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
Erin and Harris [1] suggest that we need a regulated market in
live donor organs to make good the shortfall in organs available for
transplantation. However, the example of the third world shows that to
sell a kidney is virtually always an act of desperation when other
options for raising money are exhausted, for example Goyal et al.[2] reported that 96% of participants in their survey of kidney...
Erin and Harris [1] suggest that we need a regulated market in
live donor organs to make good the shortfall in organs available for
transplantation. However, the example of the third world shows that to
sell a kidney is virtually always an act of desperation when other
options for raising money are exhausted, for example Goyal et al.[2] reported that 96% of participants in their survey of kidney sellers in
India did it to repay debt. In these circumstances there would have to
be
grave concerns that any potential sellers could not be freely
consenting,
as they would effectively be being coerced by their social
circumstances. In addition, recent scandals in the financial services industry should
remind us that abuses can occur even in regulated, first world, markets.
References
(1) Erin CA, Harris J. An ethical market in organs J Med Ethics 2003;29:137-8.
(2) Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. (2002) The Economic
and Health Consequences of selling a kidney in India. Journal of the
American Medical Association (JAMA). 2nd Oct 2002. 288 (13) 1589 - 93.
Everyone makes money or dare I say a profit from "traditional" organ
transplatation through out the world, except the donor. What happened to
supply and demand and free markets? Ultimately it's my body and if I can
help someone prolong their life and not have a high risk to mine and make
something to cover my time and expense..why not?
I'm a healthy mid-40 professional, that does not smoke.
Hey s...
Everyone makes money or dare I say a profit from "traditional" organ
transplatation through out the world, except the donor. What happened to
supply and demand and free markets? Ultimately it's my body and if I can
help someone prolong their life and not have a high risk to mine and make
something to cover my time and expense..why not?
I'm a healthy mid-40 professional, that does not smoke.
Hey sign me up!
Dr. Biegler concludes that patient consent to a DNR order should be
required [1]. He rightly locates the reason for that ethical demand in
the principle of autonomy. If autonomy means anything, it must mean a
right to be involved in decisions about one’s own survival. It is also
correct to say that the law of consent, at least in common law
jurisdictions, is built on the philosophical foundation of au...
Dr. Biegler concludes that patient consent to a DNR order should be
required [1]. He rightly locates the reason for that ethical demand in
the principle of autonomy. If autonomy means anything, it must mean a
right to be involved in decisions about one’s own survival. It is also
correct to say that the law of consent, at least in common law
jurisdictions, is built on the philosophical foundation of autonomy [2].
Dr. Biegler seems to imply that consistent application of the principle of
autonomy would require the law of consent to agree with his conclusion
about DNR orders. But the law of consent is not the only law relevant to
the question of the requirement of consent to a DNR order. Also engaged is
the more general law governing a doctor’s duty to his patient. This is
painfully dislocated from the law of consent. Broadly, in UK law at least,
a doctor can choose when to assume a duty [3]. If he chooses to assume
that duty, the law of negligence swings into play and says what he has to
do in order to discharge it properly. But at almost any time the doctor
can wash his hands of the patient. That washing might get a doctor into
trouble with his employers or with the GMC: it will not get him into
trouble with the law of tort. The law of tort will not draft conditions of
employment.
If a doctor decides to assume a duty, the law tends to describe his
obligations in negative terms. It tells him that he must not do certain
things. Even when condemning commissions it uses negative language: such
and such a commission would amount to a dereliction of duty. Having been
brought up in the context of negligence, the law is almost totally
inarticulate in its discussion of positive duties. There is only one
arguable example of a positive duty: the duty to act in the best interests
of a patient who is unable to consent to the proposed treatment. The
deployment of the Bolam test [4] in ascertaining the patient's "best
interests" and determining the compliance of a doctor’s actions with those
"best interests", transmutes even this duty into something akin to the
ordinary obligation of not being a negligent doctor.
The relevance of the "best interests" criterion to the question of
consent to a DNR order is interesting and moot. At the time Dr. Biegler
says the consent should be taken, the patient is of course conscious and
presumably competent. That would suggest that no "best interests"
considerations arise at all. But at the moment when any resuscitation
attempt would occur, the patient would be unconscious. Then, conventional
legal wisdom would say, the only relevant consideration is that of "best
interests".
All this cannot cloak the legal reality. The corollary of Dr.
Biegler’s proposal is that a patient could require a doctor to resuscitate
him. (If Dr. Biegler would not go this far, then the requirement he is
talking about is not a requirement to obtain a patient’s consent to DNR at
all, but an obligation simply to discuss the issue, which is a very
different matter.) This would require radical exceptions to be made to
three fundamental legal principles. First: a patient would,
unprecedentedly in the law of tort, have to be able to force a doctor to
enter into a doctor-patient relationship and thereby assume a duty.
Second, the patient would have to be able to force the doctor to do a
positive act. And third, the doctor would have to be required to do
something to an unconscious patient which he did not believe was in the
patient’s best interests.
Those principles are there for a number of good reasons. If they are
eroded, there may be damage to the law a long way from the ICU.
References
(1) Biegler P. Should patient consent be required to write a do not
resucitate order? J Med Ethics 2003; 29: 359-363
(2) See, for example, Sidaway v Board of Governors of Bethlem Royal
Hospital [1985] 1 AC 171, per Lord Scarman at 182; and Airedale NHS Trust
v Bland [1993] AC 789, per Lord Goff at 864 and Lord Mustill at 891.
