Introduction to

Medical Law & Bioethics

Dr. Haniwarda Yaakob
Faculty of Law
 Defining the terminologies

MEDICAL
LAW MEDICAL ETHICS

BIOETHICS

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 Medical
Law

Concerns the
relationship
Includes
between
various
healthcare
branches of
professionals
law such as
and patients e.g.
Tort, Criminal
doctor-patient;
hospital patient

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 Medical Law
• Medical law concerns the relationship between
healthcare professionals and patients including doctor-
patient relationship, the relationship between hospital
and patient;

• Comprised of various branches of law such as criminal

law, law of tort.

• Medical law establishes minimally acceptable standards

while medical ethics reaches beyond a minimum
standard and include determining the best or ideal way
for a doctor to act in a particular situation.

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 Medical Ethics

A branch of
applied ethics Traditionally
aiming at concerned with
determining the the ethics of good
legal response to medical practice
arising issues in e.g. doctor-patient
medical practice r/ship, informed
consent,
confidentiality

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 Medical ethics

• Medical ethics is mainly concerned with resolving

difficult questions that arise from medical practice.

• E.g. should euthanasia be permitted?

• Involves the ethics of good medical practice such as

obtaining informed consent; the ethics of
maintaining good doctor-patient relationship.

• A study of moral values and judgments in medicine.

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 Medical ethics

• Medical ethics is closely related to medical law.

Reason: the courts are unlikely to order doctors to act
in an unethical manner!

• Medical ethics is influential in formulating medical law

or the law to be applied in a particular area of medicine.

• However, it must be borne in mind that an action may

be unethical but may not be illegal. Example, a doctor
who witness an accident is ethically required to help
but if he chooses not to, his action is not illegal.

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 Basic issues in medical law and ethics

Medical
negligence consent

Hospital
confidentiality
liability

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 Bioethics

• What is bioethics?

• Bioethics is derived from the Greek word ‘bio’ which

means life.

• Refers to, “the moral, legal, social and philosophical

aspects of life especially human life.”

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 Bioethics

• Bioethics is a more recent terminology.

• it emerges as a separate discipline due to the rapid

development in medical technology that involves more than
the usual doctor-patient relationship issues;

• Bioethics encompasses issues from the beginning of life until

the end of life such as producing embryo using IVF, organ
transplant, end of life issues and so on.

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 Bioethics
• According to Helga Kuhse and Peter Singer in “what is bioethics?
A historical introduction”:

“Traditionally medical ethics has focused primarily on the doctor-

patient relationship and on the virtues possessed by the good
doctor…Bioethics is a more overtly critical and reflective enterprise.
Not limited to questioning the ethical dimensions of doctor-patient
and doctor-doctor relationship, it goes well beyond the scope of
traditional medical ethics in several ways. First, its goal is not the
development of, or adherence to a code or set of precepts, but a
better understanding of the issues. Second, it is prepared to ask
deep philosophical questions about the nature of ethics, the value of
life, what is meant to be a person, the significance of being human.
Third, it embraces issues of public policy and the direction and
control of science.”
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 Goes beyond the issues
Developed as a governing health
separate discipline professionals and patients;
in 1960s not just doctors but
scientists too

Bioethics

Multi-disciplinary:
Emerged as a response
includes law, religion,
to the development in
philosophy, social
medical technology
science

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 Assisted
Reproductive Embryo
technologies research

Bioethics

Organ transplantation/ Euthanasia

xenotransplantion

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 Main issue in Bioethics

Advancement in science

Moral/ethical Religious
issues Legal issues issues

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 Basic principles in Bioethics

• To deal with emerging issues in medicine,

philosophers have formulated ethical
principles.

• The most common ethical principles were

developed by Beauchamp and Childress
in their book, “Principles Of Biomedical
Ethics.”

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 Basic principles in Bioethics

Beauchamp &
beneficenc
autonomy Childress e

Non-
malfeasance justice

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 Basic principles

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 AUTONOMY

• Literally means “self-rule’; ‘self-governance’ or ‘self-

determination’.

• Autonomous choices of competent adults must be

respected.

• Encompasses individuals right to decide how they

wish to live their lives without undue interference
by others.

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 Autonomy

• Individuals should be free to make their own

choices according to their own personal
convictions.

