Shifting the focus

Abstract

There is an almost certainly apocryphal story about the Dean of a prestigious (if unnamed) American Law School who, when addressing a graduating class, is said to have told them this:

‘Three years ago, when you arrived, if someone had asked you the answer to a legal question, you would have looked down at the ground, shuffled your feet nervously and, with embarrassment, mumbled that you did not know the answer. Now, after the best legal education available, you would act differently. You would stand tall, look the questioner straight in the eye and in a loud, confident voice declare: “it depends”.’

There is more than an element of truth in this statement and, as the Five-Minute Focus section of this journal shifts its gaze from ethics to law, we are acutely aware of two things. The first is that we have an extremely hard act to follow. Anne Slowther's pieces over the past four volumes have been interesting, informative and packed with insight. We can but hope that we live up, in some way, to the high standards that she has set. Secondly, we recognize that some readers will be hoping for certainty in our answers and here we must admit from the start that, regretfully, we may not always be able to provide that certainty. This is due to the fact that at times the law is not clear and a simple answer is not always possible to ascertain. What we aim to do, however, is to give an insight into how legal principles work and why they are as they are. In her Editorial in the previous issue of this journal, Anne said that her aim in her Five-Minute Focus on Ethics had been to ‘provide an accessible introduction for busy clinicians and a signpost to further consideration of the issues’,¹ and we aim to continue this tradition, albeit with our legal spotlight. Like Anne before us, we may also find it hard to be as brief but succinct as we must, but we shall try – or at least attempt to get the section title changed to ‘Two-Hour Focus on Law’ if we fail! Another difficulty for us is that it is sometimes quite difficult to disentangle legal and ethical issues; indeed, ‘medical ethics is no longer the sole preserve of doctors, as lawyers, philosophers, theologians, economists, sociologists and others all provide it with the benefit of their wisdom and expertise’.² Nevertheless, our aim is to focus on the law as much as possible but we may, at times, find it hard to resist the temptation to highlight ethical principles or issues. If we do so drift, please bear with us.

We are conscious that to those without legal training the law can sometimes be seen as a bogeyman – lurking in the background waiting to harm rather than to help – and an impediment rather than an aid to good practice. Given our legal backgrounds, it is not surprising that we do not necessarily share this view. Rather, we believe that the law tends to be as it is for good reason. Even if we may not agree with its content all of the time, there is almost always at least some logic behind it. So we suggest that once the law is understood, it can become a friend to busy clinicians – even if it is occasionally a critical one. And knowledge of the law is important and valuable because legal rules constitute a non-negotiable standard by which we are all judged, whether we like it or not. We shall thus try to unpack the legal principles involved in the subjects that we will cover in our Five-Minute Focus on Law section and to shed some light on the applicable legal framework. And, as with the previous Five-Minutes Focus on Ethics articles, ‘Each Five-Minute Focus will contain key arguments, salient references, further reading, professional guidance and summary points’.³

We have agreed to write a Five-Minute Focus on Law for the next two years (eight issues) and, after consultation with this journal's Editorial Board, have drawn up a list of topics to cover in the next six issues. We would be very pleased to receive suggestions via email from readers for topics we can explore in the remaining two issues. The topics we intend to explore are those which we, as a Board, believe are some of the most frequently asked questions of lawyers and experienced by clinicians in the field. In this issue, we begin with an area that not only clearly demonstrates the point made by the apocryphal Dean quoted at the beginning of this Editorial, but is probably the subject of the most-asked question of health-care lawyers: ‘How much information about risks is “enough”?’ In this piece (see p. 13)⁴ we consider how the law defines and governs informed consent, demonstrating that the significant changes in the law over the past two decades have been driven by a noticeable desire to prioritize autonomy. As we demonstrate, the law in this area has been (and continues to be) far from clear. Nevertheless, we also argue that it does not impose an unreasonable burden on health-care professionals.

In subsequent issues we shall consider the legal rules relating to research on (with?) adults who lack capacity. This shall be a challenging FMF to keep brief, as we shall have to consider the legal regulation of clinical and other forms of research, as well as the rules relating to adults who lack the capacity to consent to or refuse the procedures involved. The latter issue, legally as well as ethically, demands that special attention be paid to the interests of the research ‘participant’ and we shall highlight those interests. Another contentious issue, the legal status of the embryo and fetus, shall be explored in our third Five-Minute Focus on Law. Embryos are sometimes used for research despite being acknowledged as potential human beings, while there may be situations in which there is a sense that fetuses are competing for rights and interests with the woman who is carrying them. The law's definition of the status of embryos and fetuses is thus important as it can affect what it is permissible to do to them and who should be prioritized in the event of maternal–fetal conflicts. Our intention is then to move on to explore how the law determines what a patient's ‘best interests’ are. This is a critical part of health-care law as it is permissible to provide medical treatment to patients incapable of consenting for themselves only if it is in that patient's ‘best interests’ to do so. The law in this area has undergone significant change following the introduction of the Mental Capacity Act 2005, which came into force in 2007, and we aim to set out some of the key elements of this statute and its accompanying Code of Practice.

Our fifth and sixth topics both consider the effect and impact of new legislation. First, we shall discuss the Mental Health Act 2007 and how this modified the existing law, particularly the Mental Health Act 1983. Mental health is a controversial and complex area and it shall be difficult to deal with the new Act briefly, but we shall try. The last topic that we currently have listed is an examination of the Human Fertilisation and Embryology Act 2008, which modifies the Human Fertilisation and Embryology Act 1990. We shall explore some of the changes introduced by the 2008 Act and discuss why it has been felt necessary to make them.

As mentioned earlier, there are still two topics that remain to be determined and we would welcome readers' suggestions. We believe that the six topics we have selected so far provide an eclectic mix of legal issues for us to delve into and we hope that readers will enjoy the pieces that result. Indeed, the one thing that the topics share is their controversial nature and we hope that our pieces will make readers think as much as Anne's did. If we manage to even minimally emulate her Five-Minute Focus on Ethics articles, then we will know that we will be doing something right. Fingers crossed!

References

Slowther

. Focusing clinicians on ethics. Clin Ethics 2009;4:163–4

Miola

. Medical Ethics and Medical Law A Symbiotic Relationship. Oxford: Hart Publishing, 2007:1

Farsides

, Eckstein

. Welcome to Clinical Ethics. Clin Ethics 2006;1:1–2

Fovargue

, Miola

. How much information is ‘enough’? Clin Ethics 2010;5:13–15