Legal and Philosophical Aspects of Consent - Essay Example

LEGAL AND PHILOSOPHICAL ISSUES IN CARING. THE LEGAL AND PHILOSOPHICAL ASPECTS OF CONSENT LEGAL AND PHILOSOPHICAL ISSUES IN CARING. INTRODUCTION Changes occurring in Health care delivery and Medicine are the result of social, economical, technological, scientific forces that have evolved in the 21st century. Among the most significant changes are shift in disease patterns, advanced technology, increased consumer expectations and high costs of health care. These factors have redefined medical practices to fit into the changing health delivery system. Thus, Nursing Profession is 'accountable' to the society. i.e. obliged to the laws regulating the professional activity. This 'accountability' is usually spelt out in "Patient Care Documents" established by hospital associations and medical associations or councils of every country (Suzanne, 2004). In addition, medical profession has defined its standards of accountability through a formal code of ethics. Legal challenges and court decisions can seriously affect a nurse's professional future. Thus, patient's perceptions of health care, particularly disagreements and researches of various kinds with medical professionals have caught the attention of every one since 1980s in Great Britain. These disagreements have turned often into legal complaints (Ellen Annandale 1998). These disagreements turned legal complaints lead to long litigations .In UK, the Court usually award three types of damages in medical litigations.1.Compensatory damages - for an injured plaintiff's economic losses, costs of health care and lost wages. 2. Compensatory damages - for non-economic losses including pain, suffering associated to injury and 3. Punitive damages - in cases where a defendant has been found to have acted in a willful fashion, demonstrating negligence with no regard for the patient's well being. Thus, punitive damages aim to punish the defendants and are very damaging to the medical professionals. Medical malpractice law is part of tort, or personal injury law. The standard used to evaluate whether the breach in question rises to the level of negligence is called 'medical custom'. Medical custom is the quality of care expected of a medical professional. This custom is primarily based on the testimony of experts in the medical profession and practice guidelines. There has been a shift in recent years from the custom towards a more independent determination by the court. On account of the above discussed factors, there has been a departure from traditional approach to management of disputes between the medical professionals and the patient. The important approaches in medical care today include 1. Documentation based Medical Practice. 2. Evidence based Medical Practice. DOCUMENTATION BASED MEDICAL PRACTICE One of the most difficult realities of the medical practice is that, despite efforts and good care, some patients will die, either due to the nature of the disease like cancer, AIDS etc, or due to developments related to patient's age, health conditions etc. Although technological advances in health care bring extended and improved quality of life, the ability of these technologies to prolong life beyond a meaningful point has raised ethical issues, especially in "nothing more can be done" patients. Denial on the part of the patient and family members about the seriousness of terminal illness has been a barrier to discuss about end-of treatment options (Kubler-Ross, 1969). Research studies have confirmed that patients went information about their illness and end of life choices (McSkimming et.al, 1994). The case of Nancy Curzon in USA (Suzanne, 2004) throws more light on the legal implications of most medical decisions. Nancy Curzon was a young woman involved in a car crash after which she remained in a persistent vegetative state in U.S.A. In spite of a three year legal battle of her family members to have her feeding tube removed to let her die, The Supreme court ruled that 'a state requires a 'Clear and Convincing evidence' of the patient's wishes for withdrawal of life-support. This gave rise to the legislations, which encourage people to prepare advance directives in which they indicate their wishes concerning the treatment and care to be provided if they become incapacitated in USA. Advance directives' are legal documents that specify a patient's wishes before hospitalization and provide the necessary information for tough decision-making situations. In USA, the Advance directive is usually composed of a Living will which is a medical directive issued by an individual with sound mind. This documents treatment preferences and provides instructions of care. This is often accompanied by a 'Proxy directive'. Proxy directive is the appointment and authorization of another individual to make medical directives on behalf of the person who created an advanced directive when he/she is no longer able to speak for himself/herself. This is known as Health Care Power of Attorney or 'Durable Power of Attorney'. The documentations in UK include Diagnosis and Treatment Report and the Health Record. Every Health Care delivery center today provides a report to the patient on the details of the diagnosis of the disease with follow up instructions, the Medicine information and the allergy reactions that could follow; dietary restrictions, dos and don'ts, restrictions and exercises prescribed. They take an acknowledgement either from the patient or an authorized person after receiving the report. This documentation serves a key purpose in medical practice (Hackensack University Medical Center, 2006). Documentation of records of all treatments and medications, as well as a record of a patient's reactions and behaviour should be understood. The health record is the written and legal evidence of treatment. This reflects only facts and not the judgement of the doctor. Careful and accurate documentation is vital for patient welfare and that of the nurse. The use of electronic documentation is becoming increasingly prevalent (Bunker, 1999). Documentation should include, medication administered, treatments done with date & time, factual, objective and complete data, with no blank spaces left in charting, on flow sheets or on check lists, calls made to health care team, client's response, signature of the nurse in every entry and consent for treatment (Julia, 1998).A private hospital in Milan, Italy, has been asked to handover for police verification of the medical records of at least twenty one cases who had heart valve surgery, following complaints that the surgeon replaced heart valves even in patients who did not need them replaced (Turone, 2005). INFORMED CONSENT Before any terminally ill person receives his chemotherapy or an invasive procedure, he or his health