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FORMATTINGIRAC I ssue  R ule  A pplication  C onclusionConsider:  Legal implications o Statute o Case law  Professional implications o GMC guidance o MCA Code of practice  Ethical implications o Consequentialism o Deontology o Communitarianism o Feminism o PrincipalismNHS constitution – gov/g...

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FORMATTING IRAC    

Issue Rule Application Conclusion

Consider:  Legal implications o Statute o Case law  Professional implications o GMC guidance o MCA Code of practice  Ethical implications o Consequentialism o Deontology o Communitarianism o Feminism o Principalism NHS constitution – https://www.gov.uk/government/publications/the-nhs-constitution-for-england/the-nhsconstitution-for-england GMC guidance – https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors#end-of-life MCA code of practice – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/921428/Mental-capacity-act-code-of-practice.pdf British Medical Association – https://www.bma.org.uk/advice-and-support/ethics

ETHICAL THEORIES     

Consequentialism, Deontology, Communitarianism Rights, Feminism, Vulnerability Care ethics, Virtue ethics, Casuistry Principalism Hermeneutics, Personhood

Consequentialism  A judgement is made according to whether an action is right or wrong by the consequences it produces.  Judges whether an action is ethically right or wrong by the consequences it produces. An action is right if all things considered, the consequences are good.  Utilitarianism – a form of consequentialism o Maximise the amount of pleasure and happiness for the greatest number of people o The most important result is the one which produces the ‘best’ by bringing people pleasure. o Jeremy Bentham spoke about this.  But: o Do consequences outweigh the bad? – o It may produce results which are instinctively wrong o Ignores motive – it looks at the end point/outcome and not what is happening in the meantime. o Good for whom? – who does it actually benefit? o Patient’s wishes (autonomy) – does it ignore the patient’s wishes during medical decision making. o Unpredictable – do not know the consequences of our acts. Deontology  Considers that certain acts are right or wrong in themselves regardless of consequences  The end does not justify the means and each individual scenario needs to be considered.  Absolute principles (Immanuel Kant) – o His key maxim is that no person should be treated merely as a means to an end. This is because each person has personhood in their past and in their own right. Any decision needs to account for this. o People are not numbers, statistics or graphs but are human individuals  You cannot justify a breach of deontological principle by referring to the consequences o Some argue that there are no circumstances under which a deontological principle may be breached such as breaching Human right principles.  Duties – parents owe to children, physicians to their patients are very overlooked. o you must take into account the duties that you owe them, not only the consequences

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View on consequentialism –accept that consequentialism is appropriate where there is no absolute or duty principle to apply Duty of Candour – we must always do the right thing even if the consequences are unfortunate. o Not to kill (sanctity of life) – the manner of death may be uncomfortable and unpleasant, but euthanasia would prevent prolong suffering. o Not to harm – (Hippocratic approach) o Not to treat against patient's wishes – consent between a patient and clinician.

Rights  Absolute rights cannot be infringed  Conditional rights – where there are certain circumstances which the right can be infringed  A right usually has obligations – a right to healthcare with an obligation for someone to supply healthcare  Negative rights prohibit people acting in a certain way  Positive rights require people to act in certain ways toward you The right of autonomy  The right to decide what medical treatment you receive The right of dignity  Respecting individuals’ choices and empowering them to live in an autonomous life  Some argue individuals show not be able to sell their organs because this demeans their right to bodily integrity.  All humans have equal intrinsic worth The right to life  A key right that trumps others. Communitarianism   

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The decision that is made should be guided by what is good for the community Emphasises connection between then individual & their community – a relational approach Focuses on virtues and actions that support the interests of the community rather than autonomy/ personal rights – the way that benefitting and facilitating those will benefit the wider community in the long run. Difference between communitarianism and utilitarianism Too much weight has been placed on the rights of individuals, and too little on individuals’ responsibilities and the interests of the wider community.

Feminist Ethics – Criticisms of traditional ethics & accepted norms  Federick Mathewes-Green – argues that abortion promotes men’s interests.  Susan wolf – Feminists want to change the distribution and use of power to stop the oppression of women.

