A Short History of British Medical Ethics E-Book

Andreas-Holger Maehle

• Herausgeber: WS
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 235

Veröffentlichungsjahr: 2022

Beschreibung

We all rely on doctors and they go through one of the most vigorous training regimes on the planet, but it wasn't always this way.
The tremendous scale of medical ethics which now exists has benefited doctors and wider society, but few know how these rules came to be.
Andreas-Holger Maehle, Professor of History of Medicine and Medical Ethics at Durham University's Department of Philosophy, Centre for the History of Medicine and Disease, and Wolfson Research Institute, has written this engaging and often riveting history of British medical ethics.
From communication with patients all the way through to hard moral choices, this book will provoke debate amongst doctors, nurses, lawyers, academics and other interested people all around the world.

Leseprobe

A Short History of British Medical Ethics

Andreas-Holger Maehle

Copyright © Andreas-Holger Maehle 2021.

The author’s moral rights have been asserted.

All rights reserved. No part of this publication may be reproduced, stored in or introduced into a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission from the publisher.

Published in 2021 by Ockham Publishing in the United Kingdom

ISBN: 978-1-83919-084-1

Cover design by Claire Wood

www.ockham-publishing.com

Contents

Preface

Chapter 1

Medical Ethics and the General Medical Council

Chapter 2

Doctor–Patient Communication and the Questions of Consent and Truth

Chapter 3

Writing about Medical Ethics: From John Gregory to Robert Saundby

Chapter 4

Craniotomy or Caesarean Section? An Ethical Issue in the Practice of Obstetrics

Chapter 5

Should a Doctor Tell? Conflicts over Confidentiality in Abortion and Venereal Diseases

Select Bibliography

Acknowledgements

Preface

In the context of current bioethics, the traditional ethics of doctors is often seen as dominated by etiquette and concern for professional interests rather than patient interests. In this short book I attempt to show that this assessment is wrong. Exploring medical ethics in Britain from the late eighteenth to the early twentieth century, i.e. the period in which the modern medical profession was formed, I illustrate how the doctors of this period faced difficult issues of medical practice. In making judgements about their options and actions, not only concerns about professional reputation but also about patients’ welfare and the public good played an important role. I invite readers to make a brief tour with me through several key areas in the history of medical ethics to prove this point.

In the first chapter I discuss disciplinary actions of the General Medical Council, the regulatory body for medical practitioners in Britain, arguing that we can learn about ethical standards of the profession by analysing how it dealt with cases of (alleged) misconduct. Studying a range of controversial behaviours, from matters of personal and sexual conduct to professional issues such as medical advertising and the ‘covering’ of unqualified assistants, I demonstrate that the protection of patients and of a wider public interest in responsible medical practice were essential considerations in the GMC’s disciplinary proceedings. Chapter 2 focuses on nineteenth-century doctor–patient relations, especially the questions to what extent doctors sought their patients’ consent to treatments and how well patients were informed by their medical attendants. I do this through the discussion of a legal case from the 1890s, in which a doctor was accused by his patient of having removed her ovaries without valid consent. Issues of gender, professional ethics, and law, as well as the historical development of gynaecological surgery, came into this particular case, but in more general terms I describe how doctors’ paternalistic attitudes and their tradition of restricted truth-telling in the patient’s presumed interest had become a problem by the turn of the twentieth century.

