Bioethics & the Law A (Very) Brief Introduction

1. Bioethics & the LawA (Very) Brief Introduction Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College of Human Medicine Adjunct Professor, MSU-DCL College of Law Michigan State University thomaso5@msu.edu http://www.msu.edu/~thomaso5

2. American Legal System • Statutory Law • Promulgated by legislatures • Offers positivistic rules • Common Law (Case Law) • Judges seek to resolve conflicts in specific cases • Through adversarial system • Principles and doctrines develop over time • Administrative Law • Criminal/Civil Law • State/Federal Law • Constitutional Law

3. Similarities between Productive Moral/Legal Conversation • Includes people of diverse backgrounds (personal and professional) • Legal Process of Discovery, expert witnesses, evidence • Lays as many ethical considerations as possible on the table • Litigation = Adversarial System seeks truth by hearing disparate perspectives

4. Similarities between Productive Moral/Legal Conversation (II) • Ethical considerations are critically weighed for pertinence to case at hand • Legal principles applied to facts of case • Often reason by analogy: have we been successful with similar cases in past? • Legal Precedent = reasoning by analogy • Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas • But precedent not blindly followed, can change

5. Similarities between Productive Moral/Legal Conversation (III) • Basic moral value, respect for others modeled in process as well as in outcome • Ideas others put on table are critically challenged and questioned • Questioning is done without suggesting disrespect for the person who holds differing moral views • The person who disagrees with you is your best resource in discovering moral truth • = Basis of Adversarial System, to seek “truth”

6. Similarities Between Law & Bioethics • Both provide guidance on what physicians may and may not do • The law may reflect an ethical consensus in society • Court opinions offer reasons for decisions, provide analysis of pertinent issues • Clinicians, ethics committees should be aware of what law says about issues in clinical ethics

7. But . . . • The law cannot offer definitive answers to every ethical dilemma in medicine. • Knowing “what the law is ” does not save us from doing the hard work of moral reflection & discourse.

8. Law & Ethics Differ • Law sets only minimum standards of conduct • Law explicitly grants physicians discretion in clinical decision making • Law may provide no clear action guides in some clinical ethical situations • Law and ethics may directly conflict • Authority of law based on police power of state • Actions permitted by law may be ethically controversial • While actions prohibited by law may be regarded as ethically defensible by many people

9. Law in Clinical Ethics • Try to resolve ethical conflicts as close to the bedside as possible. • Courts are not optimally suited to make medical decisions. • Courts are the tribunal of last resort for resolving ethical conflicts. • In clinical ethics, over-reliance on “what’s legal” may undermine careful, complete, 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.

10. Some Legal Issues in HM-546 . . . • Week 1: Introduction to Ethics & Law • Lo, Chs. 1, 2, see also Chs. 23 & 24 • Week 2: Competent Patient decisions • Legal standards re: best interests, decision-making capacity, refusal of treatment, PAS, active euthanasia • See Lo, ch. 24 • Week 3: Decisions for Incompetent Patients • Legal standards re: brain death, persistent vegetative state, coma, state’s interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan law • Especially Lo, chs. 23-24

11. . . . Legal Issues in HM-546 . . . • Week 4: Children & Infants • Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; state’s interest in decision-making • Week 5: Reproductive Issues • Role of civil discourse (see “Subversive Civility,” from Week 1) • Legal/ethical status of fetus, abortion laws • Actions permitted by law may be ethically controversial • Week 6: Flow of Medical Information • Legal/ethical standards for truth-telling, informed consent, confidentiality

12. . . . Legal Issues in HM-546 • Week 7: Genetics • Role of law in regulating genetic technologies? • Legal standards re: genetic privacy, procreative liberty, health care justice, obligations of parties • Week 8: Research Issues, Justice and Conflicts of Interest • Legal standards for protections of human subjects

13. Further Resources • Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., 2003. • Menikoff J. Law and Bioethics: An Introduction. Washington, DC, Georgetown Univ. Press, 2001. • Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, 2001. • Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical Practice. New York, NY, Kluwer Academic/Plenum Publ., 2001. • Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151:1497-1502. • Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156:2521-2526. • Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:129-150.