The Doctor-Knows-Best NHS Foundation Trust: a Business Proposal for the Health Secretary
By Charles Foster
Informed consent, in practice, is a bad joke. It’s a notion created by lawyers, and like many such notions it bears little relationship to the concerns that real humans have when they’re left to themselves, but it creates many artificial, lucrative, and expensive concerns.
Of course there are a few clinical situations where it is important that the patient reflects deeply and independently on the risks and benefits of the possible options, and there are a few people (I hope never to meet them: they would be icily un-Falstaffian) whose sole ethical lodestone is their own neatly and indelibly drafted life-plan. But those situations and those people are fortunately rare. Continue reading
Conscientious Objection, Professional Discretionary Space, and Good Medicine
By Doug McConnell
Some argue that good medicine depends on physicians having a wide discretionary space in which they can act on their consciences (Sulmasy, 2017). Interestingly, those who are against conscientious objection in medicine make the exact opposite claim – giving physicians the freedom to act on their consciences will undermine good medicine. So who is right here?
Doing More Harm Than Good? Should the Police Always Investigate Non-recent Child Sexual Abuse Cases?
Hannah Maslen, University of Oxford, @hannahmaslen_ox
Colin Paine, Thames Valley Police, @Colin_Paine
Police investigators are sometimes faced with a dilemma when deciding whether to pursue investigation of a non-recent case of child sexual abuse. Whilst it might seem obvious at first that the police should always investigate any credible report of an offence – especially a serious offence such as sexual abuse – there are some cases where there are moral reasons that weigh against investigation.
Imagine a case in which a third party agency, such as social services, reports an instance of child sexual exploitation to the police. The alleged offence is reported as having occurred 15 years ago. The victim has never approached the police and seems to be doing OK in her adult life. Although she had serious mental health problems and engaged in self-harm in the past, her mental health now appears to have improved. She does, however, remain vulnerable to setbacks. Initial intelligence gives investigators reason to believe that the suspect has not continued to offend, although there are limits to what can be known without further investigation. Should this alleged offence be investigated?
Should Religious Homophobia be a Firing Offence?
By Doug McConnell
It looks as if Isreal Folau will lose his job as a professional rugby player for expressing his apparently genuine religious belief that drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, and idolators are all going to hell. Morgan Begg, a research fellow at the Australian conservative think-tank, the Institute of Public Affairs, has recently argued that this is the result of a “totalitarian” and “authoritarian desire to impose ideological orthodoxy on Australians.” I respond that it is, in fact, Begg’s ideological position that is more amenable to totalitarianism and authoritarianism. Continue reading
Against Conscientious Objection In Health Care: A Counterdeclaration And Reply To Oderberg
Alberto Giubilini (Wellcome Centre for Ethics and Humanities, University of Oxford) and
Julian Savulescu (Uehiro Centre for Practical Ethics, University of Oxford)
Conscientious objection in health care – that is, healthcare practitioners objecting to performing certain legal, safe, and beneficial medical procedures (e.g. abortion) that a patient requests by appealing to their personal moral values – is one of the most debated topics in medical ethics at present time. Although at the moment doctors’ private conscience enjoys a lot of legal protection – most laws that make abortion legal contain clauses that exempt doctors from performing the procedure if they so wish. We have provided reasons, both in this forum and in our academic work, for why we think that conscientious objection in health care is not morally permissible and should not be allowed in the case of procedures that are legal, safe, beneficial, autonomously requested by patients and, more generally, consistent with the standards of good medical practice (see e.g. Savulescu 2006, Savulescu and Schuklenk 2017, Giubilini 2014, Giubilini 2017). Some people disagree and advance reasons for the opposite view. One of the scholars who has more clearly and straightforwardly articulated the principles and reasons in support of conscientious objection in health care is Professor Oderberg of Reading University. Prof Oderberg was recently invited to debate the issue with Julian Savulescu at the Masters Course in Practical Ethics run by the Uehiro Centre here at the University of Oxford. On that occasion, Prof Oderberg’s defense of conscientious objection centred around a series of principles and considerations that he very effectively formulated in the 17 main points that constitute his “Declaration in support of conscientious objection in health care”, published on the University of Reading website and which is available for people who agree with him to sign. Continue reading
The Dangers Of Deferring To Doctors
By Charles Foster
(Image: tctmd.com)
There is a dizzying circularity in much medical law. Judges make legal decisions based on the judgments of rightly directed clinicians, and rightly directed clinicians make their judgments based on what they think the judges expect of them. This is intellectually unfortunate. It can also be dangerous.
There are two causes: Judges’ reluctance to interfere with the decisions of clinicians, and doctors’ fear of falling foul of the law.
