This article has been written by Nishtha Jain, a fourth year student from Symbiosis Law School, NOIDA. She discusses the approaches taken by professionals to resolve conflicts between medical laws and ethics, position of medical laws and ethics in India along with landmark judgements.
How should medical practitioners react to laws that are directly interfering with their ability to do what is best for their patients? What is a physician ought to do when caught between his/her professional obligations to do her best for the patient and her legal obligation to obey the law?
One of the most controversial subjects is the interrelationship between laws and ethics. As a long standing convention, rules of professional ethics have been imposed by professionals upon themselves and the medical profession is no exception. These rules govern them in universal practice of their profession. It is often observed that the ethical standards of the professionals often exceed those required by law.
A physician charged with ill-conduct may be held guilty or innocent in a court of law, however, along with legal proceedings, disciplinary proceedings may also be initiated against him on the basis of unethical conduct. So, where does it leave the medical practitioners? Should they follow the law or do what is best for their patient? Is there a way to give a concrete answer to this question?
What are medical ethics?
There is no universal definition of medical ethics and more often than not, it is quite difficult to explain it. A broad interpretation could mean the moral and not legal obligations that a medical practitioner is supposed to abide by. However, there are a lot of times when some of the standards known as medical ethics have legal effect as well.
Medical law is made up of bits from a large number of different branches of law: Criminal Law, Human Rights Law, Tort Law, Contract Law, Family Law, etc and is undoubtedly very confusing. Medical Law is undergoing a massive change. Rapid scientific advances mean that lawyers and ethicists are constantly required to face new issues. There have been a lot of legislations and rules pertaining to Medical Laws like Policy of Family Planning, Surrogacy Bill, laws pertaining to abortion and sex determination test, etc.; but the challenge they pose is not merely a matter of liberal versus conservative perspectives.
It is undisputed that everyone has certain prima facie moral obligations to others that may conflict with the law. For instance – Everyone has obligations to not lie, to avoid harm, to not steal, etc. Medical professionals, however, have special moral obligations by virtue of their profession. These obligations are tied to their roles as doctors, therapists, nurses, and others.
These special obligations have been expressed through codes of professional ethics, principles of biomedical ethics, the concept of a fiduciary relationship, rich accounts of the virtues, and obligations inherent in the doctor-patient relationship.
What are the various approaches?
The Principlist Approach
In Principles of Biomedical Ethics, Tom L. Beauchamp and James F. Childress elaborated four principles that are now often regarded as foundational for medical ethics.
The four principles are – Respect for autonomy, Non-maleficence, Beneficence and Justice. They believe that these four principles represent a common morality and have given various arguments in support.
Respect for autonomy –
- Respect patients as individuals (e.g., respecting their privacy by maintaining confidentiality and being truthful about their medical care). For example – A psychologist is not to disclose the private records of a patient, it he fails to abide by the same, legal as well as disciplinary action can be taken against him.
- Provide the information and opportunity for patients to make their own decisions regarding their care. For example – informed consent – practitioners can’t impose their will on the patients and administer whatever medicines/diagnosis they think is in favour of patient’s health. An informed consent is required to be taken. However, if the patient is not in a condition to consent, then his family members can do so on his behalf. And if it is an emergency case, then the doctor can go ahead with what he thinks is right according to his experience and knowledge.
- Honor and respect patients’ decisions regarding their choice to accept or decline care. For instance – Jehovah’s witnesses believe that blood transfusion is unethical and never agree to that.
- In addition to having the right to refuse a diagnostic or therapeutic intervention, patients also has the right to refuse to receive information.
Beneficence – Act in the best interest of the patient and advocate for the patient. Misrepresentation of the facts or misleading the patient by giving false information or prescription is considered highly unethical.
Non maleficence – Avoid causing injury or suffering to patients. The healthcare professional should not harm the patient. All treatment involves some harm, even if minimal, but the harm should not be disproportionate to the benefits of treatment.
Justice – Treat patients fairly and equitably. Distributing benefits, risks and costs fairly; the notion that patients in similar positions should be treated in a similar manner.
However, laws force physicians to violate the above mentioned four principles in numerous ways, such as –
- When the physicians are required to tell lies, for example – about links between breast cancer and abortion, the principle of respect for patient’s autonomy is violated.
- The principle of respect for autonomy is also violated in cases wherein the physicians force a patient to listen to a fetal heartbeat or observe a fetal ultrasound before the abortion procedure is started with.
