David Ranson B Med Sci, BM, LLB, MCR Path, FRCP, DMJ (Path) Diecto, Victoian Institute of Foensic Medicine fiduciay elations between docto and patient, Doctos and Fiduciaies: ImpllC- seious disuption would have been caused to many ations fo Resouce llocation aeas of clinical medicine, not the least of which Α τ *ΤΛ τ* Λ Λ would involve esouce allocation decisions in mong Intensive Cae Patients to intensive cae units., D bydtfaunce T h e docto as fiduciay Intensive Cae Regista, Canbea Hospital; Membe, Canbea Hospital Clinical The concept of the fiduciay elationship Ethics Committee developed in England duing the latte half of the Intoduction 17th ce ntuy fom the exclusive juisdiction and concen of equity and the Cout of Chancey (as Been ν Williams was a decision of the Full opposed to the common law couts) with altenative Supeme Cout of New South Wales in which emedies pomoting fainess and justice in mattes Kiby P stated that the docto-patient elationship of tust. The elationship between tustee and was "fiduciay" in natue. 1 In coming to this beneficiay is thought to have been the fist conclusion, he elied upon Noth meican and "fiduciay elationship". 4 Gadually, simila Canadian decisions which gave expession to the obligations wee extended to othe elationships notion that it is the pimay duty of the docto to act without any consistent attempt being made to define with "utmost good faith and loyalty". 2 This view, eithe "fiduciay elationship" o who was a and this line of authoity, was ejected by the "fiduciay". 5 Such additional elationships, as well majoity in the Full Cout and, on appeal, by the as tustee as cestui que tust (beneficiay), came to High Cout of ustalia. The High Cout include solicito and client, patne and co-patne, detemined that the docto-patient elationship was motgagee and motgago, agent and pincipal, not geneally fiduciay in natue (though it may executo and beneficiay, company diecto (o have "fiduciay elements") and that the undoubted, liquidato o pomoto) and thei companies, if not "exhaustive", duty of a docto in ustalia eceives, bailees, bankes, bokes and accountwas to "execise easonable skill and cae in the ants. 6 giving of teatment and advice". 3 This aspect of the I n his seminal essay "The Fiduciay Pinciple", 7 High Cout decision in Been ν Williams is likely to Finn states that the "fiduciay" elationship is best face citicism fom the academic medico-legal defined as at the top of a thee-tieed hieachy of industy and those social activists fo whom the championing of patient ights has acquied unassailable quasi-eligious significance. Had, 4 D M Wates > " Banks, Fiduciaf y Obligations and Um,*.,^ *u~ JJ: U» -* w * J» ι Unconscionable Tansactions" (1986) 35 Can Ba Rev 46. howeve, the High Cout ceated" geneal, ^ R Goff Q Jones m w 0/^/l/w/lon (3 d ed, 1986), ρ 632; J Oakley, Constuctive Tusts (2nd ed, 1987), ρ 48. 1 Been ν Williams (1994) 35 NSWLR 522 at 545. 6 See Mills ν Mills (1938) 60 CLR 150; Nugent ν Nugent [19081 2 Fo example, Canneti ν Medical and Sugical Clinic 315 NE 1 Ch 546; Kingsmill ν Lyne (1910) 13 CLR 292;. Omnium 2d 278 (1974); and Mclneney ν Mac Donald (1992) 93 DLR Electic Palaces Ltd ν Baines [1914] 1 Ch 332; Phipps ν (4th) 415 at 424 pe U Foest J. Boadman [1967] 2 C 46; Chan ν lachaía (1984) 58 UR 3 Been ν Williams (1996) 186 CLR 71 at 83 pe Bennan CJ; at 353. 97 pe Dawson and Toohey JJ; at 111 pe Gaudon and PD Finn, "The Fiduciay Pinciple" in T G Youdan (ed), McHugh JJ; at 135 pe Gummow J. Equity, Fiduciaies and Tusts (1989). 214 JOURNL OF LW ND MEDICINE - Volume 4 Γ
potective legal pinciples ("unconscionability", might be egaded as the taditional common law "good faith" and "fiduciay") fo the egulation of view on this aspect of the docto-patient conduct in voluntay o consensual elationships. elationship: "Common to all thee is a concen with the _. ^ «. *.,, M λ # _,. ^ k U ^ ι. u- "Counsel fo the appellant efeed to Nocton ν extent to which one paty to a elationship is.,,. _. M 44 Λ Mi~- - u ι Α Λ. * Lod shbuton 14 m an attempt to pesuade you obliged to acknowledge and to espect the.....,.. /. Λ Λ -1 I _ ^ ^ «tjl*. tf mu Lodships that the elationship between docto inteests of the othe... [tlhee is... a pogession ::. ~,.... Γ V1 Λ. «Α Λ ;.. Ι Γ.