LEGAL & ETHICAL ASPECTS OF HEALTHCARE

Vol. 16 No.5 (May, 2006), pp.306-308

LEGAL & ETHICAL ASPECTS OF HEALTHCARE, by Sheila A.M. McLean and John Kenyon Mason. London and San Francisco: Cambridge University Press, 2003. 264pp. Paperback. £24.99/$45.00. ISBN: 1841101281.

Reviewed by Katharine Van Tassel, Professor of Law, Western New England College School of Law. E-mail:kvantassel [at] law.wnec.edu.

The modern face of medicine reflects a prodigious and growing range of treatment options. Paralleling this growth, society is witnessing an expanding acceptance of respect for patient autonomy in healthcare decision-making. While acknowledging that active patient involvement in medical management can lead to a more successful outcome, physicians can become frustrated when their advice is ignored or rejected by patients. This dynamic has created both a partnership and tension in the doctor-patient relationship. In England and Scotland, a body of law has developed which has begun to sort out the complex issues that can arise when patients, families and physicians disagree. The authors of LEGAL & ETHICAL ASPECTS OF HEALTH CARE take on the task of explaining this body of law in a way that all of the stakeholders can understand. The authors state in the Preface:

If rights are to be exercised effectively, it is important that we know what they are. If challenges are to be mounted, they should be based on firm grounds. What we attempt to do in this manuscript is to explain and discuss the way in which the law tries to ensure that these criteria are met. It will become obvious to the reader, however, that the law, of itself, is often inadequately equipped to achieve this end. We will also ask, and try to answer, some difficult ethical questions.

LEGAL & ETHICAL ASPECTS OF HEALTHCARE is a winning collaboration between two authors who merge their different areas of expertise into a captivating collection of essays. Sheila McLean is a lawyer and Director of the Institute of Law and Ethics in Medicine, School of Law, University of Glasgow. John Kenyon Mason is a physician and Professor (Emeritus) of Forensic Medicine, Edinburgh Law School, University of Edinburgh. After the introductory chapters that provide a simple guide to the legal system and an overview of the National Health Service, McLean and Mason address a broad range of subjects, including: confidentiality (Chapter 3), informed consent (Chapter 4), the right to refuse medical treatment (Chapter 5), medical negligence (Chapter 6), research on human subjects (Chapter 7), assisted reproduction (Chapter 8), genetics (Chapters 9 and 11), abortion (Chapter 10), end-of-life decision-making (Chapter 12), organ donation (Chapter 13), sex and gender (Chapter 14), mental health and capacity (Chapter 15) and, law and the elderly (Chapter 16).

Each chapter starts with an introduction to the basic medical and legal concepts necessary to understand the discussion of the issues. The unique pairing of the expertise of the authors allows them to carefully craft their lively prose to avoid medical and legal jargon, making these complex and difficult subjects [*307] understandable for the average person. The issues are outlined, explained and illustrated by a narrative of a medical conflict as played out in actual litigation. While very accessible to a general audience, the book also provides an excellent introduction for the average healthcare professional or lawyer delving into these issues for the first time. Also, members of the legal and medical profession who are well-versed in United States law will find this book to be an outstanding overview of the ways in which the medical professions and legal systems of England and Scotland address the issues. This book is not intended to be a comprehensive or academic textbook on health law or ethics, but rather as a beginning point for all parties interested in healthcare. To that end, the authors have provided a selected bibliography for each topic for further reading. Nor is this book an attempt to influence the reader on what the ethically appropriate answers are to specific dilemmas. Rather, the authors expose and elucidate differences of opinion on these issues and leave the reader to draw his or her own conclusions.

A representative essay is Chapter Eight, entitled “Assisted Reproduction,” which provides a first-class primer on British law governing reproductive medicine. In this chapter, the book outlines the social, legal and ethical issues generated by the advent of powerful, but expensive, new medical technologies to treat infertility. Before dealing with these issues, the authors first inform the reader of the incidence of infertility. Ten percent of all couples actively attempting to get pregnant experience reproductive problems. This makes infertility a significant disability in both numerical and emotional terms. The book moves on to explain the various identifiable physical causes of childlessness in both men and women. A variety of medical treatments available for infertility are then carefully described. After establishing this basic understanding, McLean and Mason assess the laws relevant to each treatment and explore some of the legal ambiguities and inequities associated with IVF, cloning, post-humous reproduction, sperm and egg donation, and surrogacy.

For instance, the book provides a startling description of one of the ways that access to in vitro fertilization (IVF) is regulated. Procreation is essential to the survival of any species. And the right to reproduce is widely accepted as a fundamental right. In most societies, the state may not prevent an individual from having children. But does this negative right to be left alone by the state translate into a positive right to medical assistance when an individual is unable to have children naturally? Does a physician have an obligation to provide assistance to anyone who asks? In England, the answer to both of these questions is an unsurprising “no.” The same is basically true in the United States. What is jarring is that, in England, where IVF may only be provided by licensed clinics, a clinic is encouraged by law to screen a woman’s (or a couple’s) suitability to receive treatment services.

[I]n deciding whether to provide treatment, clinics are advised to bear in mind such variables as the patients’ abilities to provide a stable environment for a resulting child, their medical histories, their health and age as [*308] indicators of their ability to provide for the child’s needs and the effect of the new baby on existing children.(p.105)

These factors are not considered by the state in issuing a marriage license, and the authors note that “no-one would think of imposing such conditions on natural parenthood” (p.105). This government guideline calling for reproductive screening based on medical histories is a license to discriminate based on considerations of eugenics. In addition, it appears that clinics may discriminate based on differences in moral philosophy and socio-economic standing. For example, McLean and Mason refer to the well-known case involving a woman who was formerly a prostitute and who was denied infertility services. The court found that this refusal was reasonable.

The ethical concerns raised by regulation of reproductive medicine in England serve as a chilling reminder that society cannot become complacent about ethical issues that deceptively appear to have been long-resolved. Every chapter in this book implicitly reminds the reader that these issues will continuously repeat themselves as society struggles to deal with advances in scientific knowledge of the human body and technology. For example, in Chapter 9, entitled “Genetics and Pregnancy,” the book deals with the present and future capabilities of controlling the genetic codes of our offspring. Is this a dream come true where our children can live in a disease free world? Or the nightmarish return of eugenics where wealthy parents are able to create designer babies by selecting socially desirable traits while rejecting others? What role should the principle of intergenerational justice play when viewed through the lens of the impact this technology has on the rights of the disabled? In Chapter 12, the book points to some evidence that the suicide rate is rising among the elderly in the United States. This rising rate is often linked to fears of being kept alive in spite of an unacceptable quality of life. This raises questions about very divisive end-of-life issues. Are physician-assisted suicide and withholding/withdrawing treatment in the face of medical futility moral acts to provide relief for a suffering patient, or are these acts murder? Is the principle of double effect just a form of euthanasia? In Chapter 13, entitled “Disposal of the Body and Body Parts,” the book reminds us that organ transplantation has become mired in a maze of legal and ethical controversies. The very real questions of who lives, who dies and why are tangled with more abstract questions of who owns and controls human bodies, living donors and the illegal organ trade, definitions of death, organ shortages and consent to harvest organs for donation.

In LEGAL & ETHICAL ASPECTS OF HEALTH CARE, McLean and Mason set out to educate healthcare professionals, lawyers and the general public about the scope of patients’ rights and the legal criteria that the law dictates must be met before it will support an assertion of those rights. McLean and Mason achieve this goal with flying colors by presenting the ethical and legal issues posed by a broad range of subjects simply, but without simplification.

*************************************************