- Whenever patients are given less than full and truthful information, the principle of “do no harm” or “nonmaleficence” is violated as the decisions made on the basis of such information received are often not in patient’s best interests. For example – False information about a rise in risk of breast cancer can also result in women’s increased anxiety for the rest of their lives and lead to an increase in unnecessary cancer screening procedures such as mammography.
- The principle of beneficence is violated when physicians do less than they are capable of doing to promote patients’ welfare. For example, by not asking parents about gun ownership, they neglect a very important information that might help in the child’s well-being. The moral obligation to prevent avoidable harm to children is considered central to the ethics of pediatric medicine and if a physician fails to abide by it, there is definitely a violation of the principle.
- The principle of justice is violated if some patients, because of better education or better insurance, are able to navigate around legal restrictions on the doctor-patient relationship, while other patients are left severely limited.
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The Covenantal Approach
Ethicists Edmund Pellegrino and William F. May are propounders of this approach. Taking their inspiration from Hippocrates, Maimonides, etc., they represent a philosophical return to the roots of the medical ethics. They introduced physicians and students of medical ethics to a “covenantal” understanding of the doctor-patient relationship and believed that a rights-based, autonomy-driven medical ethics are not that relevant anymore.
For Pellegrino, medicine is based on an “internal morality” derived from the nature of medicine itself, and it is oriented toward the twin goals of “excellence in healing” and “the good of the patient.” In simple terms, he emphasises on the importance of the internal goods of the medicine and firmly argues that internal goods should always take precedence over external goods such as social prestige, financial reward, self pleasure, etc. He urges the medical practitioners to focus on the well being of the patient and accept the responsibility.
Following the Biblical notions, he urges powerful practitioners to help the vulnerable and powerless. According to him, the services of the physicians should extend “beyond parochial boundaries” to the stranger and the person in need. He states that medicine is a vocation as well as a profession. Basically, the covenantal approach encompasses a virtue-based description of professional ethics.
Another available model for the doctor-patient relationship is that of the contract. This model assumes obligations on both sides, but the content of the contract may be decided by the parties itself. It can be as huge as a dictionary or as small as two pages.
Pellegrino criticizes the contractual model. According to him, such a contract makes an assumption that one party to the contract is lesser than the other party and hardly has parties on equal footing. Such a disparity may lead to one party acting only out of self interest which may be unethical in nature. However, even the contractual model obligates physicians to give patients the benefit of their best medical knowledge and to recommend procedures optimal for patients’ health.
The Fiduciary Approach
It is always observed in the society that some relationships although appear to be merely a species of business transaction or contract, require an increased ethical vigilance. And medicine is undoubtedly one of them.
A fiduciary relationship can be simply defined as a relationship based on trust. A fiduciary relationship describes a situation of heightened trust and confidence between the parties. Some of the common examples are of the relationship between a teacher and a student, the relationship between an attorney and a client.
Physicians have strong fiduciary duties towards patients and it can not be neglected. Propounders of this approach propose that the interest of the patient is to be placed above any other competing factor. Since, the patients cannot access and evaluate medical information by themselves, this makes it much more important for the medical practitioners to be fully supportive and available to their patients and evolve a safe space for the patient to openly discuss his/her issues. It is thus of utmost important that a medical practitioner gives accurate, reliable and correct information to his/her patient and not mislead him/her.
What is the position of medical laws and ethics in India?
The Medical Council Act, 1956 looks over the wrongdoings of medical practitioners in India. In 1933, the Indian Legislative Assembly passed the Indian Medical Council Act, 1933. This Act was highly criticised resulting in repealing of the entire Act. A new Act called the Indian Medical Council Act, 1956 was formed and passed which is the current law of the land.
In A.S. Mittal and Another v. State of U.P. and others, 1989 AIR 1570, the Court had opined that there is a possibility of criminal convictions by criminal courts for offences including moral turpitude as it was very clearly observed by the Hon’ble Supreme Court that medicinal profession is one of the most established callings of the world and is the most philanthropic one in Poonam Varma v. Ashwin Patel, AIR 1996 SC 2111.
General Medical Council (acting at State level) is the apex body to manage the misconduct of the medical practitioners. Some additional powers to expel and suspend medical practitioners (if required) have been given to the State Medical Council. They are also empowered to enlist the medical practitioners who have faced disciplinary actions.
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (amended upto 8th October, 2016) indicates the duties and responsibilities of the registered medical practitioners.
