appealed to the High Court which overruled the tribunal, but a further appeal to the Court of Appeal was successful and Bawa‐Garba was restored to the medical register Bawa‐Garba v. GMC (2018).
There was a fundamental difference between the task and necessary approach of the jury, on the one hand, and that of the Tribunal on the other. The task of the jury was to decide on the guilt or absence of guilt of Dr Bawa‐Garba having regard to her past conduct. The task of the Tribunal, looking to the future, was to decide what sanction would most appropriately meet the statutory objective of protecting the public…
English law is found in the decisions of courts, in Acts of Parliament, and in statutory regulations made by authority of Parliament. Ethical rules are more difficult to discover. There are generally held to be four basic principles to which health professionals should adhere: beneficence (the duty to do good), non‐maleficence (the duty to do no harm), autonomy (the right to self‐determination of the patient) and justice (the duty to be fair and not to discriminate on grounds of sex, race, age and so on). Both the medical and nursing professions publish guidance to their members in fairly general terms, as do other regulators of the healthcare professions. The GMC publishes Good Medical Practice (2019), which is under constant review. The NMC has produced a Code of Professional Conduct (2018). The Faculty of Occupational Medicine of the Royal College of Physicians has published Ethics Guidance for Occupational Health Practice, the latest edition of which dates from 2018. A further publication, Good Occupational Medical Practice (2017) has been created by the Faculty. None of these codes is directly binding in law: they are an indication to the professions of the attitudes of other professionals who may be called upon to sit in judgment on their professional practice. This is not to underestimate their importance. The loss of the right to practise one’s skills is a sanction greatly to be feared.
It is important to realise that neither the British Medical Association (BMA) nor the Royal College of Nursing (RCN) has any statutory function. They are ‘trade unions’ whose job is to represent their members. Nevertheless, both bodies are active in ethical debate. Disagreement is possible. The GMC has ruled that a doctor may break the confidence of a child too young to be able to appreciate his medical condition and therefore to give consent to treatment. The BMA, on the other hand, has argued that even a child’s secrets must be respected, lest he be deterred from seeking help. In 1993 the BMA published a comprehensive survey of medical law and ethics, Medical Ethics Today (2nd edition 2004).
Law and ethics may conflict. The General Data Protection Regulation (GDPR) and the Data Protection Act only apply to information relating to living persons, but many professionals consider it unethical to reveal clinical details after the patient’s death. The law allows the testing of anonymous samples of blood, such that the donor of the sample cannot be told of any defect. Is this ethically sound? The Helsinki Declaration on experiments on human subjects states that experimental treatment of a therapeutic nature, if approved by an ethics committee, does not always require the subject’s consent. English law permits no such exception to the need for informed consent. Lawyers are not competent to advise on ethics, but the courts will not sanction unlawful behaviour simply because it is regarded as ethical, just as the professions will not approve unethical behaviour simply because it is lawful. Fortunately, in most cases law and ethics agree.
There are now international ethical principles established in the field of occupational health. The International Commission on Occupational Health in 1992 published the International Code of Ethics for Occupational Health Professionals (latest edition 2014).
Fundamental ethical principles: International Commission on Occupational Health (2014)
1 The purpose of occupational health is to serve the protection and promotion of the physical and mental health and social well‐being of the workers individually and collectively. Occupational health practice must be performed according to the highest professional standards and ethical principles. Occupational health professionals must contribute to environmental and community health.
2 The duties of occupational health professionals include protecting the life and the health of the worker, respecting human dignity and promoting the highest ethical principles in occupational health policies and programmes. Integrity in professional conduct, impartiality and the protection of the confidentiality of health data and of the privacy of workers are part of these duties.
3 Occupational health professionals are experts who must enjoy full professional independence in the execution of their functions. They must acquire and maintain the competence necessary for their duties and require conditions which allow them to carry out their tasks according to good practice and professional ethics.
This is bland and uncontroversial. General comments which may be made are to note the emphasis on prevention and health promotion, the expansion of the role of occupational health professionals into the field of environmental protection of the wider community and the need for ‘a programme of professional audit of their own activities in order to ensure that appropriate standards have been set, that they are being met and that deficiencies, if any, are detected and corrected’.
The sources of English law
In modern times, law is found in statute and in precedent. Because English and Scottish law have never been brought together into one code, judges are still competent to make legal rules without reference to Parliament. This law, made by the judiciary, case by case, brick on brick, is known as the common law. Much of the law of contract and tort (civil liability for unlawful acts) is still in this form. Criminal law, on the other hand, is nearly all enacted in statute. Judges, therefore, fulfil two functions in our system: they declare and develop the common law, and they interpret the meaning of Acts of Parliament.
As in the medical profession, the opinion of those at the top of the hierarchy is more respected than that of juniors. So decisions of the Supreme Court, the highest court (which took over from the Judicial Committee of the House of Lords in 2009), are binding on all other courts. Decisions of the Court of Appeal are binding on all courts other than the Supreme Court. Decisions of the Employment Appeal Tribunal are binding on employment tribunals. But even the most senior judges must yield to the will of elected representatives of the people. In our unwritten constitution, Parliament can overturn every judgment by a simple statute.
Parliament has no time to consider every detail of complex legislation. Its practice is to establish broad principles in a parent Act, giving power to a delegate, often a minister, to make regulations which will be laid before it, and in a few cases will need its affirmative approval. The Health and Safety at Work Act 1974 provides that an employer must do that which is reasonably practicable to ensure that his employees are reasonably safe; delegated legislation in the form of statutory instruments made under the authority of the Act lays down detailed provision for safety representatives, first aid, substances hazardous to health and so on.
Legislation, both primary and delegated, carries binding legal sanctions. It tended in the past to be interpreted literally by English courts. A statute which talks about ‘employees’ will not apply to self‐employed contractors. Laws which give compensation for ‘accidental injury’ will not cover cases where an employee has contracted a disease over a long period of exposure. If legislation is subject to decades of this literal approach, it becomes over‐complex and impenetrably obscure. For that reason the rules of statutory interpretation have become more relaxed in recent years and courts are more willing to look for the intention behind the words of the statute.
Draftsmen strive to express themselves more and more clearly, but tend to lose the policy in a plethora of technical vocabulary. Within the last 30 years, especially in the field of employment law, it has become popular to attach Codes of Practice to Acts of Parliament, to which the Act directs courts and tribunals to refer as an aid to interpretation. Though these Codes are not in
