The Fair Family - Essay Example

 1. Introduction The factual scenario raises complex issues pertaining to ethical and legal considerations with regard to the rights of Mr Fair and his daughter. As an initial observation, patient autonomy and consent will be a central factor in determining the appropriate course of action and from a nursing practice perspective, the NMBWA Scope of Nursing Practice and Decision Making Framework (“the Framework”) highlights the role of nurses to ensure that patients are informed and receive competent care (www.nmbwa.com.au). Furthermore, in terms of consent the Framework highlights the nurses’ duty to inform patients of any changes to care to ensure continuing consent requirements are complied with (www.nmbwa.com.au). 2. The Problem 2.1. Ethical The central considerations are the medical, social and legal problems as a precursor to the relevant ethical considerations. As highlighted in the previous section, bioethics is inherently complex and there is no single correct approach. To this end, Kerridge et al (2005) propose the “space” paradigm in approaching ethical problems; which is essentially: “a region of turbulence where the space is defined by what is at stake – values relationships, behaviour and human flourishing” (p.6). As such, this “space” concept inherently depends on the nature of the discipline such as medical or nursing to determine the applicable ethics, which Kerridge et al suggest “means that ethics must ultimately be about discourse, communication, social relationships and politics”. (p.7). Therefore ethics is rooted in social behaviour and culture as opposed to law or even clinical guidelines (Botes, 2000). In considering the model of ethical decision making in health care, Kerridge et al (2005) refer to the need to firstly state the problem within the ethical problem and other issues such as social, cultural and legal issues. If applied to the current factual scenario, in simple medical terms the problem is that failure to give Mr Fair and his daughter a blood transfusion will result in death, which clearly conflicts with the medical duty to act in the best interests of the patient. 2.2. Medical Problem The medical problem in the current scenario is that Mr Fair has suffered serious chest injuries and a suspected lacerated/contusion of the spleen. In light of options available, the clinical team has determined that a blood transfusion is needed as a matter of emergency to save his life. Additionally, his daughter has sustained a lacerated liver, which also requires a blood transfusion to save her life. However, the medical course of action conflicts with Mr Fair’s religious beliefs and advance directive refusing blood transfusions with regard to himself and his daughter, over whom he has legal authority. 2.3. Legal Problem Additionally as Mr Fair has legal responsibility for his daughter; conversely the medical best course of action conflicts with the daughter’s rights as her father is refusing consent. From a legal viewpoint this raises consent issues and legality of overriding a competent patient’s consent whilst avoiding criminal liability for assault and battery. Therefore, the medical, legal and social problem in the case is that medically the Fairs both require life saving treatment, to which they are refusing consent as a result of religious beliefs, which in turn raises the legal issue of overriding valid patient consent whilst avoiding criminal liability. There is nothing in the facts to suggest that Mr Fair is not competent to refuse treatment and therefore, in considering the consequential and deontological approach to the case, the relevant ethical question is whether it is ethical to allow Mr Fair and his daughter to die, which is complicated by Mr Fair’s religious beliefs. 2.4. Social Problem The social problem in the current scenario relates to Mr Fair’s religious beliefs conflicting with what society outside the Jehovah witness community thinks is an a appropriate cause of action. In addressing this point Kerridge et al (2005) argue that “a profession develops when society identifies a complex problem of social importance that appears to demand knowledge and skill for its solution that are grater than those possessed by the average member of society” (p.117). As such, this raises issues as to religious tension and the need to avoid judgment and discrimination based on a belief system that contrasts with Mr Fair’s and therefore requires specialised knowledge in addressing the social problem aspect of the ethical problem in the current scenario. 3. The facts As the ethical question relates to the possible consequence of death, it is vital to ascertain all the facts and medical history to consider possible alternative treatments that do not involve infringement of Mr Fair and his daughter’s religious beliefs (Wallace, 2001). Furthermore, it is necessary to review the literature regarding treatment options. Accordingly, whilst Mr Fair has an advance directive regarding his refusal to consent to blood transfusions as a result of his religious beliefs, another alternative would be to clarify the position with other stakeholders (Kerridge et al, 2005, p.88). Moreover, Kerridge et al (2005) highlight the point that “while it is most important to understand the patient’s illness narrative…..it is also important to listen to the beliefs and values of those caring for the patient” (p. 88). This in turn highlights the importance of nurse consultation in the process, which is often ignored (Chiarella, 2000). Furthermore, as Mr Fair is Jehovah’s Witness, as a matter of good clinical practice, consideration should be given to any potential non-blood alternative treatments, with consultation in the hospital liaison committee if appropriate. If such treatments are available consideration should be given to how the proposed treatment best serves Mr Fair and his daughter’s interests. This was highlighted in Sharin Qumsieh v the Guardianship and Administration Board and Lance Pilgrim ([1998 VSCA 45]). Nevertheless, shared decision making is vital and nurses must negotiate and consult with patients at every stage of the process to ensure compliance with continuing consent issues (O’Keefe, 2001; Johhnstone, 2001). Accordingly, Kerridge