Professor F. Baylis in her symposium on the ‘Olivieri debacle’ examines a highly debated controversy.[1]
I
would like to look at the developments from a different angle. Olivieri
debacle, to me, is an example of a crisis where academia, researchers and
the bioethicists worked in unison for a common noble cause.
The situation that the author tries to portray as "a proud moment in
time...
Professor F. Baylis in her symposium on the ‘Olivieri debacle’ examines a highly debated controversy.[1]
I
would like to look at the developments from a different angle. Olivieri
debacle, to me, is an example of a crisis where academia, researchers and
the bioethicists worked in unison for a common noble cause.
The situation that the author tries to portray as "a proud moment in
time for Canadian bioethics" may not look very proud to everyone as
evidenced in the editor’s note about the "'perils of heroism' which stem
from the narcissistic striving for personal glory".[2] Earlier discourses
in this subject have always reminded me that the researchers should be
very careful in signing research agreements with sponsors. Subsequent
developments in this case have undoubtedly shown that the bioethics
community did rise to the occasion and act towards placing in position
suitable mechanisms to safeguard researchers from signing research
contracts with objectionable clauses.[3]
Mary Rowel’s responses to the symposium connote that her opinions
were distorted.[4] The author states that Ms Rowell initially refused to
write an article for the symposium and later her article "prompted her to
write about her experiences".[5] I personally hold that individuals should
not be compelled to speak aloud or write on something that they do not
want to. Many had provided directions to prevent such disasters in future [6,7] and even the supporters of whistle-blowers have presented well
balanced views on this issue.[8] Being a student and researcher in
bioethics, I would like to hear more future directions from the learned
teachers, including the author.
The unhealthy influence of industry on biomedical research and the
lassitude and intentional inactivity of universities and academic
institutions to support researchers with genuine causes are really
worrisome. More worrisome is the creation of any schism within the
academic community in an era where collective action can do a lot to
safeguard the scientific and ethical principles of biomedical research.
As a bioethics student from a non-industrialized country, I feel that the
bioethics community in Canada has acted realizing the full implications of
the case and worked towards developing safety mechanisms to safeguard from
similar disasters in future. In India, we suffered a lot due to the
policy of ‘divide and rule’ during the historic independent struggles and
learned the lesson to stand together in moments of crisis. The Olivieri
debacle once again showed the need for everyone including academia,
researchers and the bioethicists working together for a common cause.
References
1. Baylis F. The Olivieri debacle: where were the heroes of bioethics?
Journal of Medical Ethics 2004; 30: 44-49.
2. Savulescu J. Editor’s note: How can we make a difference? The
perils of heroism. Journal of Medical Ethics 2004; 30:52.
3. Ferris L.E, Singer P.A, Naylor C.D. Better governance in academic
health sciences centres: moving beyond the Olivieri/ Apotex affair in
Toronto. Journal of Medical Ethics 2004; 30: 25-29.
4. Rowell M. The Olivieri debacle: where were the heroes of
bioethics? A reply. Journal of Medical Ethics 2004; 30:50.
5. Baylis F. Responses to Mary Rowell. Journal of Medical Ethics
2004; 30:51-52.
6. Schafer A. Biomedical conflicts of interest: a defence of the
sequestration thesis - learning from the cases of Nancy Olivieri and David
Healy. Journal of Medical Ethics 2004; 30: 8-24.
7. Du Val G. Institutional ethics review of clinical study
agreements. Journal of Medical Ethics 2004; 30: 30-34.
8. Rhodes R, Strain JJ. Whistle blowing in academic medicine. Journal
of Medical Ethics 2004; 35-39 & Faunce T, Bolsin S, Chan W-P.
Supporting whistle blowers in academic medicine: training and respecting
courage of professional conscience. Journal of Medical Ethics 2004;30: 40
-43.
Re: Ethical problems arising in evidencebased complementary and alternative medicine
Edzard Ernst, Michael H. Cohen, Julie Stone
Mr McIntyre [1] rightly states that, in the UK, initiatives are underway
to regulate acupuncturists and herbalists. At the time of writing this
letter, a draft document is circulating. At the time of writing the actual
article (about one year ago), these initiat...
Re: Ethical problems arising in evidencebased complementary and alternative medicine
Edzard Ernst, Michael H. Cohen, Julie Stone
Mr McIntyre [1] rightly states that, in the UK, initiatives are underway
to regulate acupuncturists and herbalists. At the time of writing this
letter, a draft document is circulating. At the time of writing the actual
article (about one year ago), these initiatives had barely started and
certainly had not produced anything tangible. Regulation of UK
acupuncturists and herbalists may be in place in about 2 – 3 years (my
estimation). For the many other CAM providers (from aromatherapists to
yoga teachers), no such initiatives exist. My main point is that, except
for chiropractors and osteopaths, there is no statutory regulation at
present. This also means that today anyone in the UK, irrespective of
training or education, can call themselves an acupuncturist or herbalist.
