Analysis of Medical Law Cases - Case Study Example

Running head: MEDICAL LAW Medical Law Cases You're The following compiled research examines three intricate medical cases associated with the laws surrounding health care in the UK. Each case has an explanation and a thorough descriptive narrative which points out the areas where the law is most affluent in the decision making process of each patients care. The cases that will be examined and discussed deal with issues such as euthanasia, surrogacy, basic medical ethics, and the legal issues involving informing others of a patients' medical condition. The conclusive point that this research brings is that health care has become more complex due to the many laws that have to be observed and followed concisely by those in the medical profession. The legal medical standards and ethical decision making styles in healthcare today are the predominant factors in caring for patients in an appropriate and caring manner. Medical Law Cases Scenario 1: The Case of Euthanasia with regard to Medical Law For many years now there have been intense debates concerning the ethical implications of euthanasia in medical care. The medical law has clearly defined that any form of euthanasia, including forms of assisted suicide or even discussion of suicide with a patient is unethical and morally wrong, not to mention illegal in the UK. Therefore despite the fact that euthanasia might at times appear to be the more humane way to control and perhaps provide sincere care to a patient, it is not something that is legally allowed within all of the countries that make up the geographic regions of the UK. Because of the legal boundaries involved with this form of medical care, many people travel great distances simply to have the ability to have their own wishes upheld. Also, there exists a great deal of confusion with the law and the comprehensive level of those contemplating euthanasia. Many citizens all around the UK don't fully understand what euthanasia entails and why it is considered by some to be so unethical and immoral either. Euthanasia is a form of care that can be defined as, "either painlessly putting to death or failing to prevent death from natural causes in cases of terminal illness or irreversible coma" (Bender et al 1989). The term comes from the Greek expression for "good death." Now, this short definition has been found to be a cause for debates all over the world, with specific emphases in the UK itself. Doctors, politicians, religious leaders, lawyers, and the general public argue over the legislation that would allow or forbid euthanasia. Currently, there are only two countries, which permit such "activity"; and these are the Netherlands and Belgium. As was said, citizens in countries such as England and Britain often travel to the Netherlands in particular to have their wishes to end their lives upheld. This is considered morally wrong by many as well because if an individual is suffering terribly from untreatable throat cancer and there is no way to extend their quality of life, then the question is, "why make them suffer" Of course current UK legislation obviously does bring on a lot of heart ache for many of those in its borders. This is undoubtedly where some of the more differing viewpoints come into a clearer perspective. There also exists another subsidiary concept other than the basic form of euthanasia which is known as, "Passive Euthanasia" (Bender et al 1989). This form of euthanasia is understood to come into being when treatment to a patient is intentionally withheld or withdrawn to prolong life in many cases (Bender et al 1989). It is the notion of hastening the death of a person by altering some form of medical support that they are receiving and letting nature take its course that is an example of passive euthanasia. Some forms of this would be incidents that include repudiation of chemotherapy, radiation, antibiotics, and also the refusal of donor blood for needed transfusions. Also, stopping medications, rejection of food and water to induce starvation and dehydration, as well as the denial of cardio-pulmonary resuscitation, commonly referred to as "CPR", may prove fatal in passive euthanasia. Even this form of euthanasia is often found to be illegal in the countries within the boundaries of the UK, although many are more accepting of this model of ending a life because it appears to be more natural than the basic element of euthanasia (Keown 1995). Mercy is what is associated with euthanasia and in fact it is this concept which many people feel brought this medical action into being. There comes a time when the ethical decision must be made of whether or not prolonging a life is helping or hindering the natural process of dying. The patients' personal wishes have to be taken into consideration for the entirety of the act to be viewed from a moral perspective. One could say that the current laws within the UK bring about more pain and emotional upset by disallowing the patients voice to be heard and their wishes to be followed. Therefore there are those that state no one should have a power over another human being when it comes down to the decision to end life. This is especially true with regard to a diagnosis of a terminal illness that results in chronic and excruciating pain for those diagnosed with diseases such as lupus, cancer, multiple sclerosis, and even illnesses such as heart and severe vascular disease (Humphrey 1992). It is true that those who accept the idea that euthanasia is ethically justifiable appeal to the values of autonomy, self-determination, and freedom from suffering. This position favors the legalization of voluntary euthanasia for compassion, and claim there are no compelling reasons not to allow people this release from suffering, to do so otherwise is staunchly inhumane and is something that a good portion of UK citizens are attempting to make unquestionably clear to those in charge of the legislative laws. Furthermore, the right to die is ethical whereas the laws preventing the right to do are quite opposite. A country's attitudes and laws should reflect the fact that dying is a natural human process. It is obvious that Belgium and the Netherlands do so as the Judicial Council's in these two regions have taken the position