PPS Ethics, Consent and Confidentiality

Question 1

Why is confidentiality important from an ethical perspective?

Answer 1

Part of autonomy - respect the patient
Privacy Rights
Virtuous behaviour
Consequentialist justifications (if you dont protect patients info, they may not share anymore)
Trust relationships - patient is trusting you and being vulnerable
Beneficence - do whats good for patient

Question 2

Professional basis of confidentiality

Answer 2

Must disclose if required by law (e.g. known or suspected communicable disease). Tell patient if practicable, but no consent required.

Must disclose if ordered by a judge (but can object if you feel information wanted is not relevant)

Question 3

Human Rights Act 1998 says you must balance:

Answer 3

Right to respect for private and family life

Right to life & right to freedom of expression.

Question 4

Common law says you must balance:

Answer 4

Public interest in doctors keeping confidences

Public interest in protecting society or individuals from harm

Question 5

What justifies a breach in confidentiality?

Answer 5

Only the ‘most compelling circumstances’ justify a doctor breaching confidentiality doctor breaching confidentiality (Lord Bingham in W vs Egdell)

There must be a real and serious risk (not simply a ‘fanciful’ possibility) of physical harm to an identifiable individual or individuals

Disclosure must be made only to those who are in vital need of the information

Question 6

statutory provisions on disclosure

Answer 6

notification of births and deaths

fertility treatment

serious work accidents and poisonings

addictions to drugs

terrorism

notifiable diseases

terminations of pregnancy

court orders under PCA 1984

Question 7

Confidentiality and death

Answer 7

Ethical duty of confidentiality remains the
same even after death

The GMC states that “your duty of confidentiality continues after a patient has died”

What about death certificates?

Legally: duty seems to die with the patient

Question 8

Tricky areas in confidentiality

Answer 8

Genetic diseases 
Diseases that affect driving
Sexually Transmitted Infections
Domestic abuse and child abuse
Sexually active children
Crimes
Immigration issues

Question 9

Valid consent

Answer 9

For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision.

Question 10

Why is consent important from the ethical perspective?

Answer 10

Respect for autonomy - patients are self governing and make decisions for themselves, respect their capacity to do so

Benefits the patient - patients have more control over what happens, being in charge of this can give them more realistic expectations

Trust in doctor patient relationship - dialogue between the two, better outcomes

Legal professional requirement - ethics and law interact here, ethical thing to respect the law

Dignity - people are valuable and have a right to inherent dignity and should be respected and consider their views/preferences through consent

Virtue ethics - doing consent well expresses trust

Question 11

Civil vs Criminal offences

Answer 11

Civil - battery (rare) and negligence (rare-ish)

Criminal - assault and battery (v rare)

Question 12

What do we need for consent to be valid?

Answer 12

Informed
Voluntary
Competent (patient has capacity)

Consent is also ‘continuing’ patients can change their minds

Question 13

Competency involves the ability to:

Answer 13

understand relevant information

retain relevant information

weigh up relevant information

communicate decisions

(according to Mental Capacity Act 2005)

Question 14

Is competence all or nothing?

Answer 14

No, a patient could have capacity to consent to one treatment and not another complex procedure

Competence can also fluctuate depending on a patient being confused, panicked, shocked etc. It depends on context, they may lose capacity in a certain state, converse with them once they do have capacity.

An irrational or unwise decision does not equal incompetence- see it as patient autonomy, they have the freedom to make their decisions even if it’s one we disagree with or thin is unwise.

Question 15

What information do we give to get consent?

Answer 15

PARQ

Procedure
Alternatives
Risks
Questions

Question 16

3 models for adequate information when asking for consent?

Answer 16

1. Professional practice standard: conforms to professional practice (guidelines)
2. Reasonable/prudent person standard: hypothetical reasonable person and think what info they wound need to make an informed choice
3. Subjective standard: enables individual to make informed choice, focusing on this particular person

Question 17

How are the 3 models for information giving reflected in guidelines?

Answer 17

Professional practice standard according to Bolam Test-
“A doctor is not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular art”

Reasonable person standard according to Department of Health-
“Doctors have a responsibility to inform patients of a significant risk which would affect the judgement of a reasonable patient”

Subjective standard according to GMC-
“Explain any risks to which the patients may attach particular significance”

Question 18

Sideaway and Bolam

Answer 18

In Sidaway it was argued that whether a doctor’s omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the Bolam test
- i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational.

So now - if responsible body holds irrational views the judge can reject it.

Question 19

Montgomery case impact on the standards

Answer 19

The doctor is under a duty to take reasonable care to ensure that the patient is aware of any
‘material’ risks involved in proposed treatment, and of reasonable alternatives.

