How do Ethics and Medical Law Coexist?
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This Blog is written by Raman Poonia from VGU School of Law, Vivekananda Global University, Jaipur. Edited by Pranoy Singhla.
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INTRODUCTION
There is no universal definition of medical ethics and more often than not, it is quite difficult to explain it. A broad interpretation could mean the moral and not legal obligations that a medical practitioner is supposed to abide by. However, there are a lot of times when some of the standards known as medical ethics have legal effect as well. Medical law is made up of bits from a large number of different branches of law: Criminal Law, Human Rights Law, Tort Law, Contract Law, Family Law, etc and is undoubtedly very confusing. Medical Law is undergoing a massive change. Rapid scientific advances mean that lawyers and ethicists are constantly required to face new issues. There have been a lot of legislations and rules pertaining to Medical Laws like Policy of Family Planning, Surrogacy Bill, laws pertaining to abortion and sex determination test, etc.; but the challenge they pose is not merely a matter of liberal versus conservative perspectives.
It is undisputed that everyone has certain prima facie moral obligations to others that may conflict with the law. For instance – Everyone has obligations to not lie, to avoid harm, to not steal, etc. Medical professionals, however, have special moral obligations by virtue of their profession. These obligations are tied to their roles as doctors, therapists, nurses, and others. These special obligations have been expressed through codes of professional ethics, principles of biomedical ethics, the concept of a fiduciary relationship, rich accounts of the virtues, and obligations inherent in the doctor-patient relationship.
Best medical practice is founded upon legal and ethical principles that guide the choices physicians and health care providers make when caring for patients or performing research. The core ethical principles of medicine are autonomy, beneficence, nonmaleficence, and justice. For a patient to be considered able to make choices about their health care, they must demonstrate mental capacity and competence; when these are lacking, the patient may have a surrogate make choices in their place. Unemancipated minors are unable to make medical decisions on their own and so must have a parent or caretaker act make decisions for them. The patient has the right to full disclosure about their health, medical status, medical records, and involvement in research protocols. End-of-life issues include medical aid-in-dying, organ donation, and the pronunciation of death. The physician is legally and ethically obligated to keep patients’ medical information confidential, and may only break this confidentiality in particular settings. Social factors that may need to be considered include driving restrictions, elder abuse, and torture. Patients must be briefed on all of their treatment options, including potential risks and benefits, prior to treatment or medical intervention. Conflicts of interest occur when an external factor (e.g., payment from a pharmaceutical company) influences the physician’s ability to make an objective medical decision. Medical research must be conducted according to ethical principles as well, and there is a specific set of guidelines for research on vulnerable populations (e.g., pregnant women, children, prisoners).
SIGNIFICANCE OF THIS DEVELOPMENT
Ethics is often seen as a proscriptive activity—telling you what you cannot do. But in many cases it can be very freeing. It can affirm that you are doing the right thing. If you go through the proper ethical thought process, you’ll have greater certainty that what you’re doing is the right thing. Relieved of nagging doubts, you will be able to proceed more directly and more vigorously with your care plan. As the health system evolves, ethical decisions could become more challenging. For example, mounting difficulties in finding affordable insurance prompt patients to forgo the care they need, and this affects the clinician’s care plan.
Some doctors think of medical ethics as a very esoteric field, removed from the practical considerations of clinical practice. It is true that medical ethics is first and foremost a matter of conscience, but it also has some very practical implications, applications and significance
Many professional ethicists recommend using four basic values, or principles, to decide ethical issues:
1. Autonomy: Patients basically have the right to determine their own healthcare.
2. Justice: Distributing the benefits and burdens of care across society.
3. Beneficence: Doing good for the patient.
4.No malfeasance: Making sure you are not harming the patient.
However, ethical values are not limited to just these four principles. There are other important values to consider, such as truth-telling, transparency, showing respect for patients and families, and showing respect for patients’ own values. In addition, medical ethics is not just a thought process. It also involves people skills, such as gathering the facts needed to make a decision and presenting your decision in a way that wins over the confidence of all parties. Listening skills are an essential part of medical ethics. Quite often, ethical disputes result from not knowing all the facts, or not providing all the facts to patients. Tactfulness and respect are also important. A well-constructed ethical decision could be ignored if you have not won the patient’s confidence.
IMPACT
Some doctors think of medical ethics as a very esoteric field, removed from the practical considerations of clinical practice. It is true that medical ethics is first and foremost a matter of conscience, but it also has some very practical implications and applications. Physicians who can describe their ethical concerns and use negotiating skills may be able to change the organizational policies that produce burnout. Here are some reasons to take medical ethics seriously:
• To help resolve disputes between family, patients, physicians, or other parties. Often, the parties involved are operating strictly on emotion, which makes it difficult to come to a logical and fair decision. Ethics adds another dimension to help make decisions.
