Medical Ethics and the Legal Framework: Chester versus Afshar the English Tort Law Cases - Essay Example

MEDICAL ETHICS and Ethics in medicine directly align with the legal framework protecting the rights of both the patient and the practitioner. Practitioners may be short of ethical expertise possibly disguised as moral decisions in place of clinical judgments. Legal implications are bound to follow medical decisions made without consent from the patient. It is in this line that this excerpt looks to evaluate medical cases and extensively on confidentiality and informed consent prior to treatment or medical procedure. Medical Ethics Introduction The Moral capability must never be inferred culpability of the practitioner. Such an individual whose sole field of training is entirely concentrated with treatment or diagnosis may not easily possess or acquire interpersonal and conceptual skills demanded by consent. It is, therefore, another thing demanding that a doctor ought to acquire expertise and could entirely not be reasonable. It is, therefore, worth recommending that they acquire proficiency in various fields of medicine although also protecting them on a legal framework where their rights may be violated. There will be instances where a doctor will work better aware of the medical ethics involved although not declaring one as ethicists (Beauchamp and Childress 2009). Moe often than not, there are the conflict of interests among the roles. For instance, one could take a nurse as an advocate for her patients who at a moment collide with prioritized tasks such as resource allocation, diagnosis or treatments guided by the principles of contract, misrepresentation and regulation. Observing such an occurrence on a legal platform, courts encompass the role although this could be argued as merely exchange medical for legal paternalism (McFadden 2010). This paper will explore what lies behind informed consent versus disclosure and the terms governing it directed by medical ethics and the legal framework. Here in, Chester v Afshar (2004) is one of the English tort law cases regarding causations in a healthcare negligence concept to guide this paper in expounding the concept. The House of Lords were of the verdict that a practitioner’s failure to provide informed consent to a patient of medical risks vitiates the want to indicate that harm could have resulted from failure to inform the subject. Paternalism As some of these fields may be non-medical, from a strict perspective, it may derive an argument from withdrawing treatment and information disclosure decisions. The tort of negligence must be patient-centered rather than medical team oriented. It may seem like an easy task burdening practitioners as patient advocates. Although room for more formalization, this could deliver more conflicts in the profession. At some point, ad hoc arrangements work although the backdrop is the critical application of communication as a human quality often overstretched or overlooked in the professional field. Criticality of informed consents is so vital that secure provisions must be made. The stature duty in healthcare facilities is to offer surrogate client advocate where one is missing to provide a better serving end. The skills present must be commensurate with a dilemma that is likely to be met although there may be heightened roles for practicing ethicists and perhaps with professional liability. Where there is no reversal of a common law following Bolam’s principle as will be highlighted below in deciding a crime of medical negligence such as where information disclosure is a contentious issue, declaratory or statutory guidance must be devised. Where patient autonomy has been enabled through adequate consent, it must be protected and enhanced by measures as the supply of various types of patient advocate support is necessary independent of medical staff. Consent Categorization Consent may either implied non-verbal, verbal or written. Written consent forms are not consents themselves but evidence of declare consent. More often than not, the forms hold crucial record sections on important aspects concerning a procedure followed to inform the patient. Implied consents are actions such as offering an arm to allow for blood samples. They may be unreliable as patients may argue such actions were lacking consent or misunderstood. Medical practitioners have an ethical duty and obligation of informing their patients of any procedure they look to carry on their bodies, concerning their health. Negligence In 1985, Bethlem Royal Hospital Governors vs. Sidaway had a case where one patient got paralyzed following an operation meant to ease a trapped nerve (Mason and McCall 2002). Appealing to the court, the patient made claims of negligence citing that she had not been enlightened of the risks in the procedure. The appellant’s claims were rejected by the presiding judge following medical opinion from a reputable medical body settled that it was not necessary to offer warnings to a patient of each risk. This case brought to the realization that a doctor in the English common law is required to provide their patients with the consent of the procedures to reach balanced judgments. The information should contain alternatives where they exist and serious or common consequences, although the topic is also in a debate between the two. Where patients are not