KEY NOTES CHAPTER 10: ETHICS, THE LAW AND STATISTICS - Ethics and the Law. Flashcards
What are the 4 pillars of medical ethics?
Beauchamp and Childress
Should apply all 4 principles to an ethical problem.
- Autonomy
- Nonmaleficence
- Beneficence
- Justice
What are the ethical codes we abide by in medicine?
Hippocratic oath (5th Century BC) Geneva declaration (1948; last amendment 2006) after Nazi medical crimes in WWII Helsinki declaration (1964; last amendment 2013) governs human experimentation & incorporates Nuremburg code. GMC (UK)
Please elaborate on the 4 pillars of medical ethics.
- Autonomy
• It is not right to impose treatment on a patient without valid consent.
• e.g. Jehovah’s Witness to refuse blood transfusion (even if it leads to death)
• Paternalistic approach - goes against autonomy. - Nonmaleficence
• Obligation not to harm others - primum non nocere (Latin ‘first, do no harm’). - Beneficence
• Must do good for patients. (doing what patient considers best for himself).
• Blood transfusion for Jehovah’s Witness is doing good to save his life. (However, from patient’s perspective, withholding blood is best way to do good). - Justice
• Doing what is fair, equitable or reasonable.
• Usually, applicable to issues of access to health care and resource allocation.
What are the other concepts of medical ethics?
Utilitarianism
• Theory: our acts should be for the greater good.
• E.g. justifies not treating 90-year-old with dementia who has suffered 70% TBSA burns.
• However, could also be used to justify killing a patient because his transplanted
organs could save five others.
Deontology
• Counter-argument to utilitarianism.
• States that certain actions are good because they are good and right in themselves.
• E.g. overweight friend asks, ‘Does my bum look big in this?’
- Utilitarian approach = saying “no” to satisfy the greater good, not hurt their feelings or risk backlash.
- Deontological approach = saying “yes” - telling truth is right thing to do.
• E.g. killing patient so their organs can save five others is not justified in deontology because killing is an absolute wrong, even if good will come of it.
What is consent?
Mental Health Act Code of Practice (2008) definition:
“…the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent.”
What is the purpose of consent?
1 Ethical
- Recognises patient’s right of autonomy and self determination.
2. Clinical - Gaining patient’s confidence can affect success of treatment.
3. Legal - Provides medical practitioners with a defence.
What makes the consent valid?
- Voluntary
- Informed
- Given by a competent individual who has capacity to give consent; may be oral, written or non-verbal (implied).
What constitutes voluntary consent?
- Means that consent is given without coercion, deceit or duress.
- The right to consent to treatment is part of the right of self-determination.
- Case: Re T (1992)
What constitutes informed consent?
‘Standard of disclosure’ includes:
∘ Risks that a responsible doctor would disclose (Sidaway v Bethlem Royal Hospital Governors 1985).
∘ Risks that a prudent patient would want to know about (‘Prudent patient test’ applies in United States, Canada and Australia).
Who has capacity to give consent?
Capacity: Mental Capacity Act (MCA) 2005:
- Capacity is presumed unless incapacity from mental disability is established by those alleging it:
• UNDERSTAND and RETAIN information relevant to the decision.
• Use or WEIGH the INFORMATION as part of the process of arriving at a decision (including inability to believe the information).
• COMMUNICATE his or her decision by any means. - All REASONABLE STEPS must be taken to help a person to make the relevant decision.
- A person is not to be treated as unable to make a decision merely because the decision
is UNWISE. - Acts done for people who lack capacity must be in their BEST INTERESTS.
How is a patient’s best interest assessed?
- Patient’s past and present wishes and feelings, beliefs and values that might influence decision.
- Views of anyone named by patient to be consulted.
- Any carer or person interested in their welfare.
- Any donee of a Lasting Power of Attorney granted by patient.
- Any deputy appointed by Court of Protection.
- Wishes and feelings of patient expressed when capable.
Nobody can give consent on behalf of an incompetent adult unless:- The power to consent has been conferred under the MCA 2005 on a donee under a
Lasting Power of Attorney.
The Court of Protection or a Deputy appointed by the Court of Protection can also consent.
What is the legal age of consent?
What was the Fraser ruling of Gillick competence?
- Minor = younger than 18 years.
