Moral Obligation and Legal Duty in England - Essay Example

?Medical law Laws are a conglomerate of principles and rules with respect to all matters of life which the ities formulate for the standardization of limits within which individuals in the society can perform. Unlike morality, someone makes laws1. Individuals are bound to respect the laws or they incur financial and/or other kinds of liabilities. Morals originate in people’s beliefs and are based on their principles and values which serve as guides for their actions. The fundamental difference between the moral rules and the legal rules is that while the former are voluntary, the latter are obligatory upon every individual of the society. “A civilized society's first line of defense is not the law, police and courts but customs, traditions and moral values. Behavioral norms, mostly transmitted by example, word of mouth and religious teachings, represent a body of wisdom distilled over the ages through experience and trial and error”2. Laws are primarily meant to safeguard the moral values of the nation, but this itself raises a number of challenges for the law-making agencies given the morals of a society alter with time depending upon the demands of the time. Coleridge said, “It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement”3. This paper reviews the English medical laws other than the law of clinical negligence with an intent to evaluate whether the extent to which the enforcers of these laws see a moral obligation to their duties. For this, the issues discussed include abortion and euthanasia. If they do so, that would mean that their legal duties are founded on moral obligations. In the last, the recent development of the law of human rights is commented upon from the standpoint of the very issue. Different theories of abortion have emerged over the years. Many people claim that abortion is morally justified since it is a legal procedure. “There is a subtle type of argumentation here that basically is saying that if it is legal, it is moral; and if it is legal and moral, then it is immoral to oppose it”4. A woman who involves herself in sex voluntarily and without the use of contraceptives, she in a way signs a bond with the fetus. “A contract entails the demonstrated existence of a reasonably (and reasonable) free will. If the fulfillment of the obligations in a contract between individuals could be life-threatening – it is fair and safe to assume that no rational free will was involved”5. But a pregnancy happens as a result of rape or forced sex, it is morally feasible to terminate it since the mother never entered the contract willingly, thus rendering it invalid. This in turn justifies all measures taken to terminate the pregnancy before it reaches the stage when doing so would threaten the life of the mother. Judith Jarvis Thomson considers abortion impermissible but not on the grounds that most anti-abortionists base their claims on6 Abortion is not wrong because fetus is a human being and has a right to live, but it is impermissible because a woman carrying her pregnancy to term displays good samaritanism. From a moral standpoint, a woman that carries pregnancy to term generously takes care of the fetus by undergoing pain and labor while the fetus has the needs but not the rights but a woman, who terminates the pregnancy does not show this generosity and accordingly, does not take care of the needs of the fetus. “It is not the case that abortion violates the requirements of morality, therefore, but rather that continuing to incur the burdens involved in pregnancy goes beyond them”7. A woman’s ethical obligation to the fetus is inevitable irrespective of whether the abortion is legalized or not in a certain country8. One woman’s decision to terminate the pregnancy has a number of social implications, which challenges the perception that it is only for the woman to decide to keep or terminate the pregnancy. According to the Abortion Act 1967, “[s]ubject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith”9. However, the Act mentions certain conditions in which abortion may be carried out which include pregnancy being lesser than twenty-four weeks old and pregnancy being risky for the mother if allowed to continue. In the year 2002, the EU parliament endorsed the Anne van Lancker report that motivated the EU countries to enhance the provision of safe abortions in the countries and discouraged the penalization of women undergoing illegal abortions. The Council of Europe also gave its consent in favor of legalization of abortion in Europe. Most of the European countries have legalized abortion at least until the 12th week of pregnancy. Among all countries, Sweden has the most flexible abortion laws. Sweden allows abortion until the 18th week of pregnancy in general cases and till the 22nd week in special cases. Out of the 27 member countries of the EU, only three have prohibited abortion unless in special conditions which are rare to occur. Those three countries are Poland, Malta and Ireland. A 14 year old girl from Poland was raped as a result of which she got pregnant10. Although the Polish abortion legislation is generally quite strict and prohibitive about abortion, yet it considered abortion a suitable way out but