A risk is “material” if a reasonable person (hypothetical patient standard) in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that THEIR patient (subjective standard) would be likely to attach significance to it.

Question 20

Voluntariness in consent

Answer 20

Patients must be able to refuse

Patients must KNOW they are able to refuse - can withdraw consent at any time

Patients must be free from undue pressure i.e. free from coercion and perceived coercion (influence of relative or medical advisor)

Question 21

Other consent issues

Answer 21

Consent is SPECIFIC to a particular procedure etc

Delegating consent can be done but must stick to rules, delegating professional must have qualifications and be familiar with GMC guidelines

Signed consent forms provide MINIMAL EVIDENCE that decision making process was adequate, people may skim over information

Question 22

Limits of informed consent

Answer 22

Consent not possible/necessary when patient:

• is not competent to make decision (previously expressed wishes/pure autonomy model v substituted judgement v best interests standard- this is the one used in England)
• poses serious risk to others if not treated or restrained (complex)
• declines ‘all’ information - patient has right to refuse to engage with consent process

-

Question 23

Problems with informed consent

Answer 23

Presentation of info

Complexity of info/clinical uncertainty

Effects of fear, illness social status of doctor, embarrassment, clinical environment, impact on decisions

Time consuming (continuing process)

Question 24

Consent and death

Answer 24

Under Human Tissue Act (2004) consent is needed for removal, storage and use of material from the deceased for all scheduled purposes incuding:

Transplantation
Education or training
Public display

Question 25

Golden triad of moral philosophy

Answer 25

Virtue Ethics

Consequentialism

Deontology (includes rights/justice)

Question 26

Virtue Ethics

Answer 26

The idea that the inherent “goodness” of an action is linked to the performer’s moral stance

“A good person only does good actions”

Subjective concept?

“An action is right iff it is what a virtuous agent would characteristically do in the circumstances”
Virtue ethics typically focuses on traits of character conducive to a full and flourishing life. (Aristotle, Thomas Aquinas, Modern [medical virtues]: E. Pellegrino)

Question 27

Deontology

Answer 27

The idea that the “goodness” of the action depends on whether it was in line with regulations/protocols

Subject to differing regulations regarding the same actions

“An action is right if it is accordance with a correct moral rule or principle” Deontology includes references to duties, moral rules or principles. (I. Kant, modern: J. Rawls)

Question 28

Consequentialism

Answer 28

The outcomes outweigh the means

“For the greater good”

What about the minorities?

“An action is right if it promotes the best consequences”
Utilitarianism is a type of consequentialism. In utilitarianism, one aims to promote ‘utility’: the beneficial balance of ‘pain’ and ‘pleasure.’ Note that ‘pain’ is a technical term for utilitarian, and means something like ‘positive outcomes’ and not only ‘positive feelings.’ (J. Bentham, J.S. Mill, modern: P.Singer)

Question 29

Why do we need ethical analysis?

Answer 29

Pros:
Professional and legal obligation*
Better patient care*
More productivity-efficiency
Team cohesion – no moral stress; burnout
Keeps accountability of your actions

Question 30

Cons of ethical analysis?

Answer 30

Cons:
Poor resources for ethical analysis*
Time consuming*
Some people ignore ethics regardless

Question 31

You are a medical student on your very first placement. An elderly patient asks you a simple, non-clinical, question. The patient asks when is her husband coming to visit her.
You know the answer from previous conversation with family members. Patient’s husband died 5 years ago. The patient is suffering from dementia and does not remember this fact.

Will you be honest?

Answer 31

TRUST
Duty to maintain trust and be honest with patient - deontology, must comply with regulations

Relationship of trust is important in consequentialism if medical professionals breach trust then patients will not be as honest or trust the profession, harming them and so it won’t be for the greater good

Important to express good character and maintain trust in virtue ethics, as a person involved in care of a patient you must be trustworthy

PROTECT WELLBEING
Not be honest to protect patient and not upset them - duty to care for and maintain their wellbeing, not causing them harm (non-maleficence)

think of more arguments

Question 32

Four principles approach

Answer 32

Autonomy: Respecting the patient’s choice on what they want to do (where appropriate) self governance

Non-maleficence: Making sure not to do harm to your patient

Beneficence: Trying to do what is best for your patient (medically and non medically, social aspects)

Justice: Being fair, equal and impartial to all your patients

Question 33

Four quadrants approach

Answer 33

Medical indications: Different treatments, outcome prognosis etc
Links to Non-Maleficence and Beneficence – Doing what is clinically best for the patient

