You are here: HomeEducational ResourcesSupport Guide → Section D: Professional guidelines, Law and Ethics

Educational Resources

Practical Guide to Clinical Ethics Support

Section D: Professional guidelines, Law and Ethics

Introduction

The role of an ethics committee or group is to provide support and advice on the ethical issues involved in clinical practice, at the level of both individual cases and organisational policy. Thus the focus of a committee’s discussion must be on the ethical considerations raised rather than on, for example, risk management issues. However, ethics committees, like clinicians and the institutions in which they work, must be aware of the legal and professional frameworks that govern health care practice, and their advice should be situated in the context of legal and professional guidance. In section C we have discussed briefly some moral theories and ethical frameworks that will inform a discussion of ethical issues presenting to an ethics committee. In this section we give a brief description of the legal framework in the UK, with particular reference to health care law, and an introduction to sources of professional guidance relevant to health care. We illustrate how an ethics committee may use ethics, law and professional guidance to inform a discussion by using an example case study that might be brought to an ethics committee.

Relationship between Law and Ethics

“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.” 1

For example, the law on informed consent gives effect to ethical principle of respect for autonomy, and the current development of a Mental Capacity Bill in the UK highlights the need to enable patients to make treatment decisions for themselves.

Law and ethics are both normative, that is they are concerned with a minimum standard of behaviour that may be considered acceptable or unacceptable by the relevant society.

Nevertheless there are clear differences. Compliance with legal rules is mandatory and a failure to comply may result in penalties. By comparison ethics could be seen as aspirational – it attempts to articulate a framework for reflection. Whilst this may affect the way that a person acts as a result of such reflection it is by no means necessary that it would or even that it should produce the same action by all people in specific cases.

Law is more specific in its terminology and application. Legislation, i.e., an Act of Parliament, and case law will state what should happen if a certain set of circumstances are fulfilled. Although law does not always offer clear answers there is a set framework for discussion.

For example the legal framework for human reproductive technology is set out in the Human Fertilisation and Embryology Act 1990 and the nuances of its application have been considered by the courts. Court cases have shown how the law is to be applied, although there have been many difficult areas of interpretation, e.g. the meaning of ‘embryo’ etc.

The moral and ethical considerations are much more difficult to pin down. Not only do individuals possess different moral perspectives, but also ethical considerations may conflict. In the debate over ‘saviour siblings’, for example, the issues of parental choice and autonomy may conflict with the benefits to society overall; acting beneficently towards the future children created and issues of justice.

Ethics committees are not a substitute for consideration of legal issues. If there is concern about the legal position in a clinical case, or if there is serious conflict between clinicians and patients or their relatives, a legal opinion should be sought and, if appropriate, a referral made to court. The court may take into account the view of a clinical ethics committee (CEC), but it is not constrained by it. Nevertheless an ethical dimension is increasingly assuming greater prominence in the deliberations of the court. In the Nationwide Organ Group Litigation 2 case the court was supplied with a consideration of the ethical issues arising from the retention of organs from dead children without the parents’ consent.

The Legal Framework in the UK

There are two strands to UK law, statute and case law, both of which have a bearing on health care. Within the UK, Scotland and Northern Ireland have their own legal system so it is important to be clear about which law applies in particular circumstances. While there are often similarities between the different jurisdictions, there may also be significant differences. For example, in Scotland it is possible for a person to appoint a welfare attorney to make decisions about medical treatment for that person in the event that he / she becomes incompetent (Adults with Incapacity (Scotland) Act 2000) but this, as yet, is not possible in England.

Statute

Statutes or Acts of Parliament can only be overturned by a further Act of Parliament. The Courts may interpret statute in particular cases, but they cannot overrule it. Major Parliamentary legislation usually follows widespread consultation and includes several stages, culminating in a Bill that is put before Parliament. There are several statutes that have relevance for health care and we list a range in Appendix D1. The Human Rights Act 1998 is likely to have an increasing impact on health care in the UK.

Case law (common law)

Case law is a body of law built up by judicial consideration of cases over many years. It is also known as common law. A court must follow any previous ruling of the court on the same matter – this is known as the doctrine of precedent. However, a court hearing a matter may consider that the issues are sufficiently different from a previously decided case not to bind it and in that respect it can make ’new’ law. Higher courts are not bound by decisions of lower courts, so for example the House of Lords, the highest national court, is not bound by decisions of the Court of Appeal.