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Medicalization of childbirth has led to a loss in control for women over the birthing process. There is a lack of research into diseases that affect women particularly and how women’s medical conditions are belittled or regarded as non-medical Women who act ‘emotionally’ are improperly treated as incompetent and can be subject to medical treatment against their will Cosmetic surgery represents the pressures that men place on women to accord to a certain kind of appearance.

Care Ethics (Herring)  Ethics of care – focuses on relationships and care. It has an interdependency and mutuality in relationships.  Key themes: o Inevitability of interdependence – caring is an essence of life and the law should see caring relationships as crucial social significance. o Value of care – care is a good part of life and should be encouraged. Caring should be valued and supported as much as individual health which we are all interdependent on o Relational approaches – the law should not treat us with individual rights and clashing interests. We are humans who have to interact with each other even when it is facilitated by technology. Relational autonomy builds on the idea of an individual and how they exist in relation to those around them.  Responsibilities and rights – we have rights, responsibilities and consequences to our actions. Critics  Feminists – The role of women as carers and dependants has been one that has led to their oppression and subordination. Promoting the caring role is harmful  The notion of care is too vague = not all caring relationships are good.  The role of care can be seen to denigrate the ‘cared for’  Richard Woods - Disabled people have never demanded or asked for care! We have sought independent living, which means being able to achieve maximum independence and control over our own lives. The concept of care seems to many disabled people a tool through which others are able to dominate and manage our lives. Vulnerability (Fineman)  The law traditionally assumes that people are autonomous, self-sufficient and independent. Those who do not fit this mould are vulnerable and need protection.  Universal vulnerability is rooted in our humanness. We are capable of being hurt because we are made from flesh and blood. This is universal and should not be confined to a certain category of people. It should be acknowledged as a fundamental part as who we are  It is an ontological condition of our humanity – it is a part of who we are. We face barriers in relation to achieving what we need to to make decisions. We need to think about ethical principles as we explore these influences

Virtue Ethics  Focus on attitudes (virtues) motivating your actions rather than consequences of their actions.  Healthcare professionals need to act out of compassion, kindness, honesty with diligence.  Stephen Holland – “virtues are character traits, or dispositions of character, such as courage and benevolence, acquired during upbringing; one ought to develop and practise the exercise of the virtues and inculcate them in children.  Phillippa Foot – Men and women need to be able to house, clothe and feed themselves. They need the ability to form family ties, friendships and special relations with neighbours and need codes of conduct virtues such as loyalty, fairness, kindness  But where resources are finite or scarce, can tensions arise? –What is the decision on who should receive the resource first?

Casuistry  Emphasizes that each case has its own unique circumstances and facts and should be viewed on a case-by-case basis. Principlism  Most influential book is Principles of Biomedical Ethics’ Beauchamp and Childress.  This ‘borrows’ from other theories to produce a set of more pragmatic ethical principles that can be used in practice Their approach is based on four principles. These represent a ‘common morality’  Autonomy – self-determination, the right to control your own body and life (in direct contrast to paternalism. To override a person’s wishes is to treat them as a means to reach another person’s end. It does not require the respect of every choice but only competent choices.  Non-maleficence – imposes an obligation that person should not cause harm to others. It may urge harming one patient to help another, with their consent would not infringe non-maleficence.  Beneficence – medical professionals must do good and act for the benefit of their patient. (ties with communitarian approach) doctors may be put under a special duty to put interest of patients above their own.  Justice – what is fair, equitable or reasonable. equal treatment and equal opportunity (ties with utilitarian approach)because patients don’t need the same treatment but the opportunity to participate in the same decision making. Benefits of Principlism  Accessible and usable – a coherent way to address problems  Culturally neutral and not based on specific norms.  Consistency  Strong counter to moral relativism – no right or wrong answers

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o Relativism - argues that there are many different answers to complex moral issues and that it would be wrong to suggest that one view is necessarily superior to another o There is no right or wrong answer o you choose the option that seems to work best for the particular case with which you are dealing Flexible

Critics of Principlism  Everything could be justified under at least one principle – adapt it to whatever conclusion you want  Some principles lead to contradiction and no guidance as to how to prioritise  Beauchamp & Childress : 'Our four clusters of principles do not constitute a general moral theory. They provide only a framework for identifying and reflecting on moral problems.' Hermeneutics  Where there is a disagreement between a patient and a medical professional about a course of treatment, it encourages those involved to talk to each other and to listen to the ‘stories’ each have to tell.  By listening to each other, the parties can begin to work out for themselves the ethical problems and produce a shared understanding of the situation. Personhood  Refers to a moral claim that a human being is entitled to have the highest moral status.  Mental capabilities – cognition, self-consciousness and practical rationality are key to personhood.  The ability to decide how to live and to make morally good choices, rather than be driven by brute desires, is what separates out humans as being of the highest moral value.  Relational personhood - we should attach moral status not to individuals but to human relationships. It is relationships of love and care which are of moral value.

