The moral vulnerability of clinician teams

By Bernadette Wren.

The authority of clinicians is underpinned by a responsibility to ensure that all treatment decisions are made at the intersection of evidence, law and ethics. We hear a lot in the public square about the science and practice of evidence-gathering, much of it unrealisable. And occasionally the law gets a look-in. But clinicians’ responsibilities in relation to specifically ethical concerns rarely receive adequate attention.

In recent years, ethically taxing clinical decisions have been the central preoccupation of my own working life. The practice of the NHS service where I worked until 2020 year was renownedly novel, complex in its ethical significance, and increasingly contested in the wider social and political world. How would it not have been, as a public service responding to a social revolution?  Crucially – and this would ultimately bring the service down – some interventions were insufficiently evidenced, particularly in terms of their long-term outcomes. And problematically, there was little prospect of convincing evidence coming on-stream any time soon. Yet according to the commissioning specification, what the service offered were legitimate treatments. And for this work, the legal framework was clear, though far from decisive, with respect to best interests and consent.  The crisis we faced was in choosing between treatment pathways (including ‘no treatment’), each of which was underpinned by significant, sometimes conflicting, ethical values. Viewed another way, each pathway could be seen to involve seemingly irreconcilable moral goods.

One longstanding commitment was to valuing the perspectives of our young patients, whose ‘voice’ had not historically been given recognition. We strove to learn alongside them how best to proceed. But we also affirmed the importance of protecting these distressed young people, fearing the foreclosure of opportunities for them to make other and different choices further down the line. The families made their own moral reckoning with their child’s needs, and we had to navigate the responsibility-based rights of parents to have a major say in key decisions.  Additionally, our ethos put emphasis on compassion as a factor in all deliberations about appropriate treatment; allied to a cautious openness to the provision of contested medical interventions for social/psychological distress. With this array of ethical commitments, it was profoundly challenging to determine clear and definitive treatment plans.

Our concern, increasingly, was with the ethically right thing to do from the point of view of deeply important commitments originating in our professional role. And while in any single case we had to make an all-things-considered decision, we knew that the choice we made might itself involve violating other moral requirements. Hence, in our decisional predicament we frequently experienced deep uncertainty and disquiet about how to proceed. I became interested in whether this kind of moral discomfort was encountered by clinicians when faced with other ethically challenging healthcare decisions, and what remedies they might seek. To explore this question more fully, I chose it as the subject of my Medical Law dissertation at King’s College London. In discussion with my supervisor, barrister and Visiting Professor Alex Ruck-Keene, the name I gave to this experience of anxious ethical hesitation was ‘clinical unease’.

As the service emerged from a deeply adversarial Judicial Review and successful appeal (Bell v Tavistock [2021] EWCA Civ 1363), I began to wonder whether a troubled and morally apprehensive clinical team might itself approach the courts to help settle their ‘clinical unease’ by way of a declaratory judgement. I understood, of course, that a court only agrees to hear a healthcare decision case if there is ‘a serious justiciable issue’ to be addressed. Nonetheless, I learned that courts do rule in the absence of an active dispute between patient and clinician (AB & CD [2021] EWHC 741 (Fam)). And importantly, even when striving to avoid making overt ethical pronouncements, courts sometimes identify legal solutions that appear to negotiate a compromise between overlapping values. (‘Gillick’ is perhaps the prime example here, crafting a durable resolution of progressive and conservative principles.)

Might it be reasonable, I wondered, to expect a court – whose job is procedural decision-making – to attend to and interpret seemingly irreconcilable moral claims?  Could a court – characterised by credibility, impartiality, even wisdom – provide a ruling that would establish a kind of procedural legitimacy that would in turn reassure patients, the team and the public regarding the way in which ethically contentious treatment decisions were being formulated and addressed? Even if the courts didn’t and wouldn’t offer direct help to clinicians, might their legal (and hopefully, ethical) clarification offer clinical direction and even insight as a by-product?

After the end of the MA course, discussions with Alex continued and we decided to write a paper together. You can read how we came to question whether the ‘uneasy’ clinician’s desire for authoritative sanction may be misguided, a yearning for the unattainable. Conflictual and disturbing responses to a decision-making clinical crisis must rather be tolerated, grappled with and learnt from. We flag up the more appropriate forms of support that are faster and cheaper, though lacking conclusiveness, let alone judicial authority. Disappointingly, as I have felt it, the courts will never be that idealised decision-making body which can take an ethically intractable decision, digest it and return it to clinicians in a more manageable and meaningful form. Clinical teams will continue to feel very much on their own at times of real ethical uncertainty and must ponder the steps they could take to protect not just their vulnerable patients – that should go without saying – but themselves and their junior colleagues, when they too find themselves imperilled and exposed.

 

Paper title: Can the courts be viewed as an appropriate vehicle to settle clinical unease?

Authors: Bernadette Wren & Alex Ruck-Keene

Affiliations:

Bernadette Wren, Tavistock & Portman NHS Foundation Trust, London UK.

Alex Ruck-Keene, 39 Essex Chambers, London UK; Dickson Poon School of Law, King’s College London, UK.

Competing interests: None declared

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