Medical Negligence & Malpractice - Essay Example

Medical Negligence & Malpractice Like every profession, medicine has its own set of professional ethics. These would essentially be based on the relationship of trust between a medical practitioner and his patient. The issue on medical ethics arises from the age-old Hippocratic oath which all doctors have to swear by before entering the profession. The basis on which medical ethics developed can be broadly divided into two theories: (1) Religious Theory Medicine and religion have been intertwined from the earliest times with priests performing the role of physicians as well. The common feature amongst religious theories is the vision of man as involved in a dialogue with a divine creator, or possibly a spiritual force, as to the way in which the human body should be treated.1 This vision may manifest itself in an insistence or ritualistic practices, for example, in relation to burial. Medical ethics based on religion have a clear sense of fundamental values. In the Christian tradition these include a strong belief that human life is a divine gift which cannot be disposed of by mortals.2 In the light of this it is often seen as wrong to interfere with the manifest destiny which has been prepared for man. (2) Contemporary Theory The contemporary theory view holds that appropriate conduct is determined by reference to four key principles which must be taken into account when reflecting on one’s behaviour towards others. These are:3 i. the principle of respect for individual autonomy4 ii. the principle of beneficence5 iii. the principle of non-malfeasance6 and iv. the principle of justice A strong influence of contemporary political theories can also be seen in this theory of medical ethics. The two strands of deontological and utilitarian thought are particularly evident. Deontological theories focus on the rightness or wrongness of an act in itself. The classical exposition of such a theory is by Kant when it is stressed by him that every person must be treated as an end in himself rather than as a means to an end.7 Liberal individualism is closely associated with the above view and modern theories of autonomy find their roots in this background. Utilitarianism stresses upon the greatest good of the greatest number and therefore seeks to draw our attention to the ‘aggregate good’ of the society rather personal benefits or losses. Both these theories are closely linked to the question of euthanasia as would be evident in the course of this work. RIGHT TO LIFE The enactment of the Human Rights Act, 1998 has reinforced the position of right to life in English jurisprudence. Any decision passed by a Court would have to be in the light of Convention for the Protection of Human Rights and Fundamental Freedoms and take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.8 Right to life does not mean merely the right to stay alive in biological terms. Life cannot be equated with mere animal existence. It has a much wider connotation. Right to life would mean the right to lead a dignified life, i.e., right to live with human dignity.9 Without this the right to life would be rendered meaningless. The European Convention does not give any direct indication of this wholesome interpretation of ‘life’. It says that:10 “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Such a statement would appear to suggest only of the right to stay alive rather than the right to life. However, the Convention begins by saying that it is being made while keeping in consideration the Universal Declaration of Human Rights (UDHR). The UDHR gives quite a wide understanding of life. It says that everyone has the right to life, liberty and security of person.11 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.12 Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.13 It also emphasises upon the free and full development of individual’s personality.14 Moreover, the Supreme Court of India, a common law country, has time and again reiterated its stand on right to live with human dignity and has gone on to say that it would include rights such as the right to healthy environment,15 right to health16 and right to livelihood.17 In the light of these facts it would be unreasonable to believe that the right to life in England is to be given a restricted meaning. RIGHT TO DIE It needs to be examined whether the right to life would include the right to die. The Suicide Act, 1961 did away with the offence of suicide in England and Wales. A man failing in his attempt to commit suicide would not have his misery compounded by the fact that he would have to face a criminal trial and undergo punishment for his act. The question which arises is, if it is no longer an offence to commit suicide, then hasn’t the British Parliament acknowledged the right to die? Whether or not it emanates from the right to life, it is an accepted position of English law that right to life and right to die can co-exist. It cannot be denied that the right to die has been well and truly established in the English jurisprudence. In the case of The Queen on the application of Mrs. Dianne Pretty v. Director of Public Prosecutions,18 it was argued on behalf of the appellant that article 2 protects not life itself but the right to life. The purpose of the article is to protect individuals from third parties (the state and public authorities). But the article recognises that it is for the individual to choose whether or not to live and so protects the individual’s right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right of the individual. While most people want to live, some want to die, and the article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the state has a positive obligation to protect both.19 As against this the House of Lords upheld the arguments placed by the Secretary of State which had also been upheld in the Divisional Court. It was argued that the thrust of the language of the Article was on the sanctity of human