that supporting irreversibly and terminally ill, severely ill, or even comatose patients often constitutes the prolonging of death rather than life (Bender et al 1989). It opposes the adoption of legally binding policies which are too inflexible and illogical. They seek laws which will aid the unending variety of individual circumstances. Clearly, it should be understandable that if prolonging a patient's life only brings more tragedy and pain then it is the belief of many that the more merciful approach would be a sudden liberation or death, not legislative laws that are preventing a person from finding peace such as the ones in existence in the UK currently. Although the UK law does allow for passive euthanasia in some extreme cases such as with Tony Bland who was a victim of the Hillsborough disaster, these are very few and far between; also defined as limited and thereby leaving many concerns and fears among those who practice medicine and agree with euthanasia (Maguire 1974). The House of Lords claims that no one should ever have the right to claim that an individuals life is not worth living, not even the individual himself which many view as a wrong type of outlook on the essence of life and death in humanity. The following quote gives a more clear perspective on this statement from the House of Lords: The message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, and instead, should assure them of our care and support in life (Dean 1994). Apparently this opposes facilitating euthanasia to all of those wishing it because there is a fear that then life would become worthless in the face of illness and there would be to many turning to the choice of ending their life when a possibility for hope might still exist. In other words people should have more faith and trust in the medical community and pray for a way to alleviate their illness than simply giving up and turning to death as the answer. Also, of course any mentally competent person can comprehend why an ill individual would become suicidal but there should not be any form of encouragement for them to carry out such an act. Cases such as the "Stoke case", leaves people wondering how well the laws really work and it also draws in the question of whether or not those with real terminal illnesses will be treated appropriately and passive euthanasia allowed within the UK (Bender et al 1989). In conclusion, when one discusses euthanasia or ending ones life, we challenge some of our most personal valued systems. This is a controversy that will not be easily resolved. As individuals and more importantly, as a society, we need to clarify the terms and conditions between the balance and interest of preserving lives versus the desire to die with dignity. Currently, euthanasia is a controversial subject in which its terms are too personal and legally conflicted for the courts to decide upon as well as society to agree upon in entirety. Scenario II: Surrogacy and the Ethical as well as Legal Implications in Current Times Surrogacy is a way in which couples can have children when they themselves are unable to produce offspring of their own accord. Even though this has become a highly popular way of gaining biological children it is still overshadowed with extensive controversy due to the legalities that surround the rights of the surrogate mother and the expecting and hopeful parents as well. People who wish to be surrogate mothers and those who wish to hire a surrogate mother require a lawyer. Those wishing to do so must be involved in an organization for surrogate mothers. A contract must first be drawn up by the lawyer. "The surrogate contract is generally necessary to help ensure that the infant will be surrendered to the couple immediately following its birth and that the adoption will proceed smoothly" (Landau 1988). There are certain obligations the surrogate mother must follow during the pregnancy. Surrogate mothers are unable to consume alcohol, drugs, or smoke. They are paid to carry the child for the couple. All of their doctors appointments are paid for by the couple who wishes to have the child. If the pregnancy results in a miscarriage, the couple still must pay the surrogate for however many months the surrogate has carried the child. Any deformities of the child must be accepted by the parents. "A contract is also valuable to the surrogate mother, to legally guarantee that both her fee and her medical expenses will be paid according to the agreement" (Landau 1988). Any incidental fees because of pregnancy are also covered by the couple. Though the laws of surrogacy in the UK have become more concrete in hopes of avoiding past complications in contracts drawn up between expecting parents and the surrogate mothers; even in current day this type of surrogate process is still prone to many dilemmas and is still filled with puzzling problems. Many legal dilemmas have ensued new reproductive technologies. There has been Internet bidding wars over eggs. Likewise some surrogate mother contracts are sometimes unclear. As a result the surrogate mother does not always get what she expected out of the situation and is sometimes cheated out of money. Some people find the technological advances to be inhumane. As well there are several disputes over who is the actual mother of the child, the surrogate mother or the genetic mother also (Burke et al 1990). Due to there having existed so many concerns with the surrogate mother claiming the baby as her own following birth, there have been quite a number of legal safeguards put in place in hopes of minimizing these types of actions. However, there have also been surrogate acts that have involved IVF as the surrogacy method to lessen the worry and anxiety of the parents and to minimize their fears of having to fight for a child who is rightfully theirs as well. One such case is recorded to have taken place in 1978 which documented the first ever IVF surrogate baby named, "Louise Joy Brown" (Rosenberg 1980). At 11:47 p.m. on July 25, 1978, a five-pound 12-ounce baby girl was born. The baby girl, named Louise Joy Brown, had blue eyes and blond hair and seemed healthy. Still, the medical community and the world were preparing to watch Louise Brown to see if there were any abnormalities that couldn't be seen at