\Τ. and patient is of a fiduciay chaacte entitling a fom the fist to the thid: fom selfish behaviou. **..,. *. * w,.u 4 4 Ul m uu»8 patient to equitable elief m the event of a beach to selfless behaviou. 8 **... J ^ L ^ J * TL ι Α o o -* χτ o.u, 1 of fiduciay duty by the docto. The attempt In the Supeme Cout of New South Wales u Λ u, Λ- ;^ e D u/n- ^u ^u fails: thee is no compaison to be made between decision of Been ν Williams, Kiby P, howeve,,.... c Λ. Λ ΛΊ **~*οα «* ^ «-Λ»...... i the elationship of docto and patient with [sic] stated that the "fiduciay pinciple was in a state of. *,.., «. j Λ ^. ι Α Λ ~ ^ v u *u «J that of solicito and client, tustee and cestui qui development and that it was both "necessay and. 4 Λ......... T e t4. tust o the othe elationships teated m equity appopiate' fo the couts to "ecognise new ~,.. vi _ 1 \ Λ uv»9i17u-1 * * i as of a fiduciay chaacte. Nevetheless, the fiduciay obligations". While not, of itself, a new..,. < *. * ;^o ; *,,i Α Λ w u elationship of docto and patient is a vey idea, in styling the docto-patient elationship as., 1U u u ««,w;,» i w η u-^*u*.u special one, the patient putting his [o he] health fiduciay, Kiby P emphasised that, among othe... Î. Ί x *u Λ 7» u ^»15 u; «1 «u.» u Λ and his [o he] life m the docto's hands." 15 things, "loyalty was of the essence of a fiduciay elationship. The dominant paty was bound to The membes of the High Cout in Been ν potect and advance the inteests of the othe, to act Williams emphasised, with some qualifications, that as thei epesentative o champion ahead of any the pimay duty of the docto to his o he patient othe peson with whom conflicting pofessional was to execise easonable cae and skill in the obligations might aise. povision of advice and teatment (emphasis The "fiduciay" concept, howeve, suffes fom added). Bennan CJ, though admitting that "the gave legal uncetainties. In vaious judicial povision of advice and teatment with easonable decisions it has been intepeted as synonymous skill and cae may not exhaust the duty of the with concepts such as "tust", "confidence", docto", stated that the notion that the docto-patient "influence", "abuse of powe", "eliance", elationship was fiduciay (as expessed by the "inequality" and "vulneability" as well as Supeme Cout of Canada in Mclneney ν "loyalty". 10 Finn states that one cause of such MacDonald) "does not accod with the law of uncetainty is fiduciay duty as undestood in this county". 16 "a compliant judiciay, paticulaly in some Dawson and Toohey JJ emphasised that a fiduciay Noth meican juisdictions [which] has been has to act "in a epesentative capacity in the pepaed on occasion to use the fiduciay execise of his [o he] esponsibility". 17 But a pinciple to povide desied solutions in docto, they stated, does not have a duty to act "on situations whee the law is othewise deficient o behalf of a patient, o with "uncompomising peceived to be so". 11 loyalty". The duty of a docto to a patient, they These comments wee echoed by Meaghe J in pointed out, is Been ν Williams who efeed to a «..._..._... Λ. ^ Λ. «*<^^~, *~ ui. established both m contact and m tot and it is tendency... to widen the equitable concept of a.,..,... ΛΛ ;Ο«, ~w: Ä u- * u. appopnately descibed m tems of the fiduciay elationship to a point whee it is w ν J devoid of all easoning". 12 obsevance of a standad of cae and skill athe In Sidaway ν Boad of Govenos of Bethlem Royal Hospital, 13 Lod Scaman summaised what l3 Sidaway ν Boad of Govenos of the Bethlem Royal Hospital I Ibid, ρ 4. and the Maudsley Hospital [1985] C 871. * Been ν Williams (1994) 35 NSWLR 522 at 543. M [1914] C 932. 10 Finn, op cit η 7, ρ 2. " [1985] C 871 at 884. II Ibid, pp 24-25.»< Been ν Williams (1996) 186 CLR 71 at 83. 12 Been ν Williams (1994) 35 NSWLR 522 at 570.,7 Ibid at 93. Febuay 1997 2ÎT
