By Robert Wheeler
Following the foundation of a Clinical Ethics Committee (CEC) in Southampton in 2002 by Dr Tom Woodcock, we have dealt with a steady trickle of cases posing significant ethical and legal questions concerning management of individual patients.
It gradually dawned on us that many less contentious (but nonetheless relevant) enquiries were not being aired, perhaps not perceived as of sufficient gravity to take to the CEC. Such enquiries were oft repeated: ‘Who can give consent for this child’s treatment’?
Whilst in the absence of an answer (or at least an opinion) patients were safely treated, there was nonetheless an enduring feeling that their clinical management would be enhanced by the support of a clinical legal service, to identify and then address the repetitive questions. The resulting data set, derived from the activities of the department of clinical law since 2009 is presented in our article.
During the first few years’ operation of our department, we speculated that similar models were likely evolving within the National Health Service, but we have not yet come across such developments.
Whether that idea will yet catch on remains to be seen…our original intention was to make an application for clinical law to become a new clinical speciality in the United Kingdom. Could dealing with frequent and often elementary enquiries be seen as a service in itself? Is the subject matter too far removed from medicine to be deemed science? Unworthy of attention?
No. We argue that clinical law and ethics are no less fundamental academic disciplines than the other ‘basic sciences’ upon which medicine is founded. Radiology and therapeutics would not exist in the absence of physics and chemistry…any more than surgery in the absence of anatomy. Of equal value from the patient’s perspective is to be treated ethically and according to the law, yet these ‘basic sciences’ have received less attention, if the enquiries made to our clinical legal service are considered as a measure of clinicians’ uncertainty in these disciplines.
‘Science’ is not so much of a stretch; ‘political science’ correctly describes a body of systematic and formulated knowledge of a specified type (i.e., related to politics). So, there is every reason to suppose that in the context of clinical practice, the relevant body of law and ethics should enjoy the same standing: Sufficient to justify speciality status.
But the General Medical Council, whilst providing helpful constructive encouragement in developing our new department, pointed out that for such an application, our approach would need to be through the Privy Council. That would require the support of a Royal College, and one has yet to be found that would nurture the new speciality.
Alternatively, it may be that establishing clinical law as a speciality and reproducing departments of clinical law across the NHS might be made less necessary by the identification and publication of a set of clinical legal phenotypes. A process we have started upon, in the hope they will be modified and expanded by others. Clinical legal and ethical research may then provide consensus-based resolution to facilitate holistic treatment of each phenotype.
The capacitous man with motor neurone disease and an unsafe swallow, unable to grasp a cup, who despite his ailment makes an informed decision to drink fluids for pleasure would illustrate such a phenotype. This we have described as an example of a ‘capacitous patient making an unsafe decision’; we have seen 21 such cases in 12 years.
If a robust clinical legal and ethical consensus could be reached to deal with the obvious implications of assisting this man to drink, this would provide a helpful formula to support speech and language therapists nationwide, likely beyond our shores. Patients facing this dilemma could then be assured that misunderstandings over their legal entitlement to make an informed choice would not impede the quality of their remaining life.
Authors: Robert Wheeler*, Nigel Hall**
*Department of Clinical Law, Child Health, University Hospital Southampton, Tremona Road, Southampton, England SO16 6YD
**Department Paediatric Surgery and Urology, Southampton Children’s Hospital Tremona Road, Southampton, SO16 6YD & University Surgery Unit, Faculty of Medicine, University of Southampton
Competing Interests: NH declares he has no conflicts of interests. RW declares he has no conflicts of interests, although is the director of the Department of Clinical Law.