Collapsing the indefensible border between law and clinical evidence: A new constitutive model of medical education and decision-making

Prof. Malcolm Parker1, Prof. Lindy Willmott2, Prof. Ben White2, Prof. Gail Williams3, Prof. Colleen Cartwright4

1University Of Queensland, Red Hill, Australia, 2Australian Centre for Health Law Research, Law School, Queensland University of Technology, Brisbane, , , 3School of Population Health, University of Queensland, Brisbane, Australia, , , 4Southern Cross University, Lismore, Australia, ,

As part of a large empirical project examining doctors’ decisions on withdrawing/ withholding treatment from patients who lack decision-making capacity, we confirmed that clinicians sometimes think and act in ways that they consider ethically and professionally appropriate, but which conflict with the increasingly important official role of law in decisions to withhold or withdraw treatment in Western jurisdictions. As well as demonstrating statistically significant gaps in legal knowledge on the part of clinicians, the research showed that a number of doctors regard law as being of limited utility in supporting good medical practice, at times contributing to poor clinical decisions; that a proportion of clinicians think that the law should be downgraded or ignored if the pursuit of the primary goal of patient welfare (as clinicians perceive it) requires it; and that following the law should be seen by doctors as discretionary or even as unnecessary for clinical decision-making. These attitudes reflect what we term the applied model of ethics and law in medical education and clinical practice. The applied model derives from the strong distinction between facts and values that has characterised the relationship between science and human values throughout the twentieth century and into the twenty-first.

We argue that the entanglement of facts and values, exemplified so clearly in medical practice, requires that the insistence on scientific fact as medicine’s primary normative authority be disrupted. Law should no longer be applied to an accepted core of science-based medical education and practice, but help constitute that core. Relevant law should be taught and implemented as part of medical knowledge and practice, normalizing legal knowledge as part of the clinician’s evidence base.


Malcolm Parker is Emeritus Professor of Medical Ethics (UQ), Adjunct Professor, Australian Centre for Health Law Research (QUT), and inaugural and immediate past president and life member of AABHL. He was a committee member of the Medical Board of Queensland and the Medical Board of Australia, a director of the Postgraduate Medical Council of Queensland, and Chair of UQ’s Human Experimentation Ethical Review Committee. He worked in general medical practice for over thirty years, and has postgraduate qualifications in philosophy and health law.

He has published internationally in philosophy of medicine, bioethics, medical ethics, health law, and medical education.