Making decisions about decision-making: conscience, regulation, and the law.

Medical Law Review, Vol. 23, No. 2, pp. 263–282 doi: 10.1093/medlaw/fwv010 Advance Access Publication: April 24, 2015

JOSÉ MIOLA* School of Law, University of Leicester, University Road, Leicester LE1 7RH, UK *[email protected]

A B S T R AC T The exercise of conscience can have far reaching effects. Poor behaviour can be fatal, as it has occurred in various medical scandals over the years. This article takes a wide definition of conscience as its starting point, and argues that the decision-making processes open to society—legal regulation and professional regulation—can serve to limit the options available to an individual and thus her ability to exercise her conscience. The article charts the law’s changing attitude to legal intervention, which now seeks to limit the use of conscience by individuals, and addresses concerns that this may serve to ‘de-moralise’ medicine. It also examines the reasons for this legal change of approach. KEYWOR DS: Autonomy, Conscience, Decision-making, Medical ethics, Medical law, Regulation

I. I N TRODU CT IO N The exercise of medical conscience can have far-reaching and fatal effects. Significant attention has been paid to the exercise of conscience in order to object to fulfilling certain professional obligations, with little focus on how failing or misguided professional medical conscience plays a role when tragedy occurs. In this article I explore conscience in respect of errant or inadequate professional conscience in medicine. As I make clear below, I define conscience in a wider sense than many others in this special edition. I consider a doctor to be using her conscience whenever she makes, and is free to make, a decision that is non-technical in nature. Whether it is, as described below, a murderous doctor such as Harold Shipman whose moral code is so warped that he considers killing his patients an acceptable act, or the staff at Mid-Staffordshire Hospital whose consciences seemed to accept falling standards, the result is the same.1 People died. Whether and how doctors choose to act is, therefore, an important issue. Indeed,

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Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry – Executive Summary (HC 947, 2013).

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MAKING DECISIONS ABOUT DECISION-MAKING: CONSCIENCE, REGULATION, AND THE LAW

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I I. W H AT I S CO NS C I EN C E? Here I take a wider view of conscience than others in this special issue. I argue that a doctor will use her conscience not just in resolving issues that involve some sort of strong doctrinal belief, such as when someone conscientiously objects to participating in abortions, but that a doctor’s conscience will be engaged so long as two factors are present. First, that the decision is based on something other than a professional judgement. This is not easy to determine since the boundaries of what constitutes a professional judgement can become blurred. I suggest that Ian Kennedy’s distinction between issues of technical medical skill, which are professional judgements, and those that are not, and so are not, remains sound:

Doctors make decisions about what is to be done. Some, but only some, of these decisions are matters of technical skill. I submit that the majority of decisions taken by doctors are not technical. They are, instead, moral and ethical. They are decisions about what ought to be done, in light of certain values.2 The italicised part of this quote is important, particularly the reference to ‘values’. The values involved in making non-technical medical decisions are not only beyond the ‘unique . . . competence’ of the doctor,3 but also relate to exercising conscience in the sense that they relate to internal judgements. In order to illustrate the point, let us take informed consent as an example. It is now accepted by most that how much information a doctor must disclose to patients about risks inherent in treatment is not an exercise of technical medical expertise. Thus, if a doctor decides not to disclose a risk to a patient, the ‘values’ balanced by the doctor include the purpose of not informing them, the welfare gains and potential harm suffered by the patient if the risk is disclosed and she decides not to undergo the treatment, and the impact on her autonomy. These are all issues that require the use of the doctor’s conscience in the form of her value system. The same can be said of decisions at the end of life and nonconsensual sterilisation of those who lack the capacity to decide for themselves. These decisions, while they may relate to medical treatment, are in my view not within 2 3

I Kennedy, The Unmasking of Medicine (George Allen & Unwin: London, 1981), 78. Emphasis added. Ibid.


much of the law and society’s laissez-faire approach to medical decision-making had been based on an assumption of beneficence on the part of doctors which, as I argue in Section III, has been eroded by these and other scandals. In this article I consider who should make non-medical decisions in the healthcare setting, and how the law has shifted away from allowing doctors the space to use their consciences to an approach that is more interventionist and restrictive. I limit the discussion to non-medical decisions because medical decisions are, at least partially, made on the basis of clinical judgement, and the doctor has a unique competence to decide such matters. The use of conscience, in my view, involves personal values rather than professional judgement. I will also examine the role of the law with respect to the protection of the rights of patients and the need for doctors’ choices based on their personal consciences to be respected.

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4 5 6 7

Airedale NHS Trust v Bland [1993] AC 789, HL. Abortion Act 1967 s.4. R Huxtable and A Mullock,‘Voices of Discontent? Conscience, Compromise and Assisted Dying’. Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 All ER 643, HL.


Kennedy’s definition of ‘technical skill’. Rather, they are reflections of the doctor’s values, such as whether the patient’s life is worth living or that she is better off being sterilised rather than fitted with an IUD. They tend not to relate to how something is done (which would generally be a matter of clinical judgement), but whether it would be right to do so, which is a different category of decision altogether involving personal values rather than professional judgement. But the reach of conscience is even wider than this. Other decisions involving the exercise of conscience include, for instance, whether to wash or feed a patient. As I consider below, this and other instances of neglect occurred at Mid-Staffordshire Hospital. Again the factors relate to an internal balancing of values; in this scenario, the comfort or needs of the patient and competing priorities. Once we have established that the decision is one that does not comprise the exercise of clinical judgement, the second factor that must be present for it to be said that conscience has been used is that the doctor must have the liberty to make her own decision. There must be more than one option open to her to choose from, and so there must be a decision to make. Where the decision is not technical in nature, the doctor’s conscience may have to play a part in making it unless other restrictions apply, such as any imposed by the law. Thus, for example, no matter how much a doctor may believe that a patient’s life is not worth living due to their suffering and prognosis, she may not deliberately kill her by providing a lethal injection, as the law prohibits that course of action.4 Equally, a doctor with a conscientious objection to abortion may not refrain from providing it in an emergency if it is required to save the life of the pregnant woman, as the law also mandates action in this circumstance.5 The doctor’s choices, both in relation to acts and omissions, may thus be limited by legal requirements to act or refrain from acting in certain ways. Some options will simply not be available when making decisions. In general, then, the space for conscience is whatever is left after the law and professional regulators have determined their own boundaries. If we are to understand the role of conscience, then, we must examine the spaces claimed by the law and professional guidance. As I discuss below, there has been a move away from decision-making on the basis of the conscience of the individual practitioner, and this necessarily involves limiting the options available to a doctor in relation to exercising conscience. Consequently, the law has had to be more interventionist and directive itself. As Huxtable and Mullock in this special issue note, the regulatory response to a doctor’s exercise of her conscience may be to give her no right to do so, to fully allow her to do so, or to provide a limited right to do so.6 Just as law may mandate or restrict certain choices, professional guidance may restrict doctors’ choices, and noncompliance with that guidance may result in sanctions. To continue with the informed consent example, the law currently requires that the doctor disclose all material risks to the patient.7 However, General Medical Council (GMC) guidelines have traditionally gone further than the law, and required the doctor to find out about