attorney should give a well-documented informed consent. Informed consent means that tests, treatments and medications have been explained to the person, as well as outcomes, possible complications and alternative procedures. A medical hospital in U.K has been pushed into a centre of a litigation storm after allegations of abnormally high death rate in its emergency wing. Thirteen deaths are under investigation now. This followed the anonymous complaints of sedation of terminally ill patients. Investigation has revealed an astounding 151 cases of sedation of which 57 cases had no informed consent of the family. A doctor has been suspended following the investigations for a series of 'serious administrative errors' in this regard (Waller, 2005). Even taking the organs, parts of tissues without patient's consent is illegal in UK. This includes Kidney, Liver and other organs and tissues including blood samples for genetic tests. This is as per the recommendations of The Joint Committee on Medical Genetics of the Royal College of Pathologists and British Society for Human Genetics. But if a tissue is taken in the larger interests of the population, where the incompetent patient is also a beneficiary, the doctor should be able to prove the best interests in the court of law. COMPETENCE AND INFORMED CONCENT The Case of 71 years old Ronald X, a widower, living alone in an apartment is classic case of a patient's competence in giving informed consent. Informed consent refers to legal rules that prescribe behaviors for physicians in their interactions with patients based on the ethical doctrine rooted in the value of autonomy that facilitates patients right to self-determination. It is an interpersonal process whereby practitioners interact with patients to select an appropriate course of action. Informed consent means that tests, treatments and medications have been explained to the person, as well as outcomes, possible complications and alternative procedures before the treatment and his consent is documented. There is no second opinion on the fact that only a competent individual can give an informed consent. But the concept of competence is broad with moral, medical and legal implications. Since, Ronald X suffers from arteriosclerosis, a condition that results in his experiencing periods of confusion during which he sometimes wanders purposelessly around the city, running some risks to himself, it is first important to determine his competence to give consent. It is important to see if he is competent or marginally competent or incompetent. This can be done by the application the classical 5 tests for testing the level of competence of this case. The 5 tests to determine the competence test the following; 1.Reasonable outcome by which the individual is declared competent if consent seeks a reasonable outcome. 2.Rational reasons by which the individual is declared competent if consent follows a rational process. 3.Ability to express consent or refuse consent in spite of reasonable outcomes. 4.Ability to understand by which the individual is declared competent if one has the ability to knowingly act on information given in the process of obtaining consent. 5.Ability to actually understand which declares the individual competent if one actually understands the information presented. Ronald X satisfies all the 5 test criteria for a competent individual. When not in a confused state, repeatedly expresses his awareness of the problems he faces stemming from his arteriosclerosis and of the resultant risks he runs. Informed consent in a competent individual is an expression of his right heeding to his/her wishes or desires. In an incompetent individual expression of his/her right is done in their "best interests" from a psychological and medical viewpoint. However, there seems to be a group of individuals who are marginally competent. This group seems to lie in-between the two extremes of competence and incompetence and competence in this case thus appears to be a matter of degree. Marginal competence seems to occur in individuals in adolescence where competency is still in the developmental stage thus bringing age factor into the argument. Mentally retarded persons who have some understanding of the reality and are able to express their wishes and desires can also be considered marginally competent. Mentally ill individuals whose illness has not completely impaired their understanding and capacity to express their wishes and desires are also considered marginally competent. These individuals are not incompetent though they suffer from specific deficits due to destroyed faculties. These marginally competent individuals make a significant group and recognizing the existence of such group of marginally competent individuals will help define competence better. Ronald X, when not in a confused state, repeatedly expresses his awareness of the problems he faces stemming from his arteriosclerosis and of the resultant risks he runs. Thus, he clearly falls in the category of a marginally competent individual who has the right of informed consent. Competence should be empirically and morally defined rather than just by one of them. This is because of the fact that it carries the rights of an individual. A Medical approach to competence is broader in spectrum than a legal approach. This is because of the fact that always a functional test is used to test the competency, which gives a better understanding of the individual's functioning in the society, work history and interpersonal relationships than a legal approach which focuses on specific legal contexts like understanding of a particular transaction, legal contracts and consequences. THE MENTAL CAPACITY ACT IN UK There is no proxy consent for an adult in UK as in USA. Thus, no close relative of an adult can influence the treatment options. The treatment options are decided on the best interests of the patient by medical professionals. The nurse under such circumstances should judge the options clearly and be prepared to defend her decisions. In case of litigations on account of such medical decisions, the court will decide based on the findings whether the treatment was given in the best interests of the patient. The Bolam test is used to determine the best interest standards, which confirms if a responsible body of medical opinion, would affirm that the treatment was in the best interests. Although In Scotland, the Adults with Incapacity (Scotland) Act 2000 says that competent individuals over 16 can appoint someone to make decisions about medical treatment on their behalf if they become unable to do so, the English law demands that no-one can consent to medical treatment on behalf of an incompetent adult patient and the patient's relatives cannot demand treatment they consider is in the best interests