the legislation was heavily criticized by the Catholic Church on religious grounds for having allowed the girl to undergo an abortion. The Catholic Church imposed a lot of hurdles but finally, the law prevailed and the girl got the foetus aborted. In spite of the fact that most of the EU countries have well-defined principles about abortion, their application is often quite subjective. In Romania, an 11 year old girl got pregnant from rape and was refused abortion because her pregnancy had exceeded the legal limit by two weeks. The medical-ethic committee found the reasons for crossing the limit insufficient but the immense international attention that the case acquired caused the government commission to finally approve the abortion for the girl. Despite the time limits clearly stipulated in the laws, many women go for abortion beyond these time limits and incur many risks for themselves. For instance, some 200,000 illegal abortions are carried out in Poland every year causing the death of thousands of women. Euthanasia, like abortion, has a number of implications for the society. For example, euthanasia develops such a culture in the society which shows little respect for the life’s sanctity. Practice of euthanasia is an overt expression of the belief that life of the killed individual was of little or no worth as compared to the lives of those that lived. This gives rise to discrimination in the society and adds a new dimension to it. Euthanasia may, in some cases, be voluntary, but even in those cases, this practice gradually paves way for the involuntary euthanasia, thus providing people with a way to get rid of people they don’t want around. Humans have limited knowledge and often lack the tendency to make rational decisions. In the capacity of a human, an individual may overlook or underestimate the potential consequences of undergoing euthanasia. The decision may not yield favorable results. Euthanasia does not only affect the rights of the patient, but also of the people related to him/her in some way. In addition to these sociological and psychological consequences of euthanasia, the practice is also condemnable because there are numerous ways out for the person in trouble. For example, if the patient is provided with proper palliative care, it renders euthanasia totally unnecessary. Besides, there is no proper way to legalize euthanasia. There will have to be exceptions and too many of them will make the process of regulation as well as its implementation extremely subjective. Terminally ill patients will be offered low quality care with the legalization of euthanasia. In addition to that, allowance of euthanasia serves as a disincentive for both the nurses and the doctors to show commitment with the patient. Also, the researchers will be demotivated to explore new ways for treatment and cure for the patients who are terminally ill if euthanasia becomes a legal way to treat them. Another con of euthanasia is that it is a means of empowering the doctors and nurses beyond necessary limits. Doctors and nurses would find a way out of any problem which they would have caused and nobody would be able to find out. Likewise, selfish children would find a way to get rid of old parents and lay their hands on their property without having the outsiders realize what actually happened. Considering these and many other unfavorable consequences of euthanasia like these, it is safe to declare euthanasia an impermissible practice not only on legal grounds but also on the moral grounds. In a real-life case, the court decided in favor of the doctors despite their unilateral attempts to provide the patient with diamorphine against the consent of the patient’s mother. David was a severely disabled boy both physically and mentally. Ms. Glass, David’s mother took him to a hospital in the UK. Doctors considered giving David morphine, but did not do this as Ms. Glass had retaliated. David’s condition improved and he was discharged from the hospital. Few days later, he again acquired severe chest infection and was rehospitalized. This time, the doctors decided to inject diamorphine into him against the consent of his mother and placed a “Do Not Resuscicate (DNR)” note on him. A fight commenced between the doctors and the family members during which Ms. Glass managed to successfully resuscicate David. His health improved and he was discharged. Later, Ms. Glass sued the doctors for having administered David with diamorphine and violated David’s rights as supported by the Article 8 of the Convention. “The applicants maintain that the dose administered, namely 1mg per hour, was in reality an adult dose and excessive for a child of the first applicant’s age”11. Originally, the Court considered the doctors’ interference of giving David diamorphine against the consent of his mother according with the law as the UK’s regulatory framework firmly required a doctor to preserve the patient’s life and in case, the parents objected, the doctor was required to seek intervention from the court. The Court also considered the doctors’ act of placing a DNR in the case notes of David a valid interference since their efforts were directed at serving David’s interests. The recent development of the law of human rights has had a great