Leducate Explains: Medical Law
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In this article, we look at what medical law is and how it has changed in recent history. We identify the rights that you have when seeking medical help, and the rules that govern health professionals when treating us.
Medical law governs the duties and responsibilities of healthcare professionals and the rights of patients. As a result, the law in this area is very much ethically and rights based. Healthcare is an essential part of any society, and now, during the Covid-19 pandemic, medicine and medical law are more relevant than ever. Disputes arising in medical law may vary from a claim resulting from minor medical malpractice to one resulting from a complete violation of human rights.
Medical Law and Ethics
In previous centuries, patients had few rights to be involved in decisions concerning their medical treatment. It was felt that the doctors knew what was in their best interests so patients put full trust in their doctors. At the same time, doctors alone assumed the duty of making treatment decisions for their patients, without any obligation to take into consideration their patients’ wishes. Moreover, patients were owed no right to be informed of the seriousness of their condition or the potential risks of their treatment. In fact, doctors were encouraged to actively hide information from their patients to prevent their distress and maintain the relationship of trust between the patient and their doctor. This was necessary as medicine was less effective and so doctors relied on a placebo effect to help patients recover; giving patients too much information about their treatment would obstruct the placebo effect.
However, over time the relationship between doctors and patients has changed. We have entered a generation where patients can search their symptoms on the internet and effectively become experts in their own condition, no longer relying on a blind trust that doctors will do what is in their best interests. At the same time, there has been an increasing rise in the importance of human rights.
The European Court of Human Rights, Credit: The Guardian
Since the introduction of the European Convention on Human Rights, there has been a societal shift to make sure laws protect the individual’s Human Rights. Healthcare professionals often undertake invasive treatments like surgeries on their patients. The law responds to this ‘invasion’ by handing patients a right to consent or indeed to refuse these treatments. The ethical role of medical law is ultimately to protect the patient’s autonomy and right to self-determination.
Article 8 of the European Convention on Human Rights (right to respect for private and family life) has proved important in medical law. For example, in the case of Rose Akhalu (2013), her Article 8 rights prevented the Secretary of State for the Home Department from refusing to allow her to obtain treatment in the United Kingdom. Article 8 is also used to support the right to privacy of confidential medical health information.
Healthcare professionals are subject to laws and regulations. They have an established duty to their patients, to provide them with a standard of care that would be considered suitable in medical practice. Falling below that standard could constitute ‘professional negligence’, leaving them liable to a claim against them. This helps to protect patients from medical malpractice, and in the event of negligence, awards them with an effective remedy.
Medical Consent
A right to consent in medical law confers a right for the patient to give or refuse permission for medical treatment or examination. This consent can be given verbally but also in writing (especially for more risky procedures). Valid consent involves various elements that must be adhered to.
Firstly, valid consent can only be given by a person who has capacity. All people aged 16 and above are presumed to have capacity to consent in medical law, however, children under 16 generally need a guardian to consent for them. The presumption of capacity can be rebutted if the patient has an impaired ability to understand, retain or weigh up information to make a decision, or if they are unable to communicate this decision (as defined by the Mental Capacity Act 2005). For example, an adult who is in a coma is unable to communicate consent to treatment and so they lack capacity. In these situations, healthcare professionals will act in the patient's best interests.
Valid consent must be given voluntarily. A patient cannot be forced, pressured or manipulated into giving consent to treatment. For instance, a doctor cannot threaten their patient into giving their consent. Similarly, a patient cannot be pressured or manipulated by their family into refusing life-sustaining treatment.
Lastly, any patient giving valid consent must be informed. This creates a duty for healthcare professionals to disclose material risks and alternative treatment options to their patients so they can balance the benefits and disadvantages of treatment. A doctor offering a patient a prescription drug must inform them of the potential side effects.
Written by Abi Okosi
Glossary box
Placebo Effect - A medical term when improvements are seen despite not using a non-active treatment.
Self-Determination - In legal terms, this means the right to determine, or decide, your future.
Professional Negligence - This is a branch of the law of tort, where the skill of a professional falls below the standard that similar professionals would typically have.
Capacity - In law, this means whether you have the ability to understand and apply your rights.