Widening the perspective again, I review in the third chapter the key works of British medical ethics from the 1770s to the early 1900s, so that readers can appreciate what the authors of this period themselves thought to be the most important ethical issues and what conceptions of a good medical practitioner they developed. The relationships between professional subgroups, i.e. between physicians, surgeons, and apothecaries, and later between specialist consultants and general practitioners, took much space here, but so did a broad range of patient-related matters, including compassion, confidentiality, mutual trust and obligations, clinical experimentation, and doctors’ continuing duty to the dying and their families. In the fourth and fifth chapters, I turn to situations in which nineteenth-century medical practitioners had to make hard moral choices. Chapter 4 examines how they dealt with desperate cases of severely obstructed labour where the baby could neither be delivered manually nor by using the forceps. Practitioners then had to decide whether they should sacrifice the life of the unborn child through craniotomy in the hope of saving the mother, or risk the woman’s life in daring to perform a Caesarean section, which then had a very high mortality rate. Other moral choices, discussed in chapter 5, concerned confidentiality in cases of illegal abortion and venereal diseases. Here I show how doctors grappled with the question of disclosure without the patient’s consent in the interest of the public or a third party. They had to balance their commitment to the individual patient, which called for strict confidentiality, with wider legal and social expectations of their role, which might include reporting a case of criminal abortion to the police, especially if the woman was dying from the intervention, or warning contact persons of patients infected with a venereal disease. I also discuss here doctors’ situations as witnesses in court when they were required to reveal private information about their patients.

History of medical ethics involves not just analysing past problems but also giving voice to the authors of the time and re-thinking practitioners’ controversial cases. It is in this way that we can begin to perceive in fairness past doctors’ conduct and ethical choices. I hope that readers will find this exploration an exciting subject as well as helpful in gaining a historical perspective on doctors’ ethics.

Andreas-Holger Maehle

Durham University, September 2019

Chapter 1

Medical Ethics and the General Medical Council

Introduction1

Medical ethics in Britain during the long nineteenth century tends to have a bad name among scholars. Jeffrey Berlant and Ivan Waddington have claimed that doctors’ ethics in that period were self-serving, aiming more at supporting the interests of the profession than at protecting patients. In particular they have suggested that regular doctors used ethics as a strategy to demarcate themselves from unlicensed and unorthodox practitioners and as an instrument to mitigate competition within their profession by focusing on rules for maintaining smooth intra-professional relationships between physicians, surgeons and apothecaries, and between consultants and general practitioners. Furthermore, medical ethics was characterised as a trust-inducing device vis-à-vis the public and as a tool for monopolisation of the healthcare market.2 In addition, bioethicists Laurence McCullough and Robert Veatch have suggested that after promising beginnings in the late eighteenth century, British medical ethics lost its way: while the well-known lectures of Edinburgh professor of medicine John Gregory on the duties and qualifications of a physician of 1772 had been influenced by contemporary Scottish Common Sense philosophy, so the argument goes, subsequent writers on medical ethics got too much embroiled in intra-professional issues and lost the connection with moral philosophy.3

Only occasionally this negative picture of medical ethics in the long nineteenth century has been qualified in some respects. For example, reinterpreting Thomas Percival’s influential text Medical Ethics of 1803, which had been blamed, since Chauncey Leake’s edition of 1927, for having promoted an intra-professional focus over attention to doctor–patient relations, Robert Baker has identified elements in it that seem to reflect contemporary social contract theory.4 Duncan Wilson has recently highlighted English physician Jukes Styrap, author of a late nineteenth-century code of medical ethics, as an example of a writer who emphasised a link between professional and public interest by arguing that patients were best served by trusting a unified medical profession that was clearly distinct from ‘tradesmen and quacks’.5 Similarly, Andrew Morrice found that doctors involved in the ethical work of the British Medical Association during the early twentieth century described professional interests and public interests as interlinked.6

Moreover, Roger Cooter has suggested that one should not adopt unreservedly Berlant’s and Waddington’s characterisations of the historical medical profession, because at the time of their writing, in the 1970s and early 1980s, the emergence of an apparently lay-driven bioethics would have stimulated them to focus on, and criticize, the self-interested features of the professional ethics of medical men.7Historical accounts of the rise of bioethics during the second half of the twentieth century, especially by the field’s pioneers, have indeed emphasised the role of non-medical protagonists, such as theologians, philosophers and lawyers, who were keen to put patient and public interests into the foreground of debates on ethics in medicine.8 Bioethicists who wished to demarcate the ‘old’ medical ethics from their ‘new’ interdisciplinary ethics may have unwittingly distorted historical perspectives by paying too little attention to the patient-related aspects of doctors’ traditional ethics.9

