Abstract
At the very beginning of the sixth edition of Medicine, Patients and the Law (MPL), Professors Margaret Brazier and Emma Cave declare ‘[t]he pace of change in the National Health Service (NHS), Parliament and the law courts has not slowed down since our last edition in 2011’. 1 This rapid pace continues to alter and re-alter medical law – now indisputably a legal domain in its own right – and to give rise to specific questions of jurisdiction: questions which involve demarcating particular medico-legal issues between courts, statutory bodies, and medical professionals, who alone have the appropriate competence to decide on issues that arise. 2 Indeed, this edition of MPL grapples with significant legal issues pertaining to, among other things, negligent risk disclosure, 3 assisted dying, 4 wilful neglect by paid care workers, 5 the introduction of a statutory duty of candour on healthcare providers, 6 drastic cuts to legal aid funding for clinical negligence claims 7 and heavy-handed approaches by the law to promote public confidence in the medical profession. 8 This latest edition of MPL is a welcome and timely survey of the contemporary medico-legal landscape.
It would be easy to be overwhelmed by the pace of change in this area of the law. It is therefore to the authors’ credit that their book avoids becoming a disparate patchwork of updates on recent developments.
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The book’s main strength is that it retains a cohesive narrative through the authors’ selection of overarching themes, aims and ideas. One such theme is that the relationship between law and medicine (pp. 40–63) has become a highly public affair, and those with even a passing interest in current affairs will not be unaware of the questions Brazier and Cave address. That these jurisdictional debates – whether courts, statutory bodies or medical professionals are best placed to regulate medico-legal issues – take place in public complements the main aim of the book, one hard to achieve in principle but done well. Brazier and Cave have sought to make their book readable to a broad audience including students, lawyers, health professionals and the public; and their principal objective is to survey the ways in which law and medicine interact. While these audiences may be reading MPL for different purposes, Brazier and Cave’s central idea ensures that their book offers something for every reader. They state that their idea is: [T]o examine how medical practice is regulated, to analyse the rights and responsibilities of doctors and patients, to look at the provision for medical wrongdoing or error, and to explore the framework of legal rules governing those delicate questions of life and death when medicine, morals and the law overlap.
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This aim is a commendable one. It ensures that lawyers and non-lawyers can navigate the book’s chapters without always having to deliberate over complex ethical considerations. Yet while Brazier and Cave’s core motivation helps readers to appreciate the workings of medical law, their approach can at times be exclusionary. This is especially true since, as the authors acknowledge, medico-legal changes mean that judges are now ‘more ready to scrutinize medical practice’ 14 and that patients ‘are widely treated as consumers exercising choices’. 15 One important reason for these increasing levels of scrutiny and consumerism in medical law is because in certain areas where professionals make decisions, they are not clinical in nature. Instead, they are inherently moral and ethical. 16 This implies that the law has to respond to those inherent ethical issues and that it is not always possible to divest a survey of medical law of its ethical underpinnings. Nonetheless, Brazier and Cave’s central idea in this book is consistent with Brazier’s approach to medical law; that is, that it should be ‘firmly rooted in the practices that [are] being regulated’. 17
As with previous editions, MPL is split into three parts. The four chapters that comprise part 1, ‘Medicine, Law and Society’, introduce the overarching legal framework that encapsulates modern medicine. But, as the law only fixes baselines of behaviour, the authors cover some ethical principles and the concept of trust in professional–patient relationships in chapters 3 and 4, respectively. Part 2, ‘Medical Malpractice’, focuses on the legal remedies available to a patient dissatisfied with the medical care he or she received. It contains six chapters, focusing on legal standards of risk disclosure, the treatment of patients lacking capacity, clinical negligence, malpractice litigation, complaints and redress and medical products liability. There is symmetry in parts 1 and 2 of the book: the former focuses on the way the legal framework constitutes the professional–patient relationship; the latter on how the law intervenes when that relationship experiences conflict or disagreement. Part 3, ‘Matters of Life and Death’, comprises nine chapters and investigates controversial issues in which broader societal considerations can influence the legal entitlements of individual patients. This part of the book considers assisted conception, abortion and embryo research, clinical trials and research ethics, organ and tissue transplantation and issues at the end of life.