These regulations enforce certain standards which medical practitioners are required to follow. If they fail to do so, legal action can be taken against them and they can be penalized as well. Some of the duties and responsibilities of the physician are –
- Maintaining good medical practice
- Maintenance of medical records
- Highest quality assurance in patient care
- Patience, delicacy and secrecy
- Patient should not be neglected
- Unnecessary consultations should be avoided
- Punctuality in Consultation
- Not to conduct sex determination test
- Advertising is not allowed
- Contravening cosmetics and drugs act are not allowed
- Reporting to call for emergency, military situations
- Reporting of suspected causes of death
- There should be informed consent of the patient
- Running an open medical shop is not allowed
- Ban on practice of euthanasia
Medical Practitioners are required to follow the standards set in the Code. The Code also states acts of commission or omission on the part of a physician which shall constitute misconduct rendering him liable for disciplinary action.
What are the specific laws governing the medical profession in India?
There are numerous legislations which have been formed and are currently in implementation in India. Following are the categories under which the legislations are grouped together –
- Laws Related to Governing the Commissioning of Hospital
- Laws Governing the Qualifications / Practice and Conduct of Professionals
- Laws Governing Storage / Sale of Drugs and Safe Medication
- Laws Governing Biomedical Research
- Laws Governing to Management of Patients
- Laws Governing Medico Legal Aspects
- Law Governing The Safety of Patients, Public and Staff within the Hospital Premises and Environmental Protection
- Laws Governing the Safety of Patients, Public and Staff within the Hospital Premises
- Laws Governing the Employment of Manpower
- Laws Governing to Professional Training and Research
- Regulations Governing the Business Aspects of Hospital
What are some landmark judgements concerning medical ethics in India?
Popularly known as Anuradha Saha Case, this case was filed in 1998 against AMRI Hospital, namely three doctors – Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. The petitioner had alleged medical negligence on the part of the doctors resulting in the death of the patient.
Facts of the case in brief – Petitioner’s wife was suffering from a drug allergy and the doctors were negligent in prescribing the medicines, which further aggravated the condition of the wife, resulting in her untimely death.
Supreme Court found the doctors guilty and awarded a compensation of around seven crores to the petitioner for the loss of his wife.
Krishan Rao had filed a case against the hospital alleging that his wife was wrongly diagnosed and treated which resulted in her death.
Facts of the case in brief – Petitioner’s wife was suffering from malaria fever whereas she was treated for typhoid fever. Due to the wrong medication and treatment given by the hospital, her condition worsened leading to her death.
Court found the Hospital at fault by applying the principle of “ipsa loquitur” (Latin for “the thing speaks for itself”) and the Petitioner was awarded a compensation of Rs. two lakhs.
Facts of the case in brief – A woman had surgery for removal of cysts in her uterus. The doctors told her that the operation is successful. However, after a couple of days, the woman died complaining of severe pain in her lower abdomen. After her body was cremated, a pair of scissors was found in the ashes. It was later found out by the Court that during the operation for removal of cysts, one of the operators had negligently dropped the pair of scissors in the abdomen of the woman.
The principle of vicarious liability i.e. “qui facit per alium facit per se” (Latin for “He who acts through another does the act himself”) was applied in this case and the authorities of the Hospital were held guilty and a hefty compensation was awarded to the patient’s family.
The National Consumer Disputes Redressal Commission of India gave a landmark judgement on treating of accident victims.
Facts of the case in brief – A boy named Samanate Mukherjee, a second year student pursuing B. Tech from Netaji Subhas Chandra Bose Engineering College had met with an accident. The boy was hit by a Calcutta transport bus and rushed to the hospital which was one kilometer from the accident spot. He was in conscious state when he was being taken to the hospital and he showed his medical insurance card, which clearly indicated that he will be given a sum of Rs. 65,000 by the Insurance Company in case of an accident. Relying on it, the Hospital started his treatment. However, after initial treatment, the hospital demanded a sum of Rs 15,000 and on the non-payment of the demanded money, hospital discontinued his treatment. Afterwards, he was rushed to another hospital however, he died before reaching there.
National Commission held Ruby Hospital liable and a compensation of Rs. 10 lakhs was given to the grieving parents.
Above mentioned are some of the landmark cases which shows how negligence and unethical conduct on behalf of the medical practitioners can lead to serious consequences, even resulting in death of the patients. Hence, it is extremely important for physicians to follow the proper procedure along with code of conduct keeping in mind the basic morals.
Critical Analysis
Medical practitioners are often facing difficulties to choose between the following three, i.e.-
- Doing the best they can using the abilities they have for their patient,
- Abiding by the provisions of the law and being a law-abiding citizen of the country, and
- Safeguarding themselves from the consequences of not following the law (losing their licenses, for example).
