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The issues raised by Medicine, Ethics and Law are many, varied and perplexing. Clinical practice presents such a vast range of unpredictable circumstances that even a practitioner who is well founded in ethics and law will commonly encounter situations that present new challenges.
On this basis, the third edition of Prof Deirdre Madden’s Medicine, Ethics and the Law is greatly to be welcomed. The author, a Professor of Law in University College Cork and a former member of the Medical Council, outlines in the preface that much has changed in Irish society since the last edition of this book (2011), with, not least, the advents of the Children and Family Relationships Act, Marriage Equality Referendum and Assisted Decision-Making (Capacity) Act. While some of these matters are still works in progress, there is already an urgent need for further guidance on their likely implications for medical practice. This book is especially valuable and timely as a result.
Prof Madden commences with useful summaries of the ‘Provision of Healthcare in Ireland’ and ‘Regulation of Medical Practice’, the latter including explanations of the structure and processes of the Medical Council. ‘Protection of Personal Health Information’ is explored next, followed by chapters on topics of perennial controversy: ‘Assisted Reproduction’, ‘Artificial Insemination and Egg Donation’, ‘In Vitro Fertilisation’ and ‘Surrogacy’. Throughout these discussions, Prof Madden is clear, factual and pragmatic.
This approach stands in welcome contrast to much public discussion of these topics, which is often poorly informed and generally unhelpful.
I am especially pleased to see a chapter devoted to ‘Capacity and Assisted Decision-Making’, including the Assisted Decision-Making (Capacity) Act 2015. On 30 December 2015, the long-awaited 2015 Act was signed by President Michael D Higgins, with commencement scheduled to start in 2016. The 2015 Act is designed to replace the outdated Ward of Court system by which, under the Lunacy Regulation (Ireland) Act 1871, the wardship court gained jurisdiction over all matters in relation to the ‘person and estate’ of an individual who is deemed to lack mental capacity. In addition, the ward of court framework did not adequately define ‘capacity’; was poorly responsive to changes in capacity; made unwieldy provision for appointing decision-makers; and had insufficient provision for review.
The 2015 Act places the ‘will and preferences’ of persons with impaired mental capacity at the heart of all decision-making in relation to ‘personal welfare’ (including healthcare) and ‘property and affairs’. Capacity is to be ‘construed functionally’ (ie, it is time-specific and decision-specific) and all interventions must be ‘in good faith and for the benefit of the relevant person’. The Act outlines three levels of supported decision-making: ‘decision-making assistant’, ‘co-decision-maker’ (joint decision-making) and ‘decision-making representative’ (substitute decision-making).
There are also procedures relating to ‘enduring powers of attorney’ and ‘advance healthcare directives’; under the latter, a ‘refusal of treatment’ can be legally binding, while a ‘request for a specific treatment’ must ‘be taken into consideration’. If the person’s treatment is regulated under Part 4 the Mental Health Act 2001 (ie, the person is detained or ‘is the subject of a conditional discharge order’ under Section 13A of the Criminal Law (Insanity) Act 2006), the advance healthcare directive is not legally binding, except ‘where a refusal of treatment’ relates ‘to the treatment of a physical illness not related to the amelioration of a mental disorder’, in which case ‘the refusal shall be complied with’. The person can appoint ‘a designated healthcare representative’ to help interpret an advance healthcare directive.
Overall, the 2015 Act reflects a significant advance in placing the ‘will and preferences’ of the person at the heart of decision-making. This development is long overdue and increases Ireland’s compliance with the United Nations Convention on the Rights of Persons with Disabilities. Elegant and erudite, Prof Madden’s analysis of the new legislation is clear and incisive and she includes useful comparative information about the Mental Capacity Act 2005 in England and Wales. The following chapter, on ‘Consent and Refusal of Treatment’, touches again on the 2015 legislation, as well as broader issues.
In the rest of the book, Prof Madden provides an intriguing chapter on genetics, looking at ethical issues surrounding genetic testing and screening, prenatal diagnosis, pre-implantation genetic diagnosis, gene therapy, cloning and embryonic stem cell research. Other chapters cover ‘Medical Treatment of Children and Minors’, ‘Medical Treatment at the End of Life’ (including consideration of the ‘doctrine of double effect’), ‘Property in the Human Body’ and ‘Medical Research’. Throughout all of these chapters, Prof Madden does not hesitate to outline areas where there is guidance from law (and she details what that guidance is), but she equally does not hesitate to point out where practitioners are operating in a vacuum and where much more guidance is needed.
Overall, the third edition of this book is a uniquely valuable addition to the literature on ethics, medicine and law in Ireland. It is an exceptionally well-structured and well-informed volume, highly readable, easily navigable and extremely reliable. The relationship between medicine, ethics and the law is clearly an evolving one, and it is only through careful study of the interplay of all three factors that we will create and sustain systems of care that are effective, empowering and just.
Prof Brendan Kelly is Professor of Psychiatry at Trinity College Dublin and author of Hearing Voices: The History of Psychiatry in Ireland (www.iap.ie).