health law

History

Physicians historically have set their own standards of care, and their conduct has usually been judged by comparing it with that of other physicians. Ethical canons, or codes, generally focused on professional etiquette and courtesy toward fellow physicians rather than on relationships with patients. The Hippocratic oath, formulated in the 5th century bce, presumably by the ancient Greek physician Hippocrates, was a notable exception, but its provisions were ascribed to by only a minority of Greek physicians.

The law became intimately involved in medical practice in the 20th century. Historically, legal medicine, or forensic medicine, was a field devoted exclusively to the uses of medicine in the courtroom, primarily in two settings: forensic pathology and forensic psychiatry. The pathologist has traditionally been asked to determine and testify to the cause of death in cases of suspected homicide and to aspects of various injuries involving crimes such as assault and rape. Medical testimony may also be required in civil cases involving, for example, occupational injury, negligent injury, automobile accidents, and paternity suits. Similarly, when a defendant pleads insanity as a defense, a psychiatrist is asked to examine the defendant and to testify as to his or her mental state at the time of the crime. The relevant question is usually whether the defendant’s criminal behaviour was the product of a mental illness or whether he or she was able to distinguish right from wrong. In civil cases, psychiatrists frequently appear as witnesses in cases of child custody and involuntary commitment for mental illness.

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Since the 1960s the legal climate has changed drastically. Civil lawsuits alleging medical malpractice have become a fact of professional life for many physicians. Issues formerly relegated to ethics, such as abortion and termination of medical treatment, also have become important civil rights issues in courtrooms across the world, as have issues of informed consent and patients’ rights. Wide-ranging campaigns aimed at arresting the spread of infectious diseases, such as acquired immunodeficiency syndrome (AIDS) and influenza, have involved the legal system in issues of privacy, confidentiality, mandatory vaccination, and research using human subjects. Since the September 11 attacks on the United States in 2001, physicians have also been intimately involved in preparing for possible bioterrorist attacks that could involve contagious agents such as smallpox. These preparations have included an abortive attempt to get all emergency health care providers vaccinated against smallpox, as well as more successful attempts to engage state and local public health agencies in emergency preparedness planning. These latter preparations have included assessments of the sufficiency of public health law, which is predominantly state law.

So great has the change been that forensic medicine has now become a subspecialty of a separate field, usually called health law to emphasize its application not only to medicine but to health care in general. This new field of health law is not limited to the courtroom but is active as well in legislatures, regulatory agencies, hospitals, and physicians’ offices.

Relationship of law and ethics

In the 1960s, American legal philosopher Lon Fuller distinguished between “the morality of aspiration” and “the morality of duty.” The former may be denoted ethics, the latter law. Ethics tells people what they should do and embodies the ideals they should strive to attain. Unethical behaviour leads to punishments that are related to how an individual is perceived, both by himself or herself and others. Law, on the other hand, provides boundaries of actions, set by society, beyond which a person may go only by risking external sanctions, such as incarceration or loss of a medical license.

This may explain why ethical codes usually involve generalities, while laws tend to be more specific. For example, the Hippocratic oath is concerned with the physician’s doing no harm, refraining from performing abortions and giving deadly drugs, and maintaining strict confidentiality. Law, on the other hand, usually permits abortions under certain circumstances, may permit the giving of potentially lethal drugs in extreme situations, and sanctions the violation of confidentiality when the interests of society demand it. For example, in treating a patient dying of cancer, a physician might administer a potentially fatal experimental drug (with the patient’s informed consent) in a desperate attempt to stop or slow down the cancer’s growth. Virtually everywhere, physicians can legally perform abortions to save a pregnant patient’s life.

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Although the Hippocratic oath has largely been superseded by such modern oaths as the Declaration of Geneva, the International Code of Medical Ethics, and the Canons of the American Medical Association, these codes of conduct retain the brevity and generality of the Hippocratic oath. For example, the International Code of Medical Ethics, developed and promulgated by the World Medical Association shortly after World War II, provides in part for the following:

A physician shall always exercise his or her professional judgment and maintain the highest standards of professional conduct.

A physician shall not allow his or her judgment to be influenced by personal profit or unfair discrimination.

A physician shall always bear in mind the obligation to respect human life.

A physician shall, when medically necessary, communicate with colleagues who are involved in the care of the same patient. This communication should respect patient confidentiality and be confined to necessary information.

Modern advancements in the field of medicine, such as cardiopulmonary resuscitation (CPR; restoration of regular rhythm to an arrhythmic or failed heart) and mechanical ventilators (which breathe for patients who are unable to use their lungs), sometimes have been able to postpone a death that previously had been imminent. Under these circumstances, it may be difficult to relate the rules of ethics to the realities of the situation. For example, the meaning of “obligation of preserving human life” becomes unclear in the context of a young woman in a permanent coma, who will probably die if the mechanical ventilator is removed but who may live for decades (in a coma) if the machine remains in place. It is not clear whether the Hippocratic ideal of doing “no harm” requires that the machine remain in place or that it be removed.