than, inappopiately, in tems of the avoidance fom long-tem patients in the Intensive Cae Unit of a conflict of inteest". 18 (ICU). One case of paticula concen involved a η Α Α ΧΛ u u τι * * Λ.u. -j patient in he late 70s with Guillain-Bae Gaudon and McHugh JJ stated that fiduciaies ae ζ, 0,,,....... «- Λ,^ 4.. Syndome. She had been ventilated and equied to give undivided loyalty to the pesons.. _, - u» i9 D «J nutitionally suppoted, with one-on-one nusing, m whom they seve V 9 But the "pimay duty of a.. ^ J v v F '. «. ^.,. /,. ί,.«. u the unit fo ove a yea at an appoximate cost 4. of docto is to execise easonable cae and skill in the., φ ΛΛ ΛΛΛ,y,,L 1. _ -._ Μ $Α700,000 and had expenenced little etun of pepovision of pofessional advice and teatment.,.'.,, u u #..,..!^ L... K, * u u -η mobid function. He husband continued to msist on The docto does not waant that he o she will act _., * u χ- ^ 4 Λ Α» u * * *. aggessive teatment despite bemg infomed of the m the patient's best inteests o that the teatment. f*\ _.» «,;-*.,* «, u u c 12i i Λ.. bleak pognosis. The patient s own views wee will be successful. 21 If a docto owed such a duty,, u 7 * ι ~- ««U-U» u u 1,4Ui- ui..i.. f unclea but at one point ealy m the pocess she had he o she would be liable fo any act that objective y..... * u u J *-. /u ;-.~J,. u * * U^L indicated that she wished teatment to be contmued. was not in the best inteests of the patient. "The ~. - i n -. *; ** U«L Dunng that yea many seiously ill patients had docto would be liable fo teatment that went. f. ^. -.-.-»Λ,-, uu u u j.j u been tuned away fom the mtensive cae unit due wong although he o she had acted without...'. c M-~i;?~_~~ τγ,. * Α ι «. i-»22 to lack of available esouces, negligence. That is not the law of ustalia."...,, <7 x ÄOi on j ^ U J. U. -j- simila case has aisen m New Zealand. Gummow J emphasised that thee ae fiduciay _.... Λ cn U mim1 «,.. Τ 1. U U ^ j-1 Thee, intensivists managing a 59-yea-old man "elements" m the elationship between medical., '.. *, *,* _ Αο D Λ,,.. - C U I J with Guillain-Bae syndome J fo 13 months, pactitione and patient, and that these have evolved,.,..^..,., ^u- J. -I- ι ι- ι J appoached his wife and the local clinical ethics fom the paticula eliance involved, the _ ^ * * U-,Α ^ L Λ»^*W.. «.., c -j. «. \»_ committee befoe petitioning the High Cout fo a divulgence of confidential infomation and the.. V........ «. 26 J ι uling concening withdawing his ventilato, significant impact on the economic and pesona -?. T fl. «-Λ. 7 *.... Thee is a heavy oppotunity cost and the inteests of the patient. "Howeve, to each that.... 1 c T,.. /..,.... ^4. _. ',.. possibility fo seious distibutive injustice in stage of easoning is not to attain the destination.. _. * * u 27 -u ^ ; J U 11 *»23i- t ^. ui.. continuing teatment fo such patients/ 7 The Ä desied by the appellant." Gummow J stessed that, _ -. u ^. Λ.,. u.,. -j- «.ι- J shotage of intensive cae beds m ustalia is an in fiduciay elationships, the fiduciay is "ob hged, w U ~ - l f J J L,. ' Λ-... acknowledged poblem. Massachusetts m the not to ente upon conflicting engagements to., f - ^ j f^i u J ΙΛΛΛΛΛ TT O u T seveal oaties" 24 United States has 24 adult ICU beds pe 100,000 population; lbeta, Canada, 16; Fance 25; "It would be to stand established pinciple on its Gemany 24; Sweden 18; Switzeland 11; head to eason that because equity consides the Nethelands 10; Italy 9; and Japan 8.3 pe 100,000 defendant to be a fiduciay, theefoe the population. 28 Canbea, by compaison, has defendant has a legal obligation to act in the appoximately 6 ICU beds pe 100,000 population, inteests of the plaintiff so that failue to fulfil Doctos woking in the intensive cae unit (that is, that positive obligation epesents a beach of admitting egistas and specialists) ae fequently fiduciay duty." 25 asked to take into account issues of bed and ^.,.. associated nusing staff availability fo othe Resouce allocation decisions m,, citically pat ents whüe making decisions about intensive cae units eithe efusal of enty to new patients, tansfes to The Clinical Ethics Committee of the Canbea * e lowe,eve,s ofhi & ά Φ ηά o w a d cae o ^ Hospital ecently consideed the poblem of to othe hospitals, o the withdawal o withholding withdawal o withholding of "futile" teatment ~ 26 G Gillett, L Goddad, M Webb, "The Case of M L: Legal and Ethical Response to the Cout-sanctioned Withdawal of 11 Ibid at 93. Life Suppot" (1995) 3 JLM 49 at 57. 19 Ibid at 108. " Sec J Stanley (ed), "The ppleton Intenational Confeence: 20 Roges ν Whitake ( 1992) 175 CLR 479 at 483. Developing Ethical Guidelines fo Decisions to Fogo Life- 21 See Geaves ν Baynham Meikle [1975] 1 WLR 1095 at 1100. polonging Medical Teatment" (1992) 18 J Med Ethics (Suppl) 22 (1996) 186 CLR 71 at 104. 6. 23 Ibid at 135. 2 1 CD Scheinkestel, "The Evolution of the Intensivist: Fom 24 Ibid. Health Cae Povide to Economic Rationalist and Ethicist" 23 Ibid at 137-138. (1996) 164 MJ 30. 2! 6 JOURNL OF LW ND MEDICINE - Volume 4