Generally, MPL achieves its main aim of being accessible to a broad audience. The authors employ a readable and engaging style in delivering their central idea. The book contains sections which have clearly been written with non-lawyers and undergraduate students in mind. For example, it includes sections on the sources of law, contains an overview of commissioning and accountability in the NHS and discusses what sort of problems legislation might tackle. At times, the authors imply that the law can and must do more to achieve clarity to help interested parties: ‘[t]he diligent student who searches for legal cases on proving clinical negligence will be overwhelmed with hundreds of cases…Few will offer more clarity by way of legal principle’. 18
The authors employ effective tactics to engage and sustain their reader’s attention. For example, they often introduce substantive topics through the medium of a case study which may be familiar to the reader. By asking readers to ‘consider this practical situation’, the authors amplify the public context in which the law operates and reinforce its relevance to medical practice. This tactic is used to great effect in the examination of a case involving conjoined twins to illustrate the concept of non-maleficence 19 and in the discussion of the limits of confidentiality with the example of a student who discovers that she is predisposed to Huntingdon’s chorea. 20 Often, these events are astonishing and read like works of fiction. 21 Elsewhere, they ask intriguing questions, such as: ‘[w]ill the law ever set limits [on] a competent person’s right to refuse treatment?’ 22 and ‘[w]hat of the surgeon who correctly decides to treat cancer of the bone in the right leg [but] by error amputates the wrong leg?’ 23 Both techniques also provide clarity as to the specific scenario to be addressed in that section. Yet it is here that the book’s at times relatively short examination of ethical considerations might be considered a weakness. In posing these interesting questions, the book leaves the ethical dimension to the reader’s imagination. But, if law and ethics are intimately linked, in responding to inherent ethical issues in medicine, then this seems like an oversight.
Chapter 1, ‘The Practice of Medicine Today’, is reflective, as it attempts to gauge societal perceptions of medical practice, and finds ‘[i]n 2016, medicine and healthcare in England appear immersed in crisis after crisis’. 24 The chapter picks up that, like any other professional domain, things can go badly wrong. The particularly acute problems of fallibility in medicine are laid out; Brazier and Cave note that controversy and conflict are never too far away from routine professional–patient relationships.
Chapter 3, ‘Medicine, Moral Dilemmas and the Law’, is the most interesting component of part 1 of Brazier and Cave’s book. This chapter echoes Beauchamp and Childress’s seminal text 25 in setting out four main principles (respect for autonomy, beneficence, non-maleficence and justice) that provide a framework for ethical deliberation. Three brief points are worthy of note here. First is the authors’ concession of the importance ‘that in any study of the law relating to healthcare a brief account of the four principles is given’. 26 If this is an acknowledgement that the inherent ethical issues necessarily must be dealt with in medical law cases, then Brazier and Cave cannot help but be inconsistent with their original earlier aim, to touch selectively upon the ethics of the professional–patient relationship. Second, this problematic concession is magnified as Brazier and Cave allude to the principle of respect for autonomy being the dominant principle in medical law: ‘[g]raduallly…English law, via principles governing consent to treatment, clothed the moral principle of autonomy in legal reality’. 27 If this ethical principle is vital in underpinning medical law, MPL’s broad readership needs to know why this is. But this necessitates much more than an overview of the ethics of the professional–patient relationship, Brazier and Cave’s explicit aim. Finally, that Brazier and Cave choose to promote certain conceptions of autonomy above others, 28 when differing conceptions of autonomy may lead to different ethical, and thus potentially legal conclusions, means that ethical debates do directly impact upon the central idea of MPL. 29 If this is so, once again, Brazier and Cave cannot help but necessarily engage closely in ethical considerations, rather than touching selectively upon these issues, as they purport to do so in the book.