• To maintain a clear conscience. All doctors want to be sure they have done the right thing. Being an ethical physician is more important than making money or seeing as many patients as possible.
• To not make yourself look uninformed. Physicians sometimes stumble onto poor decisions because they did not understand their role, had not bothered to identify an ethical challenge, or hadn’t thought the situation through to its logical conclusion.
• To maintain the respect of your patients. Ethical missteps can destroy the bond between doctor and patient. Patients often implicitly trust their doctors, but once that trust has been breached, it is difficult to repair.
• To maintain respectful relationships with other clinicians. Your colleagues often have very definite opinions about what is ethical, often enshrined in various codes of ethics of the profession or learned from mentors. Those codes and ethics role-modeling are created by people who practice some form of ethical decision-making.
• To maintain some efficiency. Although ethical decision-making often requires extra time, it also can save time by anticipating disagreements that can slow down the care process. If you aren’t ethical, patients or other caregivers who are upset with your decisions can seriously impede your work.
• To reduce burnout. One cause of burnout is incongruence between physicians’ personal values and those of their organization. Physicians who can describe their ethical concerns and use negotiating skills may be able to change the organizational policies that produce burnout.
STATUTORY PROVISIONS
The Medical Council Act, 1956 looks over the wrongdoings of medical practitioners in India. In 1933, the Indian Legislative Assembly passed the Indian Medical Council Act, 1933. This Act was highly criticised resulting in repealing of the entire Act. A new Act called the Indian Medical Council Act, 1956 was formed and passed which is the current law of the land. General Medical Council (acting at State level) is the apex body to manage the misconduct of the medical practitioners. Some additional powers to expel and suspend medical practitioners (if required) have been given to the State Medical Council. They are also empowered to enlist the medical practitioners who have faced disciplinary actions.
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (amended upto 8th October, 2016) indicates the duties and responsibilities of the registered medical practitioners. These regulations enforce certain standards which medical practitioners are required to follow. If they fail to do so, legal action can be taken against them and they can be penalized as well. Some of the duties and responsibilities of the physician are –
• Maintaining good medical practice
• Maintenance of medical records
• Highest quality assurance in patient care
• Patience, delicacy and secrecy
• Patient should not be neglected
• Unnecessary consultations should be avoided
• Punctuality in Consultation
• Not to conduct sex determination test
• Advertising is not allowed
• Contravening cosmetics and drugs act are not allowed
• Reporting to call for emergency, military situations
• Reporting of suspected causes of death
• There should be informed consent of the patient
• Running an open medical shop is not allowed
• Ban on practice of euthanasia
Medical Practitioners are required to follow the standards set in the Code. The Code also states acts of commission or omission on the part of a physician which shall constitute misconduct rendering him liable for disciplinary action.
CASE LAWS
Following mentioned are some of the landmark cases which shows how negligence and unethical conduct on behalf of the medical practitioners can lead to serious consequences, even resulting in death of the patients. Hence, it is extremely important for physicians to follow the proper procedure along with code of conduct keeping in mind the basic morals.
In A.S. Mittal and Another v. State of U.P. and others, 1989 AIR 1570, the Court had opined that there is a possibility of criminal convictions by criminal courts for offences including moral turpitude as it was very clearly observed by the Hon’ble Supreme Court that medicinal profession is one of the most established callings of the world and is the most philanthropic one in Poonam Varma v. Ashwin Patel, AIR 1996 SC 2111.
In Dr. Kunal Saha v. Dr. Sukumar Mukherjee, AMRI (Advanced Medicare and Research Institute Ltd.) and Ors,Popularly known as Anuradha Saha Case. This case was filed in 1998 against AMRI Hospital, namely three doctors- Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. The petitioner had alleged medical negligence on the part of the doctors resulting in the death of the patient. Facts of the case in brief are Petitioner’s wife was suffering from a drug allergy and the doctors were negligent in prescribing the medicines, which further aggravated the condition of the wife, resulting in her untimely death. Supreme Court found the doctors guilty and awarded a compensation of around seven crores to the petitioner for the loss of his wife.
In V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr., (2010) 5 SCC 513, Krishan Rao had filed a case against the hospital alleging that his wife was wrongly diagnosed and treated which resulted in her death. Facts of the case in brief are that the Petitioner’s wife was suffering from malaria fever whereas she was treated for typhoid fever. Due to the wrong medication and treatment given by the hospital, her condition worsened leading to her death. Court found the Hospital at fault by applying the principle of “ipsa loquitur” (Latin for “the thing speaks for itself”) and the Petitioner was awarded a compensation of Rs. Two lakhs.