3. Jones v Manchester Corporation [1952] QB 852; Cassidy v Ministry
of Health [1951] 2 KB 343; Capital and Counties plc v Hampshire County
Council [1997] 2 All ER 865
5. See F v West Berkshire Health Authority [1990] 2 AC 1; Re SL
(adult patient) (medical treatment) [2000] 1 FCR 361: Re A (medical
treatment: male sterilization) [2000] 1 FCR 193
In response to your interesting article I would thank you for raising
the issue of potential breach of confidence in relation to the teaching
of ethics.
I think what is missing from your account, from my perspective, is the
concept of members of OUR society being in this together. It is not
simply an issue which should be debated in the rather 'them-patients' and
'us-practitioners' manne...
In response to your interesting article I would thank you for raising
the issue of potential breach of confidence in relation to the teaching
of ethics.
I think what is missing from your account, from my perspective, is the
concept of members of OUR society being in this together. It is not
simply an issue which should be debated in the rather 'them-patients' and
'us-practitioners' manner you have taken.
The way forward is to include all stakeholders - otherwise it becomes a
rather 'bullylike' situation whereby those with the most power - ie in
this case through access to information disclosed in trust by uninformed
people, can overide the interests or rights of others.
In a civilised society I believe all should be treated with equal respect
and this places a responsibility on ethicists, etc. to inform the
uninformed as part of their work. In this case those such as researchers,
clinicians, ethicists etc. - 'know the score' and can protect their own
interests and indeed that of those in their wider social circle, by
deciding what they will or will not disclose. Therefore, the suggestion
that information should be used without the prior consent of those in the
vulnerable position - is unethical.
Perhaps ethicists and others might also think of using other parts of the
media in addition to specialist journals, which are to a great extent
still exclusive, to publish articles like this so that they will reach a
wider audience. Or perhaps advertise the Journal more widely. That it is
likely to generate more complexity should not be a reason to avoid wider
inclusion.
Although the article highlights the reaction of practitioners in the
medical profession to whistleblowers, I would point out that the same
bullying, stigmatising, undermining of the person's credibility, by for
example 'mentalising' or subtle or overt bullying and collusion - happens
to users of health services who have experienced unethical actions and to
those who have come across unethical resear...
Although the article highlights the reaction of practitioners in the
medical profession to whistleblowers, I would point out that the same
bullying, stigmatising, undermining of the person's credibility, by for
example 'mentalising' or subtle or overt bullying and collusion - happens
to users of health services who have experienced unethical actions and to
those who have come across unethical research and attempted to get their
concerns addressed.
Complaints systems in the past have too often failed those who have
attempted to highlight wrong doing. A significant problem has been that
the person has been positioned in the disadvantaged position of 'patient'
or 'client' rather than 'whistleblower'. Recently there is a definite
change in the way some Trusts and medical organisations are responding to
concerns. My reservation lies in that so often though what action is taken
depends on the ethical stance of those individuals in key positions.
Certain groups have suffered disproportionately when atempting to
speak out, for example those with mental health problems, and women who
raise concerns involving male practitioners.
In the 1980s I was involved with the initial stages of setting up an
organisation called POPAN. (The Prevention of Professional Abuse Network).
It dealt then with offences by therapists against clients but has now been
extended to cover abuse by all health and social care professionals. It is
now funded partly by the DoH and grants. In the early days the two
therapists who set up the organisation were slated and accused of
generating a problem which hardly existed.Some therapists in the NHS and
in influential positions in private organisations denied there was a
significant problem instead of investigating and working together with
POPAN.Some of their members were condemned as scare mongers, amongs other
offensive labels. Yet without especailly the courage of the two women
therapists who set up the organisation with no funding at all,from a
private flat in Hampstead, much of the abuse by professionals would still
be covered up.
I salute all those who have the courage to speak out and who will not
be silenced. The consequences can be very painful. Let us hope the winds
of change will keep on blowing.
POPAN : http://www.popan.org.uk - includes speech by Liam Donaldson to conference. (Currently offline).
I have no personal connection to POPAN now but have worked
independantly on the same issues for many years).
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...
Dear Editor
Erin and Harris [1] suggest that we need a regulated market in live donor organs to make good the shortfall in organs available for transplantation. However, the example of the third world shows that to sell a kidney is virtually always an act of desperation when other options for raising money are exhausted, for example Goyal et al.[2] reported that 96% of participants in their survey of kidney...
Dear Editor
Everyone makes money or dare I say a profit from "traditional" organ transplatation through out the world, except the donor. What happened to supply and demand and free markets? Ultimately it's my body and if I can help someone prolong their life and not have a high risk to mine and make something to cover my time and expense..why not?
I'm a healthy mid-40 professional, that does not smoke. Hey s...
Dear Editor
Dr. Biegler concludes that patient consent to a DNR order should be required [1]. He rightly locates the reason for that ethical demand in the principle of autonomy. If autonomy means anything, it must mean a right to be involved in decisions about one’s own survival. It is also correct to say that the law of consent, at least in common law jurisdictions, is built on the philosophical foundation of au...
Dear Editor
In response to your interesting article I would thank you for raising the issue of potential breach of confidence in relation to the teaching of ethics.
I think what is missing from your account, from my perspective, is the concept of members of OUR society being in this together. It is not simply an issue which should be debated in the rather 'them-patients' and 'us-practitioners' manne...
Dear Editor,
Although the article highlights the reaction of practitioners in the medical profession to whistleblowers, I would point out that the same bullying, stigmatising, undermining of the person's credibility, by for example 'mentalising' or subtle or overt bullying and collusion - happens to users of health services who have experienced unethical actions and to those who have come across unethical resear...
Pages