Student No.

: 3035042344
Course Code & Course Name: LLAW3040 Medico-legal issues
Research Title (if applicable):
Word Count (if applicable):

2855 words

Student No.: 3035042344

Student No.: 3035042344

Question 1
Question 1
Mrs Sei, 75, is a retired family physician. Financially, she is comfortably well-off, and lives in an up-market
neighbourhood in Hong Kong in an apartment that she bought with her late husband some four decades ago. She has no
children. Mrs Sei leads a quiet but fulfilling life, spending much of her time as a medical volunteer at the day care
centre for elderly people in her neighbourhood. While she is still in good health, she frets that she will soon start on
the inevitable decline into ill-health and dementia. She has good reason to worry as her two older siblings died a few
years ago in their mid-80s after enduring many years of dementia. Mrs Sei was especially distressed by the fact that her
siblings could not even recognize her in the last few years of their lives as a result of their dementia. Mrs Sei knows
that this kind of dementia runs in families, and that there is no way to retard its onset.
Lately, Mrs Sei has been thinking about how I should go.

She doesnt want to be a burden to anybody in her old

age, and is of the view that there is no point in going on if my mind is gone. She wonders if it is possible to instruct
her caregivers in advance that they should stop feeding her and giving her food and water once her dementia
deteriorates to the stage when I can no longer recognize people so that she can be left to die. Having attended some
public lectures on medical law and ethics, she contends that it is her inalienable human right to make decisions for
herself. If I have the right to refuse treatment when I am ill, why shouldnt I have the right to refuse in advance food
and water when my mind is gone? After all, the law doesnt even forbid me from committing suicide. Otherwise, when
my mind starts going, Ill just book myself on a trip to Antarctica to see the penguins and Im not coming back. But I
would much rather not be forced into taking my own life early.
Discuss.

It is established that a patient of sound mind can refuse, no matter how unreasonably, any treatment
that his or her doctor recommends, on the principle of self-determination. However, in most
common law jurisdictions, euthanasia is not allowed, mainly on the principle of sanctity of life.

Therefore, an important issue that arises in Mrs. Seis case is whether food and care form part of
Mrs. Seis treatment. If yes, she is entitled to not receive food and water when her dementia
deteriorates to the stage when she no longer recognizes people. At the same time, her caregivers
would not be charged with assisted suicide or negligence. If not, the provision of food and water
must continue.

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The answer is vague in common law. In Airedale NHS Trust v Bland, the court ruled that the
provision of artificial feeding by a tube is a medical treatment and a person is completely at liberty
to decline to undergo treatment, even if the result of his doing so will be that he will die. This
extends to the situation where the person, in anticipation of his, through one cause or another,
entering into a condition such as P.V.S., gives clear instructions that in such event he is not to be
given medical care, including artificial feeding, designed to keep him alive.

However, artificial feeding is arguably different from the ordinary provision of water and food as in
Mrs. Seis case. Artificial feeding is considered a medical treatment in the case because some
medical procedures such as the insertion of the tube into the stomach through a minor operation
need to be carried out. Here, no such medical procedure is involved at all. The provision of food
and water is a kind of ordinary instead of medical care, and it is for the purpose of sustaining life,
rather than treating anything. A doctor is not even needed to provide food and water for a dementia
patient at home. Hence, I think the right to refuse treatment in advance should not include the
withholding of food and water.

To entertain Mrs. Seis wish in my opinion means opening up the door for euthanasia. Although
many people draw a distinction between active and passive euthanasia, the former being taking an
active and deliberate action to bring about a patients death and the latter being not doing something
necessary to keep a patient alive, I think that this distinction is not meaningful or substantially valid
at all. The gist of euthanasia lies in having an intention to end a patients life due to an often
irrecoverable illness. Whether this intention manifests itself in an active act or a passive act (which
is still a deliberate one) does not make any difference to me, for ultimately death is the intended
goal.

