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Medical ethics in Ireland: a decade of change.

Dolores Dooley is a lecturer in the Department of Philosophy, University College, Cork, Ireland.

During the decade of the eighties, medical ethics moved from a niche of academic obscurity to forums of national debate in the Republic of Ireland. The culture has been searching vigorously for a moral discourse that will bridge the differences in ethical assumption so apparent today in the twenty-six counties of the Republic. Presuppositions about traditional Irish morality are being publicly reassessed in a way unprecedented since Independence from Britain in 1922.

The first forty years of Irish independence were notable for institutional continuity rather than change. A uniform, insular, religious interpretation of life was reinforced in homes, schools, pulpits, and the press. This culturally homogeneous Ireland fashioned the minds of all who came to maturity before 1960. The years from 1960 to 1980 were marked by tension between the predominantly religious ethos and gradual secularization that was more a consequence of the increasing complexity of Irish society than of any direct ideological pressures. What diminished was the preeminence of religious legitimations.

Since the mid-sixties the judiciary became an important agent of change, actively expanding the rights of individual citizens through review of legislation: striking down the law prohibiting the sale of contraceptives, expanding the light to marital privacy, clarifying rights of dependent spouses, and generally expanding women's fights. Ireland's entry into the European Economic Community in 1973 has accelerated economic, social, and legal changes in the Republic. For those wary of moral revisions, Ireland's membership in the EEC came to be perceived as a threat to national sovereignty, though the meaning and application of sovereignty were left unanalyzed. As an illustration of EEC pressure, in February 1981 the European Commission issued a controversial report containing fifty-five resolutions recommending that the Commission not pay regional or social funds to any government dragging its feet on the implementation of equal treatment and women's rights, urging that all EEC countries provide contraception and abortion services for women.

European politics were digging deeply to the roots of moral assumptions in the Republic. The cultural insularity of earlier decades would no longer be relied on to sustain a dominant moral ethos. By the early eighties it was apparent that the categories for moral discourse drawn from a more religiously homogeneous Ireland were no longer effective in negotiating the diversity of views-particularly in ethical matters, where the religious tradition had seemed unambiguous. The complex and emotive issue of abortion became a test case for Irish constitutional law, a measuring rod of social and moral changes and a challenge to Ireland's capacity to deal constructively with ethical polarizations that many argue had been present for decades but had not been publicly voiced.

Constitutional Rights for Fetal Life;

Until 1981 abortion was mentioned in public only to condemn it categorically. It is a procedure that does not taint Irish soil, thanks to the Offences against the Persons Act of 1861. Under section 58 of this Act, it is an offense if one unlawfully does anything with intent to procure a miscarriage. The punishment for the offense is imprisonment for life or any shorter term. When Belgium removed its legal prohibition in April 1990, Ireland became the only country in the EEC that still prohibits abortion. However, Ireland's prohibition does not accurately reflect the reality that, on conservative estimates, 4,000 Irishwomen from the Republic have abortions in Britain every year. Ireland has yet to confront the criticism that the country exports moral problems it chooses to repudiate. More fundamentally, Ireland faces the complex task of acknowledging the voices of minority positions on health care and other social issues such as divorce. A case has not yet been made that warrants the cultural marginalization of those minorities on the grounds of a majority-rule Philosophy. Discrimination against the nationalist community in Northern Ireland is castigated with vigor, yet a mirror-image discrimination against minority opinion persists within the Republic.

In 1981 women's groups organized for the purpose of achieving greater Political power, triggering concern that they might champion abortion rights. Abortion was not prohibited in the Irish constitution-a significant point in a country where constraints on possible future judicial decisions are seen as the necessary mechanism for insuring moral continuity. It was theoretically possible that a liberal judiciary might legalize abortion. On sociological assessments legalization was a long shot, but conservatives called for constitutional preventive measures to assuage their apprehensions about the impact of European politics on Ireland's moral posture. Resentments and complex fears about liberal changes in Irish life crystallized in the cry for an abortion referendum designed to provide a constitutional amendment guaranteeing the fight to life of the unborn fetus. The referendum proved to be a complex cultural statement having less to do with abortion than with perceived erosions in Ireland's moral foundations.

