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The Unusual Case of Ian Paterson and Criminally Harmful Surgery

9 May, 17 | by Iain Brassington

Guest post by Alex Mullock, University of Manchester

On 28th April 2017 in the case of breast surgeon, Ian Paterson, the jury in Nottingham Crown Court agreed that in carrying out unnecessary and mutilating surgery the defendant had done what no reasonable surgeon would do.  Paterson was convicted of seventeen counts of wounding with intent to cause grievous bodily harm (GBH) and three counts of unlawful wounding (under, respectively, sections 18 and 20 of the Offences Against the Person Act 1861) against nine women and one man. These ten victims, however, have been reported to represent a tiny proportion of all Paterson’s alleged victims, a group that might amount to hundreds from his many years of practice in the NHS and private sector.

The “obscure motives” that compelled Paterson may forever remain a mystery but it is interesting that the charges against him relate only to patients he treated in his private practice.  This enabled the prosecution to create a narrative that suggested that financial gain could have been the motivating factor for Paterson’s crimes.  Without greed as a possible motive his actions are baffling, and the prosecution’s case, in alleging that surgery which Paterson argued was performed in the patient’s best interests actually constituted GBH or unlawful wounding, would be more challenging because of the medical context of the allegations.  Importantly, the medical exception to the criminal law – the principle that consensual surgery carried out by qualified professionals is legitimate (“proper medical treatment”) – means that there is an assumption that harm caused by surgery is not a matter for the criminal law because it is a risk that we accept in order to enjoy the benefits of surgical medicine.

Even when surgeons make terribly negligent mistakes, English criminal law, interpreted through legal principles established through the courts, means that even recklessly dangerous surgeons need not fear the criminal law.  (An exception may arise if the patient dies, in which case a charge of gross negligence manslaughter might follow.)  Paterson’s conviction is a landmark case, which might have implications for the prevailing assumption that non-fatal surgical violations are not a criminal matter. more…

Aid-in-Dying Laws and the Physician’s Duty to Inform

22 Mar, 17 | by miriamwood

Guest Post: Mara Buchbinder

Paper: Aid-in-dying laws and the physician’s duty to inform

Why do so many people assume that any clinical communication about aid-in-dying (AID, also known as assisted suicide), where it is legal, ought to be patient-initiated? Physician participants in my ongoing study tend to assume that physicians should wait for patients to initiate discussions of AID. The clinical ethics literature on communication about AID has reinforced this expectation by focusing on how to respond to patient requests. Consequently, bioethics has largely remained silent on whether there is a professional duty to inform terminally ill patients about AID laws and their clinical and legal requirements.

As a medical anthropologist, I pay attention to such gaps in professional discourse, as they often indicate ideas that are so taken for granted that they escape formal expression. In this case, bioethics’ silence on professional obligations to inform patients about AID suggests to me that initiating such a discussion is widely viewed as dangerous. But why? My recent article in the Journal of Medical Ethics began with this puzzling question.


Professional Codes and Diagnosis at a Distance

6 Feb, 17 | by Iain Brassington

This is the second part of my response to Trish Greenhalgh’s post on the propriety of medics, psychiatrists in particular, offering diagnoses of Donald Trump’s mental health.  In the last post, I concentrated on some of the problems associated with making such a diagnosis (or, on reflection, what might be better called a “quasi-diagnosis”).  In this, I’m going to concentrate on the professional regulation aspect.

Greenhalgh notes that, as a UK medic, she is bound by the GMC’s Duties of a Doctor guidance,

which – to my surprise – does not explicitly cover the question of a doctor’s duty towards a public figure who is not his or her patient.


My reading of the GMC guidance is that in extreme circumstances, even acknowledging the expectation of how doctors should normally behave, it may occasionally be justified to raise concerns about a public figure (for example, when the individual is relentlessly pursuing a course of action that places many lives at risk). Expressing clinical concern in such circumstances seems to involve a comparable ethical trade-off to the public interest disclosure advice (Duties of a Doctor paragraphs 53-56) that breach of patient confidentiality may be justified in order “to prevent a serious risk of harm to others.”

Well, to be honest, it’s not that much of a surprise to me that the GMC guidelines doesn’t stretch to public figures – but that’s a minor point.

The more interesting thing for me is what the relationship is between the practitioner and the GMC.  Greenhalgh ends her post by saying that she “wrote this blog to promote further debate on the topic and invite the GMC to clarify its position on it”.  But why should the GMC’s position be all that important?