et al (2005) highlight that “the treatment of Jehovah’s witnesses demonstrates that …..If the process of obtaining consent is treated merely as unilateral information giving, it is unlikely that these differences will be ….. resolved. By using a shared process of decision making, management can be tailored to individual patients”(p.222). However, whilst Johnstone (2003) acknowledges that “it is generally recognised within bioethics that disclosure……and consent itself form the analytical components …..of informed consent” (p.149); in practice, the requirement is not absolute. Therefore in considering the facts, it is necessary to evaluate alternative treatment options, the interests of family members and collaborate with the responsible health team to determine which option would offer Mr Fair and his daughter the most justice. In considering this, it is important to consider problem from the patient’s perspective, in line with the Code of Ethics for Nurses. 4. The Four Principles The four central ethical principles are autonomy, beneficence, non-maleficence and justice. From a medical perspective the best practice approach is to save both Mr Fair and his daughter’s life, however from an ethical perspective, the balancing of the principles involves conflicting principles in the clinical context and the patient’s perspective (Kerridge et al, 2005 p188). 4.1. Autonomy A central factor in ethics and clinical practice is patient competence and “a central tenet of modern bioethics is the concept of autonomy - that individuals have the right to make decisions about their own lives. However, individuals have to be competent” (Kerridge, 2005, p.188). There appears to be no contention regarding Mr Fair’s competence and formal policies for informed consent require clinical adherence to respect for autonomy. When considering autonomy, it is imperative to consider the patient’s approach and benefits to them of treatment solutions whilst simultaneously balancing conflicting interests such as confidentiality and privacy in relation to risks. This is particularly important as nurses are often privy to confidential information (Buresh & Gordon, 2005, p. 75). 3.2 Non-maleficence Alternatively, the ethical principles require a balancing act between acting in the best interests of the patient and preventing non-maleficence of assault and battery. In considering the best interest approach of the patient, this involves the judgment of benefit and burden of each suggested therapeutic approach, including an examination of the potential consequences in context of the patient’s immediate needs (Kerridge et al, p.189). Kerridge et al further (2005) highlight the reality that best interest decisions in considering beneficence and non-maleficence commonly require quality of life assessments, “yet judgements about quality of life depend on the values of the person making the assessment” (p.189). As such this can create conflict as in the current scenario where a “blood transfusion from a medical perspective is in child’s best interest medically, however from religious perspective refuse transfusion on religious view of best interest” (Kerridge et al, 2005, pp.189-190). 4.3. Beneficence In essence the principle of beneficence requires health practitioners to ensure that appropriate treatment is provided and does not “produce more harms than good” (Kerridge et al, 2005, p.53). Additionally, the concept of beneficence is wider than looking at the interests of the patient and requires a consideration of the interests of society at large (Kerridge et al, 2005, p.53). Therefore, the beneficence principle towards individual patients suggests that patient wishes can be overridden (Kerridge et al, 2005, p.53). Therefore under the beneficence paradigm, an alternative approach is the substituted judgment test, which seeks to circumvent these problems by asking family members to become proxy decision makers and examples are durable powers of attorney in favour of other family members, which does not appear to be applicable in the current scenario but should be ascertained particularly with regard to Mr Fair’s daughter (Devererux & Moore, 2006). 4.4. Justice The principle of justice is inherently intertwined with autonomy and confidentiality, , which would suggest a preference for individual choice in decision making. However, recent academic commentary suggests that the autonomy element of “justice” in ethics may be changing, which in turn further mirrors the beneficence approach. 5. Ethical conflicts and how to resolve them 5.1. Autonomy v Beneficence The central ethical conflict is the religious beliefs of the patients versus the medical best practice principle in saving both Mr Fair and his daughter’s life. However, this ethical dilemma is compounded by the fact that Mr Fair has responsibility for his minor child’s medical decisions. 5.2. Non-maleficence v Beneficence With regard to beneficence, the essence is to ensure that action is done for the benefit of Mr Fair and his daughter, which contrasts with non-maleficence of ensuring that the actual course of action is no ineffective and does no harm to Mr Fair and his daughter. Therefore, in considering the conflicts between non regard to Mr Fair’s daughter, whilst legally her position is reliant on her father’s discretion, this is not absolute and “there are occasions……..where …..parental preferences conflict with the interest of their children. In such instances society generally assumes moral and legal responsibility for the child’s welfare”(Kerridge et al, 2005, p.197). Therefore, Mr Fair’s judgment has to be judged independently against the best interests of his daughter and the literature suggests that his decision can be overridden (Devereux & Moore, 2006). 