Thus I truly don’t see the “glaring omission”. In terms of integrating
“orthodox and CAM for the benefit of millions”, McIntyre seems to forget
that evidence has to come before integration. In the case of the
therapeutic approach of UK traditional herbalism, I know of not a single
study that would constitute acceptable proof of efficacy. I’m also not
sure whether “the UK leads the world in the development of CAM” – it would
be nice but I do detect a bit of wishful thinking in McIntyre’s words.
References
(1) McIntyre MJ. Positive developments in CAM in the UK [electronic response to JME Advanced Publication: Ernst et al. Ethical problems arising in evidencebased complementary and alternative medicine] jmedethics.com 2004http://jme.bmjjournals.com/cgi/eletters/28/2/DC1#122
Regarding the Symposium on consent and confidentiality.[1]
We read with interest the recent papers on informed consent
published in a recent edition of the JME.[1] Whatever their differences,
and however much they questioned some aspects of the duty to respect
autonomy through attempting to obtain informed consent for therapeutic
interventions, there was a general agreement that competent adult...
Regarding the Symposium on consent and confidentiality.[1]
We read with interest the recent papers on informed consent
published in a recent edition of the JME.[1] Whatever their differences,
and however much they questioned some aspects of the duty to respect
autonomy through attempting to obtain informed consent for therapeutic
interventions, there was a general agreement that competent adult patients
are entitled to a core of basic information about their clinical options.
There was also a consensus that training in the process of obtaining
consent was important. In our experience, there are two different
dimensions of such training that are of particular interest. On the one
hand, students require good theoretical understanding of the ethical and
legal background to the professional emphasis now placed on informed
consent. On the other hand, they need practical training in relevant
communication skills and how to apply them to obtain consent for specific
clinical procedures To do so, doctors must obviously also have a good
understanding of these procedures. In a recently conducted study among
junior doctors in England (Schildmann J, Cushing A, Doyal L, Vollmann J.
The ethics and law of informed consent: knowledge, views and practice of
Pre Registration House Officers - manuscript submitted for publication),
we encountered serious problems as regards such understanding. No matter
how good their philosophical and legal knowledge may be, PRHOs will not be
able to deliver the minimal standards of informed consent outlined by
O’Neil unless, suffice it to say, they know what – practically speaking -
they are talking about![2]
Thus, in contrast to the results of the study of G Bravo et al.
published in the same issue of this journal, almost all PRHOs taking part
in our survey had a good legal understanding of the differences between
competent and incompetent patients.[3] This may be interpreted as a
positive result of the curriculum change at their specific medical school
which includes sustained sessions about informed consent. These embrace
ethics, law and communication skills. Despite this understanding, however,
the junior doctors taking part in our study still experienced problems
about their role in the consent process. These pertained to time pressure
and a lack of support by senior doctors, as well as pressure on them at
times to obtain consent in circumstances where they had been taught that
they should not . This gap between the standards of informed consent
currently taught to medical students and the clinical realities that they
face, and into which they are thrusts, is an ongoing problem.[4]
If informed consent is to fulfil the purpose of respecting the
autonomy and dignity of patients, sufficient resources are required to
train young doctors to do the job properly, especially as regards their
understanding of procedures for which they are providing information and
their competence as communicators. One thing is clear. If they cannot
complete the task in accordance with the guidance issued by both the GMC
and the Department of Health, they should not be doing it at all.[5,6]
Trusts and Colleges should ensure that all supervisory staff are aware of
their responsibilities in this regard.
References
1. Symposium on consent and confidentiality. J Med Ethics 2003; 29:2-
40.
2. O'Neill O. Some limits of informed consent. J Med Ethics 2003; 29:4
-7.
3. Bravo G, Paquet M, Dubois MF. Knowledge of the legislation
governing proxy consent to treatment and research. J Med Ethics 2003;
29:44-50.
4. Doyal L. Closing the gap between professional teaching and
practice. British Medical Journal 2001; 322:685-686.
5. Department of Health. Reference Guide to Consent for Examination or
Treatment. http://www.doh.gov.uk/consent/refguide.htm (accessed March 27,
2003).
6. General Medical Council. Seeking patients' consent: the ethical
considerations. London: General Medical Council, 1998.
We write in response to the original article “Differences in medical
students’ attitudes to academic misconduct and reported behaviour across
the years-a questionnaire study” by Rennie and Rudland published in this
journal April 2003 edition.[1] Current and former Dundee Medical School
students are concerned at the media misinterpretation of the study and the
consequences that this branding of “disho...
We write in response to the original article “Differences in medical
students’ attitudes to academic misconduct and reported behaviour across
the years-a questionnaire study” by Rennie and Rudland published in this
journal April 2003 edition.[1] Current and former Dundee Medical School
students are concerned at the media misinterpretation of the study and the
consequences that this branding of “dishonesty” will have on Dundee
Medical School’s reputation and also as individuals embarking on their
medical careers.