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8 9 10 11 12 13

GMC, Consent: Patients and Doctors Making Decisions Together (GMC, 2008), paras 7–11. Ibid. See also S Fovargue and J Miola, ‘One Step Forward, Two Steps Back: The GMC, the Common Law and “Informed” Consent’ (2010) 36 J Med Ethics 494. Montgomery v Lanarkshire Health Board [2015] UKSC 11. J Glover, Causing Death and Saving Lives (Penguin: London, 1990). J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Stud 185. I do not here, for reasons of space, consider how we can determine what a ‘correct’ moral or ethical choice is. Given this, I have used the obvious example of Harold Shipman, whose actions are clearly not within this category, to make the point in general terms.


the patient’s needs and preferences.8 They have thus come closer to requiring that the doctor provides the patient with all the information that particular patient wants.9 Doctors must comply with the guidance if they are to adequately discharge their duties as doctors, and there may be disciplinary sanctions applied by the GMC if they do not do so. Notably, this position has been echoed in the recent Supreme Court decision in Montgomery, which brings the legal standard closer to the GMC’s guidelines.10 The doctor’s freedom to exercise her conscience is, therefore, restricted in this area by both the legal framework and professional ethical obligations. But such limitations can inhibit the exercise of conscience and of morals, where the exercise of conscience includes making a moral decision. I argue that the exercise of conscience in some of the issues that permeate medical practice, including abortion and euthanasia, contain exercises of morality.11 Montgomery has considered the effect of the law on doctors’ ability to make decisions,12 and, like Montgomery, I believe that doctors should make decisions on a moral basis, and that morality should be allowed to flourish. Law that is too prescriptive may suffocate the practice of that morality. This is so even if the law sets what might be viewed as an objective moral standard, since it is the restriction of the individual’s practice of her moral code, rather than the content of the decision following that practice, that is the issue. Montgomery and I are concerned not just that moral decisions are made, but that the right moral choices are made.13 We want doctors’ use of conscience and the exercise of morals to be made within the legal and ethical restrictions which exist relating to the decision at hand. Neither of us wants Harold Shipman’s morals being allowed the freedom to operate. Because of this, it is vital that the conscience and morality of a doctor is limited so that they are able to make the right choices and are prevented from making the wrong ones. It thus follows that some limits can justifiably be placed on the exercise of an individual doctor’s conscience, and that some decisions are taken out of medical hands altogether. So, we have to ascertain how to ensure that the right rather than wrong choices are made. This will necessarily involve providing a mechanism by which choices might be made that will tell us what restrictions on choice are required so that any poor options are not made available to the decision-maker. This mechanism can come through the law, professional guidance, or the personal morality of the individual medical practitioner; each of which may limit the options available to the doctor. I argue that there is a role for professional regulators fashioning a ‘corporate conscience’ for the medical profession, and for saying that certain choices have to be made in certain ways if a person wishes to practice as a registered doctor. ‘Moral’ decisions are thus limited to


14

15 16 17 18 19 20

See, for example, K Vaux, Biomedical Ethics – Morality for a New Medicine (Harper and Row: New York, 1968) who argued that the very ‘ethos of medicine . . . was profoundly shaped’ by the Nuremberg trials and the resulting Code (at 27). Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. See M Brazier and J Miola, ‘Bye Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Med L Rev 85; A Grubb, ‘Contraceptive Advice and Doctors – A Law Unto Themselves?’ (1988) 47 Cambridge LJ 12. F v West Berkshire Health Authority [1990] 2 AC 1, HL. Bolam (n 15, above); Bolitho v City and Hackney Health Authority [1998] AC 232, HL. See also Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Med L Rev 1. Bolitho (n 18, above). R. Mulheron, ‘Trumping Bolam: A Critical Legal Analysis of Bolitho’s “Gloss”’ (2010) 69 Cambridge LJ 609.


ones where the doctor may choose any course of action amongst those not restricted by the law or professional ethical obligations. I discuss this further in Section II. This leads to two issues. First, it means that we are talking about two non-legal standards, the conscience of the individual doctor and the requirements of the medical profession as a whole. Second, the difficulty lies in how we categorise decisions as appropriately decided by the conscience of the doctor, the profession and its guidance, or the law, which might remove decision-making power from the medical sphere altogether. The art, of course, lies in ascertaining when each might be appropriate. I suggest that the justification for leaving a decision to a doctor, or to the medical profession as a whole, is weaker if the issue to be decided is non-technical in nature. In such circumstances, there may be greater justification for law’s intervention to mandate or prohibit a certain course of action. But if the law is to involve itself in medical decision-making, it is important to consider the context of legal rules, since the background to law reform can frequently provide an explanation regarding why the law developed in a particular way. Legal change and the discretion given to doctors and their morality may be a reaction to a specific event or circumstances. For example, the prioritisation of patient autonomy and development of the concept of informed consent after the Second World War was an obvious response to the atrocities perpetrated by medical professionals during the War.14 But this was not always the case, as can be seen by the use and spread of the Bolam test.15 For forty years, the courts interpreted Bolam as, essentially, permitting the medical profession to set its own standard of care.16 It also allowed the Bolam test to expand into areas not related to matters of medical technique, such as the determination of a patient without capacity’s best interests.17 However, the decision in Bolitho to allow courts to question and, if necessary, reject medical evidence if it failed to withstand logical analysis (something it could not do under the Bolam test) signified a lessening of deference towards the medical profession.18 I consider this in more detail in Section IV. The courts were thus instrumental in reclaiming the right to make such decisions themselves.19 Whether they have actually used this right is another matter.20 The common law and legislation have, however, combined, as I explore below, to de-Bolamise the non-technical areas of medical practice into which Bolam had crept, and to gain more control over decisions in that area. Indeed, parts of medical law have now been successfully demedicalised, meaning that the law is more prescriptive, and the limitations on doctors’ freedom to make decisions have increased, leaving less space for the exercise of conscience by individual doctors.

