Counsel noted that the experts would not be questioned about individual cases or clinical conduct. The relevant medical principles, in regards to ethics would be explored. The experts defined medical ethics as being able to identify value judgements rather than factual judgements. It is being able to reason and justify a value judgement decision; a value judgement is what we should do. Different values need to be weighed to make a decision. In many cases opinions can differ and values weighed differently, resulting in different rules in different places. It was noted that now, medical ethics are an embedded part of medicine, with more guidance having appeared over the years. Medical Schools now regard it as a continual strand in education. The experts said that the objective of medical ethics has shifted over time, with historical codes serving professional interest, whereas over the last 40-50 years there has been a clear objective to serve patients.
The experts discussed situations in which the law and ethics may not always be compatible. It was suggested doctors may on occasion have to act outside of the law to do the ethically right thing. It was also noted how the law in the UK has arguably been slow in comparison to other jurisdictions, particularly in regards to informed consent and protection of autonomy. The experts discussed the four principles of medical ethics: autonomy, beneficence, non-maleficence, and justice. The principles layout the importance to respect one’s autonomy, promote the wellbeing of patients, not cause harm and to treat people fairly.
When questioned on the difference between best practice and ethics, the experts said best practice can be determined on factual grounds, and how this applies to the individual will be based on ethics. Ethical obligations differ for the individual patients, the same core values may apply but the way they are weighed may vary depending on the context. When a doctor is part of the team, the experts suggested that one doctor takes responsibility for decisions. There was also reference to how these days, in large teams, decisions of best practice can be made by multidisciplinary teams.
The experts made a distinction between harms and wrongs. Someone may be wronged and may be harmed without knowledge of either. Or they may be wronged but protected from harm, but this does not negate the wrong. The issue of denial of an open future was highlighted. This principle suggests that when treating someone, the decisions you make on their behalf could have an implication on their futures. Their options or choices should not be limited by your decision denying them an open future.
The difference between moral relativism and moral objectivism was discussed, the latter suggesting what is right in one context can be wrong in another context. However, the experts noted that this is not saying that practices of the past can be excused by saying that it was a different time. The practices that were in place can be seen as real wrongs and harm did occur. The context can show us how the practice was deemed acceptable, but with further thinking, one can see it is not acceptable and never was acceptable.
The experts spoke about the importance of consent in treatment. The basic accepted principle was laid out, that an adult with capacity should not be given treatment without their informed consent. This is a necessary principle because of the importance of respect to autonomy. Protection of autonomy, gives one the right to be able to determine the fate of one’s own life. Consent has always been a part of medical practice, but the emphasis is now more strongly on informed consent, as information is essential in order to make an autonomous decision. The experts noted that not being informed, denies autonomy. The impact coercion can have on consent was also noted. The experts said that if information is given in a confusing manner, with the options not properly communicated for the patient to make a choice, this would be coercion. The goal of informed consent is for a person to understand the options available to them and make decisions based on these values.
Documents were shown to the Inquiry of historical guidance on consent. The first two documents were from 1953 and 1968. Both documents were from the Medical Defence Union and the experts noted that considering the time period, the documents were good guidance for consent. They referred to not avoiding risks and the importance of the patient making decisions. It was noted by the experts that this guidance was more advice on avoiding being sued for assault, not ethical guidance. it is unclear who would have read this guidance and the 1953 document noted many doctors did not understand what was required for consent. The 1970 and 1980 handbooks of medical ethics from the BMA were also discussed. The 1970 edition seemed to show codes from elsewhere with little guidance of how they should be applied. The 1980 version provided an attempt to explain the codes in a practical way they can be applied. Consent was referred to specifically with focus on the relationship between doctor and patient and the importance of trust.
The experts also discussed what is known as the therapeutic exception, whereby clinicians can be excused from revealing information to patients if it would cause serious harm or the patient does not wish to know. The experts noted there is a need for clarification on this exception, as if it were interpreted broadly, it could lead to information being withheld from patients. The difference in consent when considering children was also discussed. If Gillick competent children withhold consent, the consent can be overridden if it is in the child’s best interest. When asked if parents making decisions for their children could give consent the same way they could for themselves, the experts pointed out an example that an adult Jehovah’s Witness can refuse a blood transplant but they cannot on behalf of their child, as this is not in the child’s best interest.
When considering what patients should be told, the experts said people should be told what is important and what is relevant to their values. The experts note that GMC guidance suggests any risk or serious harm should be disclosed to make autonomous decisions. The alternative treatments should be explained clearly and the risks and benefits of no treatment also, as patients have the autonomy to decline treatment. When seeing a patient for the first time, the experts agreed that the starting assumption should be that the patient is not aware of risks. They said this is a good assumption to make when taking over care from another clinician