This study was originally published in the BMJ in 2001,[2] the data
being collected more than two years prior to that. In the student response
to this original study, it was noted that the study had taken place at the
time of the introduction of the new curriculum and “students were being
asked to produce excessive documentation. Some students did not reference
source information properly-partly due to time pressures and partly due to
genuine ignorance of proper codes of reference practice”.[3] Further to
that, the “Scenarios” as described in the published paper, were phrased
more ambiguously than the actual scenarios that were used in the
questionnaires.
Dundee Medical School took the initial study very seriously. However,
they embraced the information from the study in a positive way. Guidelines
concerning what was considered fraud and plagiarism in terms of submission
of work were established. A code of practice was also developed and this
now has to be signed by all medical students on entry to Dundee.
Although much further statistical analysis has been done on this
study since that original publication, it still contains all the original
raw data. Republishing of this study and the media misinterpretation of it
has lead to a whole new generation of Dundee students feeling that they
have been marked out as “dishonest” when the Dundee Medical School
curriculum has now for several years fully implemented Guidelines to guard
against any misconduct.
References
1. Rennie SC, Rudland JR. Differences in medical students’ attitudes
to academic misconduct and reported behaviour across the years-a
questionnaire study. J Med Ethics 2003;29:97-102
2. Rennie SC, Crosby JR. Are "tomorrow's doctors" honest?
Questionnaire study exploring medical students' attitudes and reported
behaviour on academic misconduct. BMJ 2001;322:274-275
We would like to thank the authors and editors of the JME’s mini-
symposium on the Olivieri case for continuing and extending the dialogue
about this important challenge to the North American bioethics community.
This mini-symposium is of special interest to us as members of the
Canadian Bioethics Society’s “Working Group on Employment Standards for
Bioethics.” We are members of this Workin...
We would like to thank the authors and editors of the JME’s mini-
symposium on the Olivieri case for continuing and extending the dialogue
about this important challenge to the North American bioethics community.
This mini-symposium is of special interest to us as members of the
Canadian Bioethics Society’s “Working Group on Employment Standards for
Bioethics.” We are members of this Working Group precisely because we
believe that most of us in the Canadian bioethics community ought to do
more to respond to situations such as the Olivieri situation. We welcome
the opportunity to continue to learn from that situation and to move
forward to strengthen our Canadian community of bioethicists.
Our Working Group, as a formal body, originated at the 1999 Annual
Meeting of the Canadian Bioethics Society (CBS). At that meeting, a motion
was passed establishing a “Working Group on Employment Standards for
Bioethics.” The purpose of the Working Group was, and continues to be, to
examine the issues of ethicists’ roles and responsibilities and the
environment in which ethicists, particularly those practicing in a non-
tenured environment, work. We have been endeavouring to grapple with a
number of the kinds of issues raised in the mini-symposium, including
accountability on the part of both bioethicists and the organizations
employing them, standards of practice in bioethics, protection for
whistleblowers, and how to respond to problems inherent in the moral
climate of the organizations in which we work.
Among our undertakings to date:
• A Draft Discussion Paper, "Working Conditions for Bioethics in Canada;"
• A “Model Code of Ethics for Bioethics;”
• Workshops, panels, or discussions at the CBS’s Annual Meetings in 1999,
2000, 2001, and 2002; and
• An essay prize “to encourage junior scholars to engage in scholarly work
related to working conditions in bioethics; professionalism in or the
professionalization of bioethics; or the social role of bioethics.”
The Working Group’s current works-in-progress include:
• A Qualitative Study of Conflicts of Interest Among Bioethicists;
• A working paper on various models of workplace dispute resolution;
• A “model contract” for clinical ethics consultants;
• A framework for a peer support network.
A record of our work on these issues can be found on the CBS’s website, at
http://www.bioethics.ca/
We know that no one aspect of our work to date constitutes a panacea.
It’s likely that no draft document or peer support network could have
averted the Olivieri debacle. But we remain committed to the ideal that
this work is of value, and that ongoing discussion and open and frank self
-examination is crucial.
The JME’s mini-symposium reminds us that we have a great deal still
to do, and that this kind of work is urgently needed. We can ignore all of
these matters (since crises happen but rarely in any individual’s work-
life) but we do so at our peril. The publication of the JME mini-symposium
is a milestone – a wake up call for all of us working in bioethics. We
applaud the JME’s attention to this crucial issue, and invite the
bioethics community and its many stakeholders to join us in our continuing
attempts to grapple with this difficult issue in a constructive way.
Finally, we recognize the need for healing in the bioethics
community, and suggest that this healing will require collegiality and
constructive moves in the direction of reconciliation. Only in this way
will bioethics be strengthened as a community, and left more capable of
responding to cases like the Olivieri case in the future.
I very much like Levy’s first argument in his letter of response[1]:
‘[I]t is false to think that in all cases in which X is worse off as a result of Y's actions, X has had her rights violated by Y.’
