Bioethics & the LawBioethics & the LawA (Very) Brief IntroductionA (Very) Brief Introduction

Clayton L. Thomason, J.D., M.Div.Clayton L. Thomason, J.D., M.Div.

Asst. Professor, Dept. of Family Practice & Center for EthicsAsst. Professor, Dept. of Family Practice & Center for Ethics

College of Human MedicineCollege of Human Medicine

Adjunct Professor, MSU-DCL College of LawAdjunct Professor, MSU-DCL College of Law

Michigan State UniversityMichigan State University

thomaso5@msu.eduthomaso5@msu.edu

http://www.msu.edu/~thomaso5http://www.msu.edu/~thomaso5

American Legal SystemAmerican Legal System

Statutory LawStatutory Law Promulgated by legislaturesPromulgated by legislatures Offers positivistic rulesOffers positivistic rules

Common Law (Case Law)Common Law (Case Law) Judges seek to resolve conflicts in specific casesJudges seek to resolve conflicts in specific cases Through adversarial systemThrough adversarial system Principles and doctrines develop over timePrinciples and doctrines develop over time

Administrative LawAdministrative Law Criminal/Civil LawCriminal/Civil Law State/Federal LawState/Federal Law Constitutional LawConstitutional Law

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation Conversation

Includes people of diverse Includes people of diverse backgrounds (personal and backgrounds (personal and professional)professional) Legal Process of Discovery, expert Legal Process of Discovery, expert

witnesses, evidencewitnesses, evidence Lays as many ethical considerations as Lays as many ethical considerations as

possible on the tablepossible on the table Litigation = Adversarial System seeks truth Litigation = Adversarial System seeks truth

by hearing disparate perspectivesby hearing disparate perspectives

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation (II) Conversation (II)

Ethical considerations are critically Ethical considerations are critically weighed for pertinence to case at handweighed for pertinence to case at hand Legal principles applied to facts of caseLegal principles applied to facts of case

Often reason by analogy: have we been Often reason by analogy: have we been successful with similar cases in past?successful with similar cases in past? Legal Precedent = reasoning by analogyLegal Precedent = reasoning by analogy

Appeals to rules and principles (e.g., Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not patient autonomy) are tools of inquiry, not rigid formulasrigid formulas But precedent not blindly followed, can changeBut precedent not blindly followed, can change

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation (III) Conversation (III)

Basic moral value, Basic moral value, respect for othersrespect for others modeled in process as well as in outcomemodeled in process as well as in outcome Ideas others put on table are critically Ideas others put on table are critically

challenged and questionedchallenged and questioned Questioning is done Questioning is done withoutwithout suggesting suggesting

disrespect for the person who holds differing disrespect for the person who holds differing moral viewsmoral views

The person who disagrees with you is your The person who disagrees with you is your best resource in discovering moral truthbest resource in discovering moral truth

= Basis of Adversarial System, to seek “truth”= Basis of Adversarial System, to seek “truth”

Similarities Between Similarities Between Law & BioethicsLaw & Bioethics

Both provide guidance on what physicians Both provide guidance on what physicians may and may not domay and may not do

The law may reflect an ethical consensus The law may reflect an ethical consensus in societyin society

Court opinions offer reasons for decisions, Court opinions offer reasons for decisions, provide analysis of pertinent issuesprovide analysis of pertinent issues

Clinicians, ethics committees should be Clinicians, ethics committees should be aware of what law says about issues in aware of what law says about issues in clinical ethicsclinical ethics

But . . .But . . .

The law cannot offer definitive answers to The law cannot offer definitive answers to every ethical dilemma in medicine.every ethical dilemma in medicine.

Knowing “what the law is ” does not save Knowing “what the law is ” does not save us from doing the hard work of moral us from doing the hard work of moral reflection & discourse.reflection & discourse.

Law & Ethics DifferLaw & Ethics Differ

Law sets only minimum standards of conductLaw sets only minimum standards of conduct Law explicitly grants physicians discretion in Law explicitly grants physicians discretion in

clinical decision makingclinical decision making Law may provide no clear action guides in some Law may provide no clear action guides in some

clinical ethical situationsclinical ethical situations Law and ethics may directly conflictLaw and ethics may directly conflict Authority of law based on police power of stateAuthority of law based on police power of state Actions permitted by law may be ethically Actions permitted by law may be ethically

controversialcontroversial While actions prohibited by law may be regarded as While actions prohibited by law may be regarded as

ethically defensible by many peopleethically defensible by many people

Law in Clinical EthicsLaw in Clinical Ethics

Try to resolve ethical conflicts as close to Try to resolve ethical conflicts as close to the bedside as possible.the bedside as possible.