Certain formulations of these principles are very interesting. Brazier and Cave note that to ‘demand respect, a choice must be a maximally autonomous choice – an informed and free choice made by someone with the capacity to make such a choice’. 30 But, can a person not be autonomous to degrees, and less than maximally autonomous choices still be worthy of a modicum of respect? 31 Likewise, in noting that ‘beneficence demands respect for autonomy’, 32 what happens if the principles of beneficence and respect for autonomy conflict? Without more here, if the principle of beneficence often loses out, then it does not appear much of a useful or distinct principle at all. 33 Finally, in stating that ‘[i]ndividual choice becomes central to applying the concept of sanctity of life’, 34 MPL strays quite close to saying that autonomy is the driver to the principle of the sanctity of life. However, the sanctity of life might not necessarily be centred around individual choice. What is arguably equally important to the sanctity of life is what you are making that choice about: ‘[l]ife is a most precious possession’, one that is intrinsically valuable, and any premature end to human life is regrettable in itself. 35
Chapter 5 offers an extended discussion of Montgomery v. Lanarkshire Health Board, 36 the recent UK Supreme Court case concerning negligent risk disclosure. This decision is patient oriented. It echoes Brazier’s earlier comments that in the medical risk disclosure scenario, there are no hypothetical reasonable patients to determine which information should be disclosed, only particular patients with their own individual informational needs. 37 However, MPL goes further and suggests that Montgomery may have more wide-ranging implications for medical law, of which not all are completely welcome. This includes the rise of multiple health providers, the increasing role of managerialism in healthcare and the decline of the importance relationships as a greater emphasis is placed on consumerism. Chapter 7 is commendable for paring down the problems of causation in clinical negligence, including the notoriously difficult complexities surrounding loss of a chance of recovery, to six pages. 38 To boil Gregg v. Scott 39 and Chester v. Afshar 40 down to two pages and yet show how deeply divided the Law Lords were in this problematic area is a hard balance to strike. The authors do well in showing the policy reasons behind a strict application of causation rules in Gregg 41 and problems with the expansive approach in Chester. 42
Chapters 8 and 9, though largely practical, vividly portray the financial impact of litigation on the NHS. MPL brings to the reader’s attention the excessive, disproportionate and deplorable costs of claimants’ solicitors. While all this may not quite amount to a malpractice crisis, professional–patient relationships may be damaged as doctors become so defensive in response to the threat of a malpractice crisis. Chapter 9 is also notable for its sustained commitment to a no-fault compensation scheme embracing two categories of medical injury. The first category is injury arising from an absence or delay of appropriate treatment, providing that a reasonable request is made and that the treatment is preventative. The second is injury from medical treatment, providing the injury is not caused by aging or the progression of disease, nor is the injury a consequence of an unavoidable inherent risk, properly warned about. 43 Although there may be criticisms of no-fault liability, they ‘should be treated as an education in mistakes to avoid’, rather than abandoning the notion entirely. 44 Brazier and Cave are sustained in their criticism that the tort system does not work as a means of compensating for medical misadventure. The cost of litigation is expensive, and the claimant does not know whether they will receive any compensation. Both these factors often pressure the claimant to settle for less than full compensation. They are also unconvinced that tort does have a systematic deterrent effect on individual medical practitioners.
The most impressive chapter in part 3 of the book is that which discusses assisted reproduction. Brazier and Cave dedicate nearly 50 pages to exploring the legal intricacies resulting from the development of assisted reproduction technologies and many uses to which they can now be put. This includes pre-implantation genetic diagnosis, which can be used to create healthy children and so-called ‘saviour siblings’ for sick relatives. 45 The chapter details the novel and divisive social questions the Human Fertilisation and Embryology Authority has to deal with in its wide remit, while simultaneously being an everyday regulator of fertility practice. 46 Commercial and foreign surrogacy arrangements, and the potential for exploitation by other agencies or individuals in these arrangements, are also spelt out. The call for reform by Brazier and Cave is clear, and they note that the heart of the matter is the delicate and vexing question of payment in these surrogacy arrangements.
Chapter 13 continues the examination of controversial social issues by looking at abortion and the human embryo. It is notable for its discussion of the recent licensing of mitochondrial donation and medical treatment to prevent the transmission of mitochondrial disease in eggs and embryos. 47 The chapter highlights that the media coverage of these technologies and treatment options is exaggerated. 48 Issues relating to the end of life inform the book’s final chapter and, thematically, this discussion appears appropriately placed. Again, what is notable here is the Brazier and Cave begin the chapter by stating ‘[s]ociety has never been comfortable with issues surrounding the process of dying; and as healthcare staff are involved with dying, they inevitably become involved in ethical as well as medical dilemmas’. 49 What stands out the most in this chapter is the depiction of growing momentum supporting reform of the law on assisted dying. This is reflected in judicial impatience with Parliament in Nicklinson, 50 the further modification of the Director of Public Prosecutions’ Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, 51 and the progress of the Assisted Dying Bill in 2014–2015.
Brazier and Cave clearly accomplish what they set out to achieve in this book. Its utility lies not only in how ably it manages to explain recent developments in medical law to different audiences with different purposes, but also in how the practical relationship between law and medicine is described in a coherent and engaging way. Nonetheless, if it is true that medical law’s response to these challenges depends on the ethical issues at stake, then a book that merely touches upon the ethics of the professional–patient relationship might not provide the fullest picture. This is not necessarily a criticism: MPL gives a clear signposting of its remit. It may simply need to be complemented at times by other texts that do focus more explicitly on these issues, as Brazier and Cave are aware. 52 Indeed, Brazier and Cave at times do themselves a disservice: they often investigate the ethics of the professional–patient relationship in a far more systematic way than they purport. Likewise, if there is a book which handles those ethical issues in such an able and accessible manner as MPL, then that combination really could prove to be fruitful for all interested parties; professional or non-professional, lawyer or medic. As was true with earlier editions of MPL, the sixth edition is a welcome addition to the literature and highly recommended to those with an interest in this exciting and ever-changing area of the law.