breach of confidentiality, end-of-life care, rationing of Practice
scarce medical resources. The objective is to try to identify
the issue concerned, analyze it with reasoned ideas and Despite their distinctive roles, law and medical ethics
arguments and arrive at a viable and morally acceptable overlap in many areas. It is indeed difficult to dissociate
resolution for it. In the realm of medical practice, it is the legal and ethical basis of the professional duties of
difficult to hold rules or principles that are absolute in doctors. For instance, both law and medical ethics
view of the many variables that exist in the context of address to issues of confidentiality, euthanasia, abortion,
clinical cases as well as new issues that arise as a result use of dangerous drugs, medical malpractice and the like.
4
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