Going beyond these qualifications and criticisms of the traditional view of nineteenth-century medical ethics, I seek to further challenge it by looking, in this chapter, into evidence for the contemporary practice of medical ethics (rather than just its normative texts) within a state-authorised system for the control of doctors’ conduct in the United Kingdom.10To what extent did nineteenth-century medical ethics, as a practice, support interests of patients and the public at large? What was the relationship between professional interests and patients’ interests? My focus here is the disciplinary function of the General Council of Medical Education and Registration (nowadays known as the General Medical Council or GMC), which was established through an Act of Parliament in 1858. As historian Michael Roberts has shown in his analysis of the genesis of this Act, three major factors contributed to this piece of medical reform: a drive towards professional representation from the rising group of general practitioners at a time when the old tripartite structure distinguishing physicians, surgeons and apothecaries was becoming dysfunctional; a public interest in ensuring competency and honourable behaviour of medical practitioners, a task which traditionally lay in the hands of the medical corporations (royal colleges); and the state’s interest in qualified medical service in public health and in the workhouses for the able-bodied poor which had been established with the Poor Law Amendment Act 1834.11 Besides its role in monitoring standards of medical education, the General Council was given the task to maintain a Register of practitioners holding officially recognised medical qualifications. As a corollary to this latter function the Council was authorised to erase the names of those from the Register who had been wrongly placed on it; who had been convicted by a court of a misdemeanour (offence) or felony (crime); or who had been found guilty by the Council of ‘infamous conduct in any professional respect’.12 Drawing upon the Minutes of the General Council of Medical Education and Registration for the years 1859 to 1914, I argue that the disciplinary cases can give us a clue to contemporary standards of medical professional ethics.13

During this period the GMC dealt with over 400 such cases.14 Legal and quantitative analysis of the GMC’s cases from 1859 up to 1990 by Russell G. Smith has led to the criticism that the Council sometimes disciplined medical practitioners before giving them specific ethical guidance on the issue concerned.15 However, the disciplinary cases, when read in greater detail and in their specific contexts, do reveal the ‘ethical compass’ of the Council’s physicians and surgeons who had been invested with the state’s authority to decide on the professional fate of other medical practitioners. Referring to a variety of cases, ranging from fraudulent registration, sexual misconduct, and breach of confidence to alleged negligence in post-mortem examination, covering of unqualified assistants, and advertising, I suggest that the medical men of the General Council tried to implement values that lay in patients’ as well as doctors’ interests.

The General Medical Council and its Register

Before going into specific cases, we need to clarify who the members of the GMC were that sat in judgement over their colleagues. Initially, the Council comprised twenty-four members: nine represented the medical Royal Colleges of London, Edinburgh, Glasgow and Dublin, the Society of Apothecaries in London, and the Apothecaries’ Hall in Dublin; seven represented the four English and three Irish universities and two the four Scottish universities; and six were nominated by the Queen on the advice of her Privy Council. All members were medically qualified men and can be seen as representing the professional establishment of the time.16Only after a new Medical Act in 1886, five additional members were directly elected by the registered medical practitioners of the United Kingdom, a step which reflected the increased importance of general practice at that time.17It also then became a requirement for registration that practitioners had certified proficiency in all the three main branches, ‘medicine, surgery and midwifery’, rather than just in medicine and/or surgery.18 In the period that I am looking at, 1858 to 1914, the General Medical Council had nine Presidents – eminent physicians or surgeons, from Sir Benjamin Brodie (term of office 1858–1860) to Sir Donald MacAlister (term of office 1904–1931).19By the early twentieth century, the Crown and the universities could appoint laymen to the Council, but did not choose to do so until 1926. From the 1880s, however, it became customary that the Council’s solicitor and a barrister, as Legal Assessor, were present during disciplinary proceedings, and the accused medical practitioners also brought (or sent) their defence lawyers. The disciplinary proceedings thus adopted a format that was similar to court proceedings.20Britain was not alone in institutionalising medical discipline in this quasi-legal manner; Prussia, for example, legally introduced so-called medical courts of honour for this purpose in 1899.21