OK: I’m going to go off on a bit of a tangent here.  Stick with me. more…

Diagnosing Trump

5 Feb, 17 | by Iain Brassington

It doesn’t take too much time on the internet to find people talking with some measure of incredulity about Donald Trump.  Some of this talk takes the tone of horrified fascination; some of it is mocking (and is accompanied by correspondingly mocking images); and some people are wondering aloud about his mental health.  In this last category, there’s a couple of sub-categories: sometimes, people are not really talking in earnest; sometimes, though, they are.  What if the forty-fifth President of the United States of America has some kind of mental illness, or some kind of personality disorder?  What if this affects his ability to make decisions, or increases the chance that he’ll make irrational, impulsive, and potentially dangerous decisions?

This does raise questions about the proper conduct of the medical profession – particularly, the psychiatric profession.  Would it be permissible for a professional to speak publicly about the putative mental health of the current holder of the most important political office in the world?  Or would such action simply be speculation, and unhelpful, and generally infra dig?  More particularly, while the plebs might say all kinds of things about Trump, is there something special about speaking, if not exactly ex cathedra, then at least with the authority of someone who has working knowledge of cathedrae and what it’s like to sit on one?

As far as the American Psychiatric Association is concerned, the answer is fairly clear.  §7.3 of its Code of Ethics, which you can get here, says that

[o]n occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.

This rule is nicknamed the “Goldwater Rule”, after Barry Goldwater, the Senator who sued successfully for damages after a magazine polled psychiatrists on the question of whether or not he was fit to be President.  Following the rule would appear to rule out making any statement about whether a President has a mental illness, a personality disorder, or anything else that might appear within the pages of the DSM.

Over on the BMJ‘s blog, Trish Greenhalgh has been wondering about what a doctor may or may not do in cases like this:

I have retweeted cartoons that mock Trump, because I view satire and parody as legitimate weapons in the effort to call our leaders to account.

But as a doctor, should I go further? Should I point out the formal diagnostic criteria for a particular mental illness, cognitive condition, or particular personality disorder and select relevant examples from material available in the public domain to assess whether he appears to meet those criteria?

Her post is long, but it does generate an answer:

I believe that on rare occasions it may be ethically justified to offer clinically-informed speculation, so long as any such statement is clearly flagged as such. […] I believe that there is no absolute bar to a doctor suggesting that in his or her clinical opinion, it would be in the public interest for a particular public figure to undergo “occupational health” checks to assess their fitness to hold a particular office.

Her phrasing is such as to leave no bet unhedged – she’s careful not to say that she’s talking about anyone in particular; but, beneath that, the message is clear: it might be justifiable to depart from the Goldwater Rule to some extent in certain hypothetical circumstances.

My post in response will also be long – in fact, it’s going to spread out over two posts.  I think she’s plausibly correct; but the way she gets there is not persuasive.


Professionalism, or Prying?

3 Jan, 17 | by Iain Brassington

“Professionalism” is a funny thing.  About this time last year, I was struggling to get a new course written for the coming semester; it was on professional ethics for lawyers.  A colleague made a comment along the lines that I must be spending a lot of time looking at the professional codes; I replied that I’d be spending almost none doing that; she looked baffled and wandered off, presumably convinced that I was joking.

I wasn’t joking.  I did look a little at the professional codes, but only as a jumping-off point.  My schtick was more like, “Here’s what the SRA says about client confidentiality; now let’s spend the remaining 98% of this lecture looking at why it might say that, and whether it ought to say something different”.

Yet, as I wrote the lectures, professionalism – not professional codes, but professionalism – did keep cropping up.  After all, if you’re going to talk about lawyers’ ethics, or doctors’ ethics, or engineers’ ethics, the implication has to be that there’s something quite specific that applies to each of those professions, otherwise it just collapses into… well, ethics; and it might be that there is a clear way to define who belongs to the profession, and a clear hierarchy, and that it is proper (or, at least, it may be proper) that there is some sort of pressure exerted by that hierarchy that shapes behaviour in a way that neither the law nor standard social norms do.  There are some things that are regulated by professional ethics that aren’t regulated by bog-standard ethics.  To return to the lawyers’ example, there might be certain things that are acceptable or even required from a lawyer that wouldn’t be in other cases, and other things that are unacceptable that are trivial outside the profession; and the same might apply to medics.  (In passing, I think that that might be one of the fault lines in academic medical ethics: those of us that come from a philosophical background understand “ethics” to mean one thing, and those of us who come from a medical or, in at least some cases, a social science background understand it to mean another.  We normally rub along fine, but sometimes we are talking at cross-purposes.)