of "futile" teatment fom existing long-stay patient and family to communicate, touch and patients. It is difficult, in this context, to ceate fim deal with unfinished business." 31 pinciples fo esolving the dilemma of a docto Dunstan states: having duties of beneficence, non-malificence and "The success of intensive cae is not, theefoe, espect fo autonomy fo diffeent patients who ae to be measued only by statistics of suvival, as "competing" fo scace esouces. The concept of though each death wee a medical failue. It is to "futile" cae is, howeve, an attempt to povide one be measued by the quality of lives peseved o such intellectual tool. estoed; and by the quality of the dying of those The meican Thoacic Society has defined in whose inteest it is to die; and by the quality of "futile" cae as involving two aspects: fist, a lack human elationships involved in each death." 32 of medical efficacy as detemined by the patient's Luce has suggested that the wod "uneasonable" physician(s) and, secondly, a lack of meaningful eplace "futile" in such delibeations. 33 suvival as detemined by the patient. It states: pat fom difficult delibeations about "futile" "a physician has no ethical obligation to povide cae, intensive cae doctos ae also inceasingly a life-sustaining intevention that is judged futile being involved in maco- and mico-allocation... even if the intevention is equested by the discussions of the use of health cae esouces. s patient o suogate decision make. To foce unit budgets tighten, staff numbes fall, peipheal physicians to povide medical inteventions that hospitals close and systems such as "case mix" ae clealy futile would undemine the ethical funding ae intoduced, thee ae inceasing integity of the medical pofession." 29 pessues on intensivists to adopt a utilitaian athe Clinical "futility" of medical esouce use may than deontological position with espect to be simple to ecognise in the ievesible, individual patient cae. Theat of legal liability physiologically moibund but it may be ephemeal should excess patients be admitted to an and ill-defined when applied to the majoity of ovecowded unit and consequently suffe an citically ill patients with poo pognoses. 30 Making advese outcome is anothe seious consideation, clinical deteminations of "futile" pognosis is not a What would be the effect on such difficult task that can be standadised and attempts to do so, delibeations of holding that the docto-patient such as the cute Physiology and Chonic Health elationship is fiduciay in natue? Evaluation (PCHE) system, ae, in pactice, ^. ^.... Α fequently utilised moe as pat of a dischage Pessue on an intensivist fiduciay to be summay than at the bedside moment of decision- "loyal" to existing patients makings-futile" is also an inappopiate wod to ^ ^ k h h m wi a, t0 use within the heaing of elatives o fiends of a maxim se ^ ^ fo ^ ee often comes ET m JtLv mtm Cae Umt a time When a " a PP P iate investigations and *T L,. teatments have eithe been tied o consideed, yet pehaps the wost statement a docto can make ^ ent>s h iologica, state continues t0 wosen to a pat,ent o elat,ve.s at nothing moe can 0f shows m e pospect fo impovement. If at this be done. The ageement that cue is impossible * * ι J * * ι.... * Λ., a, * F^ii/i* moment the intensivist is asked to take on a should neve lead to withdawal of cae but to a > ι i^. ^- * u «,.~ ~,,.,?,, pofessional elationship with anothe citically ill diffeent fom of cae m which the goals ae 4- *, U Σ * * S... * **. * B? patient (say, with a bette pospect of suvival and alleviation of suffeing, povision of a quiet and f * *. * i * \ u. * * M...,-,, long-tem quality of life) who is competmg fo the dignified envionment and encouagement of *. Λ u C * Α I c vuiogviuwh vi scace esouces utilised by the fist, ethical 3I M McD Fishe and R F Rape, "Withdawing and 29 meican Thoacic Society, Medical Section of the meican Withholding Teatment in Intensive Cae" (1990) 153 MJ 222. Lung ssociation (1991) 144 m Rev Resp Dis 726. 32 GR Dunstan, "Had Questions in Intensive Cae" (1985) 40 30 R D Tuog, S Bett, J Fade, "The Poblem With Futility" naesthesia 479. (1992) 326 N Engl J Med 1560; T Raffin, "Withdawing Life "JM Luce, "Physicians Do Not Have a Responsibility to Suppot. How is the Decision Made?" (1995) 273 (9) JM Povide Futile o Uneasonable Cae if a Patient o Family 738. Insists" ( 1995) 23(4) Citical Cae Medicine 760 at 762. Febuay 1997 217"