5. Applicable law Modern legal and ethical requirements have significantly impacted the clinical approach to patient involvement in decision making regarding treatment with a “discernible tendency to overload the information dumped upon patients about ….risks” (Lord Carswell, 2004). In terms of the moral rationale for autonomy, Buss claims that “to be autonomous is to be a law to one self” (Buss, 2002). Accordingly, the general legal position is that a competent adult will be entitled to reject treatment even if this risks serious injury or death Re MB ([1997] 8 Med LR 217). This is clearly pertinent to the rights of Mr Fair and his daughter. Therefore, the proceeding with a procedure without consent will give rise to liability in the tort of battery and trespass (Brazier 2007). Alternatively, the defence of necessity will protect against liability for lack of consent if the relevant trust can establish that the treatment was in the patient’s interests. In Australia some jurisdictions pass law relating to surrogate decision making and all states have legislation regarding the administering of blood transfusions with regard to Jehovah’s Witness patients in emergency situations (Devereux & Moore, 2006). Such legislation enables the medical bioethical preference take precedence in overriding patient consent. With regard to parental consent as regards treatment for children, in Marion’s case ((1992, CLR 2185), it was held that parental autonomy for children’s treatment was not absolute and could be overridden by the court (in Kerridge et al, 2005, p.210) Additionally, all Australian jurisdictions have legislation permitting blood transfusions to be given to children in an emergency even where parents refuse permission ((Kerrridge et al, 2005, p.211). Moreover, courts usually grant such jurisdiction in transfusion cases on grounds that “children should not be martyrs to the parent’s beliefs” (Kerridge et al, 2005, p.222). Accordingly, there is clearly a link between consent and ethics in the current scenario and the concept of informed consent imposes a duty to disclose all risks to Mr Fair with regard to his and his daughter. 6. Decision In making the ethical decision, the ethical model requires the decision maker to take responsibility, communicate and justify the decision and document the decision and there will not be one correct decision applicable to the scenario. From a health care team perspective, the regulatory Code of Ethics for Nurses in Australia (“the Code”) is instrumental in clinical management and highlights the overriding objective of nurses to preserve patient’s fundamental rights and involve patients in shared decision making (www.anmc.org.au). However, whilst nursing clinical practice requires compliance with ethics, the applicability of ethics to practice and its interrelationship with legal principles is inherently complex. For example, the two central theories pertaining to ethics is the deontological and utilitarian approach. The utilitarian approach considers ethics in terms of results and the deontological approach prescribes that moral behaviour should be under predetermined principles (Donnelly, 2003, p. 7). In terms of clinical practice, Kerridge et al (2005) argue that “ethics” in simple terms relates to what should be done, however the issue of morality creates difficulty in practice “because ethics and morality have come to mean much more than a description of behaviour, custom or current practice” (p.4). Accordingly, Kerridge et al (2005) categorise ethics and with regard to medical practice refer to this as “bioethics”, which refers “specifically to the ethical aspects of the clinical encounter between patients and health professionals” (p.4). Additionally, Kerridge et al (2005) highlight the point that ethics whilst influential in considering legal principles; is distinct from law and healthcare professionals should be aware of this (p.5). Therefore, whilst the applicable legal principles will be fundamentally important to the rights of Mr Fair and his daughter, the law must not override the ethical considerations, which are separate With regard to the current scenario, in determining the ethical dilemma of whether Mr Fair and his daughter should be left to die, I feel that with regard to Mr Fair’s daughter, the case law and ethical principles highlight that medically it is in her best interests to have the transfusion to save life in the absence of any viable non-blood alternatives. Furthermore, the decision is sanctioned by Australian legislation and case law. As the situation is urgent, it is justifiable for the transfusion to proceed without a prior application to the court. Nevertheless in reaching and justifying this decision, consideration should be given to Mr Fair’s wishes and other potential stakeholders involved in the case (Kerridge et al, 2005, p.91). Accordingly, thought should be given to ethically viable alternatives in light of the wishes of other stakeholders and to this end consultation should be undertaken with the hospital Jehovah witness department to consider other treatment options. Additionally, all such consultations with other stakeholders and considerations of alternatives should be documented as proof of compliance with ethical and legal principles to protect the health care team from subsequent legal claims for non-maleficence. With regard to Mr Fair, he clearly understands his options and has given prima facie valid informed consent to refuse the treatment. However, in light of the emergency nature of the situation and the interest of his daughter as an external stakeholder, they are clearly entitled to override his refusal to consent relying on legislation applicable to emergency blood transfusions. Again, in justifying this decision, both legally and ethically, the healthcare team should consider who the other stakeholders are and consult with them. Additionally, as the ethical decision involves going against Mr Fair’s autonomy, all consultations and attempts to explain the best interest factor in proceeding with the transfusion should be communicated to him, with all attempts at negotiation documented (Kerridge et al, 2005 p.95). Moreover, consideration should be given to alternative treatments with consultation from Jehovah health professionals and Kerridge et al highlight that the notes made should also specify who made the decision and continue to be reviewed even when treatment is administered (2005, p.91). Bibliography Books M . Brazier., (2007). Medicine, Patients and the Law. 4th Edition Penguin Books Buresh, B., & Gordon, S. (2000). From silence to voice: What nurses know and must communicate to the public. New York: IRL Press. Burkhardt, M. A., & Nathaniel, A. K. 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