3
LAW AND ETHICS IN MEDICAL PRACTICE:
AN OVERVIEW
Dr. HAU Kong-lung, Consultant Forensic Pathologist (Kowloon)
Forensic Pathology Service, Department of Health
Introduction
It is now a firmly established belief that legal and ethical
considerations are integral to medical practice in the
planning for the care of the patient. With the advances in
medical sciences and growing sophistication of the legal
framework in modern society as well as increasing
awareness of human rights and changing moral principles
of the community at large, doctors and other healthcare
workers alike are now frequently caught in difficult
dilemmas in many aspects arising from daily practice.
Examples are plenty such as the duty to respect informed
consent, truth-telling, breach of confidentiality, disclosure
of medical errors, rationing of scarce health resources,
biomedical research, organ donation, etc. Besides, there
is also growing anxiety both within the medical profession
and in the community regarding increasing trends of
complaints and lawsuits against doctors. From the bitter
experience of many doctors who were engaged in
complaint or lawsuits in the past, many of them had
resulted from failing of their doctor-patient communication
skill or inadequate ability to comprehend and resolve
dilemmas in clinical settings.
Medical ethics has developed into a well based discipline
which acts as a "bridge" between theoretical bioethics
and the bedside.1 The goal is "to improve the quality of
patient care by identifying, analysing, and attempting to
resolve the ethical problems that arise in practice".2 In
addition to our moral obligations, doctors are also bound
by laws and official regulations which form the legal
framework regulating medical practice. It is now a
universal consensus that legal and ethical considerations
are inherent and inseparable parts of good medical
practice across the whole spectrum. The disciplines of
law and ethics in medical practice overlap in many areas
and yet each has its unique parameters and distinct focus.
Legal and Ethical Regulations of Medical
Practice in History
In ancient Egypt, practice of medicine was subject to legal
restrictions. The right to practise was restricted to
members of a certain class, and all doctors had to learn
and follow the percepts laid down by their predecessors.
Obviously, this was to protect the public from quackery.
Fees for the doctors were paid by the State. If
unsatisfactory results followed a course of treatment that
had departed from the orthodox, the doctor responsible
would be liable to punishment, which could be very harsh.
Similar legal restrictions on medical practice were also
found in other early civilizations such as Babylon and
India.3
Throughout the history of mankind, medical legislation
has continuously evolved to regulate the practice of
medicine. The fundamental objective is to safeguard the
standards of the medical profession and to protect the
public against unskilled vendors of medicine who would
be as injurious to the community as other criminals. The
Justinian Code of the Byzantine Empire in 529 AD is
probably the earliest law code found to contain clauses
to require educational standard and proof of competence
of doctors by examinations. It also restricted the number
of doctors in each town and penalties were imposed for
malpractice. By 12th century, there were well established
medical legislations in Italy, namely the edict of Roger II
of Sicily in 1140 and Frederick II in 1224, to prescribe
organized medical teaching, set courses, examinations
and qualifications.3
In Hong Kong, laws on public health and medical practice,
essentially an adoption of the English Acts, had been
introduced from the early days. In 1884, the first Medical
Registration Ordinance was enacted to regulate the
practice of medicine in the territory. Nowadays, the Hong
Kong Medical Council is established and empowered by
law to perform the following major functions: (a)
assessment of qualifications and maintenance of Register
of Medical Practitioners, and registration is the only valid
licence to practise medicine; (b) formulating guidelines
on the ethical and professional standards; (c) investigation
of complaints of professional misconduct; (d) supervision
of medical education and training; and (e) assessment of
fitness to practise where a doctor's health is of concern.4
In addition to legal regulation, there were also codes of
medical ethics to guide the doctors for proper conduct.
The earliest code of medical ethics is the "Hippocratic
Oath" originated in Greece in the 5th century BC, which
evolved to regulate the standard of conduct and care by