A number of high profile medical cases have been heard in recent years, for example, assisting suicide 3 , refusal of medical treatment by a competent patient 4 , use of frozen embryos created by IVF 5.

Many of the medical cases that come before a Court involve treatment of a patient who lacks capacity to make a decision regarding his / her own treatment. In England currently no one (including the Court) can consent to treatment on behalf of an incompetent adult. Thus, when there is disagreement over treatment of an incompetent adult the Court is asked to make a declaration that the proposed treatment, or treatment withdrawal, is in the patient’s best interests. In the case of children the Court may, in some circumstances, give, or withhold, consent to treatment for a child.

A declaration of the Court must be sought about the best interests of the patient in some areas of medical practice e.g. removal of artificial nutrition / hydration from patients in permanent vegetative state, non therapeutic sterilisation of mentally handicapped adult patients, neonatal circumcision for religious reasons where parents disagree.

A list of some of the key cases in English law relevant to health care can be found in Appendix D2

Guidance for Health Professionals in the UK

A range of organisations, including professional organisations, regulatory bodies and government departments, provide guidance for health professionals on ethical issues relating to clinical practice. Below we describe the type of guidance provided by some of these organisations. A detailed list of guidance can be found in Section E.

General Medical Council (GMC)

The General Medical Council is a statutory body. Its purpose is to protect the public by maintaining a register of doctors who are competent and fit to practise medicine. There are about 200,000 doctors on the medical register. The GMC handles complaints about doctors’ performance.

The general responsibilities and ethical standards of a doctor are summarised in 14 key principles, called the duties of a doctor.

The General Medical Council has built upon these principles by issuing guidance on the general aspects of good medical practice and specific areas, including guidance on confidentiality, consent and withholding and withdrawing life-prolonging treatment 6.

“This guidance describes the principles of good medical practice and standards of competence, care and conduct expected of doctors in all aspects of their professional work. Serious or persistent failures to meet these standards may put a doctor’s registration at risk” 7.

Although guidance produced by the GMC creates no statutory legal obligation, it does carry weight in law and the Courts have recognised the importance of such guidance. In the case of W v Egdell 8 the Court of Appeal referred to and applied the (then) current GMC guidelines on confidentiality. However, the Courts may also question GMC guidance.

British Medical Association (BMA)

The British Medical Association is a professional association of doctors, representing their interests and providing services for its 128,000 members. Almost 80% of UK practising doctors are members.

The BMA has a medical ethics department that answers individual ethical enquiries from doctors, and produces guidelines and books on ethical issues. It also provides the secretariat to the Medical Ethics Committee (MEC) of the BMA. The MEC comprises 18 members, including doctors, philosophers, lawyers, theologians and lay people, thus providing expertise from diverse fields. The MEC debates ‘issues of principle in medical ethics, medical law, and ethical matters concerning the relationship between the medical profession, the public and the state’ 9.

The BMA produces a number of publications on a wide variety of topics, such as consent and refusal of treatment and patient access to health records. These publications highlight the ethical issues but do not have force of law but, as with GMC guidance, may be taken into account by the Court in specific cases.

Nursing and Midwifery Council

‘The Nursing and Midwifery Council is an organisation set up by Parliament to protect the public by ensuring that nurses and midwives provide high standards of care to their patients and clients.’
www.nmc-uk.org/

It sets standards for education and practice, provides advice for nurses and midwives and considers allegations of misconduct. It has published a range of documents on standards and guidance for nurses on issues including a Code of Professional Conduct: Standards for conduct, performance and ethics.

Royal Colleges

Many of the Royal Colleges and Healthcare Professional Organisations provide guidance to their members on ethical issue relating to practice. Some Royal Colleges have an ethics committee that considers ethical policy and guidelines on specific issues. In general, these organisations do not provide advice on individual cases.

Department of Health (DH)

www.dh.gov.uk/

The Department of Health is responsible for setting health and social care policy, and providing guidance on healthcare issues in England.

Relevant documents can be accessed from the Department web site.

Links to DH guidance on specific issues such as consent can be found on the Network website http://www.ukcen.net/

Appendix D3 provides information about the National Institute of Clinical Excellence

Ethics, law, and professional guidance in case consultation

Below we use a case scenario to illustrate how a CEC will use ethical principles, professional guidance, and knowledge of relevant law in providing support and advice to health professionals.