questions of distibutive "justice" ae appopiately action, howeve, is moe difficult whee, as Been ν added to the clinical equation alongside "autonomy" Williams established, a docto's pimay duty is to (espect both patients' desie fo continued povide a "easonable" level of cae and skill in the teatment), "beneficience" (maximise each patient's giving of advice and teatment, athe than act with chances), and "non-malificence" (ty not to do "utmost good faith and loyalty". The concept of anything that will advesely affect eithe patient's what is medically "easonable" in such situations of outcome). competing patient inteests would pobably take s the United States Pesident's Commission fo into account esouce scacity and the poblematic the Study of the Ethical Poblems in Medicine and natue of outcome assessment. Biomedical and Behavioual Reseach stated: Rationing of the health cae budget is often "society may decide to limit the availability of achieved by stealth: cetain options fo cae in ode to advance "cost saving cuts in medical expenditue ae equity o the geneal welfae, but such policies quietly enacted and the pedictable consequences should not be applied initially o focefully to (viz: inceased advese patient outcomes) ae medical options that could sustain life." 34 blamed on the medical pofession o bueaucatic Teatment with no easonable chance of benefit and incompetence." 37 at the expense of "competing" patients, has neve The impact of such maco-economic medical been egaded as a patient "ight". To assign such a esouce decisions filtes down to intensivists fo ight to patients now would be stongly at odds with whom it fequently becomes a matte of tading ethical taditions elated to the integity of lives in pessued clinical delibeations. Thei medicine. "In addition, it would waste society's isolation at such times is compounded by the fact esouces at a time when esouces ae inceasingly that, apat fom time-consuming and often intusive scace and many lack access to beneficial (fom the point of view of patients and elatives) sevices." 35 Yet if a patient and docto ae viewed ecouse to clinical ethics committees o the couts, legally as having a "fiduciay" elationship, it thee is no clealy defined stuctue within which becomes inceasingly difficult fo an intensivist to conflicts ove esouce allocation in intensive cae withhold, withdaw o tansfe teatment fom a units can be consideed. Given such consideations, patient, especially one who equests it. 36 In the fine the capacity of intensivists to include issues of balancing pocess that is involved in such decisions, distibutive justice in thei decisions about an doctos who ae legally "fiduciaies" must lean individual patient would become impossibly moe towads continuing high-level cae fo an difficult wee they to be chaacteised as existing patient at whateve cost to "competing" "fiduciaies". Fo these easons, in detemining that patients. Legal pessue will mount to efuse to the docto-patient elationship was not fiduciay, the accept cae fo additional patients, howeve ill o High Cout "got it ight" in Been ν Williams. clinically in need of cae, who might conflict with.. this duty to an ealie patient. Doctos could be sued Oganisations fo Medicine and if a decision to allocate scace esouces to a patient the Law deemed clinically moe in need of them, led to a pooe outcome fo an existing patient. Such legal by David Ranson Ove the last few yeas thee has been a enewed» United States Pesident's Commission fo the Study of the ifueest in a c a d e m i c collaboation between membes Ethical Poblems in Medicine and Biomedical and Behavioual of the legal and medical pofessions in ustalia. Reseach, Deciding To Foego Life-sustaining Teatment Such collaboation can be seen at an undegaduate «33 v?o\. ~ «level in the establishment of joint medical and law N S Jecke, R Pealman, "Medical Futility Who Decides?" *- J * c J- ι ι (1992) 152 ch inten Med 1140. See also L McTuk, couses as well as m the mtoduction of medical law "Rational Resouce llocation: Ethical Pespectives" in N Pace options in both medical and law cuicula. In and Sheila M McLean (eds), Ethics and the Law in Intensive Cae (1996), ρ 171. addition, academics with a special inteest in 36 D M Batels, "Ethics Committees and Citical Cae: llies o dvesaies?" (1988) 1 Pespect Cit Cae 83. " Fishe and Rape, op cit η 31, at 218. 2 1 8 JOURNL OF LW ND MEDICINE - Volume 4
