Abstract
Professional and legal standards are the minimum standards for practising doctors. These standards determine what doctors must not do but not what doctors must do. Ethical analysis has informed the development of professional and legal standards. The Hippocratic Oath is unthinkingly cited as central to medical practice, but an analysis of the standards it sets reveals that this is not the case. Guidance given by the formulation of standards is often general, in part because ethical analysis, even with a shared common language, may lead to different conclusions. Examples are seen in analysis of resource allocation, end of life decisions and approaches to circumcision.
Although both have an important place in any medical ethics curriculum I do not propose to deal with abortion or voluntary euthanasia in this article. The arguments are already well rehearsed and there are many issues which are less discussed but which are central to medical practice. Instead I will look at some of the standards which have been set in medicine and the basis for their authority. I will then look at some contemporary issues in medical ethics, aware that many other examples could have been considered.
‘Ethics is… the moral limitation placed on power. Thus, the origins of medical ethics lie in the realization that the power of knowledge and skill brought to bear on the vulnerability of the sick can be used to exploit and dominate. The ethics of service nourished in the history of western medicine goes beyond prohibiting the abuse of power and demands that power be dedicated to the strengthening of the weak.’ 1 Since 1983 when Ipsos-MORI first surveyed the UK public, doctors have remained the most trusted profession. 2 Whether a patient is anaesthetised or disempowered by their sick role, they are the weaker partner in the doctor-patient relationship: for the relationship to be effective trust is essential.
There are many settings in which patients see an unfamiliar doctor and cannot therefore rely on relationships that have developed over several consultations. It is therefore important to have mechanisms for ensuring that such a doctor is trustworthy. A letter to the British Medical Journal in 1853 said, ‘It is found to be impossible and quite unnecessary to reduce the behaviour of the more polished members of society to any express rules.’ 3 A less sanguine General Medical Council now lists 23 titles for the ethical guidance it provides on its website, frequently supported by supplementary guidance. 4
Explicit in the outcomes which the GMC expect of graduates is that ‘they will be able to behave according to ethical and legal principles’, 5 a statement which they qualify with seven sub-paragraphs. As the GMC decides whether medical schools may award medical degrees these expectations are taken seriously. All medical schools now have a designated teacher of Medical Ethics many of whom are full-time. This is a significant development since 1993 when the first edition of Tomorrow’s Doctors was published. Before this ethics teaching in medical schools depended on an enthusiast and was often neither compulsory nor assessed. Many senior consultants report that the only explicit ethics teaching they received as students was not to advertise, not to disparage a colleague and not to have sex with patients.
Authority
A problem common to all discussions in applied ethics is that of authority. For doctors practising in the UK the General Medical Council has the power to decide whether or not they are fit to practise: however the rationale for erasing a doctor from the medical register is sometimes contestable. In such cases the courts have the authority to overrule the GMC. John Roylance, the Chief Executive of the Bristol Royal Infirmary at a time when an unacceptably high number of babies died after heart operations, was struck off by the GMC, a decision upheld by the Privy Council. 6 The GMC ruled that he could have acted much earlier to prevent avoidable deaths. The GMC takes a robust view of doctors who are aware of colleagues’ failings but do nothing.
Compare this with the Glasgow poisoning case in 1865 when Dr E. W. Pritchard was convicted of poisoning his wife and his mother-in-law. 7 ‘One Dr Paterson… testified that he had no doubt that Mary Pritchard was being poisoned by her husband. He claimed that medical etiquette meant that it was impossible for him to do anything about it. The Lord Justice Clerk, Lord Inglis, in an amazingly comprehensive summing up at the end of the trial, criticised Dr Paterson severely in words that we could probably all read with benefit today: ‘I care not for professional etiquette or professional rule. There is a rule of life for consideration that is far higher than these – and that it is the duty of every citizen in this country, that every right-minded man owes to his neighbour, to prevent the destruction of human life in this world. A duty I cannot but say that Dr Paterson failed’.’ 8 Dr Paterson did not have to face the GMC and continued to practise.
These two cases show the connections between ethics, professional standards and the law. While ethical reflection can help doctors decide what they should do, the law and professional standards set the minimum standards to which they must adhere. These standards are influenced by debates about what is ethical that precede any changes to them.
