1. Bioethics & the Law A (Very) Brief Introduction Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College of Human Medicine Adjunct Professor, MSU-DCL College of Law Michigan State University thomaso5@msu.eduhttp://www.msu.edu/~thomaso5

2. American Legal System Statutory Law Statutory Law Promulgated by legislatures Promulgated by legislatures Offers positivistic rules Offers positivistic rules Common Law (Case Law) Common Law (Case Law) Judges seek to resolve conflicts in specific cases Judges seek to resolve conflicts in specific cases Through adversarial system Through adversarial system Principles and doctrines develop over time Principles and doctrines develop over time Administrative Law Administrative Law Criminal/Civil Law Criminal/Civil Law State/Federal Law State/Federal Law Constitutional Law Constitutional Law

3. Similarities between Productive Moral/Legal Conversation Includes people of diverse backgrounds (personal and professional) Includes people of diverse backgrounds (personal and professional) Legal Process of Discovery, expert witnesses, evidence Legal Process of Discovery, expert witnesses, evidence Lays as many ethical considerations as possible on the table Lays as many ethical considerations as possible on the table Litigation = Adversarial System seeks truth by hearing disparate perspectives Litigation = Adversarial System seeks truth by hearing disparate perspectives

4. Similarities between Productive Moral/Legal Conversation (II) Ethical considerations are critically weighed for pertinence to case at hand Ethical considerations are critically weighed for pertinence to case at hand Legal principles applied to facts of case Legal principles applied to facts of case Often reason by analogy: have we been successful with similar cases in past? Often reason by analogy: have we been successful with similar cases in past? Legal Precedent = reasoning by analogy Legal Precedent = reasoning by analogy Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas But precedent not blindly followed, can change But precedent not blindly followed, can change

5. Similarities between Productive Moral/Legal Conversation (III) Basic moral value, respect for others modeled in process as well as in outcome Basic moral value, respect for others modeled in process as well as in outcome Ideas others put on table are critically challenged and questioned Ideas others put on table are critically challenged and questioned Questioning is done without suggesting disrespect for the person who holds differing moral views Questioning is done without suggesting disrespect for the person who holds differing moral views The person who disagrees with you is your best resource in discovering moral truth The person who disagrees with you is your best resource in discovering moral truth = Basis of Adversarial System, to seek “truth” = Basis of Adversarial System, to seek “truth”

6. Similarities Between Law & Bioethics Both provide guidance on what physicians may and may not do Both provide guidance on what physicians may and may not do The law may reflect an ethical consensus in society The law may reflect an ethical consensus in society Court opinions offer reasons for decisions, provide analysis of pertinent issues Court opinions offer reasons for decisions, provide analysis of pertinent issues Clinicians, ethics committees should be aware of what law says about issues in clinical ethics Clinicians, ethics committees should be aware of what law says about issues in clinical ethics

7. But... The law cannot offer definitive answers to every ethical dilemma in medicine. The law cannot offer definitive answers to every ethical dilemma in medicine. Knowing “what the law is ” does not save us from doing the hard work of moral reflection & discourse. Knowing “what the law is ” does not save us from doing the hard work of moral reflection & discourse.

8. Law & Ethics Differ Law sets only minimum standards of conduct Law sets only minimum standards of conduct Law explicitly grants physicians discretion in clinical decision making Law explicitly grants physicians discretion in clinical decision making Law may provide no clear action guides in some clinical ethical situations Law may provide no clear action guides in some clinical ethical situations Law and ethics may directly conflict Law and ethics may directly conflict Authority of law based on police power of state Authority of law based on police power of state Actions permitted by law may be ethically controversial Actions permitted by law may be ethically controversial While actions prohibited by law may be regarded as ethically defensible by many people While actions prohibited by law may be regarded as ethically defensible by many people

9. Law in Clinical Ethics Try to resolve ethical conflicts as close to the bedside as possible. Try to resolve ethical conflicts as close to the bedside as possible. Courts are not optimally suited to make medical decisions. Courts are not optimally suited to make medical decisions. Courts are the tribunal of last resort for resolving ethical conflicts. Courts are the tribunal of last resort for resolving ethical conflicts. In clinical ethics, over-reliance on “what’s legal” may undermine careful, complete, and subtle ethical analysis. In clinical ethics, over-reliance on “what’s legal” may undermine careful, complete, and subtle ethical analysis. cf., De Ville K. “What does the law say?” -- Law, ethics, and medical decision making. West J Med 1994;160:478-480.

10. Some Legal Issues in HM-546... Week 1: Introduction to Ethics & Law Week 1: Introduction to Ethics & Law Lo, Chs. 1, 2, see also Chs. 23 & 24 Lo, Chs. 1, 2, see also Chs. 23 & 24 Week 2: Competent Patient decisions Week 2: Competent Patient decisions Legal standards re: best interests, decision-making capacity, refusal of treatment, PAS, active euthanasia Legal standards re: best interests, decision-making capacity, refusal of treatment, PAS, active euthanasia See Lo, ch. 24 See Lo, ch. 24 Week 3: Decisions for Incompetent Patients Week 3: Decisions for Incompetent Patients Legal standards re: brain death, persistent vegetative state, coma, state’s interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan law Legal standards re: brain death, persistent vegetative state, coma, state’s interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan law Especially Lo, chs. 23-24 Especially Lo, chs. 23-24

11. ... Legal Issues in HM-546... Week 4: Children & Infants Week 4: Children & Infants Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; state’s interest in decision-making Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; state’s interest in decision-making Week 5: Reproductive Issues Week 5: Reproductive Issues Role of civil discourse (see “Subversive Civility,” from Week 1) Role of civil discourse (see “Subversive Civility,” from Week 1) Legal/ethical status of fetus, abortion laws Legal/ethical status of fetus, abortion laws Actions permitted by law may be ethically controversial Actions permitted by law may be ethically controversial Week 6: Flow of Medical Information Week 6: Flow of Medical Information Legal/ethical standards for truth-telling, informed consent, confidentiality Legal/ethical standards for truth-telling, informed consent, confidentiality

12. ... Legal Issues in HM-546 Week 7: Genetics Week 7: Genetics Role of law in regulating genetic technologies? Role of law in regulating genetic technologies? Legal standards re: genetic privacy, procreative liberty, health care justice, obligations of parties Legal standards re: genetic privacy, procreative liberty, health care justice, obligations of parties Week 8: Research Issues, Justice and Conflicts of Interest Week 8: Research Issues, Justice and Conflicts of Interest Legal standards for protections of human subjects Legal standards for protections of human subjects

13. Further Resources Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., 2003. Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., 2003. Menikoff J. Law and Bioethics: An Introduction. Washington, DC, Georgetown Univ. Press, 2001. Menikoff J. Law and Bioethics: An Introduction. Washington, DC, Georgetown Univ. Press, 2001. Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, 2001. Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, 2001. Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical Practice. New York, NY, Kluwer Academic/Plenum Publ., 2001. Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical Practice. New York, NY, Kluwer Academic/Plenum Publ., 2001. Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151:1497-1502. Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151:1497-1502. Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156:2521-2526. Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156:2521-2526. Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:129-150. Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:129-150.