life. The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one’s own death.20 There is a problem in accepting the above argument which seems to have been overlooked. As has been stated above, the interpretation of right to life must within its scope include the right to live with dignity, as is also evident from a combined reading of the Articles 3, 25(1), 27(1) and 29(1) of the UDHR. In the event that a human being is in no position to enjoy the above right even to the smallest degree, should the person be forced to live an undignified life? Philosophers such as Glover and Harris argue that, in making decisions about ending life, we should be prepared to deploy overt quality of life considerations.21 Human life is no longer to be regarded as possessing intrinsic value per se; rather, what makes life valuable is, crudely, the life-holder’s capacity for pleasurable states of consciousness. In the case of Mrs. Dianne Pretty, she suffered from motor neurone disease, a progressive degenerative illness from which she had no hope of recovery. She had only a short time to live and faced the prospect of a humiliating and distressing death. She was mentally alert and would have liked to be able to take steps to bring her life to a peaceful end at a time of her choosing. Having accepted the above facts, should the House of Lords not have granted her wish? There is nothing in any Human Rights Convention which can be said to deny such a right. As regards the Convention for the Protection of Human Rights and Fundamental Freedoms, it can at best be said that it does not cover the issue. Another aspect which seems to have been neglected is the Suicide Act, 1961. If one is not prohibited by law22 from committing a certain act, he would be well within his rights to do so. Suicide and the attempt to commit suicide no longer being a crime, it is quite obvious that there exists a right to die in English law. It has been in existence since 1961 and is independent of the Convention for the Protection of Human Rights and Fundamental Freedoms. Further, Article 5323 of the Convention makes it sufficiently clear that since the right to die is a part of English law, nothing in the Convention can be used to limit or abrogate this freedom. Hence, even if the right to die is considered not to emanate from the scope of right to life as contemplated in the Convention, neither can it said to be affected by the same in any manner whatsoever. Therefore, the House of Lords, most humbly submitted, were incorrect in denying Mrs. Pretty the right to die. AIDING OR ABETTING OF SUICIDE Section 2(1) of the Suicide Act, 1961 is probably the biggest anomaly of English legal history. It is an irreconcilable position of law that while the act itself is not a crime, its abetment is. It cannot be explained through any theory of criminology. While the main perpetrator of an act is allowed to get away freely, the person aiding or abetting him is prosecuted. The punishment of the abettor in any crime is based on the principle of complicity. He is punished because he has been a partner in crime. He is as much liable for the criminal act as the principal perpetrator himself. Hence it follows that if there is no criminal liability on the person who has actually committed the act, there should not be any liability on the abettor. Moreover, since there is a right to die, it must be an effective right. For this, if a person requires the assistance of another, he should be able to procure it. By making abetment and aiding of suicide a criminal act, the State is denying an individual the full and free exercise of his right. It therefore makes an unreasonable distinction between people who are in a position to end their life on their own and people who are not. This would be violative of the principle of equality. Strangely enough, there has not been much fruitful deliberation on this point of law. EUTHANASIA According to the Oxford English Dictionary, Euthanasia is 'the painless killing of a patient suffering from an incurable and painful disease'. Euthanasia is a Greek word which literally means ‘an easeful death’. It describes the practice of bringing about death in a manner that causes the least amount of suffering to the patient. Augustine and Thomas Aquinas professed the view that whoever deliberately took away the life given to them by their Creator showed the utmost disregard for the will and authority of God and jeopardized their salvation, thereby encouraging the Church to treat suicide as a sin.24 It is further divided into voluntary and involuntary euthanasia. When the person who is undergoing the suffering is himself in a position to determine that he no longer wants to live, it would be a case of voluntary euthanasia. If the person is an infant, suffering from mental incapacity and thereby incapable of decision making or is in a permanent vegetative state, he cannot be expected to give consent. If euthanasia is carried out in such circumstances, it would be involuntary. There is also the distinction between active and passive euthansia. In active euthansia there is a positive act which is intended to kill while in passive euthansia there is an omission to an act, equally intentionally, allowing the patient’s death to occur.25 This distinction seems to be a very superficial one. It may be difficult to conclusively say whether a conduct is to be regarded as an act or omission. For example, the doctor knows that if the life support system is not made available to a patient, he will not survive. But in order to do so he must switch off the ventilator. For a layman the conduct of switching off the ventilator would be an act, but Lord Goff held it to be an omission in Airedale NHS Trust v. Bland.26 Such a stand also raises the question of ethics and morality. Would it not be more ethical to allow a person to die peacefully by means of an act rather than let him suffer with pain in his last hour by means of an omission? An injection that allows a person to die peacefully, in a dignified