birth" (Rosenberg 1980). She was the first baby born in this manner in Great Britain and this alone held many possibilities for many other couples who yearned for having a child of their own but who could not do so any other way or who had strong fears a surrogate mother would pose too much of a legal risk. She was the first baby to survive the first few weeks of pregnancy. The egg had been fertilized outside the mother's body and then injected into her uterus. This was a case of in vitro fertilization. "Dr. Patrick Steptoe, a gynecologist at Oldham General Hospital, and Dr. Robert Edwards, a physiologist at Cambridge University, had been actively working on finding an alternative solution for conception since 1966" (Rosenberg 1980). The story of Lesley Brown's successful pregnancy gave hope to others that were unable to conceive. Others were worried if the health of the child would be at risk because of the surrogate way in which the baby was put into the uterus. However, after time when it came to be realized that no adversities existed this type of conception gained precedence with many couples and today it is a feasible way of avoiding legal pitfalls and of being guaranteed a baby for a couple with strings to a surrogate mother being uninvolved. Even so, just as with any surrogate method there is still much legality that surrounds this as well and couples do feel it is extremely time consuming but in the end very rewarding, so it has its positive points as well as negative ones just as any surrogate method is sure to hold. Since the early 80's there have been drastic changes in the laws surrounding surrogacy due to the issues of fraud, false contracts, baby marketing, and many other illegal activities having taken place. The birth of baby "Cotton" seemed to be the turning point in the activities involving surrogacy in Great Britain. The Government introduced several legislative acts to try and implement safer methods between those interested in surrogacy and the possible mother (Posner 1989). For instance, the Surrogacy Arrangements Act was put into place to bar against surrogacy violations and then not much later the Human Fertilization and Embryology Act came into being to offer further legal structure into surrogacy actions. Both of these acts make any surrogate arrangement done outside of a legal framework void and wholly illegal, preventing there from being any money transferring from hands in a black-market type of fashion (Posner 1989). Commercial surrogacy has also been termed to be illegal in Britain in current times following the Surrogacy Arrangements Act of 1985. However, the difference between this act and subsequent others is that criminal punishment is not placed on anyone as long as there is no evidence of profit from the surrogate transaction. Furthermore, this act indeed has made it illegal for third parties to negotiate or facilitate any surrogacy for payment and banned advertisement for, or of, surrogacy services. It appears to have prevented the growth of commercial surrogacy agencies in Britain. However, the Act does not affect non-commercial agencies, nor does it regulate negotiations directly between the carrying mother and the commissioning parents. So, the surrogate mother nor the future parents are not considered to be involved with any form of criminal intent and are thereby not forced to have to face any criminal or punitive punishment such as the third party facilitator would have to endure (Posner 1989). The Human Fertilization and Embryology Act 1990 established a statutory licensing authority, which was developed to regulate research and treatment in human infertility and embryology. The Act regulates surrogacy by bringing medicalized surrogacy services within the control of HFEA, by determining who legally the child's parents are and by enabling commissioning parents to become legal parents through obtaining a court order quite commonly known as, "the parental order" (Keane & Breo 1981). The extent to which surrogacy is practiced in the U.K. currently is unclear. A quarter of licensed fertility clinics have been involved in surrogacy arrangements and each year about 40 parental orders are granted conferring status on the commissioning parents. The majority of these relate to arrangements made without a licensed clinic (Posner 1989). The numbers of British women who act as surrogates for couples elsewhere and of British couples who use surrogates overseas are not known; it is estimated that in approximately 5 percent of arrangements the birth mother refuses to hand over the child. The UK legal provisions regarding surrogate motherhood are aimed more at preventing or at least minimizing the 'commercialization' of the practice than at addressing the health of either or both of the 'mothers' involved in the practice. In view of the above considerations, and the psychological issues involved, Professor Margaret Brazier's view may be correct that it is it is a very 'controversial' method of 'assisted procreation' (Field 1988). Regardless of the past controversial issues and the complex issues that can arise in surrogate situations, this form of motherhood is growing in popularity in Britain. This is felt that it is due to the fact that it meets the urgently felt needs of those who resort to it better than any of the alternatives as they see them. As a consensual arrangement it is as worthy of legal protection as many others which, formerly suspect, are now taken for granted. Subject to reasonable regulation, it deserves to take a place among the growing array of methods available to individuals for the ordering of their own marital and reproductive lives. Doctrines fitted to other circumstances should not be allowed to bar the legality or enforcement of surrogate motherhood agreements (Zuckerman 1988). Scenario III: The Ethical and Legal Implications of Divulging Personal Patient Information Every day, our private health care information is being collected, shared, analyzed and stored with few legal protections. Confidentiality is a central component to the foundation of the helping professions. Without confidentiality, the client/nurse/doctor relationship is in danger of losing the developed levels of trust. Nurses and doctors in particular carry a particularly heavy burden of responsibility