Campbell, A T --- "Teaching law in medical schools: first, reflect" [2013] LegEdDig 26; (2013) 21(2) Legal Education Digest 37

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A T Campbell

Journal of Law, Medicine & Ethics, Vol. 40, No. 2, 2012, pp 301-310

It has long been recognised that an understanding of at least some core legal rules and concepts is an important piece of medical training. To address this, law is now typically part of the core medical school curriculum, often incorporated into bioethics and/or practice of medicine coursework – whether as part of a distinct course or series of courses or threaded through the curriculum (or both). While often this education focuses on rules, some have recommended that it also include fundamentals of legal reasoning, and go beyond knowledge to include skills, attitudes, and behaviours vis-à-vis the law.

There seems to lack, however, a systematic understanding of what works in terms of getting across an effective depth and breadth of legal knowledge for medical students – or what such would even look like. Moreover, and more critically, while some literature addresses these what, when, how, and who questions, a more fundamental question is left unanswered: why teach law in medical school?

A limited literature specifically focuses on teaching law in medical schools; much of what already exists clumps law together with ethics or includes legal-type issues under the rubric of ethics. This makes it difficult to determine how medical schools are specifically teaching law (e.g., individual courses or lectures in a single year or across years) – a situation that should be remedied through empirical investigation as a critical first step in formalising guidance on legal education teaching.

Historically, key legal content areas focused on professional liability and court involvement issues; more recently there has been a shift to legal rules that impact clinical practice (e.g., informed consent, capacity, medical malpractice, confidentiality). Surveys reveal consistency among these topics since the 1970s after a marked increase in law’s presence since the 1950s/60s. A few articles argue for expanding the typical curriculum to add topics that would better enable physicians to play a more effective role in public policy. Finally, some articles urge going beyond knowledge to include other objectives, i.e., skills and attitudes, although this inclusion is not widely reflected in surveys (the ‘what is’).With expansion considerations come understandable concerns over trying to cover too much – in effect making medical students into quasi-health law students; hence academics and a law-medicine professional society have asserted the need to focus on core areas: the physician-patient relationship and day-to-day clinical issues.

Reviewed literature supports the inclusion of legal education during the pre-clinical and clinical years, and that it be integrated horizontally (across one year) and vertically (running through all four years).

Given how frequently legal topics are clumped with ethics and professionalism teaching, it is not surprising that law also is more common as a sub-unit within a larger course or given as lectures interspersed within other courses. Felthous and Miller showed that only two out of five medical schools then surveyed had a separate course on medicine and law, with even fewer of those requiring the course. Legal topics are often presented via a mix of lecture and small group discussion, with some innovations such as inclusion of a mock trial. Of note, there are some calls to join law and medical students for interdisciplinary training (and also interdisciplinary practice), with a few examples offered as models in the literature.

And finally, there is also mention of recommended faculty for this coursework, perhaps addressing a concern that may impede its delivery: clinical and basic science faculty’s lack of a sufficient knowledge base and ability to address skills and attitudinal needs. A frequent refrain in the literature is that lawyers are or should be included in the teaching and be part of a team teaching model (that is, add a JD to an MD or PhD); surveys indicate that a majority involves lawyers in some fashion, with faculty appointments within medical schools ranging from full-time to adjunct, many of whom are in legal practice, and some among these also holding appointments in sister/ nearby law schools.

And yet, largely absent is discussion of the how or why of student assessment or ongoing course/lecture evaluation, and a corollary lack of empirical data to confirm approaches taken to answering what, when, how, and who are in fact effective in reaching desired ends. Perhaps this is because of the primary missing piece: an overarching understanding of the why for law’s inclusion.

The literature is not devoid of mentioning why we should include law teaching, particularly those articles that recommend the ‘what could be’ (vs. just survey the ‘what is’). Reiterated whys include: to lessen liability risks by enhancing knowledge; to lessen inter-professional tensions and help build relationships; and at times, to better enable patient advocacy and enhance patient health. Yet, addressing the why is not the focus in the literature; critically, too, suggested whys are not consensually developed (e.g., via surveys and convening groups of key respondents) but rather are put forward as understood goals or others’ justifications.

In the United Kingdom, the Institute of Medical Ethics (IME) has taken the lead in covering how medical ethics and law should be taught, learned, and assessed. Since 1996, IME has used a consultation process to build consensus, resulting in the first Consensus Statement on a core ethics and law curriculum in 1998.The statement was updated in 2010 due to concerns over lack of progress in implementing earlier recommendations. Of note in the 2010 Statement is the inclusion of aims (potential ‘whys’) for law teaching up front, after which the Statement discusses how to meet the aims.