Hippocratic Oath
In medicine the Hippocratic Oath is sometimes seen as an authoritative source: it attracts uncritical support from many who may have overlooked some of its features. It has ten components.
‘I swear by Apollo the physician, by Æsculapius, Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgement, the following Oath.’
The oath is sworn in the name of a number of Greek gods, now more of interest for the etymology of the words scalpel, hygiene and panacea than anything else: unsurprisingly this is not a feature which updated versions of the Oath retain.
‘To consider dear to me as my parents him who taught me this art; to live in common with him and if necessary to share my goods with him;’
The Oath espouses the apprenticeship model of learning. Although this has considerable value, it needs to be supplemented with other types of learning whose effectiveness is supported by a secure evidence base. One drawback of the apprenticeship model is that it can be a way of perpetuating outdated or maverick clinical or professional behaviour.
‘To look upon his children as my own brothers, to teach them this art if they so desire without fee or written promise; to impart to my sons and the sons of the master who taught me and the disciples who have enrolled themselves and have agreed to the rules of the profession, but to these alone the precepts and the instruction.’
Clearly the profession was all male in the time of Hippocrates: it would be simple to use inclusive language. What is more contentious is that the Oath envisages a considerable degree of secrecy about the precepts and instruction in the art of medicine. Indeed the partnership in decision making between doctor and patient commended by the GMC is outlawed in this clause. Patient information leaflets as well as health websites, even those which are peer-reviewed, would not be permitted.
‘I will prescribe regimen for the good of my patients according to my ability and my judgement and never do harm to anyone.’
Any code of medicine advocates doing good and avoiding harm to patients. The most interesting disagreements in medical ethics concern what is good and what is harmful. Those who support euthanasia and those who oppose it will both claim that they want to act in a patient’s best interests and avoid harm. The World Medical Association Declaration of Geneva, agreed in 1948, goes further and says ‘The health of my patient will be my first consideration.’ 9
‘To please no one will I prescribe a deadly drug nor give advice which may cause his death.’
The Oath outlaws prescribing deadly drugs and advice which may cause a patient’s death. While this clearly includes euthanasia and assisted suicide, it has a wider remit and may limit the practice of medicine in an undesirable way. Morphine is undoubtedly a deadly drug, but a welcome one for the relief of unbearable pain. Rather than hasten the death of a patient there is evidence that it can extend it. Advice that may cause a patient’s death would be outrageous given to a murderer wanting to know how much arsenic would be enough to kill a victim. On the other hand this clause would outlaw giving advice about an advance refusal of resuscitation.
‘Nor will I give a woman a pessary to procure abortion.’
The Oath proscribes medical abortion. Some would argue for an update which would also forbid surgical abortion, unknown in the time of Hippocrates: others would want the clause deleted to permit abortion in some circumstances.
‘I will preserve the purity of my life and my art.’
The GMC may consider that a doctor whose behaviour could undermine public confidence in the medical profession is not fit to practise. Such behaviour could occur outside medical practice, and could involve tax evasion, drink driving, research misconduct or unwise use of social media.
‘I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art.’
Today’s doctors qualify in surgery as well as medicine, but this clause makes the important point that doctors should not practise beyond their competence.
‘In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves.’
Given the status of slaves this must have been quite radical. Sex with patients is an abuse of power. GMC guidance has expanded on this clause to protect vulnerable former patients. 10
‘All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.’