medical law have become established in faculties of in this aea is divided between fedeal and State law and medicine. govenments. Pofessional oganisations incopoating both How can this situation be esolved? The poblem medical and legal membes have long existed in is not new. Many oganisations both commecial many juisdictions but in the last few yeas a seies and non-commecial have addessed it with vaying of new oganisations with a focus on academic and degees of success. What is needed, in my opinion, pofessional activities has developed. These is a stuctue that ecognises and suppots the oganisations have taken a leading ole in exploing individual natue of the diffeent oganisations that the inteplay between medical and legal pactice. have made such a commitment to the aea of This has involved actively pomoting debate in the medical law. This stuctue, howeve, needs a aeas of medical ethics, health policy development, national body to assist with co-odination of legal pactice, justice policy development and activities and esouces in ode to maximise the community values with espect to law and impact these oganisations can have in policy medicine. development. Opeating fom an academic base, specialist Cuently the ustalian Institute of Health Law centes coveing the aea of medicine and law have and Ethics based at the Faculty of Law at the been established at Bond Univesity in Queensland, ustalian National Univesity has attacted at Monash Univesity and at Newcastle. These ustalia-wide inteest and epesentation. It centes ae encouaging debate on medical law pefoms a simila ole and function to many of the topics though publications, wokshops and oganisations in othe States. While I am not seminas. numbe of othe univesity depatments advocating that such a goup should fom a national in ustalia have also established stong medico- co-odinating body, a national co-odinating legal platfoms without ceating fomal secetaiat could do much to impove the pofile of administative stuctues. all these centes and oganisations. The polifeation of these goups and Two of the newe oganisations to aive on this oganisations is undestandable, given the inteest in scene povide contasting pespectives on these medical law that has aisen in ecent yeas. Changes developments. The fist of these oganisations is the in medical knowledge and technology combined Univesity of Sydney's Cente fo Values, Ethics with changes in health esouces and in the and the Law in Medicine and the othe is the newly economic base of health and welfae povision have established ustalian College of Legal Medicine, povided a stong stimulus fo such oganisations. Howeve, the numbe of these oganisations seems out of popotion to the need fo such activities. nalysis of thei activities eveals duplication of The Cente fo Values, Ethics and the topics at seminas and consideable ovelap in thei Law in Medicine consultancy oles. Given that these oganisations ae scatteed between a numbe of States, this The Cente fo Values, Ethics and the Law in duplication is undestandable. The logistics of Medicine held its inaugual meeting in Novembe caying on these debates on a national level only 1996. It is an academic oganisation established would be extemely difficult. Not only would such within the Depatment of Sugey at the Univesity centalisation limit the contibution to a few of the of Sydney. TTie cente compises individuals with moe mobile individuals but it might fail to take both expetise and inteest in health ethics and into account the vey eal diffeences in medical law health law. The pofessional medical base of the that exist between States. Equally it would be cente, togethe with the high level of legal idiculous to suggest that a eduction in the debate expetise available to it, povides a poweful foum on such issues would be in the community inteest. fo medico-legal debate. The cente intends to Howeve, a national focus on issues in medical law opeate as a souce of expet opinion and advice might have a poweful influence on health and within these aeas. Key aeas of medico-legal welfae policy development, paticulaly as policy debate such as infomed consent, autonomy and Febuay 1997 219"