The preamble of the 1858 Medical Act stated that its purpose was to enable ‘persons requiring medical aid […] to distinguish qualified from unqualified practitioners’.22That was in essence the function of the Medical Register, on which only those practitioners who held a recognised qualification from one of the above-mentioned licensing institutions represented on the Council, or who had been practising medicine in 1815 were admitted. In 1859, almost 15,000 names were on this register, and the number increased to about 23,000 by 1880, and c. 50,000 by 1924.23 Being unregistered, however, did not prevent someone from practising medicine. Registration was only required for fulfilling official functions, such as issuing a death certificate, or for holding positions in public employment, e.g. serving as a medical officer or practising under the 1911 National Health Insurance scheme. Also, only registered practitioners were entitled to sue in the courts for their fees.24 Nevertheless, the prestige and professional legitimacy that registration brought are not only reflected in the rising numbers of registered practitioners but also in disciplinary cases in which practitioners erased from the Register keenly sought to have their names restored. For example, Leeds doctor Henry Arthur Allbutt, who had been struck off in 1887 for publishing a booklet including contraceptive advice which was considered detrimental to ‘public morals’, took the General Council to court to have his name placed back on the Register and to seek damages for libel.25Other practitioners wrote to the Council with long apologies or detailed justifications of the conduct that had led to erasure of their names, hoping to have them restored.26

Examples of Disciplinary Cases and their Interpretation

It is therefore unsurprising that a series of early disciplinary cases were concerned with fraudulent registration, i.e. with practitioners who falsely declared to have a registrable qualification or tried to obtain one by fraud. If the Council found practitioners guilty of such an offence, they were erased from the Register.27While these decisions were recorded without much comment one can safely assume that the Council aimed to fulfil here its task of enabling the public to identify qualified practitioners. One might, of course, also take the more sceptical line of interpreting those erasures as a process of professional boundary demarcation from the ‘unqualified’, carried out in the economic interest of the ‘qualified’ practitioners. The issue of fraud in medical titles was as such not new: already in the early 1850s there had been complaints about this matter in connection with the publication of the (unofficial) British Medical Directory.28

It would be rash, however, to view the early disciplinary cases simply as expressions of professional self-interest. In 1873, for example, the Council erased a medical doctor from the Register because of sexual relations with a female patient. The initial complaint, that he had ‘seduced and carnally known’ her, had been made by the patient’s uncle, a solicitor.29The doctor’s petition, two years later, to have his name restored to the Register was rejected, as was his further request to this effect in the following year.30 Only at the third attempt, after a total of eleven years, was his named restored.31This was a typical case of ‘infamous conduct in a professional respect’ that constituted a violation of moral standards of the medical profession in relation to patients. The rule against sexual relations with patients had already been part of the Hippocratic Oath.32 It was also behind the vow to practise ‘chastely’ in Edinburgh University’s Medical Oath, which had been sworn since the early 1730s.33 In the moralistic climate of the nineteenth century the rule aimed both at protecting patients and at preventing reputational damage to the profession.34 Seen in this light it is understandable that the GMC in this disciplinary case repeatedly rejected the doctor’s application to restore his name to the Register – taking a firm line in a matter like this protected the GMC’s own reputation.