Consent to Medical Treatment, Confidentiality and Teenage Patients

Dr Jennings, a consultant gynaecologist at an NHS trust, approaches the chair of the trust’s clinical ethics committee requesting the advice of the ethics committee on the following case. She has just seen a 15 year old girl (pseudonym Mary) in her gynaecology out patient clinic who has been referred by her GP for termination of pregnancy. Mary is 9 weeks pregnant. She has had the same boyfriend for the past 12 months and he is believed to be the father of the baby. Mary was extremely upset when seen in clinic. She had been using the oral contraceptive pill on a regular basis and was shocked that she had become pregnant. She said that she did not really agree with abortion but that after talking it through with her boyfriend she had decided that she would not be able to go through with the pregnancy and bring up a baby. A factor in her decision was the likely reaction of her mother to the news that she was pregnant, and she stated clearly that she did not want her mother to know anything about the pregnancy or the abortion. Mary’s father had left home when Mary was two and she had no contact with him. She had no brothers or sisters, and no other close relatives. Dr Jennings is unhappy about performing a termination without informing Mary’s mother. She thinks it is important for Mary’s mother to know in case there are problems after Mary is discharged, and she is concerned that Mary will have no emotional support in her distressed state. She has contacted Mary’s GP who said that he would not be prepared to breach Mary’s confidentiality by telling her mother.

Ethical Issues

Respecting autonomy

A key principle of medical ethics is that of respecting a person’s decisions about his/ her own health care. A person who understands all the relevant information about his/her medical problem, possible treatments and consequences of not having treatment, should be able to make a decision about what treatment to have, if any. This principle would also confer a duty on a doctor to respect a patient’s confidentiality and not divulge information about her to another person without her consent. The important consideration here is whether a patient is competent to make a decision about the particular treatment or particular breach of confidence. Thus, if Mary understands the nature of the treatment required, and the potential consequences of not telling her mother, and is clear that she does not want her mother to be told, the principle of respect for autonomy dictates that her confidentiality must be respected.

Consequences of the decision

While the principle of respect for autonomy is crucially important, there may be other ethical considerations that argue against respecting an individual’s autonomous decision in a particular case. It is possible that complying with a patient’s request for confidentiality might have harmful consequences for the patient him/her self (best interests and non maleficence conflicting with respect for autonomy), or for others. A careful assessment of the likely consequences of breaching Mary’s confidentiality, and the consequences of not breaching it, will need to be made but the risk of harm as a result of not breaching her confidentiality would need to be significant to justify overriding her autonomy by telling her mother.

Beneficence

Consideration of beneficence, or acting in Mary’s best interests, has a wider implication than simply assessing consequences of different courses of action. If Mary’s autonomous request for confidentiality is respected, the principle of beneficence would still require that the health professionals involved in her care did all that they could to ensure a good outcome to the process for Mary. For example, they could try and identify someone in whom Mary would confide and who could offer support to her, if not a relative or friend then professional support such as a youth worker.

Legal Issues

In English law a patient is a minor until 18 years of age. In Scotland the age limit is 16.

The Family Law Reform Act 1969 in England and Wales provides a person who is 16 or 17 years old with a statutory right to consent to medical treatment. Section 8, provides that:

Consent of a minor who is 16 years and over to any surgical medical or dental treatment is as effective as if an adult.

If a minor aged 16 or 17 has given effective consent then there is no necessity to obtain consent from a parent. (Consent to certain procedures, such as organ donation and non- therapeutic research, is not covered by this provision).

A person who is below 16 years old may consent to medical treatment provided that they have ‘sufficient intelligence and understanding to appreciate the information and advice about treatment and what it involves’. This is a statement of common (case) law. The issue was considered in detail by the case of Gillick v West Norfolk and Wisbech AHA 10. This case dealt with the issue of a teenage girl consenting to receive contraceptive advice independently of the consent and knowledge of her parents.

While the issue in Gillick judgement was whether a child under the age of 16 years could consent to treatment, the case also raises the question; in what circumstances may the duty of confidentiality owed to a teenage patient be breached? As the law recognises a duty of confidentiality to adults by health care professionals 11, it seems to follow that this duty would also apply to children who were competent to consent to treatment without requiring parental consent.

This issue has recently been considered by the Department of Health in the context of teenage girls seeking termination of pregnancy without parental knowledge 12.

