Introduction to risk calculation in genetic counselling

scrimmage against the medical profession with: 'However, . . . there is still the tendency to state and analyse the law wholly in terms of duties, the duties of doctors and perhaps of patients, so as to avoid what is perceived (wrongly) as the more oppressive language of rights'.... Hence, 'I will adopt here a frank assertion of rights inherent in the doctor-patient relationship'. In this he relies on dicta of Lord Scarman in Sidaway, where he grounded the doctor's duty to inform in the patient's legal right to accept or reject the treatment proposed (page 202). But Scarman also asserted (page 194) that the 'proper place' of a duty to warn a patient of risk is 'as an aspect of the duty of care owed by the doctor to his patient'. And the Lords, in their judgements, preferred the language of duties also, to Kennedy's evident regret. However, Kennedy allows that the rights which he champions are pnima facie or presumptive rights, not absolute; and that there are circumstances in which a patient's 'rights' may require that he be not informed. It is therefore by no means clear what is gained by a change of language: the doctor is still left with the duty of weighing and serving the patient's interests within the overall protection of the patient's liberties safeguarded by the law. Kennedy is clearly provoked by two decided cases of non-consensual sterilisation in which those liberties were, in his view, not safeguarded: re B (1987) and re F (1989), both of mentally handicapped women, the first a minor. He profoundly regretted the judgement in re B in terms of best interests, and those evidenced by untested reliance upon expert witnesses. In the examination of re F Kennedy the common lawyer and Kennedy the human rights lawyer seem to be at odds. To the statement of the law contained in the Lord's judgement that no one has authority to consent to the treatment of another adult, albeit incompetent, and therefore no court can; but that, since this would leave the incompetent legally untreatable, treatment could be declared lawful if justified by necessity or as being in the public interest, which would include the patient's interest and to the practice directions given in consequence, Kennedy gives reluctant approval: they represent 'a significant public commitment to respect for human rights', 'although not overtly speaking the language of human rights'. But for the judgement on the case itself, 'approached from the perspective of human rights on the basis of first principles', he cannot say that the Lords' view 'that non-consensual sterilisation is lawful subject to certain conditions being satisfied' was valid and correct; he regretted it. Conversely, he says, it is an unjustifiable violation ofhuman rights ifcarried out for non-therapeutic reasons and, as a consequence, should be declared unlawful' (page 407, italics his). On this he would stand against all collusion with utility and pragmatism despite his allowance that what is prima facie unlawful might in certain circumstances be declared lawful (page 410). In all this Kennedy re-appears as the consistent protector of the patient against his old enemy, 'medical paternalism', and against courts which collusively decide cases on patients' interests as defined by medical witnesses: 'After all, is it not the role of one professional elite to protect another?' And this protection, he maintains, requires the assertion of 'rights'. But does it? For the human rights lawyer, he says, the 'starting point for analysis will, as ever, be a concern to protect the vulnerable from real or potential oppression or exploitation. In our case, as in most, this will translate as the need to justify any medical intervention by reference to carefully articulated criteria' (pages 396-397). What, then, is new? Is it not already the function of the courts of common law to protect the liberties of the subject? But read on: 'Oppression or exploitation may take other forms. It must be recognised that it is equally oppressive to deny an incompetent person treatment which would otherwise be judged appropriate. Whatever criteria are developed to protect the incompetent must, therefore, bear in mind that the cause of human rights is not served by so concentrating on the protection of the incompetent that it is forgotten that a significant means of protecting him may be to treat him'. Have we not returned to a familiar moral calculus, an exercise in moral reasoning, basic to the ethics and law of medical practice, into which the rhetoric of rights is an unnecessary intrusion?