Here comes the second issue that I would like to discuss. Mrs. Sei contends that it is her inalienable
human right to make decisions for herself, including the right to die by means of withholding food
and water. As I have explained I do not think that there is any fundamental difference between

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active and passive euthanasia, I would like to discuss the broader issue of whether we indeed have a
right to die. I must admit that my stance on this issue is largely influenced by my Catholic faith.

First, I do not think that we have a right to die because I do not think that men have ownership of
their life. Whether a person believes in God, the fact remains that we cannot create ourselves and
our lives are given to us. This reflects the nature of life as a gift and we have stewardship rather
than ownership of life. As a result, life should end following its natural course. Self-determination
needs to be exercised in accordance with the metaphysical nature of life as a gift.

Secondly, the right to die is often evoked based on the principle of dignity. It is said that terminal
diseases often come with a loss of bodily control and severe sufferings, which significantly reduce a
persons ability to take care of his or himself. Consequently, he needs to live under the assistance
and care of other people. These conditions cause a sense of indignity to patients. We should leave
them to die in dignity instead. To me, this is a reduced and distorted notion of dignity. Dignity is our
intrinsic worth, rooted in every human life (for me, it is based on the fact that we are created in the
image and likeness of God). Dignity cannot be removed by pain, sufferings or any illness. Dignity
is not conditional upon our productiveness, abilities or usefulness. Even for those who do not
believe in God, dignity should not find its source in a persons abilities but the fact that each person
is an unrepeatable being who is valuable in himself. The vulnerable ones who are deemed
undignified due to their different illnesses are in fact demanding recognition of their inherent
dignity. What should be done is a reaffirmation of her intrinsic worth, not to take away her life on
the ground of false dignity, which is no difference from telling them they are redundant and not
worthy of any respect now.

Finally, the right to die is almost always advocated in the context of sufferings. Terminal illnesses
often bring about severe or even intolerable sufferings. Sufferings is something bad according to
todays standards, hence, euthanasia should be allowed to stop such sufferings. Those who oppose
euthanasia are often being criticized as uncompassionate and cruel.

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I have no problem about using medicine to reduce pain, and this is true even when the injection of
certain drugs like morphine may bring about death much quicker than a treatment without it. Yet, I
do not think that the avoidance of pain should be pursued at all costs, and certainly not by taking
away a persons life. The reason is twofold, first the gift of life argument explained above (any
action that we do needs to be in line with the metaphysical nature of life) and second, sufferings is
not downright evil and has its value too. It strengthens love; humbles a person and motivates him to
think about questions relating to the transcendent; challenges the charity of people around; allows
for internal maturation and transformation and etc. A pain-free society which many are trying to
construct today (with the recognition of a right to die as a major step) rid all these away from us. I
also contend that true compassion is not so much about taking the sufferings away (as if we are the
master of nature) but to give ourselves as much as we can in suffering with the patient. When
medical interventions fail to reduce the pain suffered by a patient, instead of eliminating the pain by
eliminating the life altogether, we are challenged to love and sacrifice for the patient as
unconditionally as we can so as to make him or her feel better in another way. This is the proper
response for the dignity that is intrinsic in every human person.

Finally, the given question highlights the importance of making an advanced medical directive.
Despite hoping to instruct her caregivers in advance to stop giving her food and water when her
dementia deteriorates, Mrs. Sei has another concern of being forced into taking her own life early.

In common law, following R (Burke) v General Medical Council, it is ruled that an advance
directive made by a competent person concerning what life prolonging treatment he wants or not
wants should be determinative. However, where an incompetent patient who is sentient has not
made any advanced medical directive and is in extreme degree of pain, discomfort or indignity,
doctors are absolved from their positive duty in keeping them alive.

If Mrs. Sei has made it clear that she wants certain treatment when she becomes less competent due

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to her dementia by an advanced medical directive, the doctors should arguably follow. However,
Hong Kong has yet to implement a statue that makes advanced medical directives legally binding.
Hence, the directive serves more like a kind of reference for the doctor in deciding what he should
do rather than a superior piece of document.