Courts are not optimally suited to make Courts are not optimally suited to make medical decisions.medical decisions.

Courts are the tribunal of last resort for Courts are the tribunal of last resort for resolving ethical conflicts.resolving ethical conflicts.

In clinical ethics, over-reliance on “what’s In clinical ethics, over-reliance on “what’s legal” may undermine careful, complete, legal” may undermine careful, complete, and subtle ethical analysis.and subtle ethical analysis.

cf., De Ville K. “What does the law say?” -- Law, ethics, and medical decision making. West J Med 1994;160:478-480.

Some Legal Issues Some Legal Issues in HM-546 . . .in HM-546 . . .

Week 1: Introduction to Ethics & LawWeek 1: Introduction to Ethics & Law Lo, Chs. 1, 2, see also Chs. 23 & 24Lo, Chs. 1, 2, see also Chs. 23 & 24

Week 2: Competent Patient decisionsWeek 2: Competent Patient decisions Legal standards re: best interests, decision-making Legal standards re: best interests, decision-making

capacity, refusal of treatment, PAS, active euthanasiacapacity, refusal of treatment, PAS, active euthanasia See Lo, ch. 24See Lo, ch. 24

Week 3: Decisions for Incompetent PatientsWeek 3: Decisions for Incompetent Patients Legal standards re: brain death, persistent vegetative Legal standards re: brain death, persistent vegetative

state, coma, state’s interest in preserving life, surrogate state, coma, state’s interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan decision-making,artificial nutrition & hydration, Michigan lawlaw

Especially Lo, chs. 23-24Especially Lo, chs. 23-24

. . . Legal Issues in HM-546 . . .. . . Legal Issues in HM-546 . . .

Week 4: Children & InfantsWeek 4: Children & Infants Legal standards re: non-discrimination against the Legal standards re: non-discrimination against the

handicapped; best interest of infants, family, & handicapped; best interest of infants, family, & society; state’s interest in decision-makingsociety; state’s interest in decision-making

Week 5: Reproductive IssuesWeek 5: Reproductive Issues Role of civil discourse (see “Subversive Civility,” from Role of civil discourse (see “Subversive Civility,” from

Week 1)Week 1) Legal/ethical status of fetus, abortion lawsLegal/ethical status of fetus, abortion laws

Actions permitted by law may be ethically controversialActions permitted by law may be ethically controversial

Week 6: Flow of Medical InformationWeek 6: Flow of Medical Information Legal/ethical standards for truth-telling, informed Legal/ethical standards for truth-telling, informed

consent, confidentialityconsent, confidentiality

. . . Legal Issues in HM-546. . . Legal Issues in HM-546

Week 7: GeneticsWeek 7: Genetics Role of law in regulating genetic technologies?Role of law in regulating genetic technologies? Legal standards re: genetic privacy, procreative Legal standards re: genetic privacy, procreative

liberty, health care justice, obligations of partiesliberty, health care justice, obligations of parties Week 8: Research Issues, Justice and Conflicts Week 8: Research Issues, Justice and Conflicts

of Interestof Interest Legal standards for protections of human subjectsLegal standards for protections of human subjects

Further ResourcesFurther Resources Shapiro MH, Spece RG, Dresser R, Clayton EW. Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Bioethics and Law:

Cases, Materials and ProblemsCases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., (2d ed.). St. Paul, MN, West Publ. Co., 2003.2003.

Menikoff J. Menikoff J. Law and Bioethics: An IntroductionLaw and Bioethics: An Introduction. Washington, DC, . Washington, DC, Georgetown Univ. Press, 2001.Georgetown Univ. Press, 2001.

Orentlicher D. Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law.Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, 2001. Princeton, NJ, Princeton Univ. Press, 2001.

Rich B. Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical PracticeMedical Ethics and Medical Practice. New York, NY, Kluwer . New York, NY, Kluwer Academic/Plenum Publ., 2001.Academic/Plenum Publ., 2001.

Meisel A. Legal myths about terminating life support. Arch Int Med. Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151:1497-1502.1991;151:1497-1502.

Meisel A, Kuczewski M. Legal and ethical myths about informed Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156:2521-2526.consent. Arch Int Med. 1996;156:2521-2526.

Harrington JA. Art or science? Understanding medicine and the common Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:129-150.law. Health L J. 2001;9:129-150.