Levy makes a good point that members of society are not discriminating against the deaf, when they use the spoken word and audible alarms, and so forth, as part of their everyday lives. Nobody...
I very much like Levy’s first argument in his letter of response[1]:
‘[I]t is false to think that in all cases in which X is worse off as a result of Y's actions, X has had her rights violated by Y.’
Levy makes a good point that members of society are not discriminating against the deaf, when they use the spoken word and audible alarms, and so forth, as part of their everyday lives. Nobody in the hearing community is personally responsible for the everyday difficulties faced by the deaf.
Levy seems to accept my claim that our society could have developed some other way. Societies develop through the actions of their citizens. We might imagine that X, who is deaf, is worse off than Y because Z, their distant ancestor, helped to spread the use of a spoken language which X cannot use. The failure of Levy’s argument lies in his second claim, which is essentially that Z was justified in establishing this logocentric norm because of the particular usefulness of hearing and the spoken word. Levy’s argument is meant to establish the innocence of both Y and Z, but I think that Z’s innocence is much harder to show.
It seems to me that it is just false that the primacy of the spoken word ‘reflect[s] the advantages of using all the modes of communication available to us’. We certainly do not use all of the available modes of communication. We do not use smell for signaling, we do not blow air on each other’s faces by way of speech, and we rarely touch to communicate. We do not communicate by dance or by blinking. Each of these modes has its own unique advantages and each could presumably be used as a complex, syntactic language. Though no current society uses these modes of communication, they all happened to develop so that those who cannot smell, blow or taste are not disadvantaged. Certainly, there are some minor advantages to hearing which are irreplaceable by other senses, but this is also true of smell, on which we do not depend at all. If we voluntarily live without sign language, which is uniquely useful in many situations, it is hard to see why we should view the discriminatory use of speech as a justified, non-arbitrary choice.
Sometimes the mere absence of a sense can have its own advantages, depending on the environment we live in. There are minor advantages to everyone being deaf or blocking their ears - for example, the ability to use deafeningly loud machinery in all places, at all times. Cars would run more efficiently without mufflers. Construction could proceed at night. One could own a Chihuahua. Deaf people could claim that the choice to deafen oneself and run an un-muffled motorbike would simply ‘reflect the advantages’ of being deaf. From this perspective, the natural benefits of hearing offer no justification at all for the elevated position of the spoken word in our society.
Levy’s claim that ‘our social world is necessarily designed so that certain abilities are rewarded more than others and certain limitations are more constraining’ is probably one of life’s harsh truths. Yet, as seems to admit, it is a contingent, historical fact that the limited, constrained people are the deaf people. Furthermore, as I have discussed, it is not a historical fact which has its basis in any clearly justified choice – unless it is justified by the fact that the deaf are a minority group. Perhaps Levy means to imply that, when building social rules, we may privilege the interests of the majority over the interests of the minority, since this arrangement will result in a lower level of suffering. Then, if deaf people were in the majority, the hearing should be doomed to a life of tinnitus caused by the noisy machinery run by the deaf. Their ‘aural hypersensitivity’ would seem like a necessary limitation, since their suffering would be caused by their social environment. Perhaps this suffering would be ‘simply inevitable’ and not discriminatory at all – but before we agree with that, let us consider the following argument:
What if it was ‘inevitable’ due to some similarly arbitrary facts of history, that black children were worse off than white children? Suppose we lived in a country where current attitudes were not particularly discriminatory, but where past discrimination, by people who are now dead, had left blacks with a tiny share of the wealth. Suppose we also agree that X, who is wealthy, does not wrong Y, who is poor, when X refuses to give Y his money. This is in line with the common-sense, capitalist morality that constitutes much of our society at present.
In such a society, the wealthy white majority would not be wronging the poor racial minority, when they simply hold on to their own money. The impoverished black minority would be less well off due to historical misfortune, and not wronged or discriminated against by any living people.
On Levy’s arguments, and these two premises, we should ‘think much less of’ black parents who do not surrender their children to wealthy infertile whites. We should tell them that, due to the actions of our now-dead forebears, they should not raise children who will be poor like them. I find this conclusion unacceptable, and I think it elucidates the problem with Levy’s argument.
The passage of history may absolve current individuals of discriminations from which they benefit. But it does not mean that the society is a just and non-discriminatory one. We have a discriminatory society comprised of non-discriminating individuals, clinging justly to their inherited lot. That is the problem for the deaf. Their children will be worse off as a result of some unjustified historical choices, and not their own reproductive choices. We should not require them to make reproductive choices which validate some historical injustice, no matter how prudent those choices are.
When we tell the deaf that their deaf children will be worse off, we are using the injustice of our society as a coercive tool, as an ultimatum. When we do this, we become responsible for the discriminatory nature of our society, and we wrong the deaf, just as we wrong a person when we hold them at gunpoint. Thus, the situation is in some ways unlike Levy’s description of the crazed gunman in the park – perhaps a more enlightening description would be this:
“Today there was a crazed gunman in the park who shot at everyone he saw. Nonetheless, some parents came to the park and their child was shot. The gunman thought much less of the parents whose child he had killed”.