In some ways judicial deference to the judgment of professionals in a discipline very different from their own is appropriate. Judges cannot be doctors. The deference is best illustrated by the famous and ubiquitous Bolam test, which is the touchstone for liability in professional negligence cases.1 A doctor will not be negligent if their action or inaction would be endorsed by a responsible body of professional opinion in the relevant specialty.
In the realm of civil litigation for alleged negligence this deference is justified. The problem arises when the deference is exported to legal arenas where it should have no place. The classic example relates to determinations of the ‘best interests’ of incapacitous patients. Something done in relation to an incapacitous patient will only be lawful if it is in that patient’s best interests. Continue reading
What’s Wrong With Simulation in Football?
Written by Doug McConnell
The 2018 edition of the football world cup has brought with it a renewed bout of hand wringing over ‘simulation’, e.g. players falling, diving, and tumbling under imaginary fouls, rolling around in mock pain, or clasping their faces pretending to have been hit. Stuart James writes in the Guardian that “play-acting has been commonplace at this World Cup. It’s become a cancer in the game, not just a stain on it, and Fifa needs to find a cure.” But what exactly is wrong with this behaviour? Why is the rise of this behaviour ‘a cancer in the game’? Continue reading
Tongue Splitting, Nipple Excision, And Ear Removal: Why Prosecute The Operator But Not The Customer?
By Charles Foster
Image: ‘Split tongue: procedure, safety, result’: Tattoo World: Standard YouTube licence.
The appellant in R v BM was a tattooist and body piercer who also engaged in ‘body modification’. He was charged with three offences of wounding with intent to do grievous bodily harm. These entailed: (a) Removal of an ear; (b) Removal of a nipple; and (c) division of a tongue so that it looked reptilian. In each case the customer had consented. There was, said the appellant, no offence because of this consent.
Where an adult decides to do something that is not prohibited by the law, the law will generally not interfere.
In Schloendorff v Society of New York Hospital (1914) 105 NE 92 Cardozo J said:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”[1]
This principle has been fairly consistently recognised in the English law.[2] Thus, for instance, In In re T (Adult: Refusal of Treatment, Butler-Sloss LJ cited with approval this section of the judgment of Robins JA in Malette v Shulman[3]:
‘The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.’ Continue reading
Can We Trust Research in Science and Medicine?
By Brian D. Earp (@briandavidearp)
Readers of the Practical Ethics Blog might be interested in this series of short videos in which I discuss some of the major ongoing problems with research ethics and publication integrity in science and medicine. How much of the published literature is trustworthy? Why is peer review such a poor quality control mechanism? How can we judge whether someone is really an expert in a scientific area? What happens when empirical research gets polarized? Most of these are short – just a few minutes. Links below:
Why most published research probably is false
The politicization of science and the problem of expertise
Science’s publication bias problem – why negative results are important
Getting beyond accusations of being either “pro-science” or “anti-science”
Predatory open access publishers and why peer review is broken
The future of scientific peer review
Sloppy science going on at the CDC and WHO
Dogmas in science – how do they form?
* Please note: this post will be cross-published with the Journal of Medical Ethics Blog.
The Tale of the Ethical Neonatologist – And Why There Shouldn’t Be a Legal Right of Conscientious Objection
Doctors have values. These are sometimes described as their conscience. Those values can conflict with what has evolved to be medical practice. Where that practice is consistent with principles, concept and norms of medical ethics, their values should not compromise patient care. The place for doctors to express their values and seek to revise the practice of medicine is at the level of policy and law, not at the bedside. Because conscientious objection can compromise patient care, there should be no legal right to conscientious objection to medical practice that is consistent with medical ethics. Personal values (“conscience”) can be accommodated by employers under standard labour law as occurs in Sweden and Finland, or candidates selected for medical specialties who have values consistent with ethical medicine, or new professions developed to provide those services.
Doctors may have very defensible values. But just because their values are reasonable does not imply they should be accommodated by medicine. Consider the Conscientious Neonatologist.
The Conscientious Neonatologist
Peter is a thoughtful, reflective specialist caring for premature babies in intensive care. He is a vegetarian for 20 years. He became deeply concerned about the welfare of animals during his university years. He believes in “animal liberation”. Neither he nor his family consume meat or use animal products for clothing.
In his job, he must prescribe “surfactant” – a substance to help the lungs of premature babies function better. The standard, and most effective form is derived from the lungs of pigs. However there is a new artificial form. He considers this a more “ethical” product and considers using it in his medical practice. However, it is not currently used in the newborn intensive care unit because it is more expensive than standard treatment, and there is not clear evidence about its effectiveness.
Peter conscientiously objects to the use of animals in medicine and medical research. How should his personal values influence his professional practice?
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