In September 1983, 55 percent of the electorate carried by a majority of two to one the Eighth Amendment to the Constitution, which reads: "The State acknowledges the light to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to protect, and as far as practicable, by its laws, to defend and vindicate that right."

Fetal human life was now accorded the same moral status in the Irish Constitution as any other citizen of the country. The implications would be drawn negatively for any consideration of embryo research, therapeutic use of fetal tissue transplantation and freezing of fertilized ova from IVF procedures; since 1986 guidelines require the implantation of all fertilized ova. Utilitarian arguments about values and benefits in these areas of research were eclipsed by a categorical deontology affirming fetal rights. The abortion referendum proved most significantly to be a catalyst exposing the depths of ethical division within Irish society. What was painfully clear was the need to work toward a moral vocabulary and framework that would facilitate communication and moral negotiations, yet these goals are not worth working toward unless pluralist views are acknowledged and respected. The traditional moral discourse, rooted deeply in a denominational framework, no longer accommodated the cultural diversity that had developed. A complex process of cultural reeducation began and has continued into this decade. The legal institutions of Ireland and Europe became the adjudicators for Ireland's undeniable moral polarities.

Provisions for Abortion Counseling and Information:

When the Eighth Amendment passed in 1983, Irish liberals were reasonably confident that any woman who needed to know about abortion facilities in Britain had easy access to the necessary information. But information about abortion services outside Ireland became a constitutional issue. In 1985 the Society for the Protection of Unborn Children initiated a prosecution against two Dublin clinics that provided a range of gynecological services and advice for women, one aspect of which was the provision of counseling and information on abortion. SPUC claimed that the clinics' activities were in breach of the Eighth Amendment because they failed to vindicate the right to life of the unborn-in effect, these activities were a conspiracy to corrupt public morals. In 1986 the Irish High Court decided that even the option of having an abortion should not be mentioned, debated, or advised on by clinics. A Supreme Court injunction in 1988 further reiterated the position that Irish-women were not to be given information about where or how to get abortions outside Ireland. It is increasingly evident that human rights to control reproduction cannot, in principle, be given serious examination as long as fetal fights are seen as absolute.

Legal adjudication is available through the European Court of Human Rights; the prohibition on abortion counselling and information is currently under scrutiny in that forum and the European Court of justice. Should the European Court defend the fight to information on abortion, it could effectively overturn the Irish Supreme Court injunction. Such a decision would immediately create a head-on conflict between national and European law. Ireland, as a signatory of the European Convention on Human Rights, has by the act of ratifying that charter consented to take the human rights court rulings as binding. In the foreseeable future it may well be that the articulation of issues in Irish medical ethics will have a shadow speaking in a different voice in Europe. In the meantime, data is becoming available that make it apparent that serious consequences have resulted from the suppression of information on abortion counselling services. Many of the services that were provided had succeeded in dissuading women from choosing abortion. In addition some women who do go to Britain are in the second trimester of pregnancy, when abortion poses considerably more danger. Women are delayed by rational fear of criminal prosecution if they are discovered contacting abortion information agencies abroad.

At this moment, the traditional preeminence of ecclesial authority has been preempted by the presumed neutral judges of the law courts. Where dialogue becomes intransigent or polarized, legal appeal seems the only context for fair adjudication. The painful paradox is that legal appeal itself can have the effect of exacerbating an adversarial stance, an outcome Ireland badly needs to avoid. The decade of the eighties painfully exposed a much greater diversity of belief than either tolerance or moral negotiation could handle.

Clinical Trials Legislation:

Recourse to legal solution was made even more problematic when, in 1984, a Dublin art student died after being injected with an experimental heart drug at an internationally recognized Dublin pharmaceutical institute. The experimental drug fatally interacted with another medication the student had taken without informing the trial director. At that time Ireland had no legislation governing medical research, but in the wake of this tragedy, the Department of Health responded with draft legislation aimed at protecting research volunteers. There was also a thorough examination of procedures used throughout the country in conducting clinical trials, and in particular, a scrutiny of criteria for recruiting participants for nontherapeutic drug trials. Students and the unemployed comprised the majority of trial volunteers in the Republic, an arrangement that is potentially coercive because of the poverty of the participants.