appropriately informed, and the issue leads to suffering harm from a procedure, doctors are liable for negligence. Cases of negligence actualize the importance of the Bolam test. In 1957 Vs. Friern Barnet Management’s Committee, patients, encountered severe injuries resulting from Electro Convulsant Therapy in the absence of a muscle relaxant. The judge made a ruling in favor of the doctor, non-negligent, noting that doctors should not be guilty of the act of acting in line with the accepted practice of medical bodies skilled in the art. However, doctors may be deemed culpable of negligence where common practice is seen as unreasonable in the court. Consent Capacity It is common to debate refusal and capacity to consent. A patient in the capacity holds a right to decide on their treatment regardless of whether the decision is considered medically unsound. Take a mental capacity act for instance, patients are deemed competent if they retain and comprehend information presented in an understandable way, able to weigh the information for use to make sound decisions or communicate through means such as blinking. Unless proven otherwise, persons aged 18 years and above are presumed to be in full capacity (Slap 2008). Communication medical information should be done in time and way that offers the subject the best stand of comprehension to evade potential legal issues. Lack of capacity must be indicated for individuals’ decisions made devoid of generalization. One may consent a procedure but not others that may be more complex. Ethically, the practitioner should be paternalist in deciding where capacity lacks. Establishing best interest takes accounting on the patient’s beliefs and views as well as the stand of their family and friends. One may consent to medical treatments in place of adults lacking capacity. To some extent, patients may oversee situation where a medical decision would require declaration where they feel short of capacity. This way formalization of wishes is reached through advanced decisions of from nomination of people holding eternal powers of attorney. Where these tools are valid in the present scenario, priority must be taken in considering management of decisions. Maleficence and Beneficence Living wills and advanced decisions must be respected by all medical practitioners within the legal and best interest scenarios. However, they are only applicable if they are specific and updated to the decision in question. Advanced decisions avoiding disclosing life-saving procedures such as DNARs should be signed and in articulating writing in the presence of the witnesses and the patient. Some decisions may be considered as invalid in cases of unexpected situations reasonably believed to affect the decision reached by the patient. Adults of capacity may be given the lasting power of attorney by a patient looking to undergo a life-threatening procedure. They must be legally registered with the offices of public guardians. Nominated persons can make decisions concerning health on behalf of the patient in lieu of legal implications avoidance. Life-threatening procedures are omitted unless specifically insisted. They court may see fit to revoke the powers where the agent is seen not to act in paternalistic way of the patient. The patient’s interest must always be guarded. Autonomy principle is of paramount importance in this scenario, considered to encompass beneficence in the subject of sound capacity. Beneficence is the most appropriate principle where a patient, presently not in the capacity, had not made a decision or elected an individual to act on their behalf over non-maleficence (Mason and McCall 2002). Refusal of Consent Refusal of consent calls for heightened capacity unless the medical practitioner believes that the individual has non-existent, rational or irrational reasons to refuse consent. Otherwise, all wishes must be respected and brought to the book where appropriate. However, there is a case that exempt refusal of consent that protect the doctors from legal implications. At one point, a court ruled that pregnancy could invite caesarean section despite the refusal to consent for life-saving moments. A court may also rule that an expecting woman holds the final decision to refuse where a treatment is bent to benefit the fetus. Undue influence must never be ignored in the medical practices. Where a practitioner is of the opinion that a patient is unduly influenced by a second person to refuse life-threatening assistance, a doctor is obliged to seek counsel from the court (Mason and McCall 2002). Refusal of consent can also be overruled requested by the children and the parents which has been a case in several instances of families such as those of Jehovahs Witnesses declining blood-saving transfusion termed life-saving. Gillick competent children have had consent overruled on refusal of offer consent to threatening conditions. Although it seems to be contrary to individualistic autonomy, courts follow best interest, paternalist, approaches to children who opt to die (Slap 2008). Ethics in the medical field must also be observed while withholding medical information. In exceptional yet rare moments, information is withheld from patients that may include that concerning their treatment. A common justification is presented where information should not be disclosed where such knowledge may introduce psychological