- Minors aged between 16 and 18 years can consent (Family Law Reform Act 1969).
Gillick competence:
• Consent of a Gillick competent child younger than 16 years is valid (even if parents refuse).
• Is situation-specific: e.g. may understand process of nail bed repair but not heart transplant.
• Good medical practice to involve parents in decision making.
(Case: Mother of 5 girls did not want contraceptive advice or prescription by GP without her knowledge or consent. Lord Fraser “provided (the minor) is capable of understanding what is proposed, and of expressing his or her own wishes… (the doctor) is authorised to make examination and give treatment he advises.”)
Can Gillick competent minors refuse treatment?
Parents (or court) can overrule refusal of treatment in a child under 18 it is in the child’s best interest.
What is a doctor liable to
a) trespass (battery
(b) negligence?
Liable to:
(a) Battery (‘intentionally bringing about a harmful or offensive contact with the person of another’): if no valid consent obtained.
(b) Negligence: if consent was obtained but inadequate information was
given about risks.
What is the difference between advance decisions (directives) and advance statements?
• Advance decisions refusing medical treatment were introduced in the MCA 2005. (Advance directives prior to 2005) - legally binding on drs.
• Advance statement = statement made by a capable person asking for specific treatment to be given in specified circumstances if the person loses mental capacity.
- are not legally binding on drs.
What needs to be followed in order for an advance decision to be valid?
Advance decision is made by an adult:
• While they have capacity.
• Informed decision (sufficient, accurate and relevant information).
• Not unduly influenced by anyone else.
An advance decision to refuse treatment:
∘ Specify treatment to be refused.
∘ Circumstances when refusal will apply.
∘ Confirm refusal will apply when the person no longer has capacity to consent to specified treatment.
∘ Refusal of life-sustaining treatment must be explicitly stated.
∘ A minimum amount of other essential information must also be included on a valid
advance decision.
What if a person comes into A&E but you cannot confirm an advance decision exists?
The MCA (2005) states:
- A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists, which is valid and applicable to the treatment.
- A person does not incur liability for the consequences of withholding or withdrawing a treatment from a patient if, at the time, he reasonably believes that an advance decision exists, which is valid and applicable to the treatment.
What is negligence?
A breach of a duty of care, which results in damage.
What needs to be proved in order for a negligence case to be successful?
1 A duty of care was owed to the claimant by the defendant doctor.
2 There was a breach of duty.
3 The injury suffered was caused by that breach of duty (causation).
What is the Bolam test?
It is usually applied to establish breach of duty.
∘ “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion…A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that
takes a contrary view.”
‘Standard of care’ is that of a reasonable health care professional at the same level (not comparing FY1 vs consultants) and with the same qualifications.
In addition to the Bolam test, what did the Bolitho case highlight?
1 It is not sufficient for a Bolam defence to simply establish whether the standard of care
has support from a responsible body of medical opinion.
2 The standard of care must also be deemed reasonable based on consideration of the risks and benefits of a particular action, that is ‘what ought to be done’ rather than ‘what is done’.
3 The standard of care must also withstand logical analysis.
4 Medical opinion that does not stand up to logical analysis may not be judged reasonable or responsible by the court.
What makes establishing causation difficult in some circumstances?
∘ Patients are often already sick, injured or disabled.
∘ There may be several different possible causes of the illness or disability.
∘ Recollections of staff and patients seldom coincide.
∘ Staff may be in conflict.
∘ Medical records are often incomplete.
∘ Dependence on opinion from medical experts, rather than fact.
What is the GMC’s Guidance on Confidentiality
“Patients have a right to expect that you will not disclose any personal information which you learn during the course of your professional duties, unless they give permission. Without assurances about confidentiality, patients may be reluctant to give doctors
the information they need in order to provide good care.”
What is the law on confidentiality?
- Common law (Hunter v Mann 1974)
- “The doctor is under a duty not to disclose, without the consent of the patient, information which he, the doctor, has gained in his professional capacity.” - Data Protection Act 1998
- The consent of the patient to keeping and disclosing information should be sought
as a matter of course.
- “An individual who suffers damage and distress by reason of any contravention by
the data controller of any requirement of the Act is entitled to compensation.” - Human Rights Act 1998 and European Convention on Human Rights
- “Everyone has the right to his home, privacy and family life.”