It is not clear how much consensus backs the aims. Importantly, however: (1) approximately 25 individuals comprised the subgroup developing the aims; (2) these aims guided the curriculum development process; (3) a broad consultative process was used to identify best practices; and (4) draft core curriculum learning outcomes were posted on the IME website for additional input prior to finalisation.

This restatement is part of a larger IME education project to develop and implement best practices in the teaching, learning, and assessment of medical ethics and law in the UK’s 32 medical schools. Notably, the project utilises a consultation process that includes a hub-and-spoke model. This means that a steering group (hub), by maintaining fidelity to aim and provide oversight, works with a consultative panel comprised of major medical association and medical education leaders to create a new network of six regional medical school groups (spoke).

Similar to what we see in the United States, the above endeavours joined law with medical ethics; however, a separate project honed in on legal teaching. With funding from legal and medicine education bodies, Preston-Shoot and McKimm undertook a literature review and survey to fill in the gap in the UK’s ‘systematic understanding of where and how law is taught and assessed in undergraduate medical education.’

The article provided an expansive review of literature addressing law teaching in medicine (much of which is mentioned within this article, but with additional international examples). Their review reiterated what this article’s review also found: it is not easy to identify articles that emphasise solely legal education, or that prioritise law above ethics teaching. This clumping ‘tends to mask rather than critically explore the complexities or difficulties within the relationship between law and ethics’. Ultimately, their review identified ‘the need for more rigorous studies to evaluate medico-legal knowledge and skills development and retention’.

It is not clear to date if the Preston-Shoot and McKimm project has led to additional action beyond informing key stakeholders and the public (as with the UK IME Project, it is important to track for lessons for within our shores), but the process undertaken, its results, and its recommendations are worthy of attention within our borders. When considered alongside the IME Education Project, we see interesting ways to fund and otherwise support (via a legal and medical education arms) a collaborative and consultative process (hub-and-spoke model) as a means to develop aims for legal education in medical schools – and as an antecedent to developing curricula models and testing their efficacy in achieving those aims.

Sadly, despite our best intentions, the ‘real world’ of medical education may undermine our efforts. ‘[M]edical training at root is a process of moral enculturation’. Moreover, ‘some students and researchers across jurisdictions report that legal knowledge derived from non-clinical education is trained out by clinical teachers’. Thus, our task is not as simple as designing a perfect law curriculum: what are we to do about a ‘hidden curriculum’ that teaches through observation rather than a formal education?

Addressing the hidden curriculum allows us to recognise that while knowledge matters, equally (if not more) important are attitudes and behaviours observed on a daily basis. If clinicians espouse and openly reveal an attitude of contempt for the law or a simplistic vision of what legal rules say, this may undermine any efforts to change student attitudes and behaviours vis-à-vis participation in the policy community. Ultimately, the why we teach is deeply impacted by the culture in which we teach; unhelpful (or antithetical) cultures must be addressed before meaningful positive educational change can happen.

Before turning to some lessons learned and vision for next steps, it is worth identifying promising trends within the US, which build upon a vision of an interdisciplinary, collaborative, and problem-solving education as a means for enhanced legal understanding among medical professionals (and vice versa). As mentioned earlier, there have been innovations in teaching law and medical students together. The Consortium for Culture and Medicine (CCM) is another interesting model. Founded in 1978, CCM is a collaborative among a state medical university, a private university, and a private liberal arts college (within the same community) to address issues in medicine from an interdisciplinary approach. Courses such as Bioethics and the Law; Child Health Policy; Interdisciplinary Approaches to Aging; Global Health; and Genetics, Disability, and Law are open to a students from a diverse mix of disciplinary backgrounds, including, but not limited to, law and medicine (e.g., nursing, public health, anthropology, psychology, etc.).

For example, in the Child Health Policy course, legal and health professional students – including those in medical, nursing, and public health fields – learn about vexing policy dilemmas impacting child health, and work collaboratively to develop policy solutions by bringing their own profession’s expertise to bear on the issues. The intent is to move us beyond mere ‘Law 101 for Doctors’ to truly collaborative work whereby each profession learns to better respect the role (and limits on such role) of their other-professional colleagues. Furthermore, the course uses a case based approach to learning, which roots discussion and encourages more engaged interaction among students. And its development with faculty from a local Medical-Legal Partnership (MLP) connects to the next trend: interdisciplinary education that fosters collaboration to address social determinants of health and social justice concerns of patients/clients.

MLPs, which have grown in scope and breadth the past 10 years, are ‘collaborative endeavours between health care clinicians and lawyers to more effectively address issues impacting health care’, specifically to ‘address social determinants of health and seek to eliminate barriers to healthcare in order to help vulnerable populations meet their basic needs and stay healthy’. This novel approach to law and medicine is premised on collaborative practice, and holds promise in featuring different sorts of role models for medical and legal trainees, thereby shaping a different medical (and legal) culture. Thus, MLPs offer an ideal forum through which to support cross-education and highlight how law is about more than ‘liability’ (and its avoidance), with an explicit goal for MLPs’ work being the advancement of patient care through interdisciplinary teamwork. Given the model’s successes and expansion (present at over 235 health institutions at 83 MLP sites across the US as of this writing), in June 2010, the American Medical Association (AMA) adopted a policy encouraging formation and participation in MLPs by physicians. The American Bar Association (ABA) also encourages its members’ participation.

Finally, most recently we have seen emerge medical-legal centres as distinguished from health law centres within law schools. In 2010, the Florida State University Center for Innovative Collaboration in Medicine & Law was created through the efforts of the medical and law schools,

...to identify and facilitate (through education, the conduct and dissemination of scholarship, and performance of service activities) opportunities for members of the medical and legal professions, working together and with others, to foster improvements in the quality of life enjoyed by individuals and to promote public health in Florida, the United States, and globally.

‘[T]he Center’s constituents aspire to implement the level of respected research, education and service projects that will ultimately benefit the healthcare consumer, who represents the physician’s patient and the lawyer’s client.’ This grounds the work of the Centre in a shared goal – individual (and population) health and well-being.

Then, in February 2011 it was announced that Johns Hopkins University School of Medicine and nearby University of Baltimore School of Law would open a new collaborative centre in July 2011 ‘that will be part academic institution focused on educating practitioners and students of medicine and law, and part think tank aimed at influencing health care policy’. Again, unlike a traditional health law centre (law school) or bioethics centre (medical school), it will straddle both institutions and undertake a collaborative effort to enhance health versus simply focus on education of a single profession.

These trends hold great promise for innovations in education and practice – and provide convenient staging grounds through which to develop, implement, and evaluate the tangibly experienced why of legal education for medical students (and professionals). In sum, innovations like the above hold great promise for shaping the culture and the curriculum of medical and law schools to promote cross – and integrated training.

Areas of common ground between the two professions in training and outlook have been highlighted – similarities that can serve to open doors among professions in training. And yet, witnessing curriculum reform efforts first hand (within two different academic medical institutions in upstate New York – one private and one public) has clarified how complex these renewal endeavours are, and how tricky it will be to inject law into the existing and evolving curriculum. Medical colleagues have asserted to this author that the law is intrusive, overly regulatory/burdensome, and derives out of ‘nowhere’ (i.e., without ‘good’ or perhaps any foundation). An oft-heard complaint is that there is too much law in medicine – and medical education.

With this in mind, perhaps our approach is off-target: arguing that more (time, faculty) is necessary may be counter-productive. Rather, we need a transparent approach to reform, with a good dose of humility among law colleagues who should be willing to negotiate the nature of and appropriate place for law (with less focus on how much time and more on how to make the best use of available time and resources).

To guide these efforts, we need to shift our approach from that of demystifying ‘the enemy’ to deconstructing the enemy imagery. That is, many law professors may fear wholly adopting a defensive (on behalf of self and the legal profession) or an overly deferential default posture in the medical setting. Instead, by re-visioning law’s role as less the enemy or complex beast than a potential tool in advancing health, we might place law in its proper context for medical education. Consider, for example, the MLP model: building relationships through which physicians come to see lawyers as potential partners in advocacy (and not just someone to consult when something goes wrong) might serve to defuse the acrimony felt by physicians.

We must seek to develop consensus around a richer and more complex vision of why we seek to include law teaching in medical schools, with our UK colleagues offering a potential process for such development.

First we should gather input on potential whys and test their value among a broad stakeholder base. Respondents should be asked, ‘what is’ and ‘what should be’ (vis-à-vis the why, or goals for law teaching in medical schools). Next, we should envision how implementation of the goals (the why) might best be achieved, including if suggested promising trends and innovations (e.g., MLPs, interdisciplinary courses) could/do make a meaningful difference.

Potential goals could be put into the mix up front to stimulate discussion, so long as it is made clear that such are simply put forward as conversation starters and not as the only or preferred goals. With this caveat in mind, possible goals might be to: (1) enhance medical students’ ability to practice within the boundaries of the law (with some basic information on how those boundaries came to be, i.e., a contextual and historical appreciation for the law); and (2) enhance medical student’s ability to minimise malpractice exposure through legal understanding plus greater awareness of a host of other proactive measures (e.g., enhanced communication, power of apology).

In sum, this is an exciting time to sit at the crossroads of law and medicine.