harm. This, however, should not be reached lightly and must be announced and justified appropriately. However, withholding information should not be done lightly and should be well justified and documented. Legal Pursuit Legal implications follow where consent is questioned, or confidentiality of specific medical procedures is breached, it fails to honor patient autonomy, and the violation is a seen as betrayal to the patient. A patient holds the right which is often described in specific areas and the common law. Where patients feel that the responsible practitioner has wrongly breached their confidentiality pact, they may pursue the grievances in several ways (Mason and McCall 2002). Disciplinary proceeding may commence, patient compensation resulting from civil proceeding and criminal proceedings whichever applies. Where a doctor is ruled guilty of crossing his ethical boundaries, he or she may be charged by law for breaking the law on confidentiality. The GMC register may also see them struck off which has been common in recent years. For medical students, they risk potential expulsion from their mother medical schools. Safe Practice Some practitioners may not be entirely keen on when confidentiality is breached. An unintentional breach may be experienced. The medical protection society offers a list of common occurrences where such incidents may take place. For instance, canteens and lifts discussing information in crowded, small places carry the risk of breach, and caution must be exercised to avoid disclosure. A&E departments or Wards are other areas where doctors may cross paths with many people such as relatives and friends in proximity to healthcare professional discussing confidential information about a patient. There are also incidents where patient notes are left in open places such a receptionist desks where visitors or other patients may access. In the present age of computing, printers, faxes and computers, in general, are to be closely monitored to avoid going outside the moral bracket of a medical practitioner. It is possible for patients to access personal information concerning other patients such as in printouts done on networked machines and forms filled away inappropriately. A doctor must, therefore, ensure that the recipient machine is secured for access to authorized personnel only. A more frequent incident is during courses of clinical or wards around computers bearing former patient information becoming visible for seeing to the next patient (Gorovitz 1976). Accepted Breach of Confidentiality There are incidents where confidentiality must be breached, guided by the legal framework and medical practices at large. Confidentiality, although as described is a clear right to patients, is not absolute. One juncture is where a patient offers consent in sound mind and capacity. Some medical complications may require a doctor to discuss relevant medical information with their counterparts to be assisted in managing or controlling a situation. However, where patients decline consent to sharing the clinical information sensitive to them such as HIV status, the responsible doctor must respect the wish although encouraging the patient to inform a GP as he would not be subjected to the risks in normal conditions. Information sharing to family members does not fault ethics in practicing medicine where a patient requests at family members are not informed (Minigh 2007). Unless a disease is notifiable, such wishes must be respected. Under very rare circumstances that third party disclosures are justified especially where notifying the patient is injurious to her health such as terminal disease notification (Brazier 2003). Compulsory Breach of Confidentiality Doctors can avoid legal implications on observing their code of ethics and notifying local officers of outbreaks of communicable diseases for control where patients have diseases such as TB or meningitis. A full list indicates guidance in health protection agencies which is a statutory duty even for cases where a doctor must breach confidentiality. Doctors are allowed to breach confidentiality where there is the risk of critical harm to third persons dictated in the common law (Standing and Cripps 2015). Take a case where a psychiatrist releases negative information concerning paranoid schizophrenic in a mental state, previously murdered five persons, with a claim that he is not fit for release. Where the initial hospital drops the psychiatric report and in the interest of further treatment to the patient sends a copy to the mother hospital to the psychiatric, the psychiatric may introduce claims of breach of confidentiality initially dismissed by a court. This sets a precedent that a doctor can breach confidentiality behind the public safety interests. Disclosure protects the practitioners to the DVLA and in Data Protection Act of 1998. Tax inspectors are open to receive disclosed information although making all efforts to seclude financial and medical information. Conclusion Consent renders lawful justification for vital treatment. Where valid consent is not provided, treatments involving touching such as physical examination, dressing a wound and surgery, may amount to a battery. There are no legal requirements consenting should be documented or in a particular form or order, oral consents are also valid. 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