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I I I. C R E ATI NG RO O M FO R CON S CI E NC E It is of benefit to us all to allow medical professionals to, in some cases, act in accordance with their consciences, because medical professionals are moral agents in their own right and respecting them demands that they should be treated as such.21 It is thus important to remember that doctors have consciences and that these should be given weight.22 If, for example, a doctor has a conscientious objection to abortion then that is not an insignificant issue, and accommodating these beliefs must be considered out of respect for that individual and her beliefs.23 This also helps doctors to develop their own morality. Gold argues that the practice of paternalism encouraged doctors to develop and maintain a strict moral and ethical code as a precondition of discharging their responsibilities, and that this was a positive aspect of paternalism:

[i]n the paternalistic era, the traditional moral code, which physicians shared and were educated and inspired by, was the classical commitment to heal and protect their patients. The myth of the passionately devoted physician who puts his life in danger while trying to save his patients . . . reflects both the inspiration and the ideal of practicing medicine in the paternalistic era. The patient was perceived as weak and vulnerable, and therefore in need of . . . protection . . . [T]he physician acted on behalf of the patient as a sheltered father . . . This is the other, brighter side of the paternalism that is often unremembered.24 However, as Montgomery has noted, the move within law towards patient autonomy has risked removing the moral aspect from medicine and medical practitioners: the discipline of healthcare law is at risk of being transformed—moving from a discipline in which the moral values of medical ethics (and those of the nonmedical health professions) are a central concern, to one in which they are 21 22 23 24

See, for example, N Kenny, ‘Searching for Doctor Good: Virtues for the Twenty First Century’ in W Shelton (ed), Advances in Bioethics Volume 10: Lost Virtue (Bingley: Emerald, 2006). See A Caplan (Ed), When Medicine Went Mad – Bioethics and the Holocaust (Humana Press: New York, 1992). I argue only that it should be considered. I do not believe that it should be determinative, and neither does the law. See Greater Glasgow Health Board v Doogan [2014] UKSC 68. A Gold, ‘Physicians’ ‘Right of Conscience’ – Beyond Politics’ (2010) 38 J L Med Ethics 134, 136.


If we define conscience in the wide sense that I have above, then, in accordance with Kennedy’s definition, it can be argued that doctors use their conscience when making non-technical decisions. It also becomes clear that the effect of legal intervention and professional guidance, which may demand or prohibit certain acts, is to limit the choices available to an individual doctor making a decision. As I argue in Section IV, in recent years the law has taken a more interventionist position in relation to medical decision-making, particularly in cases that do not involve the exercise of technical medical skill, and this necessarily means that the ability of doctors to use their consciences is less than it used to be, even where the decisions are ancillary to proper medical treatment.


being supplanted by an amoral commitment to choice and consumerism. In other words, that the morality is being taken out of medicine by legal activity.25

There was a lack of care, compassion, humanity and leadership. The most basic standards of care were not observed, and fundamental rights to dignity were not respected. Elderly and vulnerable patients were left unwashed, unfed and without fluids. They were deprived of dignity and respect. Some patients had to relieve themselves in their beds when they were offered no help to get to the bathroom. Some were left in excrement stained sheets and beds. They had to endure filthy conditions in their wards. There were incidents of callous treatment by ward staff. Patients who could not eat or drink without help did not receive it. Medicines were prescribed but not given.26 Here, we can see the issues of conscience in the widest sense. Conscience constitutes not just decisive action or refusing to act on the basis of one’s moral code, as with conscientious objection. It includes a requirement to exercise conscience appropriately, and to know when to do so. Clearly, that did not happen at Mid-Staffordshire. One of the key failures identified by the inquiry related to regulation. As noted in the executive summary, there was both a failure on the part of professional bodies and with regard to the personal consciences of individuals to ensure good conduct. Indeed, the Inquiry’s report made it clear that insufficient regulation allowed what it termed ‘inhumane’ conduct by medical professionals: It is because not all professionals do live up to the high standards expected of them that we have professional regulators . . . It does not need a public inquiry to recognise that this elaborate system failed dramatically in the case of Stafford. As a result, it is clear that not just the Trust’s Board but the system as a whole failed in its most essential duty—to protect patients from unacceptable risks of harm and from unacceptable, and in some cases inhumane, treatment that should never be tolerated in any hospital.27

25 26 27

Montgomery (n 12, above), 186. Emphasis in original. Press statement by Sir Robert Francis QC, Chair of the Inquiry accessed 19 March 2015. Mid Staffordshire Report (n 1, above), 8. Emphasis added.


Thus, in an age of patient autonomy where patient’s ‘rights’ are prioritised, there is a risk that we are marginalising and neutering the doctor and her ability for moral reflection and judgement. For medical conscience, both individual and collective, to flourish, we must allow it to be exercised in the first place. If the law is overly prescriptive in its demands of doctors, then they are not allowed that space. Yet, if we do allow this space then problems will arise when it is exploited, such as when the exercise of the doctor’s conscience is one with which we disagree. An example of this is the situation at Mid-Staffordshire Hospital where patients were treated appallingly and not in a way that anyone would consider ‘moral’:

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I V. M A K IN G D EC I S IO NS Where decisions have to be made, there are three ways by which this might occur. First, by following the conscience or morality of the individual doctor. This relates to areas where the doctor has a choice of options after any restrictions imposed by the law or professional guidance are taken into account. The second is more inhibitive and is where the choice is made by the medical profession itself through its regulatory structures. In England and Wales, this means that it must be consistent with the professional and ethical requirements outlined by the GMC.28 The final way is the most restrictive, and this is where the law demands that certain decisions are made. Failure to comply with the legally prescribed choices may result in civil or criminal sanctions. Only the first of these ways of making decisions allows the doctor’s conscience free rein. The other two, with some justification, impose limits on the doctor’s choice of action. While this typology is simple, the difficulty lies in determining how we determine which way of making decisions in a given situation is the most appropriate. While I see the first category as describing ‘morally autonomous’ decisions, in the sense that the doctor is free to make whatever decision her conscience prefers, I do not mean that the decisions must have a moral aspect to them. Rather, the individual is at liberty to make her own decision, and may make whatever decision she likes based on her own values. As such, there is ultimately nothing beyond her individual morality and conscience to guide her decision-making. She is unencumbered by law or professional obligation, and as the issues are not of technical medical skill, they cannot be said to be a professional judgement. Such decisions are, therefore, pure expressions and exercises of conscience, and must, by definition, be limited to options that remain

28

See, in general, J Miola, Medical Ethics and Medical Law: A Symbiotic Relationship (Hart: Oxford, 2007).


