MEMORANDUM
TO: Facilitators - Law & Medicine Day
FROM: France Doyle and Rob Schwartz
SUBJECT: Analysis of Discussion Problems for Tuesday, November 9
Thank you for agreeing to be a facilitator for Law and Medicine Day this Tuesday, November 9, from 12:15 to 2:45 p.m. There will be two small group discussions, one from 1:00 – 1:50 p.m. and one from 2:00 – 2:45 p.m. You should have received your small group room assignment, the name of your co-facilitator and copies of the discussion problems. If you have not, they will be available in the law school forum at noon on Tuesday.
You may find it helpful to designate a “chief facilitator” to lead the first discussion, and another “chief” to lead the second discussion. The comments below are only meant to suggest issues that might be raised during the discussions; we encourage you to lead the group in a student-dominated discussion.
You may choose to begin by asking the students which of the five problems they would prefer to discuss. You are not expected to discuss all five, and we hope that providing you a choice of problems this year will give your students a stake in the problems you choose to discuss. Please ask someone to keep track of how the group comes out on the problems you do discuss so that we can compare the results from different small groups.
Problem 1 -- the Sanders case -- might be a good subject of the first discussion. The principles involved in this case are those of autonomy and beneficence. In order to serve the principle of autonomy (the right to control one’s own body) the physician (or court) must allow Ms. Sanders to decide to forgo the operation. To serve the principle of beneficence (doing what is best for the patient) the physician (or court) arguably must require the appendectomy.
In order to determine which principle should control, the physicians may look to the AMA’s Principles of Medical Ethics. Relevant passages of the Code state that “a physician shall deal honestly with patients …” and some commentary provides that “[i]n the making of decisions for the treatment of … persons who are severely deteriorated victims of … illness, the primary consideration should be what is best for the individual patient and not the avoidance of a burden to the family or to society.” The commentary also provides, “[w]here the performance of one duty conflicts with the other, the preferences of the patient should prevail” and “[t]he preference of the individual should prevail when determining whether extraordinary life-prolonging measures should be undertaken in the event of terminal illness.”
This problem also raises questions about the role of third parties in medical decision making. Should her husband’s wishes be considered? What about the life of her fetus? The interest of her children? How do you determine whether she is competent to make a decision regarding her medical treatment?
Although this problem is set in a medical context, it does have a legal analogy: What should a lawyer do when a client comes into the office and asks that the lawyer plead him guilty to a charge of a crime that he did not commit? Does the principle of autonomy or beneficence prevail? The Code of Professional Responsibility states “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” and “[a] lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client” and “[a] lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”
Do the law students and medical students come out the same way in the autonomy/beneficence debate in the legal context that they do in the medical context? If not, why not?
The second discussion could focus on Problem 2, the Beans case, which depicts a conflict between the principle of confidentiality and that of protecting innocent third parties. This debate concerns the balance between the interest in protecting free and open communication between a lawyer and his client and the interest in revealing information in order to protect innocent third parties. The Code of Professional Responsibility for law practice states that a lawyer shall not reveal information given to him by a client unless the client consents or unless it would be necessary “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.” While lawyers do have the responsibility to breach client confidences when that is necessary to protect third parties from crimes that have not yet been committed, this principle does not apply in this case. Some of your students may be familiar with the Tarasoff case, which imposed liability on a psychiatrist who failed to take precautions to protect an identifiable third party from the acts that he knew his patient would take to put the victim at risk. Should there be such a duty to third parties? Can that duty be discharged without completely vitiating the principle of confidentiality?
While this problem is set in a legal context, it has its medical analogy: what should a doctor do when the HIV-positive patient whom he has promised confidentiality reveals he is engaging in risky behavior with other named or easily discovered persons? The Principles of Medical Ethics state “[a] physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law.” Don’t let the students escape the hard question by arguing that the doctor should report it to the state and let the state health authorities do whatever is appropriate.
Do the law and medical students analyze this hypothetical the same way that they analyzed the Beans case?
You could then go on to discuss Problem 3, the Sanders case. This problem raises several issues. The students must first determine whether infertility is really a condition that ought to be addressed by medicine at all. Is it an illness or disease? While some view the proper sphere of medicine as including the treatment of any deviation from the perfect social, mental and physical function of a human being, more often it is limited to cases where the operation of the body deviates from normal, whatever that means. In a society as concerned about avoiding conception as encouraging it, in which many normal people do not have children, can we say that the failure to conceive is a deviation from the normal? We usually talk about diseases of individuals; can we also talk about the disease of a couple?
After the students decide that infertility treatment is properly within the scope of medicine, they must address the question of whether such treatment should be offered to Bradley and Marjorie. There are two ways to approach this issue -- as a mater of substantive principle (should these two people be afforded this treatment?) or as a matter of the allocation of decisionmaking authority (who should decide if they should be afforded this treatment?) It may be best to start with the second and determine whether the doctor is entitled to apply her own values and thereby grant reproductive services to whomever she pleases. It would give a physician a great deal of power to allow her to make those kinds of decisions, especially when there is no one else available to offer the service and the physician is able to determine who ought to be able to create the next generation. There may be two justifications for this approach, though -- first, no physician should be required to take an action she believes to be unethical, and, second, no physician should be required to take an action for which she will not be paid. Are either of these justifications sound? If doctors should not make these decisions ad hoc in individual cases, who should make them? Would the law students be willing to represent a woman denied in vitro fertilization services because that women is single, poor, (or gay or Catholic or Republican or ugly) or otherwise disqualified in the eyes of the doctor?
It is also worth considering what rule the students would adopt if they were the proper rule-making authority, whether that be the individual doctor, a professional organization, the courts or the legislature. What are the relevant factors? The likelihood of success of the process? The fact that the couple is not married? The couple's poverty? Their low job skills? Their history? The age of the patient(s)? Which way does their age cut? Why are these factors relevant?
Throughout the discussion the students will be forced to address questions of distributive justice. Is everyone entitled to anything medicine can do, whether or not they can pay for it, or is medical care a service that ought to be available on the market to those who can pay for it? If the physician is required to provide this treatment, who should pay for it? If the law students get too self righteous about this, you might ask them whether any person with arguable legal needs should be able to go to a lawyer and get free services. Should a free lawyer be provided to any prisoner who is whiling his time away writing his fortieth habeas corpus petition?
I’m afraid that we have no formal teacher’s manual for Problem 4 or 5. Problem 4 ought to spark an active discussion over the roles of professional students and their obligations to patients and clients. In this environment, it is easy to undervalue friendship. Make sure that your students understand that the obligation to friends is one of extraordinary importance, and that our culture has recognized that for thousands of years. Is collegiality especially important for professionals? Finally, Problem 5 brings the new medical attention to the issue of untreated pain into focus, and it raises the question of how it might be inconsistent with our nation’s war on drugs. How should the issue be resolved? Are there good reasons for our country to be so fearful of the use of narcotics? What are those reasons?
We trust that you will encourage vigorous discussion and open debate, and that you will have a good time. Good luck!