Another early GMC case concerned medical confidentiality – a rule likewise mentioned in the Hippocratic Oath, but also in nineteenth-century British works on medical deontology, such as Percival’s Medical Ethics and Michael Ryan’s A Manual of Medical Jurisprudence.35This case concerned a medical doctor, John Pattison, who had qualified in New York but was practising in London. In 1868, he had accused the husband of a patient with breast cancer of ‘stubbornness’, because he had refused to follow the doctor’s advice to take her after local treatment of the tumour for recuperation to the south of France over the winter months. Instead, the husband eventually took her at the end of January to the seaside at Hastings, where she died a few days later. The doctor was further aggrieved by the fact that the husband refused to pay the full bill for numerous home visits to the sick wife, and he warned the husband in writing that he was going to publish the circumstances and details of the case in a medical book.36 When the husband returned the doctor’s letters, which included accusations of ‘shabby conduct’, to the dead letter office, Pattison sent them by open post, so that they could be read by anyone, and threatened that he would next time write them on cardboard and send them to the husband’s club. The husband, Charles Hay Frewen, a Royal sheriff and former Member of Parliament, took the doctor to court for libel and breach of the peace.37 At the second court hearing Pattison apologised through his lawyer to Frewen and assured to have his book published without including the case history concerned. Frewen’s lawyer then withdrew the charges, so that the court, somewhat reluctantly, dismissed the case.38However, the General Medical Council, on learning about this court case from newspaper reports, decided to hold its own inquiry into the matter, found Pattison guilty of infamous conduct in a professional respect and erased his name in 1869 from the Register. His petition in 1871 to have his name restored was rejected by the Council.39 The sparse GMC Minutes unfortunately give us no information about the Council’s reasoning behind their decisions. However, it is clear that the deontological literature, in particular Percival and Ryan, had described unauthorised disclosures as unethical. As Ryan had put it in 1836:

The confidence reposed in him [i.e. the medical practitioner], and revelations made to him, during his professional attendance, are such that honour commands him not to abuse the one, or publish the other, unless in our courts of justice, which have the power to compel him. […] such secrets are not to be divulged without the greatest necessity […].40

Russell Smith has identified Pattison’s case as the GMC’s first disciplinary case on medical confidentiality, and deplores that the GMC began to publish guidance on this topic only over a hundred years later.41However, it is quite clear from the context of the case that the Council acted on a contemporary, professional as well as public expectation about the requirements of discreet behaviour in a doctor and enforced this social expectation through its decisions. In 1851, the Scottish Court of Sessions case of A.B. v. C.D., in which a doctor was accused of having disclosed sensitive family information of the plaintiff to the minister of his parish, had established that the relationship between medical adviser and the person consulting him implied an obligation of secrecy that, if violated, could give proper grounds for legal action. Only in a court of law doctors were expected, and compelled, to testify concerning patient details.42

In Pattison’s case, then, the GMC acted on the supposed interests of the patient and her husband’s demand of medical secrecy. These interests were apparently not in conflict with professional interests which were concerned about the public reputation of medical practitioners.

Another case indicated, however, the limits of the GMC’s disciplinary role. In April 1881, the King and Queen’s College of Physicians in Ireland sent a complaint about Richard Albert Shipman Prosser, a Member of the Royal College of Surgeons of England and Licentiate of the Society of Apothecaries in London, to the General Medical Council. Prosser had sworn in a coroner’s court that he had performed a post-mortem examination on a female patient’s body, in which he examined the kidneys and all other abdominal viscera, and found the kidneys healthy. On the basis of this examination, he had accused the medical practitioner who had treated the patient of having caused her death by negligence. On this evidence the practitioner concerned, Edward Hyacinth O’Leary, a Licentiate of the King and Queen’s College of Physicians, had been charged with manslaughter and imprisoned. A second post-mortem examination by two other medical practitioners then showed, however, that the kidneys had not been removed from their place during the autopsy and that the other abdominal organs also appeared to have been incompletely examined. Following this information the manslaughter charge against O’Leary was dropped, and he was released from prison. King and Queen’s College held that Prosser’s behaviour amounted to infamous conduct in a professional respect and asked the GMC to erase his name from the Register.43So in this case, Prosser, who had made the accusation of negligence about a fellow-practitioner, was himself suspected of having been negligent, namely in his post-mortem examination, with the serious consequence that the practitioner accused by him had been indicted with manslaughter and arrested.44