impact on the medical practice as it has increased the emphasis upon the moral status of the practices. The European Court of Human Rights has reviewed the case of David and has criticized the old decision that went in favor of the doctors. The European Court of Human Rights unanimously held that by giving David diamorphone, the doctors had violated the Article 8 of the European Convention on Human Rights which guards the individual’s right to respect for private life. The Court awarded them EUR 15,000 to compensate the applicants for the general costs and expenses and another 10,000 EUR for the non-pecuniary damages caused to them by the doctors in accordance with the Article 41 of the Convention. There has been a considerable change in the societal morals over the decades. Considering the issue of abortion, the empowerment of women has caused a significant change in the way abortion was understood and in the past and the way it is perceived nowadays. In the contemporary age, people have become more flexible as more and more women have started to favor abortion. Modern society is much more sensitive towards individuals’ rights and freedom than the society ever was in the past. In their attempt to overemphasize upon the importance of the freedom and rights of women, pro-abortionists tend to underestimate the social consequences of the practice. Likewise, people who speak in favor of euthanasia fundamentally base their arguments on the stance that it is every human being’s fundamental right to decide for himself/herself whether he/she wants to continue living or put an end to his/her life. Whether individuals’ freedom should be supported to such an extent that individuals may be granted their wish to die is debatable, but the social consequences of euthanasia can anyway not be denied. However, comparing the two issues of abortion and euthanasia, there are certain conditions under which the former is morally permissible while permissibility for the latter on moral grounds is very subjective and is subject to a lot of criticism and debate. Analysis of the various real-life cases of abortion and euthanasia as discussed in this paper and an in-depth study of the actions of the law-enforcement agencies and the study of English medical law suggests that in this field, Lord Coleridge’s statement is correct to a large extent. The fact that a vast majority of the countries have legalized abortion is an overt expression of the fact that they respect women’s rights, their decisions and their choices. The time limits established by the government for abortion have been chosen keeping in view the medical implications of the practice so as to make sure that the operation is safe for the mother. The law would not like the mother to risk her life to get the fetus aborted and thus imposed limits on abortion in terms of time. Even then, there have cases occurred in the past in which the law has permitted abortion despite the expiry of the time limits but this was solely done on moral grounds. For example, the Polish law allowed the raped girl to undergo abortion against the traditional practice and also the Romanian girl was allowed abortion despite the expiry of the legal time limit for abortion. The law respected the girls’ decisions because they were raped. This essentially fosters the perception that legal duties are founded on moral obligations. Considering the case of David and Ms. Glass, it is clear that the recent development of the law of human rights has changed the circumstances for the better. It has shifted more power in the hands of the patients that was previously solely assumed by the doctors who could go to any extent in the name of serving the interests of the patient against the consent of his/her guardians or relatives. Taking these factors into consideration, it can be said that the situation of law and order in many countries has improved in general over the decades. As a result of this, doctors and nurses have generally become more conscious and careful in their selection of the treatment procedures for the patients. Bibliography: Boonin-Vail, David, ‘A Defense of “A Defense of Abortion”: On the Responsibility Objection to Thomson’s Argument’ (1997) 107(2) Ethics 286, 313 Cline, Austin, ‘Ethics of Abortion: Is it Moral or Immoral to Have an Abortion?’ (About.com, 2012) accessed 12 February 2012 Gardner, John, ‘Law and Morality’ (nd) accessed 12 February 2012 Thomson, Judith Jarvis, ‘Judith Jarvis Thomson: A Defense of Abortion’ (1971) 1(1) Philosophy & Public Affairs accessed 12 February 2012 ‘Termination of Pregnancy Act 13 October 1972’ (nd) accessed 12 February 2012 Koukl, Gregory, ‘Legal vs. Moral’ (Stand to Reason, 2005) accessed 12 February 2012 ‘Chamber Judgment In The Case Of Glass V. The United Kingdom’ (2004) accessed 12 February 2012 Vaknin, Sam, ‘Abortion The Aborted Contract And the Right to Life’ (nd) accessed 12 February 2012 Wikstrom, Katarina,‘Abortion rights: Still a fight in Europe’ (International Viewpoint, 2008) accessed 12 February 2012 Williams, Walter E, ‘Law vs. Moral Values’ (Human Events, 2009) accessed 12 February 2012 Winslade, William J, ‘Informed consent in psychiatric practice: The primacy of ethics over law’ (2006) 1(4) Behavioral Sciences & the Law 47, 56 Read More