Question 7
From a moral perspective, any form of human experimentation is inherently wrong and indefensible because in most
cases you will have to start by testing the unknowable: whether or not the drug or procedure you are seeking to test is
harmful or not. And thats even before you start testing to see whether it works or not. A research subject simply
cannot consent to unknowable and uncertain risks, particularly if there is no likelihood of a direct corresponding benefit
to his or her health or welfare.
Do you agree? Discuss.

Question 7
I agree with the statement to a large extent.

Before I begin to discuss why I consider human experimentation inherently wrong, I should point
out that I define human experimentation as the use of human beings as experimental subjects for the
purpose of medical research carried out by researchers (or at least, doctors have assumed the role of
researcher and not doctor in the experiment). The essence of human experimentation (at least in the
scope of this essay) lies in that participants are research subjects, rather than patients. Therefore,
situations such as terminally-ill patients participating in clinical trials due to the absence of

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alternative effective treatments are not within the definition of human experimentation here, since
to cure rather to research is the primary goal in these cases.

Distinguishing between the two relationships

The ethics of human experimentation is often framed in the context of doctor-patient relationship,
rather than researcher-subject relationship. For example, the good clinical practice of the ICH states
that clinical trials should be conducted in accordance with the ethical principles that have their
origin in the Declaration of Helsinki which is a document developed out of the Nuremberg code
focusing primarily on the moral responsibilities of doctors over his patients in experiments. The
problem of treating these two relationships as the same is that many duties and practices present in
the doctor-patient relationship do not exist in the researcher-subject relationship, but such missing
parts are often what offer a valid justification for these experiments.

First, unlike doctors whose primary duty is to save, researchers are here to test, experiment and
analyse. This fundamental difference means that doctors often share the same goal with patients in
the process, which is to improve their health condition whereas researchers are concerned about
new findings and discoveries, and as the question aptly points out, often with little or no direct
benefit to the health of the subjects. Researchers are not concerned about whether a particular
experiment helps the subjects but whether the experiment is conducted in an accurate way.

Second, before suggesting any treatment including clinical trial to patients, doctors should make
sure the risk and benefit ratio is proportionate (the beneficence principle under the Georgetown
Mantra). However, researchers simply cannot conduct any reliable risk-benefit analysis for their
subjects due to the inherent uncertainness of the experiments. It is precisely due to the unpredictable
nature of these tests that human experimentations are called for in the first place. Research subjects
are required to consent to unknowable risk. A conflict of interests may also arise due to the fact that
researchers can often gain from an error in experiment so as to identify what procedures went
wrong.

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Third, unlike the doctor-patient relationship which is often one on one (at one point of time), the
researcher-subject relationship is characterized by a few to very many. (Kaan, 2015) This
necessarily means a much lower level of care and attention for the individual. Also, doctors have a
duty to track the progress of patients and often have to revise patients medication or treatment
plans if certain drugs did not prove to be effective. However, researchers do not do so. Once you
consented to participate, you can only choose to continue taking part or to quit. Researchers do not
remedy the harm that comes with the trial.

Finally, while doctors often have to explain to patients in elaborate details about what a particular
treatment can do and its effect, researchers are often unable to do so in order to conduct an objective
and scientific experiment, for instance in randomized double-blind testing with placebo.

Ethical issues in human experimentations

After delineating the differences between doctor-patient and researcher-subject relationship, I shall
now discuss the ethical issues that arise out of human experimentations.