This ‘inhumane’ treatment should have been prevented by the consciences of the individual doctors concerned or, when that failed, requirements for better behaviour should have been imposed by regulators and the law. Indeed, as the above quote makes clear, Francis believed that professional regulation (and, I would add, the law) exists because not all medical staff will act in the way that they should. The failings at Mid-Staffordshire did not relate to professional judgement, but to issues that many of us would recognise as issues of conscience. Not washing or feeding patients and leaving them in their own excrement, does not, in my view, just constitute a failure of professional judgement or poor execution of clinical skills. These are ‘inhumane’ treatments, and a failure to provide the basic care and respect for others that acting in good conscience would demand. Thus, while allowing doctors to exercise their conscience is of benefit, the challenge is to find a way to allow good conscience to thrive while eradicating the sort of behaviour uncovered at Mid-Staffordshire. Where conscience fails regulation must step in, but the Francis report recognised that this did not happen at Mid-Staffordshire. The challenge, then, is to identify how to allow doctors to exercise their consciences while not marginalising patients and their rights. As a first step, it is necessary to define the spaces where a doctor might exercise her conscience and where prescription is necessary or desirable.


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30 31 32 33 34

Under section 4 (2) of the Abortion Act 1967 conscientious objection cannot be exercised when a termination is ‘necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman’. See, for example, S Deakin, A Johnston and B Markesenis, Markesenis and Deakin’s Tort Law (Oxford University Press: Oxford, 7th edn, 2013) 179–181. GMC, Good Medical Practice (GMC: London, 2013), para 26. Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam). See also Miola (n 28, above) 168–173. For the professional guidance relating to conscientious objection in such circumstances, see GMC, Treatment and Care Towards the End of Life: Good Practice in Decision Making (GMC, 2010) para 79.


after any legal and professional obligations are complied with, as in the example of conscientious objection to participating in abortions. Two principles are vital to this way of making decisions. The first is that such decisions allow a doctor to opt out of actions but do not provide a liberty to act with respect to patients with the capacity to make decisions for themselves. This is because in order to act the doctor must have the consent of the patient, and this, rather than the doctor’s conscience, is the justification for providing treatment. The second principle is that the decision must not place the patient in danger. The exercise of conscience is, quite properly, subject to the welfare of the patient. Examples of this can be found in the conscience clauses in section 4 of the Abortion Act 1967, and section 38 of the Human Fertilisation and Embryology Act 1990. These sections allow health professionals not to participate in treatments (abortion and assisted reproduction respectively) that they have a conscientious objection to. Both examples meet the two principles noted above, and it is explicitly stated in the Abortion Act that the conscience clause does not apply in a situation where the health of the patient is at risk.29 Therefore, this category also includes some legal limitations on decision-making, and so the space allowed for the exercise of conscience is not infinite. An example of the second way of making decisions, where the doctor’s decision may be limited by the medical profession itself and its guidelines or codes of conduct, is the duty of medical practitioners to intervene in emergencies. English law does not have a Good Samaritan rule, and so nobody has to intervene to save someone else to whom they have no relationship.30 This is not the case for doctors who are required to help if and when it is required, such as if they pass an accident where urgent medical care is needed.31 However, this requirement is not imposed by law but by GMC guidance. The doctor’s actions are thus prescribed by the medical profession’s codes of conduct, and this introduces a limit on the ability of the doctor to use her conscience to make the decision, whether that decision relates to proper medical treatment or not. Finally, law can take charge and, if necessary, prescribe or proscribe certain decisions. An example is the Ms B case, which involved a woman who was tetraplegic, had the capacity to make decisions but needed a ventilator to survive.32 She decided that she no longer wanted to live and withdrew her consent to continued ventilation. The doctors treating her refused to withdraw the treatment, arguing that they were trained to save life and not to end it.33 Nevertheless, the court gave effect to Ms B’s right to autonomy, and declared that the ventilation must cease.34 The law thus took control over a matter with an ethical content and imposed legal restrictions on the doctors’

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35 36 37

38 39 40

See C Foster and J Miola, ‘Who’s in Charge? The Relationship Between Medical Law, Medical Ethics and Medical Morality’ (2015) Med L Rev (Epub ahead of print). The acts/omissions distinction was blurred by the House of Lords in Bland (n 4, above). For critical comment see E Jackson and J Keown, Debating Euthanasia (Hart: Oxford, 2012), 29–33. See R Gillon, ‘Ethics Needs Principles – Four Can Encompass the Rest – But Autonomy Should be “First Among Equals”’ (2003) 29 J Med Ethics 307. For a contrary view see C Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Law (Hart: Oxford, 2009). S Smith, ‘A Bridge Too Far: Individualised Claims of Conscience’. This would be consistent with some of the views of some of the House of Lords expressed in Bland (n 4, above). See, for example, J Savulescu, ‘Conscientious Objection in Medicine’ (2006) 332 Br Med J 294; B Dickens and R Cook, ‘The Scope and Limits of Conscientious Objection’ (2000) 71 Int J Gynecol Obstet 71; D Hill, ‘Abortion and Conscientious Objection’ (2010) 16 J Eval Clin Practice 344. For a European perspective, see M Campbell, ‘Conscientious Objection and the Council of Europe’ (2011) 19 Med L Rev 467.