They are also required to be highly sensitive to the actions they undertake. Actions of even one individual can lead to fatal consequences. One medical practitioner who only follows the law and doesn’t pay heed to the ethics of the profession may lead to corrosion of the profession’s integrity. Hence, it is necessary that a balance is maintained between following the law, keeping patient’s integrity intact and upholding the professional ethics.
Patients are now becoming more dependent on the medical practitioners as the medicine is getting more complex with each passing day. Even the internet sometimes isn’t able to give accurate information or tends to provide incorrect information which may lead to complications later on. A medical practitioner who deliberately gives wrong information to the patient disrespects the patient’s autonomy and also loses the patient’s trust. This mistrust in one physician may lead to mistrust in the entire profession.
A simplistic understanding of the principles and applying them in a naïve way can lead to unsophisticated lines of thought. Often it is seen that there is a clash between the principles and cases may arise wherein it is necessary to infringe one principle in order to abide by the other. For instance when a particular treatment is absolutely necessary to save the patient’s life and involves risk but he is unconscious and cannot agree to the same, then the clash between the principles is set up.
Critics of the fiduciary model says that the thrust that “doctor knows best” has now weakened over the years. Arguments presented for the same are that the doctors are now motivated by the money involved in the profession instead of taking care of the patient. For instance, in India it is a common practice that pregnant women are forced to get operated through a caesarian operation rather than having a normal/natural delivery of the baby.
The covenantal approach fails to acknowledge the fact that sometimes the patient may fail to provide the accurate knowledge which will in turn lead to improper treatment by the doctor. Most significant medical treatments involve causing of harm, even be it just a prick of a needle. So to tell a doctor to do no harm would be counterproductive. Also, the understanding of benefit may change according to the perspective analyzed. At best, this approach can be deemed as good in hypothetical situations but when applied in practical life, there are a lot of complications as humans inherently are not virtuous all the time.
The above mentioned theories fail to capture the basic principles of respect and purity. Many aspects of religious beliefs, communitarian ethics, virtue ethics, etc are left unaddressed and are often contested in debates relating to medical laws and ethics. It is not clear that until we have developed a firm theory of human dignity acceptable by all from which the values used in principles flows, it will be hard to arrive on a conclusion in ethical debates.
Conclusion
Medial law is undoubtedly an ever – evolving field with new advances making it difficult as well as simplifying a medical practitioner’s job. For instance the new gene altering technique found by scientists that help parents alter the genes of their child and produce a desired offspring. How far is it ethical to play with nature’s forces? Some may argue that it will help cure the diseases and increase mortality rate.
Even the dynamics of doctor-patient relationships are changing and it is often seen that guidance on how to behave ethically demands more of doctors than compliance with law. Although there may be tensions and discrepancies, as well as similarities between a doctor’s legal duties and his ethical responsibilities, his duty is to comply with both the law and with professional ethical guidance. Even where a doctor finds compliance with the law difficult, perhaps because it appears to him to be at odds with his ethical beliefs, compliance is not optional.
Accordingly, many doctors now follow pragmatism as it seeks to develop a methodology which starts from the actual experiences and develops approaches that are rooted in real life. There is no interest among pragmatists for grand ethical theories but rather for the problems that patients and medical professionals face in real life. The emphasis is on exploring how they see, understand, and interpret the issues, rather than engage in the fine language of the philosophers.
All said and done, it can be seen that the realm of medical laws and ethics is indeed a complex and difficult concept to understand and formulate for everyone as people have different beliefs, notions and interests attached to their lives. However, it is expected of experts and thinkers that in future, a better approach which is acceptable by all may come in force but till then, we need to be careful of what the practices are around the world as the lives of human beings are at stake.
References
- Burton, A W (I97I). Medical Ethics and the Law Sydney, Australian Medical Publishing Co, p 13.
- E. D. Pellegrino, “The Internal Morality of Clinical Medicine: A Paradigm for the Ethics of the Helping and Healing Professions,” Journal of Medicine & Philosophy 26 (2001): 559-79.
- Menon N R Madhava. “Medicine, ethics and the law.” Indian Journal of Medical Ethics [Online], 5. 1 (2008): 31. Web. 10 Jun. 2019.
- T. L. Beauchamp and J. F. Childress, Principles of Biomedical Ethics, 7th ed. (New York: Oxford University Press, 2012).
- W. F. May, The Physician’s Covenant: Images of the Healer in Medical Ethics (Philadelphia, PA: Westminster Press, 1983).