I am surprised by glaring omissions in your article, Ethical problems
arising in evidence-based complementary and alternative medicine by Ernst,
Cohen and Stone. Their paper undoubtedly presents an outdated picture of
the development of complementary and alternative Medicine (CAM) in the UK
at this time
The authors state “that providers of CAM are often not medically
trained” and that “their...
I am surprised by glaring omissions in your article, Ethical problems
arising in evidence-based complementary and alternative medicine by Ernst,
Cohen and Stone. Their paper undoubtedly presents an outdated picture of
the development of complementary and alternative Medicine (CAM) in the UK
at this time
The authors state “that providers of CAM are often not medically
trained” and that “their understanding of anatomy, physiology, pathology
and other disciplines of Western Science may be limited…” It goes on to
say, “ Unlike the situation of widespread licensure in the US for
chiropractors, acupuncturists, massage therapists and to some extent
naturopathic physicians, most CAM professions in the UK are not
statutorily regulated (the only two exceptions in the UK are chiropractors
and osteopaths.)”
The authors fail to report that statutory regulation of the UK herbal
and acupuncture sectors is now imminent. There is no mention that in 2,000
the House of Lords Select Committee on Science and Technology published a
report on CAM [1] and that this report specifically called for the
statutory regulation of the acupuncture and herbal medicine sectors. Nor
do the authors refer to evidence given to the Select Committee (Sections
5.51 and 5.52) by the Under Secretary for State for Public Health, Yvette
Cooper, who told the Committee that on safety grounds, the Government had
specifically identified acupuncture and herbal medicine as therapies that
it would like to see achieve statutory self-regulation. She also pointed
out (Section 5.44) that the 1999 Health Act now provided a fast-track
route for the statutory regulation of a health profession previously only
achievable by cumbersome primary legislation.
The article also omits to mention that in 2001, the Government
responded to the Select Committee Report recommending that herbal medicine
and acupuncture should as soon as possible seek statutory regulation under
the Health Act 1999 [2] and that the following year the Department of
Health set up two independent committees, the Herbal Medicine Regulatory
Working Group (HMRWG) and the Acupuncture Regulatory Working Group (ARWG)
to give detailed consideration of how statutory regulation of acupuncture
and herbal medicine could best be achieved. Both Committees met regularly
throughout 2002/3 and published their recommendations in September
2003.[3,4] Having considered these two reports, the Government is set to
publish, any day now, a public consultation document seeking views on
aspects of the statutory regulation of herbal and acupuncture
practitioners in the UK. Following a thirteen-week consultation period,
the Government will once again take stock before finally consulting on
draft legislation that will eventually lead to legislation laid before
Parliament. Although there is no firm timetable, we anticipate the
statutory regulation of UK herbalists and acupuncturists to pass into law
in 2006. I submit that all this presents a very different picture to the
one painted by Ernst, Cohen and Stone.
As for training, it is accepted by the herbal profession that
herbalists of all traditions require a good standard of western medicine
including pharmacology. The Core Curriculum published in the HMRWG report
is a detailed account of this training, which is overseen by the
Accreditation Board of European Herbal Practitioners Association.
Traditional acupuncturists too must be trained in conventional western
medicine so that they can recognise the limits of their competence and
know when to refer. Several British Universities currently offer degree
training in these disciplines and such training has now been available for
the past decade. The UK leads the world in the development of CAM and its
level of acceptance surely does not so much represent a “challenge to
healthcare professionals of all disciplines” as Ernst et al assert, but
rather a golden opportunity to integrate the best of orthodox and CAM for
the benefit of millions of patients who clearly wish to access both
modalities.
References
(1) House of Lords’ Select Committee on Science and Technology,
Session 1999-2000. 6th Report. Complementary and Alternative Medicine. The
Stationary Office, 2000.
(2) Department of Health. Government Response to the House of Lords Select
Committee on Science and Technology’s Report on Complementary and
Alternative Medicine. The Stationary Office, March 2001.
(3) Recommendations on the Regulation of Herbal Practitioners in the UK A
Report from the Herbal Medicines Regulatory Working Group, published on
behalf of the HMRWG by the Prince of Wales’s Foundation for Integrated
Health, 2003.
(4) The Statutory Regulation of the Acupuncture Profession, the Report of
the Acupuncture Regulatory Working Group, published on behalf of the ARWG
by the Prince of Wales’s Foundation for Integrated Health, 2003.
I do not think that Dr Biegler’s thesis demands any legally "counterintuitive claims". On the contrary, what he suggests seems in many ways to be intuitively right. His law is wrong, not his intuition. The law is sometimes counterintuitive (and downright unethical) in some situations in order to preserve principles which generally give just results....