• Mill argues that the freedom to live one’s life

according to one’s choices is crucial because it is
through the “different experiments of living” that
individuals learn the course of life that is suitable
to them.

• Therefore, “it is desirable…that in things which

do not primarily concern others, individuality
should assert itself” [John Stuart Mill, on liberty]

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 Autonomy

• The fact that the action is not approved of by others

should not be grounds to deny the exercise of one’s
autonomy to exercise his/her chosen action.

• Munson (2000) : “we recognize that a person must

walk to heaven or hell by her own freely chosen path.”

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 Autonomy

• However, the principle of autonomy is not absolute

and subject to limitations.

• Mill, for e.g., argues for the occurrence of harm to

others as a barrier to the exercise of individuals’
autonomy.

• Autonomy should not be used as a mechanism to

ignore the interests of others.

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 Autonomy in medical practice

• Respect for patient autonomy is the most significant

principle in medical law and ethics.

• In medical practice, respect for autonomy is illustrated

as the right of competent adults to make informed
decisions about their medical care.

• Respecting patient autonomy requires doctors to seek

informed consent before any treatment can be offered.

• It also includes respecting patient’s refusal to treatment

even life-saving treatment.

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 Autonomy in medical practice

• Re T (adult) [1992] 4 all ER 649:

“An adult patient who…suffers from no mental incapacity

has an absolute right to choose whether to consent to
medical treatment…this right of choice is not limited to
decisions which others might regard as sensible. It exists
notwithstanding that the reasons for making the choice are
rational, irrational, unknown or even non-existent.”

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 Autonomy in medical practice
• The principle of autonomy is also manifested in the duty
to maintain patient’s confidentiality;

• According to O’Brien and Chantler (2003):

“Autonomy encompasses not just the right to self
determination about our bodies and how they are treated,
but also to information ourselves, our lifestyles, and our
health. The right to control who knows the things about us
which we regard as private is integral to our sense of self
and sense of identity.”

(O'Brien, J., & Chantler, C. 2003. Confidentiality and the Duties of

Care. Journal of Medical Ethics 29: 36-40, at p. 36.)

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 Reproductive Autonomy

• The concept of autonomy has been extended to the

area of human reproduction.

• Known as ‘reproductive autonomy’, ‘procreative liberty’

or ‘procreative autonomy’.

• Denotes the autonomy to make one’s own

reproductive decisions without the interference of
others.

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 Reproductive Autonomy: Limits

• Robertson (1994) : reproductive autonomy should

be given “presumptive primacy” but it is not
absolute;

• Such autonomy can be overridden by proof of

substantial harm and the burdens falls on those
seeking to limit autonomy to prove the occurrence of
harm.

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 Reproductive Autonomy: Limits

• What is ‘substantial harm’?

• Robertson (1994):

“It will be necessary to distinguish between harms to

individuals and harm to personal conceptions of morality, right
order, or offense, discounted by their probability of
occurrence…a majoritarian view of “right” reproduction or
“right” valuation of prenatal life, family, or the role of women
should not suffice to restrict actions based on differing
individual views of such preeminently personal issues.”

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 Reproductive Autonomy: Limits

• Jackson (2001): reproductive autonomy

should only be limited upon sufficient proof of
the occurrence of, “…tangible harm to the
interests of others.”

• There must be “good and relevant reasons..”

• Personal revulsion is inadequate.

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 Reproductive Autonomy: Limits

• Limitation of autonomy to the occurrence of harm is

rooted in Mill’s theory of harm:

“…The only purpose for which power can be rightfully

exercised over any member of a civilised community,
against his will, is to prevent harm to others.

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 Reproductive Autonomy

Reproductive
Autonomy

Freedom to Freedom to avoid

reproduce reproduction

Freedom to reproduce
a child of a particular
trait
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 Why Reproductive Autonomy Matters

• The value of R.A. Is often associated with the role of

reproduction in one’s life.

▪ Robertson (1994): “control over whether one reproduces or

not is central to personal identity, dignity, and to the meaning
of one’s life…”

▪ The ability to procreate is generally welcomed as the

experience one normally aspires to in life. (Robertson, 1994)

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 Why Reproductive Autonomy Matters

• Gosden (1999) – the efforts that some people are

willing to make in order to enable them to
reproduce indicate the strong desire and
importance that is attached to having children.