A range of problems arises from that, though.  For example, though codes of ethics might attempt to codify what it is that’s demanded by professionals, they’re often rather vague, or presuppose a heck of a lot that’s actually rather important.  That can lead to situations in which it’s impossible to tell what’s required on the ground.  “Maintaining the reputation of the profession” is a concern of some of the professional codes I’ve seen, though quite what that means is anyone’s guess, since it might collapse to “doing whatever keeps the public on side, no matter how senseless”; and while that might maintain esteem in one sense, it does so only by undermining the concept of professional integrity.

A second problem comes from the need to know what things are properly within the “professional” remit, and what professional bodies have any business talking about.  The difficulty here is that “professionalism” implies living a kind of life; being a professional involves being a certain kind of person.  One doesn’t stop being a professional when the end-of-shift klaxon goes.  And yet there’re certain things that do have nothing to do with professional regulation: whether or not to be teetotal is not a professional matter, and a professional body that tried to involve itself in such decisions would be stepping over the line.  Still, where the line should be drawn may not be obvious.

All of this brings me to this blog post over on the BMJ blog, in which Niro Kumar considers doctors and dating apps. more…

Should Junior Doctors Still Strike?

20 Sep, 16 | by bearp

Guest Post by Adam James Roberts

In early July, the British Medical Association’s junior members voted by a 16-point margin to reject a new employment contract negotiated between the BMA’s leadership and the Government. The chair of the BMA’s junior doctors committee, Johann Malawana, stood down following the result, noting the “considerable anger and mistrust” doctors felt towards the Government and their concerns about what the contract would mean “for their working lives, their patients and the future delivery of care” in the National Health Service (the NHS).

The BMA pressed the Government to reopen negotiations and to reverse its decision to impose the contract unilaterally. Those appeals having been rebuffed, the BMA announced two months later a new programme of strikes, citing concerns about the impacts on part-time workers, “a majority of whom are women”; on those doctors who already work the greatest number of weekends, “typically in specialties where there is already a shortage” of staff; the contract’s implications for the ability of the NHS to “attract and keep enough doctors” into the future; and the lack of an answer as to how the Government would manage to staff and fund the extra weekend care which was so often drawn on to justify pushing that new contract through.

Earlier this year, Mark Toynbee and colleagues argued in the JME that the earlier rounds of strikes by British juniors were probably ethically permissible, noting that emergency care would continue to be available, that the maintenance of patient well-being was apparently a goal, and that the strikers felt they were treating industrial action as a last resort. In a later paper, I attempted to outline and apply an ethical framework drawing on Thomist ‘just war’ theories, reaching the same conclusion about the strikes as Toynbee did.

In this guest post, I attempt to update or supplement that literature, considering some of the more recent and popular arguments against the current rounds of strikes and whether any of them might be morally compelling. In particular, I look at the fact that the BMA’s junior leadership had described the rejected offer as “a good deal”; the argument that strikes are a disproportionate response to the remaining issues; the concerns voiced about the strikes by Britain’s General Medical Council; and the allegation that striking doctors are “playing politics”.


Free Labour and Quiet Doubts

1 Aug, 16 | by Iain Brassington

Those of us on the academic side of things will almost certainly recognise the situation: you’re sitting in your school’s Teaching & Learning committee, or a staff/student committee meeting, or something like that, and you hear the complaint from students that they should get more contact time.  Academics should spend more time teaching rather than simply doing their own research.  After all, they’re paying however-many thousand pounds for their education.

And you’ll’ve heard the standard rebuttals – and maybe even trotted them out yourself: that course fees cover not just teaching costs, but libraries, labs, buildings and so on; that university learning isn’t about hours in a classroom; that teaching and research are intertwined; that students benefit from being taught by the people who’re writing the papers they’re reading.  But I wonder if these standard responses miss something important.

