Ethics Doesn’t Rule, OK?

By Charles Foster

Ethics and law are different. Or they should be.

Law has the power to coerce. That is a frightening power. There should be as little law as possible. But there should be more ethics than there is.

The boundary between the two domains is not absolute. Clinicians are probably more frightened of being struck off by the General Medical Council (GMC) (after an adjudication on their ethics by the Medical Practitioners’ Tribunal Service) than they are about an order by a civil court that compels their insurers to pay damages for clinical negligence. The exercise of the GMC’s statutory powers can be draconian: the existence of those powers, and the associated sanctions, is certainly coercive.

But although the boundary is sometimes blurred, it is still real. It is the job of the law to keep it from becoming dangerously permeable. In a recent case the law was caught napping.

A man was found to have Huntingdon’s disease (HD). That meant that his children might be affected. He refused to allow his clinicians to notify his daughter (who was pregnant) of the possibility that she might have HD, or be a carrier. He was worried that if she were told, she might terminate the pregnancy. The clinicians complied with his wishes, despite having contact with the daughter.

The daughter later sued. saying that the clinicians owed her a duty of care, and that this entailed breaching their duty of confidentiality towards the father. But if she was not a patient, did/should the clinicians owe her any duty?

It is a complex case. Most of the complexities don’t matter for the purposes of my point here. But the trial judge concluded that a duty was owed.  It was a duty to balance the interests of the father in non-disclosure against the interests of the daughter in disclosure. The defendants had said that it would be oppressively onerous to impose such a duty. Not so, said the trial judge – and one of her reasons for saying that was that the relevant professional guidelines (codes of ethics), already imposed such a duty. Since there was an ethical obligation, the reasoning went, there was nothing offensive about imposing an identical legal duty.

There is a lot to say about this. Much of what there is to say is of interest and importance only to lawyers. Anyone interested can find further discussion here.

All I want to say here is that the case contains a repercussive conflation of the functions of law and ethics. Depending on what the judges do with the conflation, it might prejudice defendants (whose ethics become formally justiciable), or claimants (who may be deprived of a legal remedy because the duty is held to be more amorphous than other comparable legal duties because of its ethical parentage).

The judges should be patrolling the border between law and ethics; mending fences where they have been broken; preventing unregulated traffic.