Transcript Bioethics & the Law A (Very) Brief Introduction

Bioethics & the Law
A (Very) Brief Introduction
Clayton L. Thomason, J.D., M.Div.
Asst. Professor, Dept. of Family Practice & Center for Ethics
College of Human Medicine
Adjunct Professor, MSU-DCL College of Law
Michigan State University
[email protected]
http://www.msu.edu/~thomaso5
American Legal System
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Statutory Law
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Common Law (Case Law)
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Promulgated by legislatures
Offers positivistic rules
Judges seek to resolve conflicts in specific cases
Through adversarial system
Principles and doctrines develop over time
Administrative Law
Criminal/Civil Law
State/Federal Law
Constitutional Law
Similarities between Productive
Moral/Legal Conversation
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Includes people of diverse
backgrounds (personal and
professional)
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Legal Process of Discovery, expert
witnesses, evidence
Lays as many ethical considerations as
possible on the table
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Litigation = Adversarial System seeks truth
by hearing disparate perspectives
Similarities between Productive
Moral/Legal Conversation (II)
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Ethical considerations are critically
weighed for pertinence to case at hand
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Often reason by analogy: have we been
successful with similar cases in past?
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Legal principles applied to facts of case
Legal Precedent = reasoning by analogy
Appeals to rules and principles (e.g.,
patient autonomy) are tools of inquiry, not
rigid formulas
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But precedent not blindly followed, can change
Similarities between Productive
Moral/Legal Conversation (III)
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Basic moral value, respect for others
modeled in process as well as in outcome
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Ideas others put on table are critically
challenged and questioned
Questioning is done without suggesting
disrespect for the person who holds differing
moral views
The person who disagrees with you is your
best resource in discovering moral truth
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= Basis of Adversarial System, to seek “truth”
Similarities Between
Law & Bioethics
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Both provide guidance on what physicians
may and may not do
The law may reflect an ethical consensus
in society
Court opinions offer reasons for decisions,
provide analysis of pertinent issues
Clinicians, ethics committees should be
aware of what law says about issues in
clinical ethics
But . . .
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The law cannot offer definitive answers to
every ethical dilemma in medicine.
Knowing “what the law is ” does not save
us from doing the hard work of moral
reflection & discourse.
Law & Ethics Differ
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Law sets only minimum standards of conduct
Law explicitly grants physicians discretion in
clinical decision making
Law may provide no clear action guides in some
clinical ethical situations
Law and ethics may directly conflict
Authority of law based on police power of state
Actions permitted by law may be ethically
controversial
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While actions prohibited by law may be regarded as
ethically defensible by many people
Law in Clinical Ethics
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Try to resolve ethical conflicts as close to
the bedside as possible.
Courts are not optimally suited to make
medical decisions.
Courts are the tribunal of last resort for
resolving ethical conflicts.
In clinical ethics, over-reliance on “what’s
legal” may undermine careful, complete,
and subtle ethical analysis.
cf., De Ville K. “What does the law say?” -- Law, ethics, and
medical decision making. West J Med 1994;160:478-480.
Some Legal Issues
in HM-546 . . .
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Week 1: Introduction to Ethics & Law
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Week 2: Competent Patient decisions
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Lo, Chs. 1, 2, see also Chs. 23 & 24
Legal standards re: best interests, decision-making
capacity, refusal of treatment, PAS, active euthanasia
See Lo, ch. 24
Week 3: Decisions for Incompetent Patients
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Legal standards re: brain death, persistent vegetative
state, coma, state’s interest in preserving life,
surrogate decision-making,artificial nutrition &
hydration, Michigan law
Especially Lo, chs. 23-24
. . . Legal Issues in HM-546 . . .
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Week 4: Children & Infants
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Legal standards re: non-discrimination against the
handicapped; best interest of infants, family, &
society; state’s interest in decision-making
Week 5: Reproductive Issues
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Role of civil discourse (see “Subversive Civility,” from
Week 1)
Legal/ethical status of fetus, abortion laws
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Actions permitted by law may be ethically controversial
Week 6: Flow of Medical Information
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Legal/ethical standards for truth-telling, informed
consent, confidentiality
. . . Legal Issues in HM-546
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Week 7: Genetics
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Role of law in regulating genetic technologies?
Legal standards re: genetic privacy, procreative
liberty, health care justice, obligations of parties
Week 8: Research Issues, Justice and Conflicts
of Interest
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Legal standards for protections of human subjects
Further Resources
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Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law:
Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ.
Co., 2003.
Menikoff J. Law and Bioethics: An Introduction. Washington, DC,
Georgetown Univ. Press, 2001.
Orentlicher D. Matters of Life and Death: Making Moral Theory Work
in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press,
2001.
Rich B. Strange Bedfellows: How Medical Jurisprudence has
Influenced Medical Ethics and Medical Practice. New York, NY,
Kluwer Academic/Plenum Publ., 2001.
Meisel A. Legal myths about terminating life support. Arch Int Med.
1991;151:1497-1502.
Meisel A, Kuczewski M. Legal and ethical myths about informed
consent. Arch Int Med. 1996;156:2521-2526.
Harrington JA. Art or science? Understanding medicine and the
common law. Health L J. 2001;9:129-150.