manner, should be more acceptable than torturing him to death by leaving him gasping for his last few breaths. According to this position, the law would not have a problem if Mrs. Pretty would have been left alone in a room by her husband, with no one to attend her and feed her, thereby allowing her to die painfully as a result of non-medication and hunger. If this is not a violation of Art. 327 of the Convention for the Protection of Human Rights and Fundamental Freedoms, then nothing is. It should be clear that if there is indeed any such thing as passive euthanasia, it is much more inhuman than active euthanasia. THE ENGLISH COURTS Active euthanasia, which is a deliberate act to end the life of the patient, is prohibited in English law and would lead to a charge of murder or manslaughter. In R v. Cox,28 an old lady who suffered from rheumatoid arthritis was in great pain and wanted to die. She asked Dr. Cox to end her life. He gave her an injection of potassium chloride which is a poison and has no painkilling effects. She dies a few minutes later. Dr. Cox was convicted of attempted murder. The Court held that the doctor’s motive of helping to put the patient out of her misery was immaterial. However, if a doctor administers painkilling drugs, even though they have the side effect of shortening the patient’s life, he will not be held guilty.29 In some medical situations, medical staff follow a policy of non-treatment.30 Examples include certain new born babies and incompetent adults. In Re J (A Minor) (Wardship: Medical Treatment),31 J was born prematurely and suffered brain damage. Although, he was not dying, he often needed ventilation. The likelihood was that he would be blind and deaf and unable to speak. The question arose as to what should be done if future ventilation was needed. The Court of Appeal in exercising its wardship jurisdiction, took account of the fact that the child would have a poor quality of life; further ventilation may cause the child’s condition to worsen; and ventilation was an invasive procedure for a baby. The doctors believed that it would not be in the child’s best interests to ventilate him if he stopped breathing and the Court agreed with this. NEED FOR A LEGISLATION There have been more than one instances when the Courts have agreed to let a person die by what they define as passive euthanasia. They have even said that a competent adult has the right to accept or refuse treatment knowing fully well that doing so will lead to his death.32 This again would be an instance of allowing a person to make use of his right to die. However, are the doctors and even the Court itself not acting as an abettor by helping the patient to die? How then, is this not a criminal act under S. 2(1) of the Suicide Act? Euthanasia as a concept can render good service to mankind but without proper regulation by way of legislations there is strong possibility of its misuse. It needs to be clearly laid down as to what condition of illness must be reached before euthanasia can be allowed. The illogical distinction between active and passive euthanasia must be done away with. A supervisory body should be established which shall process the reports of patients considered for euthanasia and determine which ones qualify as appropriate cases. At present there is a lot of vagueness as a result of Courts’ decisions and a legislation is definitely required to concretize the law. This fact was realized by Death with Dignity33 and other societies promoting the practice of Euthanasia. To ensure this many supporters of Euthanasia, last year promoted a Bill titled as “Assisted Dying for the Terminally Ill Act 2005.34” This Bill met with mixed response by the Physicians, Legislators and public of Great Britain. It is not surprising that the Bill is yet to be enacted, even after a year. In the humble opinion of the author, the Bill to facilitate Assisted dying would concretize the vagueness and inadequacy of the UK law on Euthanasia and it is a step in the right direction. To conclude the discussion, the Bill should be enacted to clear the air surrounding euthanasia and put to rest the medico-legal obstacle in order to help the distressed lot. BIBLIOGRAPHY STATUTES AND CONVENTIONS: UK Human Rights Act, 1998. Universal Declaration of Human Rights, 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. Suicide Act, 1961. BOOKS: Greene, B., Essential Medical Law, 2001, Cavendish Publishing Limited, London Mason, J.K., R.A. McCall Smith & G.T. Laurie, Law and Medical Ethics, 6th ed., 2002, Butterworths Lexis Nexis, London. Stauch, M., K. Wheat & J. Tingle, Text Cases & Materials on Medical Law, 3rd ed., 2006, Routledge·Cavendish, New York, ARTICLES/REPORTS?RESEARCH PAPERS: O’Neil, C., Feenan, D., Hughes, C., McAlister, DA., “Attitudes to physician and family assisted suicide: results from a study of public attitudes in Britain”, Journal of Medical Ethics 2001; 28 (1): 52 Donnison, D. and Bryson, C., “Matters of life and Death: attitudes to euthanasia”, in Howell, R., Curtice, J., Park, A., Brook, L., and Thomson, K. (eds), British Social Attitudes: the 13th report, (Aldershot: SCPR Dartmouth, 1996) CASES UNITED KINGDOM The Queen on the application of Mrs. Dianne Pretty v. Director of Public Prosecutions, [2001] UKHL 61. Airedale NHS Trust v. Bland [1993] AC 789 R v. Adams, [1957] Crim LR 365. R v. Cox(1992) Re J (A Minor) (Wardship: Medical Treatment), [1990] 3 All ER 930. Re T (Adult: Refusal of Medical Treatment), [1992] 4 All ER 649 Other Common Law Jurisdictions INDIA M.C. Mehta v. Union of India, AIR 1987 SC 1086 State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225. Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864. INTERNET REFERENCES: http://en.wikipedia.org/wiki/Suicide_Act_1961, last visited 22/12/2006. http://www.dignityindying.org.uk/information/factsheets.asp?id=84), last visited 24/12/2006 http://www.publications.parliament.uk/pa/ld200506/ldbills/036/06036.1-4.html#j003, last visited 24/12/2006 Read More