Strange Bedfellows : How Medical Jurisprudence Has Influenced Medical Ethics and Medical Practice

The pervasive influence of law on medical practice and clinical bioethics is often noted with a combination of exasperation and lamentation. Physicians and non-physician bioethicists, generally speaking, consider the willingness of courts, legislatures, and regulatory agencies to insinuate themselves into clinical practice and medical research to be a distinctly negative aspect of contemporary American society. They are quick to point out that their colleagues in other Western developed nations are not similarly afflicted, and that the situation which obtains elsewhere is highly preferable to the legalization and purported over-regulation of medicine that has taken place in the United States during the last fifty years. In this book I offer a decidedly different perspective. It is, admittedly, not entirely without personal and professional bias. Prior to becoming a fu- time academic, teaching bioethics in the setting of an academic medical center, I was, for nearly 20 years, an attorney specializing in health law. Even after earning a doctorate in philosophy, I was frequently considered to be the “resident lawyer” on the bioethics faculty, much more frequently looked to for my insights on the law than my perspective as one who had formally studied moral philosophy and applied ethics. I note this not out ofa sense of frustration or disappointment, but as confirmation that even among physicians and n- physician bioethicists, there is widespread recognition that the law does have important contributions to make in assessing the practice ofmedicine and the conduct of medical research. "The perspective of this book is that, at least from the standpoint of the patient and the research subject, the law has had a decidedly positive influence on medical practice and research. The very concept of informed consent - in clinical practice and human subjects research - was developed and imposed upon those engaged in these medical enterprises by courts. As a result, the very model of the physician-patient relationship was transformed from one of paternalism to one of shared decision making. In other words, through the law the patient was given not merely a voice, but the ultimate authority in determining what may be done by health care professionals in both practice and research settings. Informed consent is the handmaiden of individual autonomy, which became a full-fledged principle of medical ethics only after it had become a principle of medical jurisprudence. Similarly, the concept of prospective autonomy, through which an individual can have an authoritative voice in future health care decisions at a time when he or she has lost decisional capacity, only became a viable concept once legislatures and courts recognized the moral and legal authority of advance directives."--Pages vii-viii

The relationship between law and bioethics and the influence of both on medical research and clinical practice is a topic that is often mentioned but rarely subjected to sustained critical analysis. This book considers a number of issues in medicine in which the influence of the law has been most profound and positive including:

• informed consent;
• advance directives;
• constitutional liberties and privacy;
• standards for pain management and end-of-life care.

The book provides important background material on significant legal and philosophical concepts, terms and principle necessary to an understanding of the legal process and ethical analysis. This work establishes the role of law in medicine and bioethics as being positive and its continuing involvement in the rights of research subjects and patients as a necessity.

Fifty years ago there were no university undergraduate courses in medical ethics, or graduate courses in philosophy with medical ethics as their subject matter.