Timothy James

Clinical negligence is not a good system.  But the alternatives may not achieve the benefits claimed for them and there is an ethical price to be paid, which many of their enthusiasts do not seem to have considered. 

Bioethics as an academic discipline comes into public discourse when real life “hard cases” receive media attention. Since cases of this sort increasingly often become the subject of litigation, the forum for debate can be a court of law, with judges as the final arbiters. Judges (unlike philosophers) are obliged to give final and definitive rulings in a constrained time period. Their training is in a type of discourse very different from moral philosophy, though still concerned with right and wrong. This paper explores the differences between the tools and methods used in public legal debate and private academic discourse, and the different nature of the answers they produce. It attempts to suggest some ways in which bioethicists can better understand lawyers’ reasoning in cases of this sort, and how communication between bioethics and law might be improved.

In the clinical situation patients approach their doctor with a medical problem. The duties of the doctor are clear: he or she has to address the patient’s concerns. The responsibility for establishing the relationship lies with the patient who has approached the doctor. Where screening is concerned, the situation is different. In this case it is a health provider or doctor who approaches normal, fit members of the public, warning them that although they believe themselves to be healthy they may, nevertheless be harboring serious disease but if they are prepared to undergo certain clinical procedures they can abolish or reduce their likelihood of developing it. In this case it is the medical system that has created the interface and it must bear the responsibility for the outcome. Fit, normal people may be seriously disadvantaged or even die as a result of the intervention their medical advisers propose to undertake. The principle ”first do no harm” is in this case subordinated to the concept of providing the greatest benefit for the largest number.

Informed or valid consent is a cornerstone of good medical practice, and the issue of consent must always be addressed in any procedure. As one aspect of the consent process, patients have the right to information about their own medical care as well as the right to accept or reject any recommended investigative procedure and/or therapy. Is the term ”informed consent” or ”valid consent” more applicable? The panel felt that ”valid consent” was more appropriate as it is seen as indicating a dynamic continuum rather than a single event. However, at the presentation during the general assembly, a majority voted for the use of the term ”informed consent” rather than ”valid consent”. It was felt that physicians are more familiar with the term ”informed consent” and that this term expresses the fact that the patient has been properly informed.