I do not think that Dr Biegler’s thesis demands any legally "counterintuitive claims". On the contrary, what he suggests seems in many ways to be intuitively right. His law is wrong, not his intuition. The law is sometimes counterintuitive (and downright unethical) in some situations in order to preserve principles which generally give just results.
To take his points in turn:
(a) He says that “in most circumstances where a DNR order is written the doctor has already assumed a duty of care in relation to the patient”, and cites Kennedy and Grubb in support of the proposition that in relation
to emergency care, simply being on duty in an emergency department implies
an undertaking to provide emergency care.
All this is uncontroversial. But it is irrelevant to the argument,
because simply to assert that a duty of care exists is meaningless unless
one specifies exactly what there is a duty to do. What is in issue here is
whether a doctor can be required to assume a duty to do something very
specific which he may think is clinically contraindicated. The mere
existence of some duty of care does not imply anything at all about the
demands of that duty in particular clinical circumstances.
(b) His contention that the “best interests” criterion is applicable
in the case of competent patients is simply wrong in law. The common law
is robust in its defence of the human right to do life-endangeringly
eccentric things which would cause any half-competent doctor to scream.
Lord Goff, in Bland, put it like this:
"…it is established that the principle of self-determination requires
that respect must be given to the wishes of the patient, so that, if an
adult patient of sound mind refuses, however unreasonably, to consent to
treatment or care by which his life would or might be prolonged, the
doctors responsible for his care must give effect to his wishes, even
though they do not consider it to be in his best interests to do so..”[2]
This was classically demonstrated by the recent case of Miss B. [3]
She was paralysed from the neck down, and required mechanical ventilation.
She decided that her life was not worth living, and told her treating
clinicians to turn off the ventilator. They refused, no doubt thinking
that it was in her best interests to stay alive. It was not considered
remotely arguable that the clinicians were legally right. Since Miss B was
competent, she had an absolute right to decline medical treatment, even if
that meant her death. In a battle between the autonomy of a conscious
patient and the perceived “best interests” of the patient, the law says
that autonomy always wins. Or, put another way, the interest in honouring
autonomy always trumps any other interest which might be identified.
(c) He rightly indicates that a “prior refusal of resuscitation might
constitute [an advanced directive]”. But to talk about a “compelling duty”
to adhere to an advanced directive again conflates the law of negligence
with the law of consent. An advanced directive can only be an indication
of what the patient thinks will constitute his best interests if the
specified circumstances arise. That indication may be legally conclusive
against the treatment which the doctor thinks is in the patient’s best
interests. Treatment in such circumstances would be an assault [4]. It is
a wholly different proposition to say that to fail to comply with an
advanced directive that there should be treatment in such circumstances
would be actionable. The law of consent is happy for doctors to be told
that they must not do things: the law of negligence is not happy for them
to be told that they must.
I do not say that the law stands up to much logical scrutiny: it does not. It is, in this area at least, shabbily pragmatic. But it is clear enough, and its philosophically dubious fixes seem to do a reasonable job.
References
(1) Biegler P, Patient consent to DNR orders: some legal observations
[electronic response: 23 January 2004] jmedethics.com
(2) Airedale NHS Trust v Bland [1993] AC 789 at 864
(3) B v An NHS Trust [2002] 1 FLR 1090
(4) A good illustration, although not a case of a formal advanced directive, is Malette v Shulman (1990) 67 DLR (4th) 321.
Bennett Foddy interprets the view I express in 'Deafness, culture,
and choice' (JME 2002: 28) correctly: deaf children are contingently, and
not necessarily, worse off as a result of their disability. Indeed, this
claims seems almost tautological: to be better or worse off is inherently
relational, so it is easy to imagine worlds in which the deaf would not be
worse off. A world in which everyone was de...
Bennett Foddy interprets the view I express in 'Deafness, culture,
and choice' (JME 2002: 28) correctly: deaf children are contingently, and
not necessarily, worse off as a result of their disability. Indeed, this
claims seems almost tautological: to be better or worse off is inherently
relational, so it is easy to imagine worlds in which the deaf would not be
worse off. A world in which everyone was deaf is one obvious case.
But Foddy's claim that this fact shows the deaf have a right to
ensure that their children are also deaf is false. His argument seems to
have two premises. First, he argues that if the deaf are only contingently
worse off than the hearing, then this must be because they are
discriminated against. "[T]heir deafness is a constraint only because our
society discriminates against those who cannot hear", he writes. Second,
he implies that since their lives are constrained only as a result of
discrimination, we have no right to object to their parents' choices to
ensure that they are deaf. Both claims are false.
First, it is false to think that in all cases in which X is worse off
as a result of Y's actions, X has had her rights violated by Y. Y might
have been justified in acting as she did, even in cases in which X is an
innocent bystander. Every person has different abilities and limitations,
but our social world is necessarily designed so that certain abilities are
rewarded more than others and certain limitations are more constraining.