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 Non-malfeasance/non-maleficence

• Based on the latin maxim primum non nocere or

“first do no harm”;

• Beauchamp and Childress (2019) explained:

“the principle of non-maleficence obligates us to refrain
from causing harm to others.”

• The duty not to inflict harm intentionally.

• One must refrain from doing something that will

harm others i.e. “Do not do X”

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 Non-malfeasance in medical practice

• In medical practice, this principle requires that any

medical procedure must not harm the patient or others;

• For example, amputating a healthy arm would cause

harm to the patient. Therefore, doctors should refrain
from giving that treatment/performing that surgery;

• Another example, it is wrong to compel someone to

donate his organ without his consent because the
procedure will harm him.

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 Non-malfeasance in medical practice

• However, it has been argued that doctors need to inflict a

certain degree of harm in the course of providing treatment
to patients;

• “Do you not have to cause patients pain and sufferings to

cure them?”

• Obviously, this principle does not mean that any harm

should be refrained from the patient as in some instances,
harmful actions is needed in order to obtain a greater
benefit.

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 Non-malfeasance in medical practice

• Beauchamp & Childress suggest a limitation to this

principle:

• i.e. If the harm inflicted by the action is minor and the

action is undertaken with the intention of saving another
person’s life, the action can be justified.

• Q: what about the separation of conjoined twins that will

save one child but harms the other?

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 Non-malfeasance

e.g.(1)
euthanasia?

Q: What
amounts to
harm?
e.g.(2)
separation of
conjoined
twins?

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 Non-maleficence in ART

• In the context of ART for e.g., fertility specialist would

argue that the procedures are not harmful on the
grounds of pursuing a greater good;

• Nonetheless, ART have limited success rates which may

affect patient’s emotional state;

• Also, the safety and implications of some new ART

methods such as gene therapy, 3-parents IVF are still
under investigation;

• So, it is difficult to satisfy this ‘no harm’ rule in the

application of ART.

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 Beneficence

• Requires one to take actions that prevent harm and promote

good.

• “One ought to do or promote good.”

• The duty to do something for the benefit of others.

• E.g. Doctors must help to cure diseases.

• Not legally enforceable – no legal duty to help others.

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 Beneficence

• Literally means “being charitable or doing good.”

• Requires one to take actions that prevent harm and

promote good.

• “One ought to do or promote good.”

• The duty to do something for the benefit of others.

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 Beneficence in medical practice

• Requires doctors to act in the best interests of the

patient.

• Intend to do good to patients.

• Doctors should take positive steps to secure good for the

patient.

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 Beneficence in medical practice

• An example on the application of the principle of

beneficence in medical practice is on withdrawal of
treatment for patients with no hope of survival;

• As seen in Airedale NHS Trust v Bland [1993] 1 All ER

821;

• In this situation, patient’s best interest is the main

consideration in making such a decision.

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 Justice

• A complex ethical principle encompassing the issue of fair

treatment of individuals to equitable allocation of resources
in healthcare services.

• In healthcare, main concerns focus on “who gets what

treatment” and “who decides what treatment are
administered”.

• What should doctors’ decision be based on? Need? Age?

Prognosis?

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 Justice

• Promotes the principle of equality i.e. “All equals should be

treated equally and unequal should be treated unequally.”

• Or, we should treat “like cases alike.”

• “A person has been treated justly when he has been given

what he is owed.”

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Justice

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 Justice

Promotes the principle of formal equality

“all equals must be treated equally & unequals

should be treated unequally”

“we should treat like cases alike”

“A person has been treated justly when he has

been given what he is owed”

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 Policy on withdrawal and withholding of life-support in the
critically ill, Hospital Teluk Intan

• “The principles of withholding or withdrawal of life-support should

be based on the six basic principles of medical ethics. These are:
● 1. Preservation of life which is frequently tempered by the second
principle.
● 2. Relief of suffering - this covers distressing symptoms such as pain,
distress caused by anxiety etc.
● 3. First do no harm- non maleficence
● 4. Respect the autonomy of patients - patients have the right to inform
choices in treatment and have the right to refuse or accept a given mode
of treatment.
♦ 5. Concept of a just allocation of medical resources - this is a
concept that it must be good for the majority in society. Allocation
of scarce and expensive resources for potentially non-salvageable
patients limits the amount that can be utilised on potential
survivors. Increasing medical costs also make some form of
rationing inevitable. Intensive care is extremely expensive and
economic considerations form part of the consideration in ethical
discussion regarding intensive care management.
● 6. To be truthful to the patients and family or surrogates as to the
prognosis of their loved ones.”
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 Justice in healthcare resource
allocation during Covid-19 pandemic
• Q: How to allocate medical resources during
Covid-19 pandemic?

