Similarly to the other professions, the legal profession has established its own hierarchy, language and code of practice, in order to manage the large number of people professing general and specialist legal knowledge. As a result, the workings of the legal profession can appear arcane to the outsider, even despite recent attempts to improve public accessibility to the law.

This chapter provides a short introduction to legal system in the UK, as well as listing a number of sources of information by which the lay person may further access legal information.

STRUCTURE OF THE UK LEGAL SYSTEM

The UK has three distinct legal jurisdictions: England and Wales, Scotland, and Northen Ireland. All of the jurisdictions are common law jurisdictions, but Scotland has a very distinct, separate and interesting legal system that incorporates aspects of the civilian system of law seen in continental Europe.

The legal profession in the UK is split into two branches, solicitors and barristers, whose training, practice and regulation are separate.

Solicitors are the legal equivalent of general practitioners, and are visited first by clients seeking legal advice. Solicitors instruct barristers to provide specialist legal advice and representation (if necessary) in court. Solicitors in England and Wales are regulated by The Law Society of England and Wales. In other countries of the UK they are regulated by the equivalent body.

Barristers play a similar role to that of hospital consultants, acting as a referral service for solicitors.

Obtaining consent from a patient is not the same as having the patient sign a consent form. Instead, consent should be viewed as a legal and ethical concept that reflects the respect given by a society towards the autonomy of its citizens.

In a medical setting, consent allows an autonomous patient (i.e. one who has the capacity to think, decide and act on the basis of such thought, independently and without hindrance) to define and protect his or her own interests and to control bodily privacy. In law, consent is a device that protects the autonomy of a patient from interference by another party. Any doctor, for example, may be liable in battery or assault if (s)he administers a treatment to a patient without obtaining valid consent from them. Legal sanctions, including awards of damages, injunctions and (in extreme cases) imprisonment are employed to ensure that patient autonomy is respected.

Recourse to the law, however, does not necessarily address the thornier moral problem of why doctors should respect their patients' autonomy, and why they should respect it in preference to other principles that influence the relationship (such as paternalism). Nevertheless, respect for autonomy has become a central pillar of contemporary medical law and ethics, and has resulted in a greater emphasis on patient-centred determination of treatment strategies.

ETHICS

Autonomy

Many authors have attempted to provide an all-encompassing definition of autonomy (Greek: autos – ‘self ’, nomos – ‘rule’).

It is sometimes said that the entire gross domestic product (GDP) of the UK, or indeed any country, would be insufficient to pay for the healthcare of its citizens. In fact, only about 7% of the GDP of the UK is spent on healthcare, roughly equivalent to £1000 per person per annum (these figures are marginally lower than the equivalent values in Germany and France, and approximately half the equivalent values of the US).

With limited funds and increasing demand for ever more expensive therapies, it is inevitable that a degree of resource rationing occurs, rationing that undoubtedly leads to the problems of healthcare provision. Intensive care bed and staff availability, waiting lists, ‘postcode prescribing’ and hospital mergers are all examples of the consequences of rationed resource allocation.

Since the inception of the National Health Service (NHS) in 1948, successive governments have faced two politically contentious problems, namely:

On the whole, governments have responded in a utilitarian manner, by trying to treat as many people as possible, rather than affording high quality, expensive treatment for fewer patients.

Unfortunately, there is no single theory of health economics that adequately and effectively allocates resources. This chapter reviews the two main theories of resource allocation in healthcare (needs theory and cost-effectiveness), before outlining the development of the law in relation to resource allocation in the NHS.

The field of products liability is a large and specialised area of legal practise. In the context of perioperative medicine, products liability is concerned with the following questions:

ETHICS

In spite of developments in the law to protect consumers against negligence, highly publicised cases arising from the use of defective products (e.g. silicon breast implants, Bjork–Shiley heart valves) have brought pressure on successive governments to reform the law concerning products liability.

A key turning point came with the Thalidomide tragedy of the late 1950s and early 1960s. Thalidomide was marketed as a treatment for morning sickness in pregnant women, but hundreds of babies worldwide were born with varying degrees of phocomelia or abnormally developed limbs, as an unforeseen side effect of the drug. As the tort of negligence relies on demonstrating fault and foreseeable harm, it was very difficult for claimants at the time to recover damages against manufacturers. Naturally, these events gave rise to considerable public concern. There was an understandable perception that a great injustice had been perpetrated in these circumstances, without any possibility of the injustice being righted or prevented by the law.