The 1987 Clinical Trials legislation proved a fiasco. It mandates the establishment of ethics committees to review trial protocols and guarantee conditions for informed consent by participants. Membership on these committees must be interdisciplinary and includes as a minimum medical representatives, business and legal experts, and a competent member of the lay public. But the mandate for ethics committees was unacceptably onerous. Committee members had to be prepared to guarantee that there were adequate funds available to provide appropriate compensation for injury or loss suffered by any participant. Because ethics committee endorsement is both mandatory and decisive in determining whether a trial protocol may proceed, committees quickly began to perceive themselves not simply as protectors of trial participants but also as potential targets of litigation. In many research centers of Ireland, ethics committees called a moratorium on reviewing clinical trial proposals that came under the legislation. This is hardly surprising, since contravention of the Act constituted a criminal offense punishable by a fine of up to 10,000 [British pounds] ($15,000) and imprisonment for up to three years. From a situation of having no legislation whatsoever governing medical research, the Irish government had, according to most researchers, contrived to undermine the very possibility of research.

After three years of a research impasse, the Department of Health recently regained credibility among ethics committee members. A 1990 Amendment Clinical Trials and Drugs Bill has been issued. Under the amendments, a person arranging or conducting a clinical trial has to establish to the satisfaction of the Minister for Health that adequate security is available. The responsibility for security provisions is now removed from ethical committee role definitions and members of committees are now granted immunity from liability for any damages alleged to have been caused in a trial approved by an authorized committee. The obduracy of ethics committees in refusing to act under dictated rather than negotiated role descriptions provides essential signals for institutional use of such committees.

The broader question about the role, composition, and functions of hospital ethics committees is still a nettle many do not choose to grasp. While private hospitals provide guidelines to their ethics committees that support religious beliefs, public hospitals too often abuse the concept of an ethics committee by requiring that it give approval for certain medical procedures such as female sterilization, rather than leaving this decision to the doctor and patient. Often it is doctors, head nurses, or administrators who are designating themselves protectors of a moral code they believe the hospital should adhere to. Many doctors are concerned that an ethics committee decision on an issue such as sterilization could mushroom into a lawsuit charging institutional interference in the integrity of the doctor-patient relationship. What seems a mere theoretical possibility of a legal suit against ethics committees can too readily become a reality when a cultural and social climate grows litigious. Circumstances have changed in Ireland and medical litigation is spiraling rapidly.

Litigation and the Doctor-Patient Relationship:

In Ireland the doctor was traditionally accorded the social stature and esteem of the priest in local communities. As generalized confidants, doctors were given roles ranging from marriage counsellor, confessor, and general town mediator, to financial advisor. Most significantly, doctors were mainly perceived as trusted family friends. That is changing. Today there is obvious worry within the medical profession about escalated litigation, particularly among the high-risk specializations of obstetrics, neurology, psychiatry, and orthopedics. The doctor's experience of being a trusted professional can no longer be taken for granted. The full extent of litigation in Ireland is not accurately known, because a large proportion of negligence claims are settled out of court with no publicity. But over the past year public attention has been focused on the case of William Dunne v. Holles Street Maternity Hospital, where institutional and professional accountability have come under unprecedented scrutiny. The Dunnes were looking for an explanation of why the hospital only monitored one fetal heart beat in a twin pregnancy where one of the babies was born severely brain-damaged and the other was stillborn. After years of court hearings and severe difficulties in finding Irish doctors to give testimony, settlement was made out of court. There is enormous residual dissatisfaction on the part of the Dunnes and their legal advisors. Credible explanations of a number of substantive issues in the case were not forthcoming from the hospital administrators or medical specialists, and this has been exacerbated by serious difficulties in securing relevant hospital records. This highly publicized case has tended to reinforce a growing belief that traditional professions whose members have prided themselves on their self-monitoring status may be required to relinquish this dubious privilege. An out-of-court settlement without any admission of liability means that questions vital to the public interest remain unanswered and a general trust in hospital care, hitherto quite apparent in Ireland, is being eroded. The Dunne case has broad implications for institutional and professional accountability and responsiveness, factors that suggest some of the elements contributing to increased medical litigation in Ireland.