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The allocation of resources should be available to those who need it and when they need it but is there a right to these resources? The NHS is not an insurance model and instead it is a pay on delivery model unless you are not a UK citizen and a taxpayer. (excluding emergency treatment)

NHS Constitution (2015) – seven core principles Principle 1 – The NHS provides a comprehensive service, available to all … . It has a duty to each and every individual that it serves and must respect their human rights Principle 2 – Access to NHS services is based on clinical needs, not an individual’s ability to pay (https://www.gov.uk/government/publications/the-nhs-constitution-for-england/the-nhsconstitution-for-england)  link to constitution Pressure on resources  Population changes – people are living longer which creates an older population requires a different type of healthcare.  Antimicrobial resistance – an increased use of anti-biotics. Bacteria is evolving and cannot be fought by the same anti-biotics and expectations have increased so people need a cure more quickly  Drug development – people use existing drugs and create new combinations to try which have not a lot of evidence.  Staff – the lack of staff and their wages (are they appropriate?). The NHS are the 5 th largest employer on the world and there is an enormous drain on funding yet a lack of staff  Infrastructure – hospitals are getting old and need to be rebuilt. They are also entering partnerships and lack is sold back to the NHS which has financial implications where they have to pay rent  Pandemic – not the only pandemic but one of them which has a drain on resources. The waiting list for non-urgent surgery is increasing so there is bigger need for aftercare. Cancer screening  Claims – clinical negligence is 1% of the budget. NICE    

Sets uniform standards regarding treatment across the NHS Provides guidance and advice on medicine, treatment and procedures They use the QALY system R (Rose) v Thanet Clinical Commissioning Group [2014] – a woman suffered with Crohn’s wanted eggs frozen and CCG guidelines allowed this where it was exceptional. Held CCG did not have to follow NICE guidelines but had to give reasons for not providing it. The claim was successful because its reason was only ineffectiveness

Equality  Constitution states that all people should be treated equally.  John Harris – the primary goal is to save lives.  John Rawls – the approach involves a ‘thought experiment’ in which free and equal citizens negotiate about the world in which they are to live Age 

Older people have had a fair innings – Daniel Callahan – argued that “It is the obligation of a good society to help the young to become old but not to help the old people become indefinitely older. The young and the old have reciprocal responsibilities: the young should support the old, and the old should not be an undue burden on the young”

Rationing  Restricting access and deciding who should receive treatment.  If a person has no healthcare need, denying him or her ‘treatment’ does not really involve rationing  Where there is a limited resource of health care and the decision is made to offer it to some but not others.  R v Secretary of State for Social Services, ex p Hincks – it is it is permissible to take into account financial considerations when deciding whether to offer treatment to a particular patient or group of patients. However, treatment cannot be denied to a patient on the basis that he or she can afford to pay for private treatment Individual responsibility  What we do and the decisions we make has an impact on our health  Individual behaviour can contribute to health problems which should be reflected in rationing decisions.  How do we assess what type of behaviour which should be taken into account?

Need  Prioritise resources with who needs them and who doesn’t  Is it a health need or a social need?  Dementia is a social need. The local authority provides the services and the individual pays for it unless they have a certain amount in capital or savings. This is a social need.  Diabetes is a health need. Treatment which isn’t available free of charge to dementia payment Is available on the NHS. This is a health need.  Clinical frailty scale QALY – Quality Adjusted Life Years  Assessment of three factors: o How many years of extra life will the treatment provide this patient? o What will the quality of those extra years be?

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o How expensive is the treatment? This is a utilitarian view and a social value judgement. Scoring: o Death is equivalent to 0 o A state of health worse than death achieves a negative score o 1 year of healthy life o 1 year of unhealthy life is...