of the patient. When a patient is temporarily incompetent, following an accident or medical event like being unconscious the healthcare professional should do only what is necessary in the circumstances. Patrick Hoyte, in his publication Consent may not be needed to save life opines that in case of such adults who will not allow a blood transfusion in all circumstances, giving a blood transfusion under such a restriction would lay the doctors open to legal charges of battery. When a patient is incapacitated or incompetent, the Law Commission recommends careful consideration of "the ascertainable past and present wishes and feelings of the person concerned, and the factors that person would consider if able to do so to decide on a treatment (Patrick Hoyte, 1997). According to Hoyte, when a patient temporarily, or permanently, lacks the capacity to give or to express consent to treatment, it is axiomatic that treatment necessary to preserve the life, health or well-being of the patient, may be given without consent. This is not only lawful for doctors to provide such necessary treatment to incapacitated patients, but it is also their duty to do so as medical professionals. According to English Law, no one can give consent on behalf of an incompetent adult.-but , treatment can be still be given in the Best interests of the patient. The patient's close relatives are reliable sources who can help in this regard. But, in case the patient when competent issues an advance refusal of treatment under certain circumstances, the doctors should abide by the same. A code of practice under the new Mental Capacity Act for doctors and others who deal with people who cannot take decisions for themselves was issued recently in draft for consultation. The draft code applies to England and Wales. It sets out how patient capacity should be evaluated and how these advance directives on treatment will function and how treatment modes should be decided. The act is expected to be in force from 1 April 2007. Living wills are already binding on doctors even under common law (Dyer, 2006). These advance directives helps sort out two types of legal situations.1.These directives help a competent adult to choose his treatment and 2.These helps a competent adult to choose his treatment options when he becomes incompetent under circumstances of a disease or accidents. COMPETENCE AND TREATMENT OPTIONS IN CHILDREN AND NEONATES. The Ethics Advisory Committee of the Royal College of Pediatrics and Child Health (EAC - RCPCH) has defined five categories in which the withholding or withdrawal of life sustaining medical treatment can be done in children. Clinical situations of these decisions include Non-resuscitation of a baby at birth with congenital abnormalities like anencephaly, making the child incompatible for survival; Non- resuscitation of a baby born with a gestational period of twenty three weeks or less making the baby neurologically impaired; withdrawal of ventilation from the baby with birth asphyxia leading to brain damage. All such professional decisions are done within the framework of law. The children Act (England and Wales 1989) safeguard the children's welfare. The Act also introduces the concept of parental responsibility. A number of judgments on withholding or withdrawing life sustaining treatment have proved that there is no obligation on part of the doctors to give treatment which is futile and burdensome and such a treatment could be treated as an assault. They have also given enough scope for the treatment goals to be changed in case of a dying child. These judgments have legalized the withdrawal of feeding and medical treatment In such cases in the best interests of the children. Withdrawal of life sustaining treatment in appropriate cases is not not not active killing, nor does it breach the article 2 of the European Convention on Human Rights. In these cases the decision making process involves all members of the Health Care Team and the parents. The law here demands that a full record of communication with the family should be written in the clinical record on all occasions. Do not attempt resuscitation orders and decisions to withhold or withdraw life-sustaining treatment must be recorded in the clinical notes. CONCLUSION The medical practice is liable for six kinds of legal authority, viz, 'The federal or central law', 'The law of the state', The international code of physicians', 'Institutional rules and regulations', 'Standing orders of the chief' and 'Precedent court decisions' (Zwemer, 1995). There are certain areas in medical practice which have important legal implications called legal hazards. Over the past years, new guidelines have been established for a clear frame work of accountability with the National Health Service(NHS), Dept of Health, U.K, in order to bring improvement in the health care delivery system. The Chief Medical Officer's report in 2000 indicated the need for patient safety in the realm of large scale occurrence of adverse medical events. The subsequent Government guidelines released in 2001 summarizes the relevant legislations and actions for patient safety. According to the guidelines published by the title Building a safer NHS for patients in May 2001, 'Patient safety incident' is any unintended or unexpected incident that could have or did lead to harm for one or more persons. Patient safety is a key theme in UK's presidency of the European Union (EU). The United Kingdom of Great Britain and Northern Ireland (UK) hosted a 'Patient Safety Summit' on 28-30 November 2005 in London. This patient safety summit highlighted the safety standards and education in patient safety. The workshop was attended by a large number of patients who themselves had been seriously harmed by health care. At the summit, the W.H.O sponsored "World Alliance for Patient Safety" launched the new draft guidelines for Adverse Event Reporting and Learning systems for patient safety. The aim of these reporting systems in to learn from experience and mistakes and to use the results for implementing good patient care. Changes in financial incentives and health care delivery structures are producing new threats to health care quality (A.Brennan, 1996). The retributive measures are cumbersome and expensive. Hence, there is a need for more accountable health delivery system which will enable application of modern scientific approaches to quality health care system. In this context, quality of the medical care depends on promotion of quality medical care by managed care organizations like NHS. There should be regulations, which will apply the principles of quality management and improvement. These regulations integrate knowledge from modern scientific fields with quality management. REFERENCE Ann J. 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