Explanations for litigation and the ranking of contributing factors differ depending on whom one consults about the troubling phenomenon. What is agreed is that no single factor is sufficient to explain litigation, and allegations about generalized client avarice or greedy ambulance chasers lack credence in Ireland. Three identifiable factors could form an initial working hypothesis to explain medical lawsuits. Not surprisingly the factors identify changes in hospital management, Irish culture, and the Irish medical profession.

The first factor explaining litigation is the changing expectations of patients when dealing with medical professionals. The Irish have traditionally been characterized quite accurately as unimaginably tolerant of inferior service in many sectors. Increasingly, they are expecting greater accountability and response from persons and institutions. As the educational system begins to encourage greater questioning of the status quo, and as the Irish experience different cultures through expanded travel, they have come to expect more from their doctors. Physicians have generally been slow to perceive or accept this shift in public expectations. Their profound reticence to accommodate changes in social perceptions of their role is reinforced by a second factor contributing to litigation, and that is the traditional strong paternalism of the medical profession and the attendant reluctance to relinquish its self-monitoring prerogative.

The doctor-patient relationship in Ireland, as in most other European countries, is premissed mainly on a paternalist model. Paternalism has been reinforced through a system of medical education that emphasizes the acquisition of scientific information and techniques at the expense of communication skills or the development of personal attributes that could improve the quality of doctor-patient relationships. Students are not accepted into medical school on the basis of interviews, or personality assessments, or any factors other than high scores in secondary-school exams. The unbalanced emphasis on scientific subjects in the medical program is regretted by many doctors, but curriculum change is notoriously lethargic as various new subjects compete for time-slots. The model flourishes in medical practice because it has also prevailed in many other spheres within Irish culture, including the legal profession and ecclesial hierarchy. During the last decade a much more overt criticism of institutional authorities has surfaced, particularly where it is perceived that the distribution of power within the institution is blatantly unjust. Medical litigation in Ireland is primarily a painful symptom of patients' frustration in their efforts to get answers to questions asked, whether about diagnosis, choice of therapy, or prognosis. The lay public feel impotent when confronted by the enormous imbalance of power among professionals, hospital institutions, and patients. Their impotence generates uneasy litigation, but it is doomed as a method of bringing about greater professional accountability if out-of-court settlements or the introduction of no-fault insurance makes it easy for hospitals and doctors to sidestep the issue.

The doctor-patient relationship is in a state of precarious reappraisal, as medical defense unions and the Irish registration council are quick to point out to their members. Exhortations from these professional bodies include continued vigilance in the areas of courtesy, sensitivity to patient questions, and willingness to apologize where mistakes have been made. The latter is difficult to achieve in a climate of litigation, as admissions of mistakes may be construed as a basis for legal action. Doctors might be well advised to utilize the media as they negotiate a new public image. In addition, patients will need to be more explicit and persistent in pursuing communication with doctors, since medical professionals often defend their reluctance to communicate on the grounds that patients do not ask questions. Of course, this excuse fails to consider why patients do not ask questions.

The third factor explaining the increase of litigation is enhanced public awareness of legal recourse in cases of perceived medical malpractice. During the last decade the public has become aware of many hidden and harsh realities through media reporting on timely issues. Researched documentaries about Irish life are relatively new as instruments for educating and politicizing the public. Topics that were not previously openly discussed are getting a hearing on national television. Protection racketeering, loan sharks, marital breakdown (in a country which legally prohibits divorce), sexual abuse of children, and business corruption are now discussed in the hopes that public admission of these realities might be a first step to amelioration.

Alisdair MacIntyre has claimed that litigation occurs partly because doctors and patients are as strangers to each other; specialists often do not know their patients before they perform radical surgery on them. MacIntyre's first premise is that strangers are more likely to sue each other because they have no shared context of trust. In Ireland as elsewhere, a shared context of trust has to continually be shored up, yet this may well be impossible if the increase in litigation is dismissed with defensive expletives or untested intuitions rather than accepted as a symptom of a complex problem that needs urgently to be addressed.
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Author:Dooley, Dolores
Publication:The Hastings Center Report
Date:Jan 1, 1991
Words:3317
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