Professor Deirdre Madden:

I thank the committee very much for the invitation to address it this morning. I have been asked to focus on how medical ethics should play a part in developing law in this area so I will start by speaking briefly about medical ethics in general.

Medical ethics, as I see them, are the normative consideration of ethical issues in medical practice. They seek to establish the rightness or wrongness of an action within a framework of agreed values. Medical ethics are vital to the practice of medicine and thus to any understanding of medical law for several reasons. The first is because medical practitioners have traditionally looked for guidance in their decision-making to ethics rather than law. There are certain areas that the law leaves to the medical profession to regulate, and thus reflect the corporate morality of the profession. At a practical level and to assist doctors, professional guidelines are produced by medical regulatory bodies to ensure the conduct of doctors towards their patients and colleagues meets certain agreed standards. Many professional bodies use a principles-based approach, which is based on respect for autonomy, beneficence, non-maleficence and justice.

Some legal principles have been influenced by the evolution of ethical principles – for example, the law of consent to and refusal of medical treatment is based on the principle of respect for autonomy. Some areas of medical law are relatively undeveloped, with sparse legislation and few judicial precedents. Although the judicial function is not to be an arbiter of different ethical perspectives, such perspectives nonetheless inform public debate and academic literature on medical law.

When issues are defined as "ethical" in the medical context, we sometimes think that there is a coherent set of governing principles and a mechanism within the medical profession that enforces adherence to them. However, the fact that we can identify an ethical element to a situation does not necessarily mean that it is appropriate to consider the decision to be best made by professional bodies. As clinicians, doctors have no unique competence in the resolution of ethical issues - medical ethics is not a matter solely within the jurisdiction of the medical profession. Although the medical profession can tell us about a patient's condition and prognosis and about the probable consequences of certain kinds of treatment or care, the question of whether it would be lawful to provide or withhold the treatment or care is a matter for the law.

As Chief Justice O'Donnell said recently in relation to a surrogacy case, "a mature society should be in a position to formulate its own policy on the many ethical and moral issues that the developments in science present". That of course is the task of this committee, namely, how to formulate an appropriate and proportionate response to a difficult policy issue. If we were to take the view that what is acceptable in society is determined by ethics rather than law, not only would this be democratically problematic, but we would also have to decide whose ethics to adopt. The law reflects the public conscience, as enacted through our democratic process set out in the Constitution. All citizens, be they medical professionals or not, must operate within these broadly stated legal rules, as provided for in legislation, but how should we decide what that public conscience is or what if societal norms are incompatible or public conscience is divided? There is no formula for reconciling this conflict of principles and no easy answer.

Law is one of the things that shapes behaviour in individuals. For example, if the law makes stipulations about consent for medical procedures, it becomes more likely that gaining consent will become standard behaviour because what goes for individuals is likely to go at least as far for professions. That is because professions are constituted by individuals. If law can make a difference to the standards and patterns of behaviour of individuals, that difference will be predictably aggregated when those individuals are aggregated. Since the ethos of the medical community is inseparable from the collective ethos of those medical professionals that constitute it, there is an expectation that whatever difference the law makes to the habitual behaviour of those individual professionals will filter up to the profession. On this basis, we can see how professional medical ethics is shaped by the law of the land.

Law also shapes professional character actively. Professions and their members enjoy a certain social status and privilege.

Medical practitioners can dispense drugs and perform surgery. The Medical Council, which is the professional regulatory body for doctors, has the power through registration to authorise individuals to do these things. The trade-off is that the ethos of the profession is both directly and indirectly shaped by the law.

I will return to the question of how medical ethics should play a part in developing law. We need to avoid a philosophical pass-the-parcel, with law passing the buck to ethics, and ethics handing it back again. In a democratic society, law must take precedence for several reasons. First, the law has in place structure and procedures for the detailed examination and adjudication of difficult and often controversial questions. Second, regulatory codes of professional bodies are often intelligent, thoughtful and useful documents, compiled after wide consultation. However, they cannot have the same sort of credibility as an Act of the Oireachtas or a judicial decision. Third, regulatory bodies may have their own internal politics or sometimes unspoken ethical presumptions. Fourth, the law has the advantage of having to decide. That is often uncomfortable but it produces a quality of thought that is absent when one simply has to say what principles might apply in the abstract. Finally, the law has a decisive advantage, which is power. It has the authority to decide, and the obligation to do so.

To conclude, the process currently being undertaken by this committee is designed to be a balanced, reflective, open and inclusive process, which will enable members to appropriately consider ethical, medical, legal and patient advocacy perspectives in reaching conclusions as to the best way forward. Medical ethics certainly has a role and a voice along with all these other perspectives, but it should not be determinative of public policy in this area. I thank the committee, and I am happy to answer any questions.