Maintaining confidentiality remains an important feature of clinical practice. What is not clear is the limit of ‘what ought not to be spread abroad’. According to the British Medical Association who run a 24 hour advice line, ‘Confidentiality and health records are the subjects that doctors call about most. Common subjects of queries include giving relatives access to records of the deceased, disclosure to the police, and access to children’s records by parents.’ 11
Although there is a popular belief that doctors take the Hippocratic Oath the comments above indicate why this does not happen. Many UK medical schools now include some form of declaration which is made by students at graduation. These are often described as being updated versions of the Hippocratic Oath, but a comparison between the following example and the original Hippocratic Oath shows that this is more than a revision. At Newcastle students say the following:
‘I do solemnly declare that as a doctor of Medicine from Newcastle University, I will exercise my profession to the best of my knowledge and ability for the good of all persons:
I will make the care of my patients my first concern, keep my professional knowledge up to date, and recognise the limits of my professional competence;
I will treat every patient politely, with respect and dignity;
I will treat my patients considerately, respect their views, provide them with information and involve them in decisions about their care;
I will work with colleagues in the healthcare professions in ways that best serve my patients’ interests;
I will respect and aid those learning to acquire skills and competencies for the care of patients;
I will be honest and trustworthy, respect and protect confidential information, ensure that my personal beliefs do not prejudice my patients’ care, act quickly to protect my patients from risk, and will not abuse my position as a doctor.
In all these matters I will never discriminate unfairly against my patients or colleagues. I will hold in due regard the honourable obligations of the medical profession doing nothing inconsistent therewith. Above all I dedicate my professional life to the service of those entrusted to my care.’
This declaration adds a commitment to benefit all persons rather than simply their patients and to keep up to date. Politeness and team working are emphasised: keeping a rein on personal beliefs while avoiding unfair discrimination were not features of the original Hippocratic Oath.
Like the Hippocratic Oath this declaration does not give any detailed guidance. A writer in the British Medical Journal in 1853 thought that any attempt to produce such guidance was flawed from the outset. ‘What is required is that every professional man be a professional gentleman. With the golden rule as our principle, a certain amount of delicacy of feeling and refinement of manners will suffice to lead us pleasantly and correctly through ever dilemma in which the question of ethics arises… All that ethics can teach us individually, is, ‘to do as we would be done by’. To carry out this simple golden rule, is a matter of inherent principle, not of ethical laws… Again, in what appear to be unprofessional acts, so much depends upon the minute circumstances of the case, so much upon considerations known only to the parties immediately concerned, that none, save the most glaring departures from correct conduct, could with justice be brought under the power of ethical laws.’ 12
A similar sentiment was expressed by Chauncey Leake in 1971. ‘No set of rules, such as embodied in a ‘Code of Ethics’, can resolve the potential difficulty, since each situation is different, as are the personalities.’ 13
More recently in her Reith Lectures Onora O’Neill said, ‘Most people working in the public service have a reasonable sense not only of the specific clinical, educational, policing or other goals for which they work, but also of central ethical standards that they must meet.’ 14
A difficulty with an approach which suggests that good professional people will know what to do and will therefore do it is that values sometimes change. The news that universities and hospitals throughout the UK had retained organs and tissues without the explicit permission of patients or their next of kin caused considerable distress, particularly to parents of children who had died. Many would willingly have consented to organ retention if they had been asked. Doctors had wanted to protect parents from unnecessary distress after the death of their children. It seemed insensitive to offer recently bereaved parents the opportunity to watch a video of a post mortem to help them to make an informed decision about the retention of their children’s organs. Both doctors and parents had a reasonable sense of the central standards expected – but there was a clash of values.
In 1981 Dr Leonard Arthur, an eminent Nottingham paediatrician, was charged with attempted murder because he had prescribed a course of treatment for a child with Down’s syndrome that would certainly end in his death. The President of the Royal College of Physicians at the time said in his defence, ‘Where there is an uncomplicated Down’s case and the parents do not want the child to live… I think there are circumstances where it would be ethical to put it upon a course of management that would end in its death… I say that with a child suffering from Down’s and with a parental wish that it should not survive, it is ethical to terminate life.’ Four other eminent doctors supported him in his trial and it is clear that such non-treatment decisions were not unusual at the time. 15 When I tell this story to first year medical students they are horrified. In this case as well there is a clash of values.
Goals of Medicine
A clash of values is inevitable in a society with many cultures. Maybe the best we can hope for is agreement about what sort of arguments count. It is worth considering what Medicine is for. In 1996 the Hastings Center ‘Goals of Medicine’ project identified four goals:
the prevention of disease and injury and the promotion and maintenance of health;
the relief of pain and suffering caused by maladies;
the care and cure of those with a malady and the care of those who cannot be cured; and
the avoidance of premature death and the pursuit of a peaceful death.