Professional Guidelines

GMC

Confidentiality: Protecting and providing information

April 2004
www.gmc-uk.org/
The GMC has issued extensive guidelines on confidentiality, laying out the general principle that confidentiality should only be breached if there is a risk of serious harm as a consequence of maintaining confidentiality.

Disclosures to protect the patient or others

Paragraph 27
“Disclosure of personal information without consent may be justified in the public interest where failure to do so may expose the patient or others to risk of death or serious harm”.

This principle holds true whether the patient is an adult or a competent minor, as set out in the joint guidance on confidentiality and people under 18 published in 1994.

Guidance issued jointly by the BMA, GMSC, HEA, Brook Advisory Centres, FPA and RCGP January 1994

www.bma.org.uk

Confidentiality & people under 16

Exceptional Circumstances

“Although respect for confidentiality is an essential element of doctor-patient relationships, no patient, adult or minor, has an absolute right to complete confidentiality in all circumstances. Confidentiality must be balanced against society’s interests in protecting vulnerable people from serious harm. Thus, in rare cases for example, a breach of confidentiality may be justified if the patient’s silence puts others at risk and the doctor cannot persuade the patient to make a voluntary disclosure.”

Department of Health guidance

www.dh.gov.uk

In 2004, the Department of Health published revised guidance for health professionals on the provision of contraceptive services for under 16s entitled Publication of revised guidance for health professionals on the provision of contraceptive services for under 16s.

“The new guidance highlights for the first time that where a request for contraception is made by a person under the age of 16, doctors and other health professionals should establish a rapport with the young person and give the young person the time and support to make an informed choice.

They should do this by discussing:

  • The emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections;
  • Whether the relationship is mutually agreed or whether there may be coercion or abuse;
  • The benefits of informing their GP and encouraging discussion with a parent of carer. Any refusal should be respected. In the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, for example another family member or specialist youth worker.
  • Any additional counselling or support needs.

The Ethics Case Consultation Process

When a clinical ethics committee considers a case referral such as that brought by Dr Jennings in the case described on page D6, its discussion will be informed by consideration of the ethical principles involved in the case, the legal framework and professional guidance on the issue. Working within the structure of general legal and professional guidance, the ethical issues in this particular case will need to be considered carefully before appropriate advice and support can be offered to Dr Jennings. As we have illustrated, it is important for a clinical ethics committee to have knowledge of the relevant law and professional guidance, if it exists, when considering an issue, to guide the ethical discussion but not to pre-empt it.

Reading

Tonks A, McCall Smith A, Smith R. The BMJ’s ethics committee is open for business. BMJ 2001;322:1263 –1264

Mc Call Smith A, Tonks A, Smith R. An ethics committee for the BMJ. BMJ 2000; 321: 720

Hope, T, Savulescu J, Hendrick J. 2003 Medical ethics and law, the core curriculum. Chapter 4 – An introduction to law. Churchill Livingstone

Copyright of Section D is held by The Ethox Centre

Return to top

References

1. Lord Chief Justice Coleridge R v Instan [1893] 1 QB at 4532. A B and Others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust [2004] EWHC 644, (2004) 77 B.M.L.R. 145

2. A B and Others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust [2004] EWHC 644, (2004) 77 B.M.L.R. 145

3. R (on the application of Pretty) v DPP, [2001] UKHL 61, [2002] 1 A.C. 800

4. Re B (Consent to Treatment: Capacity), [2002] EWHC 429, [2002] 2 All E.R. 449

5. Evans v Amicus Healthcare Ltd & Ors [2004] EWCA (Civ) 727

6. The lawfulness of this Guidance has been considered by the court in R (on the application of Burke) v GMC [2004] EWHC 1879 (Admin). In October 2004 the GMC stated it would appeal this decision.

7. GMC, Ethical Guidance http://www.gmc-uk.org/standards/default.htm

8. W v Edgell [1990] Ch. 359, [1990] 2 W.L.R. 471

9. http://www.bma.org.uk/ap.nsf/content/hubmedicalethicscommittee

10. Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).

11. W v Edgell [1990] Ch.359, [1990] 2 W.L.R. 471

12. Publication of revised guidance for health professionals on the provision of contraceptive services for under 16s.
http://www.dh.gov.uk/PublicationsAndStatistics/PressReleases/PressReleasesNotices/fs/en?CONTENT_ID=4086804&chk=gId6AB