decisions.35 The court demanded and prohibited certain behaviours. It told the doctors that they could not continue treatment given Ms B’s refusal of consent. The treatment had to be withdrawn, which would involve a positive act in reality if not in legal terms.36 This exercise of judicial involvement is, I suggest, designed to promote and protect the autonomy of the patient, a principle that has come to be seen as fundamental to both medical law and medical ethics.37 However, it also demonstrates the law limiting the exercise of conscience by Ms B’s treatment team. In this special issue, Smith argues that the case constitutes the court allowing the conscience of the doctors treating Ms B to flourish, because it demanded only that Ms B’s care be transferred to another team that was prepared to accede to her wishes.38 I disagree because while the court allowed the doctors to act within their own moral framework, they only did so because another team could be found that was willing to remove the ventilation. Had there not been another treatment team willing to do so, the court would have had no choice but to declare that the continued ventilation was unlawful, and allow the consequent civil and criminal processes to proceed if the doctors did not act against their consciences and remove the ventilation.39 The scope of conscientious objection has always been limited by the patient’s welfare and rights, and the refusal of consent to continuing treatment by a patient with capacity would certainly be included in that.40 Therefore, while the court accommodated the consciences of the doctors concerned, they only did so as far as this was possible without impacting on the patient’s right to autonomy, which was considered to be more important. These, then, are the ways in which medical law, the professional standards of the medical profession, and the conscience of the individual doctor function when making decisions. The less involved the first two categories are in a decision, the more freedom is accorded to the conscience of the individual doctor. The converse is also true. Nevertheless, the lines are blurred. Sometimes the law or professional guidance limits rather than eradicates the choices available to a doctor making a decision. Elsewhere, it will allow decisions to be made subject to certain provisos, such as that there is another way to accommodate the patient’s wishes. Over the decades, medical law has undergone a transformative process. Initially law ceded the control of decision-making and trusted the medical profession and individual practitioners within it to make decisions involving the exercise of technical


medical skill as well as decisions that did not. This led McLean to argue that the law was abrogating its duty to protect patients from doctors:

The Bolam test galvanised and catalysed this abrogation of responsibility through both a narrow interpretation of the test itself and a widening of its application.42 This abrogation tended to be to the medical profession as a whole rather than individual practitioners.43 Indeed, there was a reluctance to trust the conscience of individual practitioners, which can be traced to the actions of some doctors during the Second World War.44 At other times, however, the conscience of individual practitioners was allowed to be paramount,45 because the law erroneously assumed that the medical profession’s ethics were designed to regulate decision-making by doctors in a quasilegal manner.46 In various important areas of medical law, a significant change of direction can be identified on the part of the law, and legal rules changed to curtail the ability of doctors to exercise their consciences.

A. Bolam Reinterpreted The first example is the decision of the House of Lords in Bolitho.47 The facts and the details of the decision are not relevant here, what is important is that the Bolam test had operated in a way that allowed the medical profession to set its own standard of care.48 Provided a body of medical opinion might have done as the defendant doctor did, no court could find her to have acted unreasonably and, therefore, negligently.49 In Bolitho the House of Lords, albeit tentatively and with some caveats, held that the courts, rather than the medical profession, were the ultimate arbiters of reasonableness, and that medical evidence needed to be able to ‘withstand logical analysis’ to be

41 42 43 44

45 46 47 48 49

S McLean, Old Law, New Medicine: Medical Ethics and Human Rights (Pandora: London, 1999), 2. See Brazier and Miola (n 15, above). See J Miola, ‘Medical Law and Medical Ethics: Complementary or Corrosive?’ (2004) 6 Med L Int 251. See, for example, R Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (Basic Books: New York, 1986); A Caplan (ed), When Medicine Went Mad – Bioethics and the Holocaust (Humana Press: New York, 1992). Miola (n 28, above). Ibid. Bolitho (n 18, above). This was, moreover, explicitly acknowledged by the judiciary. See, for example, the comments of Lord Scarman to this effect in the House of Lords in Sidaway (n 7, above), 882. See Maynard v West Midlands Health Authority [1984] 1 WLR 634, HL.


No matter the quality of medicine practised, and no matter the doubts of doctors themselves about the appropriateness of their involvement, human life is increasingly medicalised. In part, this is the result of the growing professionalism of medicine, in part our responsibility for asking too much of doctors. In part, however, it is also because the buffer which might be expected to stand between medicalisation and human rights - namely the law - has proved unwilling, unable or inefficient when asked to adjudicate on or control issues which are at best tangentially medical.41

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accepted.50 Bolam was thus reinterpreted so that judges, rather than medical professionals, were the ultimate arbiters of medical conduct. However, Bolitho has significance beyond the test regarding reasonableness, because it also affected other issues in medical law into which Bolam’s influence had permeated.51

[t]he apparent conflation of the criterion for assessing complaints about professional negligence with the criterion for treating persons unable to consent has been the butt of vehement criticism. No medical professional or body responding to Consultation Paper No 129 argued in favour of retaining such a definition of ‘best interests’. Many were extremely anxious to see some clear and principled guidance given as to what ‘best interests’ might involve. The British Medical Association, for its part, supported our provisional proposals for statutory guidance ‘without reservation’.55 We now have section 4 of the Mental Capacity Act 2005, which has introduced a best interest test that is supposed to balance the welfare of the patient with her right to autonomy. While this balance is not always easy to achieve, the patient’s wishes have to be considered,56 and it is now recognised that decisions about best interests are not 50 51 52 53 54 55 56

Bolitho (n 18, above) 241. M Davies, ‘The New Bolam: Another False Dawn for Medical Negligence’ (1996) 12 Professional Negligence 10. F (n 17, above). Bland (n 4, above). See, for example, Butler-Sloss LJ in Re SL (Adult Patient: Sterilisation) [2000] Lloyds Rep Med 339; Re A (Medical Treatment: Male Sterilisation) [2000] 1 FCR 19. Law Commission, Mental Incapacity (Law Com 231, 1995), para 3.26. A Local Authority v E [2012] EWHC 1639 (COP) provides an example of a case where this tension between autonomy and welfare was played out in the courts. See further J Coggon, ‘Anorexia Nervosa, Best Interests, and the Patient’s Human Right to a “Wholesale Overwhelming of her Autonomy”’ (2014) 22 Med L Rev 119.