Patient preferences: Links to Autonomy – respecting the patient’s choice

Quality of life: Links to Beneficence – what gives the patient the best outcome in the long run

Contextual features: Links to Justice – consider the patient holistically (e.g. can they afford to sustain themselves after radical treatment)

Question 34

Ethical grid

Answer 34

Blue- focus on autonomy, needs, respect for persons and autonomy, and facilitating autonomy

Red- deontological, duty to keep promises and do good, avoid harm and tell the truth

Green- consequentialism, most beneficial outcome for individual and society and yourself, and beneficial outcome for a particular group, distribution of burdens and benefits

Grey- contextual, includes the law, wishes of others, codes of practice, personal and institutional risks for patient, possible uncertainty about facts/evidence or outcomes of treatment, effectiveness and efficiency of each course of action

Question 35

Structured case analysis model

Answer 35

Summarise the case

State the moral dilemma(s) (moral dilemma, alternative clear courses of action, vs a moral issue)

State the assumptions being made or to be made i.e. assuming the treatment will be beneficial, or patient will decide a certain way

Analyse the case with reference to ethical principles

Analyse the case with reference to consequences

Analyse the case with reference to the virtuous healthcare practitioner

Analyse the case with reference to the law

Identifiable justifiable ethical solutions and those that are not justifiable

State preferred approach with explanation

Question 36

Process of doing ethics

Answer 36

Arguably, the process of doing ethics is as important as the ethical conclusions drawn (esp. for virtue ethicists!)

What is this thing called “process”?
….listening, asking questions, critical reflection, deliberately ‘thinking the opposite’, using intuition and emotion, being alert to logic ….etc.

So don’t get too lost in the theory, think also about the way in which you conduct the analysis.

Question 37

GMC four main functions

Answer 37

Under the Medical Act 1983 the GMC has four main functions:

1. keeping up-to-date registers of qualified doctors
2. fostering good medical practice
3. promoting high standards of medical education & training
4. dealing firmly and fairly with doctors whose fitness to practise is in doubt.

Question 38

The Law and the basic distinctions

Answer 38

“the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or customs or policies which is recognized and enforced by judicial decision”

Basic distinctions in (UK) law:

• Civil v Criminal Law
• Statute v Common Law

Question 39

Civil vs Criminal

Answer 39

CRIMINAL
Criminal acts are considered offences against the whole of a community. The state, in addition to certain international organizations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders.

Matters serious enough to be considered offences against the whole community

Rights, duties and norms important for the whole community

Legal action taken by: Crown Prosecution Service

CIVIL
The main intention of the civil law is to protect individuals against one another specifying the rights and duties of individuals.

Dealings between private individuals or groups

Rights and duties owed by individuals and groups to each other

Legal action taken by: claimants

Question 40

Statute law v common law

Answer 40

STATUTE
Written law decided by the legislature or other government agency (e.g. Acts of Parliament)

Relatively difficult to change

Created by: legislature or government

COMMON
Based on precedent or case

Relatively more malleable

Created by: decisions made by judges

Question 41

Challenges of ethics

Answer 41

Limited resources e.g. time, expertise, staff, accountable sources of advice and variable quality

Integrating ethics into clinical practice so it becomes automatic in decision-making rather than settling for ‘moral mediocrity’

Constructing ethics as ‘hoop jumping’, ‘common sense’, ‘yet more rules’ or ‘irrelevant’

Question 42

Why does ethical analysis matter?

Answer 42

It is interesting!

It is morally important to behave morally (or at least to try and behave morally)

Professional Regulatory Bodies require their members to behave professionally and ethically

The law reflects ethical values and requires doctors to know about professional and ethical guidance

It is useful/important in practical terms…

Patient care is enhanced (Jha 2003, Stein 2006)

Staff avoid moral distress and potential ‘burnout’ (Bischoff et al 1999, Asch et al 2004)

Teams function more effectively & inclusively (Stein 2006)

Enhances productivity, efficiency & morale (Longman 2005)

Maintains reputation & accountability (Schneiderman 2003)

Ethics quality is integral to the wider quality debate in healthcare (Berwick 2005)

Clinical governance therefore demands what has been described as ‘ethicality’ (Fox 1996)

Question 43

4 domains of professionalism

Answer 43

Question 44

Reflective practice

Answer 44

Knowing in Action – Practice which we know what to do by reflex/rote learning

Reflection IN Action – Practice where we must adapt and think to meet a challenge

Reflection ON action - Post-practice analysis of our actions

Question 45

Portfolio in practice

Answer 45

Record – Accurate record keeping

Reflect – Learn from past experiences

Review – Prepare for the future