Modern medical practice is founded on the concept of respecting patient autonomy, which in part includes respecting the right of an individual to determine what personal information may or may not be divulged to a third party. Unwarranted disclosure of a patient's medical treatment, advice or medical records is regarded as breach of their personal integrity. In essence, confidentiality protects the patient's informational autonomy.

The concepts of confidentiality and privacy are inter-related, but they are not identical. Privacy is generally viewed as an individual right, whereas confidentiality is considered an interest but not necessarily an individual right.

The major ethical theories accommodate the notion of confidentiality. Deontology envisages confidentiality as a moral duty, but accepts that breaching confidentiality may be ethically acceptable if there is a more pressing duty to disclose information. Utilitarianism supports confidentiality if it promotes the best consequences, but obviously allows for breaches of confidentiality if the greater good is best served by disclosure.

The termination of a pregnancy is potentially one of the most difficult and harrowing decisions a woman can make. This process of decision-making has a profound impact on the practice of medicine. Doctors have to be aware of their legal and ethical duties to the patient, even though these may be at odds with their own personal morals or beliefs, and without unnecessarily intruding on the privacy of the patient concerning their decision. In particular the doctor should pay consideration to the fact that it is the patient (and their family) who have to deal with the emotional and personal consequences of their decision.

In 2001, 186,274 terminations were carried out in the UK, 88% because it was considered a risk to the mother's mental or physical health. Eighty-three per cent of terminations were performed before 12 weeks gestational age.

ETHICS

Abortion has been a contentious issue for many centuries in the UK, although both the level of debate and the politicisation of abortion are not as comprehensive or polarising as in the USA, where potential presidential candidates are expected to make their sentiments known on the subject (and where doctors have been murdered for performing abortions), or in other countries around the world (notably, countries where Islam or Catholicism is the predominant religion).

The abortion issue encompasses a number of different views and value systems.

One of the most noticeable changes in medico-legal practice over the last 20 years has been the vast increase in the number of complaints from patients and their relatives. There may be a number of reasons for this, including:

The cost to the National Health Service (NHS) of settled and outstanding negligence claims is enormous. Various estimates have been made. Fenn et al. estimated that the rate of closed claims rose by 7% per annum throughout the 1990s, and cost the NHS between £48 million and £130 million in 1998 alone. By extrapolation, the liability for claims that are yet to be settled amounts to £1.8 billion.

The gradual realisation of the cost of negligence claims to the NHS has prompted the formation of a number of bodies, in order to try and improve the safety and quality of healthcare.

All interventional medical treatment has resulted from research. Future cures or improvements in medical therapy rely on continued research, and this necessarily must include research performed on human beings. Observational research is without the remit of the law. Interventional research, however, is prescribed by rigid sets of ethical and practical guidelines (failure to comply with which is viewed poorly by the courts), and common law, particularly in relation to consent and medical negligence.

ETHICS

The quest for medical knowledge has not always been carried out in the most ethical of fashions. In the 1st century BC, for example, Cleopatra is reputed to have had a number of her handmaidens impregnated, and subsequently operated upon at certain times of gestation, in order to test the theory that it took 40 days for a male foetus to form, compared to 80 days for a female foetus. In 1796, Edward Jenner injected a healthy 8-year-old boy, James Phillips, with cowpox, then 3 months later with smallpox, in order to prove that the former provided defence against the latter. Between about 1850 and 1980, there are numerous documented reports of doctors in the US using soldiers, prisoners, orphans and others as subjects in research trials of dubious validity and value.

The Human Rights Act, 1998 (HRA) came into force throughout UK on October 2nd, 2000. The HRA incorporated most of the Articles of the European Convention of Human Rights (ECHR) into domestic law. Until that time, both the state and the individual were notionally allowed to act with relative freedom in pursuit of their own interests, provided those actions were in accordance with statutory provisions and common law. The HRA introduced the principle that the action of the state and public bodies had to be justified in accordance with the limitations imposed by the ECHR. Moreover, the HRA introduced the concept of positive rights into UK legislation. The legal and moral position now is such that both the human rights of the UK citizen and the responsibilities of the UK state have become legally defined.