B. ‘Best Interests’ Perhaps the most significant of these relates to the definition of a patient’s best interests, which had been Bolamised in 1989 following the decision in F v West Berkshire Health Authority.52 Patients who lack the capacity to make their own decisions can receive medical treatment if that treatment is in their best interests, and in F the House of Lords held that it was for medical professionals to determine what was in the best interests of a patient without capacity. In many cases, this would involve decisions that were not technically medical in nature, such as whether to remove artificial ventilation from a patient in a coma.53 As such, this would, under my definition, be an exercise of conscience. Best interests were, however, subsequently de-Bolamised and the patient, rather than her medical interests, was placed at the heart of the decision-making process. This change occurred because it was judicially recognised that the concept of best interests included wider considerations than what was medically best for the patient,54 and in 1995 the Law Commission made clear its determination to distinguish between what was best for the patient and what was medically most appropriate for her. The Commission noted that:


C. The Human Tissue Act 2004 Another example of the law’s more interventionist stance in medical decisions is the Human Tissue Act 2004. Prior to that Act, the law surrounding the removal, storage, and use of human organs and tissue was permissive,58 and flaws in the Human Tissue Act 1961 had, essentially, allowed medical professionals to decide themselves when organs and tissue might be removed, retained, and used for transplantation or research.59 In particular, the consent provisions were limited, and control over the body of a dead person resided with whoever had ‘control’ over it, but who this might be was not explained in the Act.60 When a patient died in hospital this was assumed to be the hospital, which could then authorise the removal and storage of organs, or their use for research purposes, irrespective of the known wishes of the patient or her relatives.61 Moreover, the Act did not contain any sanctions for non-compliance, and it was unclear whether it was intended to form part of the civil or criminal law.62 Essentially, the 1961 Act took a matter of non-technical skill (when the removal, retention and use of organs and tissue was appropriate), and left the decision to the conscience of individual medical practitioners, theoretically under the supervision of the profession as a whole. The lack of any legal sanction in the 1961 Act points to law’s absence in this area, making the space for conscience as large as it could possibly be, as there were no legal limitations on it. Almost inevitably, this space was abused by some individuals who made poor choices. Indeed, it transpired that doctors at the Bristol Royal Infirmary and Alder Hey Children’s Hospital had routinely removed organs, including hearts, from dead 57 58 59 60 61

62

See W v M and Others [2011] EWHC 2443 (Fam) D Price, ‘From Cosmos and Damien to Van Velzen: The Human Tissue Saga Continues’ (2003) 11 Med L Rev 1. Ibid. Ibid. If this is not was intended, it certainly happened as acknowledged by the MDU: see J Lucas, ‘Doctors’ Duties Under the Human Tissue Act’ (2013) accessed 2 October 2014. D Price (n 58, above). See also K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Med L Rev 170.


intrinsically ‘medical’ in nature. Rather, they relate to matters outside technical medical skill, such as how much to take the patient’s views, and those of her family, into account, and how much weight should be given to various alternative options. Questions such as should an adult in a minimally conscious state be kept alive,57 cannot be divorced from moral and ethical questions that will, at times, require the exercise of (my definition of ) conscience. These are not questions of technical medical skill. The 2005 Act, therefore, changes the process involved in making such decisions so that the ascertainable wishes of the patient and her family are at least taken into account. The Act does not remove decision-making authority from doctors completely, but it adopts a different approach to the Bolam test, and leaves less room for a doctor’s conscience to be exercised by at least requiring consideration of the patient’s desires. If this does not take place then, in theory, the decision may be challenged in the courts.

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babies and infants without obtaining the consent of, or even informing, the parents.63 A Retained Organs Commission was established by the government, and it discovered that the practice of removing and using organs (for research as well as transplantation) from both children and adults without consent was widespread in England.64 Such practices were clearly poor exercises of conscience, and both the law and professional regulation proved insufficient to prevent such practices. The 2004 Act explicitly sought to correct these problems. In announcing the legislation the Secretary of State for Health focussed on the importance of consent and sanctions:

The 2004 Act has consent as its basis and provides criminal sanctions, including custodial sentences, to punish breaches.66 Medical conduct with regards to the removal, storage, and use of human organs and tissues is now more regulated than it was under the 1961 Act. This is also true of the potential use of conscience by medical practitioners. Not only are the circumstances when organs and tissue might be removed, stored, and used regulated, but a third of the Act relates to the concept of ‘appropriate consent’, requiring professionals to obtain permission from patients and their relatives before accessing human materials. Moreover, the sanctions, which are criminal rather than civil in nature, reinforce the message that the law must be followed to the letter. The law, which was extremely permissive in the 1961 Act, reacted to what was seen as an abuse of trust by becoming as prescriptive as possible. The space for doctors to exercise their consciences has, thus, been all but eliminated.

D. Informed Consent The law relating to informed consent has been gradually changing. The fundamental legal question is how much information about risks and alternatives a patient must receive before their consent is valid. A majority of the House of Lords had Bolamised the issue by stating that doctors must disclose all risks that a reasonable doctor would disclose.67 Initially, the courts followed an approach that was extremely restrictive to patients, and allowed doctors to use their consciences. Information was seen as something for the doctor to give the patient as she saw fit, with paternalistic tendencies 63 64 65 66 67

Learning From Bristol: The Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary 1984–1995 (Cm 5207, 2001); The Royal Liverpool Children’s Inquiry Report (TSO, 2001). The National Archives still contain information about the Commission. See accessed 19 March 2015. Hansard, 30 January 2001 (2001). accessed 19 March 2015. Emphasis added. Human Tissue Act 2004 s.5(7). Sidaway (n 7, above). It should be noted, however, that there were considerable nuances in relation to the use of Bolam in that case. See J Miola, ‘On the Materiality of Risk: Paper Tigers and Panaceas’ (2009) 17 Med L Rev 76.


the law will be changed to enshrine the concept of informed consent. The existing law in this area has become outdated. The Human Tissue Act 1961 does not even contain penalties for breaches of its provisions. The law has ill served bereaved parents in our country and causes confusion for staff. It must be changed.65


never too far away. Thus, for example, in Sidaway Lord Diplock came close to championing paternalism: The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo.68 This was followed in Blyth, where Neill LJ said that:

The judicial attitude gradually changed, and the focus of the law shifted from doctors to patients. The legal test for what a doctor must tell a patient thus moved from the above to what the reasonable doctor would inform a patient subject to judicial control,70 and then to what the reasonable patient would want to be told.71 This provided limits to the use of medical conscience, as the law came to prioritise what the patient wanted rather than what the doctor thought best for the patient. But the courts have gone further, and the law now openly and explicitly looks only at patient autonomy.72 Indeed, the Supreme Court has recently delivered a judgment that cements this view in Montgomery v Lanarkshire Health Board.73 English law has thus adopted the Australian test that states that doctors must disclose what the reasonable patient would want to know, and what the doctor knows or ought to know that that particular patient would wish to be informed of.74 This is a significant legal development, not least for our discussion, given the court’s reason for its decision. Essentially, the Supreme Court confirmed that the law is patient-facing, and that the exercise of conscience by doctors must give way to the rights of patients: patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services.75

68 69 70 71 72 73 74 75

Ibid. Blyth v Bloomsbury HA [1993] 4 Med L Rev 151, CA. See also Gold v Haringey Health Authority [1987] 2 All ER 888, CA. Smith v Tunbridge Wells HA [1994] 5 Med. LR 334, CA. Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53, CA. See Chester v Afshar [2004] UKHL 41. (n 10, above) This is the test in the Australian case of Rogers v Whittaker [1993] 4 Med L Rev 78. Montgomery (n 10, above), [75] per Lord Kerr.


