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Can the courts be viewed as an appropriate vehicle to settle clinical unease?
  1. Bernadette Wren1,
  2. Alexander Ruck Keene2,3
  1. 1 Children, Young Adults and Families Directorate, Tavistock and Portman NHS Foundation Trust, London, UK
  2. 2 39 Essex Chambers, London, UK
  3. 3 Dickson Poon School of Law, Kings College London, London, UK
  1. Correspondence to Dr Bernadette Wren, Children, Young Adults and Families Directorate, Tavistock and Portman NHS Foundation Trust, London NW3 5BA, UK; wrenba{at}


This paper is an exploration of the state of ‘clinical unease’ experienced by clinicians in contexts where professional judgement—grounded in clinical knowledge, critical reflection and a sound grasp of the law—indicates that there is more than one ethically defensible way to proceed. The question posed is whether the courts can be viewed as an appropriate vehicle to settle clinical unease by providing a ruling that clarifies the legal and ethical issues arising in the case, even in situations where there is no dispute between the patient (or her proxies) and the healthcare team.

The concept of ‘clinical unease’ is framed with reference to the broader experience of clinical decision-making, and distinguished from other widely discussed phenomena in the healthcare literature like moral distress and conscientious objection. A number of reported cases are briefly examined where the courts were invited to rule in circumstances of apparent ‘unease’. The respective responsibilities of clinicians and courts are discussed: in particular, their capability and readiness to respond to matters of ethical concern.

Four imagined clinical scenarios are outlined where a clinical team might welcome a court adjudication, under current rules. Consideration is given to the likelihood of such cases being heard, and to whether there may be better remedies than the courts. There are final reflections on what clinicians may actually wish for in seeking court involvement, and on whether a willingness to engage with the experience of clinical unease may lead to greater sensitivity towards the value perspectives of others.

  • ethics- medical
  • moral status
  • philosophy- medical
  • legislation
  • decision making

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  • Contributors BW conceived the idea for the paper. Both BW and ARK made substantial contributions to the development of the key concepts and arguments. BW drafted the paper and revised it critically for the clinical and philosophical content. ARK revised the legal content. Both authors accept full responsibility for the finished work and both gave final approval of the version to be published.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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