Helpful though it is to articulate the purpose of the practice of medicine, there is no possibility of ranking them. Achieving the first aim would reduce the needs highlighted in the next two aims, but a patient whose pain had not been prevented by a rigorous attention to the first goal would have a legitimate claim on relief: however successfully the first three aims were pursued, the need for a peaceful death would remain.
Resolving dilemmas
Dilemmas are not resolved by reference to the Hippocratic Oath or any of the contemporary UK medical school declarations. Even GMC guidance does not claim to cover every conceivable dilemma. Many hospital trusts have set up Clinical Ethics Committees 16 which consider contentious cases, but these are not binding nor do they set a precedent.
A methodology which is popularly used is the Four Principles Approach first devised by Beauchamp and Childress in 1979. 17 The principles are respect for autonomy, beneficence, non-maleficence and justice. While these provide a useful scaffold for discussing an issue they beg several questions. When is a patient acting autonomously and when is their autonomy impaired? The Mental Capacity Act 18 provides that a person must be assumed to have capacity unless it is established that he lacks capacity: making an unwise decision does not mean that a person is unable to make a decision. 19 This does not take account of the many pressures which a patient may face, nor does it define the boundary between pressure and coercion. It is tempting to inflate the capacity of a disruptive drug user who wishes to self-discharge or to interpret lack of verbal communication by someone with a learning disability as a sign of incapacity.
It is possible to interpret doing good for a patient in a variety of ways, and the same applies to what constitutes a harm which should be avoided. Aristotle talked of justice as treating equals equally and unequals unequally according to their relevant moral difference: difficulties arise when trying to define a ‘relevant moral difference’. A final difficulty with applying this structure is that there is no ranking of the four principles although respect for autonomy has secured the most prominent place in Western consumer societies.
The importance of context has been stressed by feminists who have embraced the Ethics of Care. Where a man will see the need for an autonomous decision, a woman is much more likely to see herself as a person who is caught in an intricate web of relationships. We are most fully human when we are in relationship rather than independent atoms making choices. ‘Infants are not self-nurturing, and no human being acquires language except through interaction with other human beings.’ 20
Contemporary ethical dilemmas
Probably the most important topic in medical ethics is that of resource allocation: this affects all doctors. A consultation may raise suspicions that a patient is experiencing domestic violence. A doctor may choose to overlook these suspicions out of concern for a potential delay to subsequent patients, because of awareness that resources for helping patients in this state are very limited or because of the personal discomfort of exploring such a sensitive issue. The decision relates to time, money or the doctor’s emotional capital, all of which are valuable resources.
Many commentators despair of any agreement on substantive principles for the allocation of health care resources. Daniels & Sabin argue that it is only possible to agree on the principles which should be deployed when limits are set on health care provision. Decisions must be publicly accessible, the rationales for decisions must rest on evidence that fair-minded parties agree are relevant, there should be a mechanism for challenge and dispute resolution and finally there should be an enforcement process to ensure the first three conditions are met. 21 In his review of this book, Emmanuel said ‘To augment Daniels and Sabin’s four principles, we need at least three additional principles: first, fair consideration (there must be mechanisms to assess and incorporate every person’s interests and preferences); second, empowerment (there must be mechanisms for persons to influence decision makers and to participate in the decision-making process); and third, impartiality (those formulating and implementing decisions about resource allocation should not have a conflict of interest).’ 22 Impartiality is an unachievable ideal as there is no view from nowhere: although there may be no financial conflict of interest, the biography of the decision makers will affect their decisions: in a health care systems most decision-makers are of working age and most recipients of health care are not.
Emmanuel’s critique takes account of the power relationships at work in resource allocation. Professor David Morley, the founder of TALC, 23 used to show a slide when talking about decisions on spending on health care in developing countries. It showed an African doctor reassuring his patient with the words ‘Well Minister I am glad to say that it wasn’t a heart attack – but if it had been, you realise that we don’t have a coronary care unit in this country.’ While coronary care units undoubtedly save lives there are many more pressing health needs in countries in which access to clean water is not universal.