[there is no] rule of law to the effect that where questions are asked by the patient, or doubts are expressed, a doctor is under an obligation to put the patient in possession of all the information ... The amount of information to be given must depend on the circumstances, and as a general proposition it is governed by what is called the Bolam test.69

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Moreover, Bolam has been discarded by the court in relation to informed consent because the issue is not technically medical in nature, and thus it is the patient’s values that should take priority over those of the doctor: once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear . . . that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values.76

V. T HE EF F E CT O F HE IG HT EN E D L EG A L IN T E RVE N T I O N IS M ON DOCTORS ’ CON S C I E N C E In the areas of medical law examined above, the exercise of conscience on the part of doctors was found wanting and was thus curtailed. Some of the changes have affected the ability of medical professionals to allow their own moral values to influence their decisions. The regulation of doctors has also changed, and the GMC is no longer

76 77 78 79 80

Ibid, [115], per Lady Hale. Emphasis supplied. Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Med L Rev 1. Ibid. Ibid., 4. The exception to this is, perhaps, the best interests test. However, it can be argued that a balance of autonomy and welfare is justified given that the patient is incapable of making her own decisions at the time that the decision needs to be made.


E. Understanding the Law’s Change of Approach But why did this change in direction occur? Such things do not happen in a vacuum, and in the examples discussed here the changes were a response to a specific event or a gradual change in mood. In 2001, Lord Woolf, then Master of the Rolls, explained why the judicial change in emphasis occurred.77 He stated that there had been a culture of deference to the medical profession amongst judges, but that this had changed. He listed eight factors, many relating to judges themselves, to explain this. For our purposes, the two most important reasons are that a series of medical scandals removed the ‘automatic presumption of beneficence’;78 and that the ‘fundamental questions of medical ethics’ were involved in many of the cases coming before the courts,79 and the non-technical nature of these cases encouraged judges to be more proactive. The erosion of confidence in the conscience of medical practitioners, as seen by the loss of a presumption of beneficence, emboldened judges to take more responsibility for decision-making. The other factors, such as seeing courts in other jurisdictions doing the same thing, merely reinforced the correctness of their approach in the eyes of judges. The net result of this has been a shift in medical law away from the conscience of doctors being trusted and provided with the legal freedom to flourish, towards an approach that limits doctors’ freedom. This is most explicitly seen in the case of informed consent, but can be identified in all of the examples provided above. The general trajectory of the law has been to limit the ability of doctors to exercise conscience, by identifying the patient’s values as the ones that should take priority.80


81

82 83 84

85 86 87 88 89

90

For a recent example, see H Williams, C Lees and M Boyd, The General Medical Council: Fit to Practice? (Civitas, 2014), who found that the GMC had tried to ‘reinvent its image’ in the light of medical scandals (at 7). Lord Woolf (n 77, above). Notable examples include Chester (n 72, above) and Montgomery (n 10, above). T Faunce, ‘Will International Human Rights Subsume Medical Ethics? Intersections in the UNESCO Universal Bioethics Declaration’ (2005) 31 J Med Ethics 173. For a fascinating contrary view that argues that the two need each other to operate effectively, see R Ashcroft, ‘Could Human Rights Supersede Bioethics?’ (2010) 10 Hum Rights L Rev 639. Articles 3, 8 and 9, respectively. See E Wicks, Human Rights and Healthcare (Hart: Oxford, 2007), chapter 4. Ibid. It has long been a staple of medical law that a patient with capacity can refuse medical treatment for any reason, even if it results in her death. See Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18. Montgomery (n 12, above), 186. For an analysis of Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) in relation to conscientious objection in the medical setting, see M Campbell, ‘Conscientious Objection, Health Care and Article 9 of the European Convention on Human Rights’ (2011) 11 Med L Int 284. Montgomery (n 12, above).


seen to represent doctors but is almost independent of them as their regulator.81 Moreover, as Lord Woolf identified, the law and the regulators now see their role as protecting the rights of patients.82 Thus, if a patient has a ‘right’ to something, be it information about risks and alternatives or a more basic right to autonomy preventing interference with her body without her consent, then the doctor’s options are limited. This means that their consciences are subordinated to the wishes of their patients, and, thus, their ability to exercise them when making decisions is restricted. Indeed, the law has now developed in such a way as to make itself the ultimate arbiter of what information must be disclosed, so that it can take control and, in its view, better protect patient autonomy.83 As argued in Section III above, the general direction of medical law is that it is becoming more involved in decision-making, as it identifies patients’ ‘rights’ and protects them from individual doctors and, if necessary, the medical profession as a whole. As Faunce has argued, in a legal landscape where human rights are seen as more and more important, medical ethics may find itself subsumed and redundant.84 For example, patients have a right under the European Convention on Human Rights to, amongst other things, be free from torture and degrading treatment, to a private and family life, and to freedom of thought, conscience, and religion.85 These necessarily impact on medical treatment. Surgery can be torture in some circumstances, the patient’s right to a private and family life under Article 8 of the Convention may be breached if the patient’s autonomy is not respected,86 and if the patient has, for example, a religious objection to blood transfusions, then this must be respected.87 The doctor’s own views and those of the profession must bend to these rights, and it behoves the law to protect them. For some, such as Montgomery, this is not a welcome development,88 and, as I noted in Section II, it is difficult to argue with his analysis that if the law exists to uphold the ‘rights’ of patients, then it is almost inevitable that they become consumers exercising choices.89 As Montgomery suggests, medical law would then reflect an ‘amoral commitment to choice and consumerism’, and this is a prescient analysis given the developments in the law relating to informed consent considered in Section IV.90 The moral reflection