peceptions of benefit fom medical teatment ae and welfae system that is lagely influence by just some of the issues it intends to eseach. economic factos. Paticipation and inclusion by t its inaugual meeting, the cente was fomally communities wee put fowad as "the moal opened by the Chancello of the Univesity of pespectives, the value efeents, fo especting Sydney and this was followed by a half-day semina human life and welfae". on equity in health cae. The speakes wee dawn D Robet Young, Reade at the School of Social fom the coe goup of individuals who compise and Policy Studies in Education at the Univesity of the main membeship of the cente. In addition, Sydney, pesented a pape entitled "Whose Pofesso Uffe Juul Jensen, the Pofesso of Opinions Count? The Poblems Of Consensus". He Philosophy at the Univesity of hus in Denmak, discussed the difficulties of achieving consensus was invited to contibute to the semina in view of acoss diffeent cultual goups and the impotance his extensive academic backgound in the of communicative ethics in this aea, philosophy of medicine. In what must be consideed Ms Julie Hamblin, a solicito at Ebswoth & an unusual step fo a govenment, Pofesso Jensen Ebswoth, in he pape "Let's Make it Legal: chais a ministeial advisoy goup which has been Moality and the Law", addessed the difficulty establish by the Danish govenment to povide faced by the law in dealing with medical ethical philosophical advice on health cae policy. issues. The poblem of the law being focused on The semina commenced with a talk fom the addessing individual disputes and on blame Diecto of the Cente, Emeitus Pofesso Miles detemination was discussed. Little, entitled "Ethics and the Definition of....,., MI iw. *» ^- jj J * u u- Law may be moally based but its punitive L J Pofessionalism. This addessed the basis of the Α. Α ι ι.., powes emove issues fom the puely moal c notion of doctos as pofessionals and sought to *, J * π T J. * «ι- * J»» u domain. Indeed, the existence of laws may ceate define the natue of the implicit pledge" that,.,,. -. j-,. moal poblems by imposing legal equiements +u undepins the wok of the medical pactitione.......jl *, i l,. * j. «.. on individuals with stong moal convictions. Issues elating to post-modenist appoaches to medical ethics and the elationship between Pofesso Uffe Juul Jensen pesented a pape pofessional codes of pactice and the law wee also entitled "Can't We Talk It Ove? Discouse, discussed. Postmodenism nd Community". He focused on Pofesso Gavin Mooney, fom the Depatment the issues suounding consultation with of Public Health and Community Medicine at the communities and the poblems of minoity and Univesity of Sydney, pesented a pape entitled finge community paticipation. He agued that the "How Much is You Health Woth? The Economic cuent concen egading the peceived Backgound". Emphasising that economics as a deteioation of public moals was, in fact, a discipline is founded on the pinciple that esouces eflection of the weakening of state agency ae always scace, he addessed the issue that stuctues that povided the community with a base cuent health sevice planning and policy making is fom which to expess and maintain ethical and "bedevilled by the unwillingness of decision makes moal standads. He agued fo a ehabilitation of to face up to the fact that they do and must wok politics to give it social cedibility and to empowe with values". He distinguished between two types it as a peceived souce of social good, of equitable esouce allocation: hoizontal equity.. _ «**.. (the equal teatment of equals) and vetical equity ustalian College of Legal Medicine (the unequal but equitable teatment of unequals) The newly fomed ustalian College of Legal and the conflict that this can epesent to both Medicine was established in Sydney on 11 medical pactice and the law. Novembe 1995. It is a pofessional medical body D Rob Simons, the manage of pofessional epesenting doctos specialising in medical law and education taining at the New South Wales State i ega i medicine pactice. It has been stuctued to Cance Council, spoke on "What Cuency Values povide a simila pofessional base to that povided Human Life and Welfae?" He discussed the way in by the Royal Medical Colleges that contol the which moal pespectives can have value in a health 2 2 0 JOURNL OF LW ND MEDICINE - Volume 4