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 Other approaches to Bioethics

Consequentialism

Deontology Feminist

intuition Religion

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 Consequentialism

Consequentialism:

• Judges the acceptability of an action according to

its consequences;

• An action is right if it produces good consequences;

• Q: what is ‘good’ consequences?

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 Other approaches in Bioethics: Deontology

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 Intuition

Also known as
the ‘yuk factor’

intuition

Gut feelings e.g.

“I just think it’s
wrong” Reliance on
instincts

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 Intuition

Herring (2008): “However clear

and logical the argumentation, ‘our
hearts’ tell us that ‘our heads’
have got something wrong.”-“Even
though it is not possible to explain
why, it just feels wrong.”

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 Intuition
• Kass (1998) – argues for the “wisdom of
repugnance.”

“In this age in which everything is held to be

permissible so long as it is freely done, in
which our given human nature no longer
commands respects, in which our bodies are
regarded as mere instruments of our
autonomous rational wills, repugnance may
be the only voice left that speaks out to
defend the central core of our humanity. The
goods protected by repugnance are
generally overlooked by our customary
ways of approaching all new bio-medical
technologies.”

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 Intuition

McMahan (2000): “A spontaneous

moral judgment, often concerning
a particular act of agent.”

Intuitionists claim that there are

various moral principles that can
determine the rightness or wrongness
of a particular action which are “self-
evident” and can be grasped by
intuition.

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 Intuition

Intuitionists believe
e.g. we have that, “we are born
duties to keep our with an innate ability
promises, not to to know right from
harm others wrong or that we can
which are derived acquire this through
by intuition practice.”

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 Other approaches: Religious Bioethics
Islamic Bioethics: an overview

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 Islamic Bioethics: An Overview

To determine the legitimacy of

medical technologies, jurists
refer to:

Primary sources

Holy Hadith
Quran /Sunnah

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 Islamic Bioethics: An overview

• If primary sources are silent, jurists are allowed

to investigate the issue and devise a ruling;

• This process is known as ‘ijtihad’;

• In performing ijtihad, jurists are guided by the

secondary sources of Islamic law.

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 Islamic Bioethics: An Overview

Secondary
sources

Qiyas
Ijma’ (consensus)
(analogy)

Istishab (legal Istihsan/

Urf
presumption) Maslahah

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 Objectives of Shariah (Maqasid al-shari’ah) – To protect 5
principal values:

Faith

lineage Life

Property Intellect

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 Islamic Bioethics

• To preserve the objectives of Islamic laws, several

principles are derived from the sources of Islamic
law, e.g.:

intention certainty ● injury

● hardship custom

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 Islamic Bioethics: An Overview

• Most relevant to bioethics are:

• (i) The principle of INJURY

• ► the requirement not to do harm;

• ► Injury must be removed or compensated;

• ► = Non-malfeasance

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 Islamic Bioethics: An Overview

► Hadith: “there should be neither harming nor

reciprocating harm.”

► Incorporates rules such as:

• “The law is permissive when there is no
alternative”;
• “prevention of harm has priority over assuring a
benefit”;
• “the lesser of 2 harms is chosen if no
alternative”;
• “public has priority over private interest.”

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 Islamic Bioethics: An Overview

• (ii) The principle of HARDSHIP

► “Hardship calls forth ease and facilitation”;

► Quran: “so, everyone of you who is present (at his

home) during that month should spend it fasting), but
if anyone is ill or on a journey, the prescribed period
shall be made up by days later. Allah intends every
facility for you; he does not want to put you in
difficulties.” (2:185)

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 Hardship

• E.g. eating haram food forbidden but when there

is a grave necessity, it is allowed. For e.g. to save
life.

• E.g. 2 – organ transplantation – see Ministry of

health, “Pemindahan organ dari perspektif Islam”

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