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91 92 93

Ibid. See Miola (n 28, above). BMA, Medical Ethics Today: The BMA’s Handbook of Ethics and Law (BMA: London, 3rd edn, 2012).


and conscience of medical professionals, and of the medical profession as a whole, might thus be sacrificed to a market where, in essence, the patient gets what the patient demands.91 While there would certainly be drawbacks to creating a marketplace with the patient as ‘consumer’, this does not preclude the law taking more control of medical decision-making itself so long as it ensures that it does not fall into a consumerist mindset. This imperative for the law to intervene in decision-making will result in transferring more responsibility to the law to make non-technical decisions in relation to medical practice. Instinctively, Faunce’s suggestion is seductive, and the law may well subsume medical ethics and thus, by extension, the conscience of the medical practitioner. There are two advantages to this approach. First, the human rights standards would concentrate on patients’ rights rather than doctors’ duties. If the law responds quickly and effectively to scandals, then this can only be seen as a positive as it will help to correct errors, provide compensation where necessary, and deter future poor behaviour. Secondly, the law is used to acting as a decision-maker. In fact, one of the criticisms that can be laid at the door of medical ethics as a mechanism for ensuring that only ‘good’ moral decisions are made by doctors, is that it has become increasingly reflective rather than directive. This is the case in the sense that a vast corpus of literature comprising ‘critical’ and ‘philosophical’ medical ethics seeks to discuss issues rather than provide answers.92 Unfortunately, this approach is replicated in the British Medical Association’s handbook on medical ethics.93 However, there are other reasons to believe that increased judicial involvement in medical decision-making would not be a panacea. Despite the law’s apparent conversion to patient protection, it has not had a stellar record in this area. As noted in Section III, only since the mid-1990s has the law been willing to question the decision-making of medical practitioners and intervene more in non-technical medical decisions. If we say that we want the law to take more control of decisionmaking relating to non-technical medical matters, we are effectively saying that we like the current judicial approach. But should that approach change, those of us who support the law’s current trajectory may regret our decision, so we need to be careful what we wish for. Is it the law as a decision-making mechanism that we support, or its present stance in taking more control over medical decision-making? The former offers more permanence than the latter, in the sense that the law can easily change back to being more permissive to doctors. However, something to consider in relation to the law’s increasing involvement in non-technical medical decisions is whether it is willing and able to engage in the sort of ethical reflection that we expect from the conscience of individual doctors and the medical profession in general. For those who think that the law’s change in focus is, in general, a positive development (and I am amongst them), it is important to examine the way in which law engages in ethical debate. John Coggon and I have argued that, in the context of risk disclosure, the law’s ethical thought has been lacking and it has


VI . CON CL US IO N I have argued here that the law has undergone a significant shift over the past thirty years. Previously, it allowed doctors a lot of space to make their own decisions, not least due to an innate confidence in doctors’ beneficence. If we accept Kennedy’s assertion that many of the decisions made by doctors are not technically medical in nature, we can extrapolate that in many cases this laissez-faire attitude on the part of the law allowed doctors to exercise their consciences to a significant degree. However, things have now changed. The law now concerns itself with patients’ rights rather than medical discretion, and this has by definition limited the space available to doctors to use their consciences. As Lord Woolf noted, there were several reasons for the change. The most significant for our purposes, are the loss of the presumption of beneficence and the recognition that many of the medical law cases revolved around issues that did not concern technical aspects of medicine. These factors gave judges both the desire and legitimacy to become more interventionist. The state of the law now is such that judges almost see patients as consumers—as can be seen from the recent judgment of the Supreme Court in Montgomery. Yet Montgomery’s concern that the law’s involvement 94 95

96

J Coggon and J Miola, ‘Autonomy, Liberty and Medical Decision-Making’ (2011) 70 Cambridge L J 523. See, for example, O O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press: Cambridge, 2002); R Brownsword and D Beyleveld, Consent in the Law (Hart: Oxford, 2007); A Maclean, Autonomy, Informed Consent and Medical Law – A Relational Challenge (Cambridge University Press: Cambridge, 2009). Although, of course, this analysis only lasts so long as the ethical guidance remains more respectful of autonomy than the law does.


confused the concept of liberty with that of autonomy.94 We suggest that the law’s conflation of the freedom to make decisions with autonomy was overly simplistic and did not focus on many of the elements that would be necessary for a truly autonomous choice, such as communication to ensure adequate understanding of the issues. This approach by the law does not reflect the scholarship of many academic lawyers and ethicists, where there has been much discussion of precisely these issues.95 To this end, the law’s reclamation of increased decision-making authority from the professional standard might be mourned rather than celebrated.96 If the law is to involve itself in non-technical medical decision-making, then it must make sure that the decisions it makes are sound. If the law restricts the use of conscience on the part of doctors to protect patients and because judges believe they are justified in interfering in medical decisions, as Lord Woolf noted, then judges must be careful to ensure that the choices they mandate or prohibit allow ‘good’ medical decision-making to flourish. I argue that judges are only justified in restricting the right of doctors to exercise their own consciences if they are preventing poor choices (such as those made by staff at Mid-Staffordshire) or mandating good ones (such as with conscientious objection under the Abortion Act, where patient safety trumps medical conscience). In saying this I am making a judgement regarding what is ‘good’, but a part of the function of the law is to define what is and is not acceptable. Law has always restricted choices by members of society, including restrictions on the exercise of conscience. I see nothing wrong in extending this to medical practice.

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in medical decision-making will not cement a strong moral code on doctors and their profession but risks removing it, remains a possibility. Thus, while the reasons for the change in judicial attitude not only explain the increased intervention but justify it as a reasonable response by judges to scandals in health care, the law must take care not to throw the baby out with the bathwater. Judges must recognise that they are limiting the space for medical conscience to thrive, and fill it in some way. Of concern is the fact that the limitation on the conscience of doctors seems to have been replaced by a new consumerist mantra on behalf of patients. If this is to be the case, then the law will encourage a landscape for medical practice that is, as Montgomery suggested, amoral and solely based on patient choice. Despite being broadly supportive of the shift in judicial attitude to date, I am not convinced that this would be a positive development.

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