specialist disciplines in medicine. The College owes membes this must be with eithe a State o its existence to the gowing ealisation that Teitoy boad. pofessionals with combined medical and legal They must have a bona fide inteest in the qualification ae pactising in an expanding medical ustalian College of Legal Medicine, and be and legal wok envionment. Cuently the College pepaed to suppot its aims and philosophies in accommodates seveal goups of pactitiones most addition to playing an active ole in the of whom ae qualified in both law and medicine. development and pomotion of the college. The goups include individuals who pactise Enty fo all pesons to the College is initially at the pedominantly in the field of medical law, medico- level of associate membe. legal health evaluation and clinical foensic XJ 16 advancement fom associate membe to full medicine. Both law and medicine pactitiones ae membe status equies possession of an appopiate epesented as well as academics in the disciplines (medical) gaduate qualification in law, and the post of law and medicine. Some of the mateial fom the completion of a satisfactoy peiod of supevised College's handbook is set out below in ode to taining. n appopiate post-gaduate qualification descibe its stuctue and aims. Howeve, this is i at Λ ί δ evel of membeship includes a elevant only a summay and the College should be diploma petinent to both medicine and the law, o contacted fo full details of its opeations. medical juispudence. The College's stated aims ae: _ ^. ι ι * «~~~~^+ n Λ. ι u -. J J i M -. Fellow status is the next level of advancement,. the goupuig of legally onentated and sk.lled ^ ^ ^ ^ wh ch ^ CoUege pesent, y medical pact.t.ones; ecognises. Fellow of the ustalian College of. the cla,m.ng and developing of * own * ^ ^ sed M a s ahst ^ pafcula body of knowledge,,ncludmg the ^, Med cíne ^ ^ Fe, ows wi eseaching of aspects petinent to this, and the, 6.., ^^ΜΙΛ Α ^ 0 ^, \ ' have completed a pogamme of appoved and maintenance of standads;.., τ... * Γ. c j j, -. appopiate supevised taining extending ove a the giving of advice and speaking on topics of.... " 6 F ft ÄJ- ι,. j... minimum peiod of six yeas afte medical me ico- ega impo ance,... gaduation. In addition, they will have gained an the acting as a esouce body fo both the *,.., ι: Λ^; «~ Λ Λ,.. & J,.. appoved elevant extenal qualification o medical and legal pofessions;,^- ι J n 1 J i -.. ι qualifications m law and will have passed an the acting as medical investigatos, lectues, ^..,....., ΓΑ1 J J * j ^. : / examination conducted by the College, advocates, adjudicatos and stategists; the acting as a suppot oganisation fo its P* TSOn admitted to Fellow status will be membes and fo the medical pofession in ^ ^η ω a F e l, o w o f Λ β ustalian College of geneal. Le g al Medicine, and will be entitled to use the Thee ae two main aeas of medical pactice abbeviation FCLM to signify his o he specialist elevant to the new College: fist, the aea of status. medical and health law and elated mattes, and The intoduction of fomal pofessional secondly, the aea of medical juispudence which qualifications in the field of medical law is a incopoates clinical foensic medicine. unusual and potentially contovesial development ll pesons seeking enty to the ustalian and yet it is one that fulfils a ecognised need. How College of Legal Medicine must confom to the the College will deal with the diffeing ethical following citeia: situations that can exist between medical and law They must be egisteed medical pactitiones. pactice emains to be seen. Howeve, the This egistation must be with an appopiate contibution that these pactitiones can make to medical licensing boad, and fo ustalian medico-legal debate is potentially vey geat. Febuay 1997 221