This is simply a result of the fact that choices must be made: buildings
must be designed, systems of communication chosen, modes of transport
developed, and so on. Some people are worse off as a consequence of these
choices, through no fault of their own. This is simply inevitable.
This kind of situation prevails with regard to the deaf. Moreover,
our choices here are not arbitrary, but instead reflect the advantages of
using using all the modes of communication available to us. Foddy thinks
that the only good argument which might be advanced for the universal
abandonment of sound as a means of communication and entertainment would
turn on the transition costs of moving to a soundless society, but this is
false. Sound has qualities which vision does not. It is not limited by the
direction of the gaze of individuals, it is able to wake sleeping people
(think of the difficulty of replacing fire alarms with lights which would
be as effective), and so on. In choosing a world in which sound is
important, we make a justified choice. As a result, the deaf are worse
off. But they are not discriminated against, because their rights are not
infringed (which isn't to say that the deaf are not discriminated against
in many other ways, of course).
So Foddy's first premise is straightforwardly false. His second
premise is also disputable, if not as obviously wrong as the first.
Suppose the disadvantages of the deaf were entirely a product of
discrimination. Would it not still be the case that the choice of deaf
parents to ensure that their children would be worse off than they would
otherwise be is, at least, questionable? Of course, all of us, who (in
this scenario) are responsible for the discrimination against the deaf
would bear a significant portion of the blame for the disadvantages of
such deaf children. But this would not exonerate the deaf parent entirely.
Suppose you knew that a crazed gunman would shoot indiscriminately at
every person he saw in the park today. If you nevertheless took your child
to the park, we would think much less of you, despite the fact that the
risks faced by your child were produced by the evil actions of the gunman.
The fact that a harm is a product of wrongful actions does not give a
parent the right to place their child in its way.
The desire of deaf parents to have children who resemble them and who
identify with their culture is understandable. Nevertheless, there are
powerful reasons to think that, all things considered, this is a desire
upon which they ought not to act.
If I understand him correctly he advances three claims. Firstly, he
suggests that the question of consent might not be a relevant
consideration in relation to DNR orders if the treating doctor is able to
“wash his (or her) hands” of a duty of care to the patient. Secondly, he
suggests that in the case of a competent patient the best interests
criterion d...
If I understand him correctly he advances three claims. Firstly, he
suggests that the question of consent might not be a relevant
consideration in relation to DNR orders if the treating doctor is able to
“wash his (or her) hands” of a duty of care to the patient. Secondly, he
suggests that in the case of a competent patient the best interests
criterion does not apply, and that the latter is only applicable once the
patient loses competence. He concludes that my thesis, for it to be
successful, would require me to make three counterintuitive claims.
Namely, that doctors could be; forced to assume a duty of care to a
patient; forced to do a “positive act” to a patient; and required to act
against the doctor’s perceived assessment of the patient’s best interests.
With regard to Mr Foster’s first claim it should be noted that in
most circumstances where a DNR order is written the doctor has already
assumed a duty of care in relation to the patient. The question of whether
resuscitation in the event of cardiopulmonary arrest would be in the
patient’s best interests usually arises in the context of another, often
serious, illness for which that patient is being treated.
Outside of those situations where the patient is already being
treated, a doctor may in fact owe a duty of care to people who are not yet
patients of that doctor. Australian common law holds that a doctor owes a
person a duty of care with whom there exists physical, circumstantial and
causal proximity.[2] That is, the doctor is able logistically to attend a
patient whom that doctor is aware is in need of medical care and to whom
such care would make a medical difference if it were proffered.
In relation to emergency care, Kennedy and Grubb seem to affirm such
a duty
…when a doctor has held himself (sic) out as undertaking to treat
individuals requiring emergency care… by being on duty in an emergency
department of a hospital, he will be deemed to have undertaken to provide
emergency care once he is aware of the need for it.[3]
In response to Mr Foster’s second claim, I would argue that the best
interests criterion is very much applicable in the case of the competent
patient. Lord Templeton said
the doctor… impliedly contracts to act at all times in the best
interests of the patient.[4]
Patients contribute to the doctor’s understanding of what is in their
best interests through discussion of the relevant facts. Patients make
advance assessments of their own future interests when consenting to
surgery and also when making advance directives ruling out certain
treatments should they become incompetent to make medical decisions. In
short, patients can usefully contribute to a decision about whether future
resuscitation might be in their best interests.
Incidentally, the best interests test is not the only consideration
that applies when the patient is no longer competent. The doctor’s
contemporaneous assessment of best interests in an incompetent patient
might be subsumed to the more compelling duties of adhering, as mentioned,
to a valid advance directive [5] (a prior refusal of resuscitation might
constitute such a directive) or complying with the wishes of a valid
surrogate decision maker.
I reject the claims that my thesis means that doctors could be forced
to assume a duty of care and treat patients. They could only be “forced”
to do these things to the extent that the law “requires” them to do
anything. Doctors who choose not to treat would be subject to review and
presumably risk claims of negligence if a duty of care could be proven to
have existed.