The Francis Report is widely known for drawing attention to scandalously poor care at Stafford Hospital: what is less known, and now no longer available on the Government’s websites, is the report of Sir Jonathan Michael in 2008 called Healthcare for All. This was commissioned by an embarrassed Secretary of State, concerned at Mencap’s report ‘Death by Indifference’, which told of the experiences of six families of people with learning disabilities who had died and is available on their website. 24 The deficiencies highlighted in the Mencap report set up a train of events leading to the Confidential Inquiry into Premature Deaths of People with Learning Disabilities which reported in March 2013. This study showed that 42% of the 238 people with learning disabilities who had died prematurely, defined as dying ‘without a specific event that formed part of the ‘pathway’ that led to death, it was probable that the person would have continued to live for at least one more year’. 25
Similar reports paint a depressing picture of the care of the elderly, 26 palliative care for those from the Black, Asian and Minority Ethnic Groups, 27 care for those suffering mental ill health 28 and hospital care for homeless. 29 Such reports evoke ministerial promises to improve services, but this is part of a cycle which those who work with the underserved are familiar.
Self-inflicted conditions
Questions arise about the extent to which people should accept responsibility for their own health. People whose body mass index is above that recommended, those who smoke or drink alcohol to excess or use illicit drugs recreationally, those who have unprotected sex, uncertain of the sexual history of their partners, those with unwanted tattoos, those who attempt suicide may all need medical help. The same is true of those injured on the roads, in winter or contact sports and in many other activities with attendant risks. There are arguments that support making those whose behaviour has contributed to their ill health bear the burden of their foolishness. We are all individually responsible before God for our conduct. On the other hand the pressures to engage in unhealthy behaviour can be considerable: every human being has weak spots. There but for the grace of God go I, and acting mercifully without judging is a suitably generous approach.
Private or public?
There continues to be concern over privatisation of the health service in the UK. There is no evidence that the health of a population is improved by a private as opposed to a public service. Indeed US experience is that a far higher proportion of the country’s resources are devoted to health care although a baby born there has a 40% higher chance of dying in the first year of life than one in Greece. 30 This is one of many statistics which the authors of The Spirit Level cite to show that there is no direct correlation between health care spending and the health of the population. Some of those who argue in favour of keeping health service delivery public overlook the fact that general practice has generally been run as a collection of small businesses since the founding of the NHS in 1948. It is also easy to overlook the fact that there are significant interests – not just financial – that can influence individuals working in a public NHS: these do not necessarily serve patients’ best interests.
End of life
I have already said that the paths of the voluntary euthanasia debate are well trodden. The boundary between life and death is important to delineate. The UK’s NHS website explains brain death as follows: ‘Brain death occurs when a person no longer has any activity in their brain stem and no potential for consciousness, even though a ventilator is keeping their heart beating and oxygen circulating through their blood. When brain stem function is permanently lost, the person will be confirmed dead.’ 31 While the US has a statute defining death, a person is legally dead in the UK when a doctor certifies this. Until transplantation was possible, identifying the precise moment of death was unimportant. With cardio-pulmonary resuscitation, artificial ventilation, hydration and nutrition it is possible to remain much closer to the boundary between life and death for a significant period of time.
Where a competent patient does not want to be treated he or she may decline what is offered. Those who spend significant time at the border between life and death are rarely competent and others make decisions on their behalf. These decisions may involve discontinuing life-sustaining treatments which will lead almost inevitably to death. There is debate as to whether it is the patient’s underlying condition or the discontinuation of the treatment which is the cause of death. Life-sustaining treatments are not introduced simply to ensure that life is maintained at its borders, but to give time for other healing processes to take place. A withdrawal of treatment in such an instance can be an admission that they have not. Those who claim that God is the giver and sustainer of life often say that those making such a withdrawal decision are playing God. It may be that, having created the conditions where healing processes could take place, withdrawing life-sustaining treatment is an acknowledgement that this is a life which God is no longer sustaining: such a decision could come as a response to God rather than attempt to play God. It is possible to see life as gift while remaining unclear whether we are resisting a God who is taking it back or ungratefully returning the gift prematurely.