In Mrs. Arpana Dutta v. Apollo Hospital Enterprises Ltd. And Ors., AIR 2000 Mad 340. Facts of the case in brief are that a woman had surgery for removal of cysts in her uterus. The doctors told her that the operation is successful. However, after a couple of days, the woman died complaining of severe pain in her lower abdomen. After her body was cremated, a pair of scissors was found in the ashes. It was later found out by the Court that during the operation for removal of cysts, one of the operators had negligently dropped the pair of scissors in the abdomen of the woman. The principle of vicarious liability i.e. “qui facit per alium facit per se” (Latin for “He who acts through another does the act himself”) was applied in this case and the authorities of the Hospital were held guilty and a hefty compensation was awarded to the patient’s family.
In Pravat Kumar Mukherjee v. Ruby General Hospital and Ors., 2005 CPJ 35 (NC). The National Consumer Disputes Redressal Commission of India gave a landmark judgement on treating of accident victims. Facts of the case in brief are that a boy named Samanate Mukherjee, a second year student pursuing B. Tech from Netaji Subhas Chandra Bose Engineering College had met with an accident. The boy was hit by a Calcutta transport bus and rushed to the hospital which was one kilometer from the accident spot. He was in conscious state when he was being taken to the hospital and he showed his medical insurance card, which clearly indicated that he will be given a sum of Rs. 65,000 by the Insurance Company in case of an accident. Relying on it, the Hospital started his treatment. However, after initial treatment, the hospital demanded a sum of Rs 15,000 and on the non-payment of the demanded money, hospital discontinued his treatment. Afterwards, he was rushed to another hospital however, he died before reaching there. National Commission held Ruby Hospital liable and a compensation of Rs. 10 lakhs was given to the grieving parents.
ANALYSIS
Values are not set in stone. They evolve as the attitudes of society change. Half a century ago, when societal norms and educational standards were changing, the medical profession shifted from paternalism (the doctor knows best) to individual autonomy (patients must be consulted). Medical values tend to be loosely based on what a majority of the public holds to be true. However, ethics decisions cannot be based on public opinion because the people may not heed the values of minorities or those with views outside of the mainstream. The bottom line is that no one would want their own care decided by a bunch of inattentive and ill-informed people taking a 2-minute survey. So when one makes an ethical decision in a coherent, thoughtful way, they may well diverge from current public opinion, but their values would still be sensitive to what the mainstream accepts. Medical ethics differs from morality. Ethics is based on values and reasoning, and it uses persuasion to get its message across, whereas morality involves adhering to a specific belief system or code of conduct. Morality relies on an authority, such as the Bible, to justify its message. Morality does not just involve religion. It can be political or personal, such as having a fascist or communist point of view, grounded in faith or tradition rather than facts or arguments.
In contrast, medical ethics has a flexible set of solutions. It is based on facts and logic, and not religious doctrine. One can still have political opinions and religious faith, but one will need to set them aside when forming and offering an ethical opinion to those who do not follow their personal morality.Some people view medicine almost as the new religion. People often come to the doctor with the same hopes that they bring to a minister: “Save me, prepare me, redeem me.” Of course, science cannot redeem anyone, but it does need to have a heart.
A pure scientist, simply observing medical phenomena, would have a pragmatic attitude about life, sickness, and death. Science needs an ethical framework to make it humane. Ethical decisions should respect the values and attitudes of patients. If patients oppose vaccinations or blood transfusions for their child, their beliefs have to be taken into account, even if you, the doctor, will not ultimately follow their requests. Respecting the patient’s wishes has a practical consequence: Doctors who simply overrule the patient often end up seeing their treatments fail, because patients will probably be fighting them the whole way. Patients who are overruled do not tell the truth. But patients who are in dialogue and negotiation with their doctors are more likely to come to a reasonable compromise—even if it’s one the doctor doesn’t entirely endorse.
REFERENCE
(2) Burton, A W (I97I). Medical Ethics and the Law Sydney, Australian Medical Publishing Co, p 13.
(3) D. Pellegrino, “The Internal Morality of Clinical Medicine: A Paradigm for the Ethics of the Helping and Healing Professions,” Journal of Medicine & Philosophy 26 (2001): 559-79.
(5) Menon N R Madhava. “Medicine, ethics and the law.” Indian Journal of Medical Ethics [Online], 5. 1 (2008): 31. Web. 10 Jun. 2019.
(6) L. Beauchamp and J. F. Childress, Principles of Biomedical Ethics, 7th ed. (New York: Oxford University Press, 2012).