In 1976 these same questions were confronted by the New Jersey Supreme Court in the landmark case of Karen Ann Quinlan. Her parents requested that physicians remove the mechanical ventilator in order to let their daughter die a natural death. The doctors refused, relying primarily on medical ethics, which they believed prohibited taking an action that might lead to the death of the patient.

In court, however, the lawyers for the Quinlan family argued that what was at stake was not medical ethics but the legal rights of the individual patient to refuse medical treatment that was highly invasive and offered no chance for a cure. The court agreed that patients have the legal right to refuse medical treatment, determined that honouring such a refusal was consistent with medical ethics, and decided that the parents of Karen Ann Quinlan could exercise her right to refuse treatment on her behalf. In order to reassure the physicians involved, however, the court also decreed that if a hospital’s ethics committee agreed with the prognosis of permanent coma, the removal of the ventilator could take place and all parties involved would have legal immunity from civil or criminal prosecution. Karen Ann Quinlan’s ventilator was removed, although she continued to breathe on her own. She survived in a coma until she died of pneumonia almost 10 years later.

The case of Karen Ann Quinlan became a paradigm of modern medicine and of the relationship between medical ethics and the law. Although an issue was made of medical ethics by both the physicians and the court, the case primarily involved medical practice and the fear of potential legal liability. Modern physicians worry about the law as well as ethics, and they fear criminal lawsuits that allege homicide or assisted suicide and civil lawsuits that allege malpractice. To address these concerns, the New Jersey court created an ethics committee with the power to grant legal immunity for actions and to diffuse the responsibility for them.

This model has not been followed by other courts, although ethics committees have been established in North America, Europe, and Australia to help educate hospital staffs on such matters as the withholding and withdrawing of treatment and on general ethical conduct with patients. In fact, physicians are rarely taken to court on criminal charges for decisions about patient care that are made in good faith. The Massachusetts Supreme Court, for example, has summarized the criminal law in this regard:

Little need be said about criminal liability: there is precious little precedent, and what there is suggests that the doctor will be protected if he acts on a good faith judgment that is not grievously unreasonable by medical standards.

In the United States, the Quinlan rationale has been expanded to include the right of all currently (and previously) mentally competent patients, whether terminally ill or not, to refuse any and all medical treatments (including artificial feedings). Artificial feeding nonetheless remains controversial among many religious groups, who in 2006 lobbied Congress to try to prevent the removal of a feeding tube from Terri Schiavo, a woman who had suffered severe brain damage in 1990. The effort succeeded in Congress but failed in the courts because the law is clear: a person has a right to refuse treatment when he is competent, and should he become incompetent, the courts assess the person’s wishes on the basis of prior expressions or, if these are not known, on an assessment of the patient’s best interests. Some people state their wishes about treatment in documents called “living wills,” in which they specify as best they can what type of treatment they would want under various circumstances. Physicians can refer to a living will in trying to determine the wishes of a patient who is no longer able to speak for himself. Because it is almost impossible to predict when people will die, a better choice, promoted by U.S. Supreme Court Justice Sandra Day O’Connor in the case of Nancy Cruzan (a young woman in a similar condition as Karen Ann Quinlan but who needed continued tube feeding to survive), is a document that has come to be known as a “health care proxy.” In this document, an individual may provide someone else (such as a close relative or friend) with the authority to make decisions about medical treatment should he become incompetent to act on his own behalf. That person then has the same rights to accept or refuse medical treatment that the individual would have. The American Medical Association has stated that honouring patients’ refusals of treatment is consistent with both medical practice and medical ethics. Other countries, such as the Netherlands, have gone further and have held that it is legally and ethically acceptable for physicians to assist a patient with a terminal illness in his or her decision to die by providing lethal injections. When this issue reached the U.S. Supreme Court in 1997, the court unanimously determined that all patients have the constitutional right to refuse any medical treatment. However, individual states can prohibit physicians from assisting in patient suicides, in part because of the danger that assisted suicide would pose to dying, sick, and socially isolated patients. Law and medical ethics are identical in this regard.

While ethics and law are concerned with different concepts of right and wrong, in medicine they find common ground in their fundamental principles. Both law and ethics in medicine rest on the principle of self-determination by competent individuals, beneficence (or at least nonmaleficence) on the part of medical practitioners, and a concept of justice as fairness to be afforded to all patients by both medical practitioners and society.