Further, as I stated in my paper, no doctor could or ought to be
compelled to act against his or her views of what is in the patient’s best
interests. However, his or her actions, as in any medical case, would be
open to retrospective scrutiny to assess their probity.
Finally, the main purpose of my argument is not to evolve a
persecutory framework compelling doctors to alter their practices but to
ask doctors to think about how patients’ competent wishes contribute to an
assessment of what treatment might or might not be in their best interests
at the end of life. As Mr Foster rightly points out
"If autonomy means anything, it must mean a right to be involved in
decisions about one’s own survival."[1]
What I hope to have persuasively argued in my paper is that a
patient’s competent wishes in this setting ought to be respected.
References
1. Foster CA. Patient consent to DNR orders: some legal observations [electronic response to Biegler P;
Should patient consent be required to write a do not resuscitate order?] jmedethics.com 2003http://jme.bmjjournals.com/cgi/eletters/29/6/359#92
2. Lowns v Woods (1996) Aust Tort Reports 81-376
3. Kennedy I, Grubb A. Medical law: text with materials. London:
Butterworths; 1994: 79
4. Per Lord Templeman in Sidaway v Bethlem Royal Hospital and
Maudsley Hospital Board [1985] 1 All ER 643 HL 665-6
5. Biegler P, Stewart C, Savulescu J, Skene L. Determining the
validity of advance directives. Med J Aust 2000; 172:545-8
Dear Editor
Professor F. Baylis in her symposium on the ‘Olivieri debacle’ examines a highly debated controversy.[1]
I would like to look at the developments from a different angle. Olivieri debacle, to me, is an example of a crisis where academia, researchers and the bioethicists worked in unison for a common noble cause.
The situation that the author tries to portray as "a proud moment in time...
Dear Editor
Re: Ethical problems arising in evidencebased complementary and alternative medicine Edzard Ernst, Michael H. Cohen, Julie Stone
Mr McIntyre [1] rightly states that, in the UK, initiatives are underway to regulate acupuncturists and herbalists. At the time of writing this letter, a draft document is circulating. At the time of writing the actual article (about one year ago), these initiat...
Dear Editor
Regarding the Symposium on consent and confidentiality.[1]
We read with interest the recent papers on informed consent published in a recent edition of the JME.[1] Whatever their differences, and however much they questioned some aspects of the duty to respect autonomy through attempting to obtain informed consent for therapeutic interventions, there was a general agreement that competent adult...
Dear Editor
We write in response to the original article “Differences in medical students’ attitudes to academic misconduct and reported behaviour across the years-a questionnaire study” by Rennie and Rudland published in this journal April 2003 edition.[1] Current and former Dundee Medical School students are concerned at the media misinterpretation of the study and the consequences that this branding of “disho...
Dear Editor:
We would like to thank the authors and editors of the JME’s mini- symposium on the Olivieri case for continuing and extending the dialogue about this important challenge to the North American bioethics community.
This mini-symposium is of special interest to us as members of the Canadian Bioethics Society’s “Working Group on Employment Standards for Bioethics.” We are members of this Workin...
Dear Editor
I very much like Levy’s first argument in his letter of response[1]:
‘[I]t is false to think that in all cases in which X is worse off as a result of Y's actions, X has had her rights violated by Y.’
Levy makes a good point that members of society are not discriminating against the deaf, when they use the spoken word and audible alarms, and so forth, as part of their everyday lives. Nobody...
Dear Editor
I am surprised by glaring omissions in your article, Ethical problems arising in evidence-based complementary and alternative medicine by Ernst, Cohen and Stone. Their paper undoubtedly presents an outdated picture of the development of complementary and alternative Medicine (CAM) in the UK at this time
The authors state “that providers of CAM are often not medically trained” and that “their...
Dear Editor
I am grateful to Dr Biegler for his response.[1]
I do not think that Dr Biegler’s thesis demands any legally "counterintuitive claims". On the contrary, what he suggests seems in many ways to be intuitively right. His law is wrong, not his intuition. The law is sometimes counterintuitive (and downright unethical) in some situations in order to preserve principles which generally give just results....
Dear Editor
Bennett Foddy interprets the view I express in 'Deafness, culture, and choice' (JME 2002: 28) correctly: deaf children are contingently, and not necessarily, worse off as a result of their disability. Indeed, this claims seems almost tautological: to be better or worse off is inherently relational, so it is easy to imagine worlds in which the deaf would not be worse off. A world in which everyone was de...
Dear Editor
I thank Mr Foster for his response.[1]
If I understand him correctly he advances three claims. Firstly, he suggests that the question of consent might not be a relevant consideration in relation to DNR orders if the treating doctor is able to “wash his (or her) hands” of a duty of care to the patient. Secondly, he suggests that in the case of a competent patient the best interests criterion d...
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