First, as research subjects often receive no direct corresponding benefit in human experimentations,
the question of whether we can justify their assumption of such high risk based on greater societal
good, such as advancement in medical research arises. My take on this is no. The reason is twofold,
first the end does not justify the means, and second, the end itself (greater good) is sometimes not
really such a supreme good. The means is problematic because it exposes human subjects who often
do not have a clue about medicine to unpredictable risks. This is especially true in Phase I trials
where the goal is not to offer benefit but to test whether a compound is safe. A second problem is
that many pharmaceutical companies who now conduct the clinical trials often downplay the
potential risks involved so as to recruit research subjects. For example, one of the participants in the
TGN1412 clinical trial which almost killed him said that the novelty of TGN1412never came up in
upbeat pre-trial briefings. I had no idea it altered the immune system. I trusted I was in safe hands."

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(The New York Times, 2006) If we accept the utilitarian argument that greater societal benefits are a
justification for subjects assumption of unpredictable risks, we are also endangering the protection
of human dignity for the vulnerable and incompetent in our society

The greater good argument also fails when we debunk the greater good myth. Today many
clinical trials are done by pharmaceutical companies who are responsible to their shareholders.
These companies thus are unsurprisingly profit-driven, which sometimes mean they would pursue
new drugs that are in fact not really innovating or necessary. In 1997, Dr. Andrew Goudie, a
pyschopharmacologist from the University of Liverpool wanted to seeking funding from
AstraZeneca. It is reported that the company notified him that "R&D is no longer responsible for
Seroquel research. It is now the responsibility of Sales and Marketing. (Mother Jones, 2010) Even
for clinical trials conducted by hospitals, universities or government-funded institutes, it is doubtful
whether the abstract goal of advancement in medical knowledge should trump individual health and
safety.

Hans Jonas went as far as to argue that the benefits reaped from most clinical researches are
normatively optional but the need to protect citizens from harm should be central to governments.
He writes, unless the present state is intolerable, the melioristic goal of biomedical research is
in a sense gratuitous, and this is not only from the vantage point of the present. Our descendants
have a right to be left an unplundered planet; they do not have a right to new miracle cures. (Jonas,
1969)
A second ethical question is whether informed consent can justify subjects assumption of risks in
drug trials. To this I answer not necessarily. Informed consent is necessary but not in itself sufficient
to justify human experimentations. It is very dangerous to think that as long as a person gives his
consent to an experiment, then the morality of this particular experiment is affirmed. While
autonomy i.e. allowing individuals to exercise their freedom of choice is important, it is not the only
ethical concern, or else we would be opening up the door for many kinds of atrocities. Apart from
informed consent, the content and goal of the experiment, the motive for the consent, the procedures

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for the experiment, the risk conferred upon the subjects and etc. also need to be considered.
Autonomy, in my opinion, is relevant because we do not want research subjects to take part in a test
against their wishes but not the other way round, i.e. it is not about giving a free pass to all
experiments as long as the participants genuinely agree to be involved.
Also, I think that informed consent is very much just a theoretical ideal which often does not
materialize in reality. First, informed consent means a full or at least adequate understanding of the
research. In reality, research subjects are being given a briefing about the research which they are
bombarded with lots of medical jargons and unknown terms. Their so-called informed consent is
often represented simply by the research subjects signing of a consent form. It is doubtful how
thorough the research subjects understanding of the research can be in such situation.
Secondly, as aforementioned, many researches are carried out by means of double-blind testing with
placebo. Such research method necessarily means the hiding of at least some information from the
participants. A genuine informed consent is in many situations unattainable.
Third, many clinical trials offer cash subsidies to research subjects. As a result, their informed
consent may have been given simply because of the money. This raises an issue of potential
exploitation. Using money to attract people for a test that expose them to unpredictable harm is not
a genuine consent.
To conclude, I largely agree with the given statement that human experimentations (as defined in
this essay) are indefensible on moral grounds. The major problem lies in exposing research subjects
to unpredictable harms for the benefits of others. The only situation in which I think that such
experimentation may be justified is when the research subject personally shares the goals of the
study and really thinks that exposing himself to unpredictable harm is worth his participation. In
such a scenario, his participation in the experiment can arguably be said to be acting upon his own
interests.