Historically, the paternalistic element of the medical profession has commonly taken precedent over patient autonomy. This is due to it being seen as a key element of any profession whereby the ability to self-regulate defines it. Nevertheless, the increase in innovation, individual freedom and scrutiny all have called into question whether a paternalistic approach allows for the greatest amount of welfare. It is notable that even the courts struggle with this dilemma, as seen through the progression and contradiction within the case-law. Though it is now clear that there is a need for greater patient autonomy, a number of ethical questions arise on; accountability, types and advice of treatment, use of resources and many more topics. This begs the question as to whether it is for the individuals within the profession or for the state to ensure ethical medical practices. For the highest level of efficiency, both professionals and legislators must have a role in regulating the ethical practices used. More importantly a dialogue between them should be open so that legislation can be implemented according to societal needs.
The medical profession was founded on the implied bargain whereby they ensured the state with care for the working population at an assured set standard and, in return, the state allowed the profession to self-govern with the political, economic and status merits. The ability to self-regulate was legalized through the 1858 Medical Act which formed the General Medical Council (GMC). Judith Asslop describes how this led the following bargain to take place: the GMC would ‘ensure that those who practised had been trained in a manner that met with the clinical and ethical standards of the day’ in return for self-regulation.
It has been a matter of contention whether the GMC is effective in regulating the profession and the ethical medical practices they carry out due to its conflicting role. On one hand, it has to protect the public to uphold confidence, but they are also accountable to its membership. The recent case of the Hadiza Bawa-Garba v General Medical Council is a prime example of the difficulty in fulfilling their role. The Supreme Court ordered a twelve-month suspension after a junior doctor failed to recognise the symptoms of sepsis, but the GMC appealed. The appeal led to an out-cry by those within the medical profession who stated that criminalisation of medical error will lead to a decrease in confidence of the GMC which could, in turn, decrease its authority and more dangerously drive defensive practice. This fear was supported previously by Lord Denning who stated that it would be wrong to condemn those within the profession for the following reason: “Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled, and confidence shaken.”
This reflects the traditional judicial paternalism view that the courts had towards those within the profession and to which many professionals believe justified to this day. Moreover, it highlights the risk of legislation being counter-intuitive as a disparity between law and medical practice makes the process of treating patients less efficient as there is a greater amount of uncertainty.
The unwillingness to move away from doctor paternalism is enshrined in the case of Bolam v Friern Hospital Management Committee. It was here that it was deemed that “a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men”. Through the development of technology and the empowerment of patients it has been publicised how this is no longer can be good law as the medical profession can no longer solely uphold ethical medical practices. Key examples of this include, the Bristol Infirmary Hospital (BRI) scandal, where two paediatric cardiac surgeons (James Wisheart and Janardan Dhasmana) had mortality rates double (if not higher) than the national average and they went unnoticed for over 10 years resulting in the unnecessary death of thirty to thirty-five children. Many speculate that there was a ‘wilful blindness’ within the profession to not report them as well as a high-level of critique from the public for the lack of regulation. Finally there is the case of Mid Straffordshire NHS Foundation Trust. Between 2005 and 2009, the egregious negligence of care (not providing patients hydration, nutrition or necessary sanitary conditions) provided by the hospital, resulted in the death of 1,200 people. Francis Fukuyma explains that ‘people who do not trust one another will end up only co-operating under a system of formal rules and regulations…enforced sometimes by coercive means.’ Suggesting that due to the public image of these cases there will now always be a need for legislative reinforcement to maintain public confidence in the system.
The emphasis for greater patient autonomy primarily surfaced through its statutory foundation: The Human Rights Act 1998, more specifically, Article 8 provides the right for ‘a private and family life’ and Article 5 provides for ‘the right to liberty and security’. Both, among many other Articles, are relevant when seeking to protect patient welfare. They allow and illustrate the concept of autonomy which is to self-govern without interference or control from third parties. Beauchamp and Childress both state that in order to have autonomy one must have liberty and agency (capacity for intentional action). In medical law this principle is protected through the concept of informed consent. In order to attain informed consent, it must be voluntary , informed , and they must have capacity . All requirements are supported by common law, statute or directly through the GMC guidelines. This would therefore suggest that the law is a necessity when regulating medical ethical as it serves to protect both patient welfare and autonomy.
The debate between paternalism and patient autonomy started to arise from cases such as Sidaway. In the case it was deemed acceptable that the pre-operative information disclosure standard be set by the medical profession. Nonetheless, the case received judgment by Sir John Donaldson MR who stated that he ‘could not support the profession, by an excess of paternalism denied, denied the patient’s choice’. This was thus the first public call for a change in the common law’s paternalistic approach. Though it took some time, it was only through the case of Montgomery v Lanarkshire Health Board in which remarked Sidaway as being ‘unsatisfactory’ and implemented a reformed test for doctors which is “to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” There are a number of reasons for this judgement, but it would be safe to assume that the public pressure for reform was becoming increasingly overwhelming with the number of complaints going from 1500 in 1995 to 8,895 in 2014 and with only 2.3% of those complaints received a sanction at Hearing.
Though there is a reduction in complaints the number of complaints remains high and this may be due to the level of uncertainty that remains when assessing how ethical medical practices are meant to be applied under greater scrutiny and limited resources. In 2016-2017 alone the National Audit Office estimated that the cost for clinical negligence cases amounted to £1.6 billion adding significantly to the strain of the NHS. Thus, explaining the intrinsic risks of every procedure, to every patient may not be plausible with the increasing demand by patients so where is the balance struck? In the case of Re C it seems as though a wide test is put on the understanding of information given by medical practioners. Nevertheless, the case Williamson v East London and City Authority stated that competency can be rebutted if it can be shown that the patient was so uncomprehending he could not have consented. Consequently, this demonstrates the necessity for the GMC guidelines which encourage a joint-decision making and thus render the law an inessential element when resolving ethical matters.
In conclusion, respecting patient’s autonomy has become the forefront of medicinal practices, nevertheless, to fulfil patients wish and desires also involves a level of resources that the NHS currently does not attain. For this reason, it is important that the legislature pushes for patient autonomy as far as is possible but without overbearing the profession to a large extent as it would be naïve to overlook the difficulty to legislate such a highly specialized and technical area. The continued efforts to increase the lay representation within the GMC is an example as to how the balance is to be struck in order to ensure safety and efficiency.