There is no point at which a life has no potential for meaning. There are times when it irretrievably ceases to have meaning for the biographical subject of that life. It is arguable that this is the point at which they cease to have interests in their own lives. Bystanders and carers may still see meaning in such a life, but in doing so they may be using a person as a means rather than as an end. They could also find meaning in their death.
Circumcision
At the recent launch of the British Medical Association’s ethical guidance to its members, the only people lobbying those attending represented groups opposed to infant male circumcision. Although the practice was condemned by the Council of Florence in 1442, this clearly referred to circumcision for ritual purposes. Subsequent writers have referred to a prohibition on mutilation and amputation, but this has not gone unchallenged. 32 Two commentators argue that non-therapeutic circumcision is appropriately left to parents to decide, and neatly describe the practice as ‘between prophylaxis and child abuse.’ 33 Hostility to circumcision can be interpreted as anti-Semitic and anti-Islamic as is seen from some of the reaction to a recent German court’s decision that the fundamental right of the child to bodily integrity outweighed the rights of the parents. 34 An entire recent edition of the Journal of Medical Ethics has been devoted to this topic. 35 There is some evidence that the procedure does some harm, although there are some health benefits as well. As the editor notes, ‘With perspectives in this issue ranging from Joseph Mazor’s articulate defence of infant male circumcision as both morally and legally permissible 36 to J Steven Svoboda’s contention that circumcision is an unambiguous affront to human rights, 37 it is clear that the debate on this issue is far from over.’ 38
It is possible to frame infant circumcision as disrespect for a child’s autonomy, depriving him of a right to an open future. It could be said to do harm to the child, although this is disputed. There are some grounds for saying that the procedure is beneficial for a child, although this again is disputed. The relative weight of these factors as well as the strength of the evidence to support the arguments cannot be derived from an application of the Four Principles Approach. An application of virtue ethics does not self-evidently lead to a conclusion, nor would a detailed analysis of the circumstances of an individual case which a feminist approach would commend.
Conclusion
Professional standards as set by the General Medical Council and legal standards set (mainly) by the courts provide a minimum threshold below which medical practice should not fall. These standards are underpinned by ethical analysis. While there may be some agreement about the tools which are helpful when analysing an ethical issue in medicine, applying the same tools may lead to radically different answers. This may in part explain why some of the professional standards are very general. It also explains why medical ethics is a fascinating territory to explore.
Footnotes
1
Jonsen A. R. The End of Medical Ethics. J Amer. Ger. Soc. 1992:40;393-7.
7
The Trial of Doctor Pritchard. The Lancet 1865: 86; 52.
11
BMA News 25 Feb 2012.
13
Leake C. D. Percival’s Medical Ethics: Promise and Problems. Western Journal of Medicine. 1971:114;70.
14
15
R v Arthur (1981) 12 BMLR 1.
17
Beauchamp T. & Childress J. Principles of Biomedical Ethics. 6th Ed. OUP. USA. 2008.
18
Mental Capacity Act 2005 s.1(2).
19
Mental Capacity Act s.1(4).
20
Koehn D. Rethinking Feminist Ethics: Care, Trust and Empathy. Routledge. London. 1998 p.11.
21
Daniels N. & Sabin J. Setting Limits Fairly: Can We Learn to Share Medical Resources? OUP. USA. 2002.
22
Emmanuel E. J. Setting Limits Fairly: Can We Learn to Share Medical Resources? New England Journal of Medicine. 2002;
24
Mencap. Death by Indifference. London. Mencap, 2007.
25
26
27
28
30
Wilkinson R. & Pickett K. The spirit level. Allen Lane. London, 2009.
32
Slosar J. P. & O’Brien D. The ethics of neonatal male circumcision: a Catholic perspective. American Journal of Bioethics 2003;
33
Benetar M. & Benatar D. Between prophylaxis and child abuse: the ethics of neonatal male circumcision. Am J Bioeth. 2003;
35
J Med Ethics 2013;39.
36
Mazor J. The child’s interests and the case for male infant circumcision. J Med Ethics 2013; 39: 421-428.
37
Svoboda, S. D. Circumcision of male infants as a human rights violation. J Med Ethics 2013;
38
Earp, B. D. The Ethics of Infant Male Circumcision. J Med Ethics 2013; 39: 418-420.