The initial response of the GMC Branch Council for England, which first looked at the complaint, was that this case did not seem to be one in which the Council could ‘usefully take action’. King and Queen’s College, dissatisfied with this reply, repeated its complaint in May 1881. The Branch Council was still unwilling to take the matter further, seeing it as a case of ‘conflicting evidence’ and noting that no legal action had been taken against Prosser for perjury. However, the central General Medical Council decided that the Branch Council should inquire further into Prosser’s conduct in this case.45Having obtained and considered their solicitor’s report on the case and having consulted with the General Council’s solicitor, the Branch Council concluded eventually, in March 1883, nearly two years after the initial complaint, that there were no grounds for finding Prosser guilty of infamous conduct in a professional respect.46In spite of the intervention of two GMC members, who wanted to see the report of the second post-mortem examination, the General Medical Council agreed with this conclusion the following month.47

Apart from throwing a light on the power relations between a royal college, the General Medical Council and one of its branch councils, the Prosser case illustrates the difficulties the GMC had early on in forming an opinion on the quality of medical performance. The reference to ‘conflicting evidence’ is quite revealing in this regard. In the end, the GMC followed the legal assessments of its solicitors, which in turn were informed by the decisions of the general courts involved. It summoned neither Prosser nor O’Leary to hear them directly about their sides of the case, whereas it had summoned the accused practitioners in the sexual misconduct and breach of confidentiality cases mentioned above. So how did the early GMC then address its task of protecting the public against poorly performing medical practitioners, as distinct from practitioners whose moral conduct was questionable?

Two Major Issues: Covering Unqualified Assistants and Medical Advertising

As the mentioned cases on fraudulent registration indicate, the GMC’s approach focused on medical qualifications, and in fact the related matter of covering unqualified assistants became a key issue in the late nineteenth century. The problem was, in short, that some qualified medical men, who ran large practices, employed unqualified assistants (that is, assistants without a registrable qualification) and allowed them to do unsupervised work which was supposed only to be carried out by a qualified medical practitioner. Such assistants sometimes gave the wrong impression to patients that they were regular doctors.48 A GMC Committee looking into substantial evidence on this issue concluded in 1883 that the system of employing unqualified assistants was widespread in England and Wales, especially in general practice for the large mining and manufacturing populations. The Committee expressed concern that this system was blocking employment opportunities and earnings for qualified assistants. But above all it saw the system as ‘fraud on the public’, comparable to the public offence of lawyers who covered persons falsely pretending to be a solicitor or attorney, which was punishable with withdrawal of the lawyer’s practising license and a prison sentence for the unqualified person. The qualified medical practitioners who covered an unqualified assistant, for example by signing medical or death certificates on patients they had not seen themselves, were held to be guilty of ‘infamous conduct’. Their behaviour frustrated the fundamental principle of the 1858 Medical Act that it should enable the public to distinguish between qualified and unqualified practitioners.49 So, in this matter the GMC aimed to protect the public against incompetent treatment, though not by control of performance but indirectly by control of medical employment. It acted here in the interest of the public, while simultaneously supporting the employment opportunities for junior qualified practitioners.

The Committee’s recommendation to discipline practitioners who covered unqualified assistants was adopted by the GMC, which decided to publish a warning on this issue in the same year, 1883.50 This was the first of the GMC’s official Warning Notices, which specified types of behaviour that might lead to a disciplinary inquiry and erasure from the Register.51 Numerous charges of covering unqualified assistants were heard by the GMC until this type of disciplinary offence became less frequent in the years after 1900.52A particularly prominent case of this kind was that of Dr Walter Day and Mr William Davenport in 1886. It had been reported by the Deputy Coroner for Westminster, Athelstan Braxton Hicks, to the Secretary of State for the Home Department, before the latter forwarded the material to the GMC, asking the Council to deal with it ‘as the practice of employing unqualified practitioners as assistants by medical men is very common, especially by medical men presiding over dispensaries’.53