Back in April, I was getting companionably smashed with some of my final-year students, and we were talking about what they were going to do when they’d graduated, and about possible careers.  One or two were interested in academia, and so a part of the conversation concerned what life’s like from my side of the fence.  Predictably, pay was one thing that interested them.  I mentioned that I’d made about £80 in total from the books I’ve written, spread over 10 years.
“And what do you get paid for a paper?”
I held back my bitter laughter, and explained how much you get paid for papers, and how much you get for peer-reviewing, and all the rest of it.  The students had had no idea that this stuff was expected of us, but not remunerated.  Why would they?  Indeed, isn’t it insane that we’re not paid?

I think that one gets an insight here into students’ complaints about academics’ priorities being wrong.  If they think that we get paid for publishing papers, then of course they’re going to think that we have an incentive to resist extra contact hours – and everything we tell them about extra contact hours being at best academically unnecessary, and likely as not counterproductive, will sound like so much bad faith.  After all, of course we’d tell them that a course only needs 30 hours of lectures rather than 60 if we could be earning extra money with those spare 30 hours.

What prompts all this is an article in the Chronicle of Higher Education.  It’s from 2012, but it’s started popping up in my social media timelines this morning, and Carl posted it on Fear and Loathing in Bioethics last night.  It makes a proposal: more…

There’s Argument, and there’s Disputation.

7 Jun, 16 | by Iain Brassington

Very well, then: let’s allow that the quality of argument in bioethics – and clinical ethics in particular – is not of high quality.  What should be done about it?

That’s a hard question, though it’s predictable and wholly justifiable that it should be asked.  And, to be honest, I don’t know offhand.  I might have a few germs of ideas, but nothing that I’d be prepared to mention in public.  That doesn’t mean that I can’t look at other ideas, and test them out.  One such idea is mooted in this paper by Merrick et al: in essence, they propose a sort of debating competition.  They begin by explaining – with some plausibility – some of the factors that make it a bit hard to get full-blooded engagement with ethics in the medical curriculum:

As educators, we have observed additional challenges medical students face in their ethics education, which echo others’ experiences. First, because of the prodigious amount of information medical students are presented with during their first two years of training, they typically adopt a strategy of selectively reading assignments, attending large lectures, and participating in small group discussions.  In this context, ethics appears to be deprioritized, because, from the students’ perspective, it is both more demanding and less rewarding than other subjects.  Unlike other subjects, ethics requires students to reflect on their personal moral sensibilities in addition to understanding theory and becoming familiar with key topics and cases.  Yet, also unlike other courses, poor marks in ethics rarely cause academic failure, given the way performance in medical school curricula is typically evaluated.  Thus, ethics is both more demanding—because of the burdens of self-reflection—and less rewarding—because excellence in ethics does not contribute significantly to grades or test scores.

Second, medical students face challenges in how they individually conceptualize the value of ethics in the medical context.  Although many indicate that morality is important to them, they also suggest that it is a subject matter that relates to their personal, as opposed to professional, actions.  Instead, students often conflate the domains of institutional policy and health law (especially risk management and malpractice litigation) with medical ethics.  Although these domains are obviously also of essential concern for future physicians, they remain distinguishable from ethical issues likely to emerge in practice.  Consequently, rigorous and effective ethics education within the medical school context faces the challenge of distinguishing ethics from other aspects of professionalism.

Too often, ethics gets run alongside communication skills training (well, it’s all about getting informed consent, isn’t it?  Eh?  Eh?); and I’ve lost count of the number of times I’ve been asked to prepare multiple choice questions for ethics assessment.  (Standard answer: nope.  It’s got to be an essay of some sort, or it’s not worth doing.)

So what to do?  The paper, as I’ve already said, suggests a quasi-competitive debating competition, in which teams of students are given a problem, and a limited time to make a case in response to that problem.  An opposing team then has a limited amount of time to place a counterargument.  Then they swap roles, so the counterarguing team gets to make the argument, and the previous arguers now become counter-arguers.  Judges can ask questions, and assign a score.  “The basic aim of the MEB curriculum,” the authors say,

is to help students learn how to produce and present an argument for an ethical position in response to a realistic clinical situation.