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Human rights are considered practicable, inalienable, moral claims attributable to any human being (by reason alone of being human) that ought to be respected and enforced by all, in order to ensure the political and civil freedoms of individuals. In theory a right is to be morally respected even if it goes against the common good (e.g. parental refusal of vaccination for a child) or is at odds with a specific duty (e.g. refusal of treatment when a doctor thinks treatment is in the patient's best interest). To interfere with the exercise of a right requires a clear demonstration that another right will be unjustifiably interfered with, when exercising the first right.

Ethics is a branch of philosophy that is concerned with how the individual may best lead a good life. Simply put, medical ethics is the application of ethics to the practice of medicine – namely how the clinician, or group of clinicians, might provide medical care to the best of their ability and for the maximum benefit of their patients, or society.

What constitutes the ‘good life’ and the practices which enable ‘goodness’ on the part of the individual have been the subject of philosophical debate for several millennia. The basis of Western ethical thinking was founded in the Greek city states from the 5th century BC onwards. At the time, philosophy was a communal affair, and great philosophers were also great orators. Socrates (469–399 BC) declared that morality is not concerned with obeying the law, more that a degree of introspection is needed such that once we know who we are, we will know how to lead a good life. His pupil Plato (428–354 BC), in The Republic, extensively discusses the nature of justice and the nature of the ideal State, his work underpinning much of Western philosophy for the next 2000 years. In turn, Plato's pupil Aristotle (384–322 BC), in the Nichomachean Ethics, introduced a measure of pragmatism to moral thinking, declaring humans to be born with the potential for goodness, but requiring us to discover what it is to be good through the application of common-sense (which is arguably the method by which much of UK common law is still derived).

Medicine evolves. The human life cycle – birth, reproduction, death – is unremitting, but technological and social advances mean that not only do personal and societal patterns of disease change continuously, but also does our ability to cure or ameliorate disease. Indeed, the definition of ‘disease’ still remains a controversial concept.

The most notable feature of medical progress over the last 30 years is that its rate of evolution has markedly increased. There may be any number of reasons for this, including (but not limited to) improvements in information technology, the demand-led ethos of Western consumerism, the medicalisation of certain human conditions and behaviours, refinements and developments in scientific methods, and various political agendas relating to healthcare.

For decades, centuries even, the moral principles of Western medicine were informed primarily by the teachings of the classical philosopher-scientists, namely Thales, Hippocrates and Galen. These ideas were modified by the prevailing philosophical doctrines of subsequent historical periods: mainly religion before the Renaissance, humanism in the Age of Reason, and theories of Human Rights that have developed since the Age of Enlightenment. However, in our post-modern, secular society, there is growing concern that the recent accelerated rate of medical advance has outstripped the rate at which consequent ethical dilemmas can be discussed, or resolved. In particular, rapid advances in certain fields (e.g. in genetic engineering) mean that new moral dilemmas arise where there has previously been minimal, or no, ethical debate.

Can anyone call themselves a doctor? No, according to Section 49(1) of the Medical Act, 1983:

Everyone dies. Approximately 500,000 people die per year in England and Wales. In relation to surgery, perioperative mortality is less than 2% for patients classified as American Society of Anesthesiologists (ASA) grades I, II and III (i.e. no comorbidity to severe but not incapacitating systemic disease), a figure which is increased to 8–10% in ASA IV and V patients, and particularly when emergency surgery is performed. Preceding a significant proportion of death is a period of high-dependency or intensive care treatment, during which the patient – who was previously competent – is rendered legally incompetent, by reason of sedation, illness or unconsciousness. In addition, there are a number of ill but competent patients, undergoing higher risk surgery, who have a significant chance of dying perioperatively.

This section is concerned with the degree to which sick or incompetent patients can influence their own treatment and discusses aspects of UK law once death has occurred.

ETHICS

The ethics of death encompass a wide range of topics, including suicide, euthanasia and organ retrieval. However, a number of issues relating to death and dying reappear in discussions about these various topics: