Wish-fulfilling medicine : legal and bioethical perspectives with reference to the practice of cosmetic surgery

Abstract

This study seeks to answer the question whether wish-fulfilling or non-therapeutic medicine, extreme forms of cosmetic surgery in particular, should be legal. Whether non-therapeutic procedures are or should be legal has become a matter of increasing importance, as such procedures are undertaken frequently and can even be said to be commonplace. This question is investigated with reference to the South African framework of medical law. The practice of wish-fulfilling medicine, with an emphasis on cosmetic surgery, is analysed in terms of the Constitution, the South African common law and legislation as primary sources of law. Textbooks and writings of authors are utilised as secondary sources of law. The ethical sphere of medical law and how this influences the phenomenon of wish-fulfilling medicine is explored in depth. This is done with reference to the ethical rules and regulations for healthcare practitioners as published by the Health Professions Council of South Africa, textbooks and writings of authors. This dissertation essentially consists of 4 parts. Firstly, the phenomenon of wish-fulfilling medicine is examined in context of the common law. As wish-fulfilling medicine is a relatively new phenomenon, the common law does not provide us with much guidance. The only alternative we are left with is to approach wish-fulfilling medicine in terms of the broader principles of consent to harm. An investigative discourse is conducted on whether a patient’s consent is sufficient justification for the performance of ethically suspect and radical non-therapeutic surgery. The discourse takes place in context of the defence of informed consent as indicated by the common law maxim of volenti non fit iniuria. Secondly, the constitutional framework surrounding wish-fulfilling is investigated. The specific fundamental human rights protected in the Bill of Rights that are applicable to wish-fulfilling medicine, cosmetic surgery in particular, are discussed in detail. The rights relate to human dignity, autonomy, privacy and bodily and psychological integrity. By applying a constitutional conception of human dignity, the question is answered whether cosmetic surgery most likely promotes or impedes human dignity. In this regard, the relationship between autonomy and dignity and the question whether autonomous individuals should be prevented from participating in activities that might limit their dignity is addressed. The same enquiry is made in relation to the other fundamental human rights applicable to cosmetic surgery. The limitation of these fundamental human rights in terms of section 36 of the Constitution is then addressed. Thirdly, some of the common ethical objections raised against cosmetic surgery and wish-fulfilling medicine in general is addressed. Most of these objections are repudiated and solutions are suggested for others. These objections relate to the goals of medicine and the disease-enhancement dichotomy, complicity arguments, arguments regarding human nature and naturalness, justice and accessibility, concerns regarding the autonomy of the patient’s wish and concerns regarding the application of Principlism. The conclusion is reached that cosmetic surgery, even extreme forms thereof, should be legal and that preference must be given to patient autonomy in the context of privately paid for wish-fulfilling medicine. However, this pro-cosmetic surgery stance is not without exceptions, conditions and certain reservations. It is concluded that the performance of cosmetic surgery necessitates a degree of ethical conduct on the part of the cosmetic surgeon that surpasses the level of ethical conduct normally required between a physician and patient, as the relationship between a cosmetic surgeon and a patient differs from the traditional physician-patient relationship. In the final chapter, recommendations are therefore made concerning certain safeguards that need to be put in place in order to prevent ethical abuses. These safeguards include some practical guidelines that might prevent ethically suspect behaviour on the part of the cosmetic surgeon. This behaviour relates to three aspects, namely: unethical advertising, informed consent (particularly with regards to the physician’s duty of disclosure) and patient selection. These recommendations, particularly those concerning a broader duty of disclosure in the context of informed consent to elective procedures, are made with reference to a case selection study of Canadian law.