Every now and again I get asked to help judge debating competitions – sometimes for academic institutions, sometimes for non-University bodies, sometimes for others (*cough* Instituteofideas *cough*).  I used to be happy to help out.  But I’m not so sure now. more…

Healthcare Ethics Consultants’ Place in the World of Health Care ‘Professionals’

17 May, 16 | by BMJ

Guest Post by Abraham Schwab

During a recent meeting at a local hospital, I was asked what role a good Healthcare Ethics Consultant should play.  I gave a more ambiguous answer than I would like.  I pointed out that Healthcare Ethics Consultants can help patients, providers, and administrators come to a common understanding of the values at play in a particular health care situation.  A Healthcare Ethics Consultant can also help them reach a decision that reflects the medical realities, the patient’s values, and, as appropriate, the families’ values.  But I also pointed out that the role of the Healthcare Ethics Consultant is determined by the particular institution’s needs.  One institution’s Healthcare Ethics Consult can look like another’s Family Care Conference or another’s Palliative Care Consult and so on.  In short, the Healthcare Ethics Consultant’s role and responsibilities is not neatly defined across institutional boundaries.

The American Society of Bioethics and Humanities (ASBH) Code of Ethics and Professional Responsibilities for Healthcare Ethics Consultants aims to “set out the core ethical responsibilities of individuals performing healthcare ethics consultation.”  If successful, it would provide guidance as clinical ethicists and others attempt to answer the question, “What is a Healthcare Ethics Consultant responsible for?”.  Looking over the ASBH’s code, however, it’s hard to imagine using it to provide a content-rich and clear answer.   As I argue in my paper, “The ASBH Code of Ethics and the Limits of Professional Healthcare Ethics Consultations”, the code falls short of its goal in two substantive ways.  First, the Code implicitly relies on the category “professional”, despite the fact that this category lacks clear definition.  Second, the code articulates only vaguely defined responsibilities.

The ASBH’s Code of Ethics is a short document – less than five pages – but invokes the word “professional” 14 times.  That the word is not defined in the code is of no surprise: the use of “professional” is common coin in health care fields.  And yet, the category “professional” is poorly defined.  As I argue, the best available definition is a formal one: professionals share a common commitment to something.  But that something remains undefined in general.  The concept of “profession” is a placeholder indicating that practitioners of a particular occupation have taken on certain additional obligations, and those obligations are specific to the profession in question.  When an occupation claims to be a “profession”, a necessary follow-up question is, “But what does that mean for your occupation?”  Ideally, the ASBH’s Code of Ethics would answer this question for Healthcare Ethics Consultants.

In this regard, the ASBH’s code falls far short.  Most of the broadly defined obligations could be the obligations of any occupation.  The obligations also include conceptual confusions, from conflating privacy and confidentiality to invoking the requirement that Healthcare Ethics Consultants should meet professional standards – the very standards that the Code itself should be providing.

Despite these shortcomings, I write to criticise the ASBH code, not to bury it.  Healthcare Ethics Consultants play important roles in the institutions in which they exist.  Help in defining their responsibilities is needed.  And so I also provide a suggestion for moving the ASBH code forward.  Specifically, the relationships between  “professionals” in health care has shifted.  The isolated responsibilities of the isolated physician have gone the way of the country doctor.  The work of health care “professionals” is now the work of a team and a system, and the responsibilities that attach to these “professionals” are team-based responsibilities.  Further defining the responsibilities of Healthcare Ethics Consultants will require a more comprehensive collaboration across disciplinary boundaries.

If the ASBH’s Code of Ethics and Professional Responsibilities for Healthcare Ethics Consultants is to help answer the question, “What role does a Healthcare Ethics Consultant play?”, it’s next iteration will have to provide more narrowly and clearly defined responsibilities.

Read the full paper here.

Special Obligations: What Can Physicians Learn from Parenting?

6 May, 16 | by bearp

Guest post bJon Tilburt and Baruch Brody

Editor’s note: this post introduces a recent paper by the authors now in press at the Journal of Medical Ethics: “Doubly distributing special obligations: what professional practice can learn from parenting

Gaps between our ideals and our behavior are common. Sometimes what we say we believe and what we actually practice differ because we fail to live up to what we actually believe. Doctors who are disingenuous, selfish, corrupt, or duplicitous in their actions must own their failures to live up to their said ideals. Other times we use oversimplified language to describe a said ideal because the wording feels right even when that language is not strictly speaking accurate and never has been completely true in lived reality.

According to a traditional ethic of medicine, part of what makes medicine a profession is that doctors sign up for a greater level of service and self-effacing care to some people, namely our patients.  Taking care of my patients is my particular job.  If I consider someone my patient, that means something about what I owe them in terms of time, attention, and care.  I will stay late for my patient; I don’t have special obligations to all of the patients who show up at my institution or who live in my community; I have special obligations to my patients.


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