because they share many personal and intimate details about patients during the time they provide care. This information is volunteered by patients based on trust that a nurse or doctor will not violate a confidence. However, there are many dimensions to confidentiality, with whom not to discuss patient information with, what to watch out for when discussing confidential information, and when it can be breached. Research discovered through studying the Code of Medical Ethics teaches professionals that they have a duty not only to the patient but to those associated with the patient and those who might be exposed outside of the immediate family of the patient as well. This is inexplicable true when the patient might have a highly contagious disease such as Jodie; (the current patient being discussed) has contracted. The Medical Code clearly defines that professionals have to at times make personal decisions during their patient care and sometimes these decisions might appear to be a breach of a medical code when in actuality they are not. The definition of this code gives a far more concise point of view to how certain medical situations with regard to divulging patient information must be taken into account. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the law of the states. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances (Herbert et al 1997). Quite naturally there are times in the medical world where it is necessary for doctors and nurses to divulge a patient's medical status in order to protect an unspecified amount of other innocent people from contracting a fatal illness. In cases such as Jodie's the law dutily allows for doctors and other medical professionals to do the right and humane thing without fear of being penalized or facing charges due to releasing personal patient records. These are personal judgment calls that have to be carried out and there is always one time or another where a good number of medical professionals are faced with cases such as Jodie's where a highly contagious illness such as jungle fever carries a higher precedence in the care regimen than simply keeping the patients information confidential. Confidentiality is not an absolute obligation. Situations arise where the harm in maintaining confidentiality is greater than the harm brought about by disclosing confidential information. Jodie's case portray's this point quite fluidly and without any need for debate. Her illness is severe and extremely contagious. Therefore there are other factors that medical providers must take into consideration and there are also strict guidelines that they have to follow according to the CDC (Herbert et al 1997). Aiken and Catalano, (1994) have found that, in general; two such situations that may give rise to exceptions exist. In each situation, medical professionals are required to ask themselves, will lack of this specific information about this patient put a specific person they can identify at high risk of serious harm The first exception is the concern for the safety of other people. Although the Federal Privacy Act restricts access to medical information and records, clinicians have a duty to protect identifiable individuals from any serious harm if they have information that could prevent the harm. The second exception is the concern for public welfare (Aiken & Catalano 1994). Within England and Britain, medical professionals are required by the legislative laws to report certain communicable/infectious diseases to the public health authorities. Jodie's case of Jungle Fever gives high cause for alarm because the medical staff is intensely aware that their own actions could affect more than just this one patient's quality of care. The need to inform others of the seriousness of the disease is what is going to take credence over any other area in the care treatment regimen. The family has a right to know what they have been exposed to; the patients personal patients have a right to know she was exposed to a highly contagious illness and others in contact with her have a right to know (Surbone 1997). Although the doctor/patient relationship is formed and built around a certain percentage of trust, it is not felt that the trust is being broken if the medical professional is divulging information to safeguard others while at the same time providing appropriate care to his patient. Although it is true that the trusted relationship is mutual, this type of trust is believed to only be fostered when information is freely exchanged between a doctor and a patient. Acceptance of this principle is fundamental to the resolution of questions which have been identified in relation to AIDS (Surbone 1997). And this is so in respect of other communicable diseases too. When a doctor decides to inform a third party other than a health care professional, without the patient's consent, questions of conflicting moral, ethical and legal obligations arise. It is imperative that the doctor must discuss with the patient the question of informing a spouse and other members of the family when a patient is found to be infected with a contagious disease as that of Jodie. If the patient refuses to giveconsent for such disclosure, the doctor may consider informing the spouse or the family if in his opinion, not informing them would place them at a grater risk than informing them would place his conscience at a discomfort. Dr. Vernon's duty is first to his patient and if his discussion and persuasion with his patient bears no fruit, he must try to get her to agree to inform the husband and family about her condition. The confidentiality of what the doctor learns from the patient is as sacrosanct as what a catholic priest hears in the 'confession box' and his obligations regarding them are the same. His sense of duty to society may not over-ride his duty to his patient; he may advise Jodie to absent herself from attending to her duties as an acupuncturist after she informs her patients that she would be absent for some days. When a person gives information about themselves to other people such as doctors or carers, that person is giving their consent for the professional to share the information given. This kind of consent is known as 'implicit consent' (Cordess 2001). It is when a person gives consent with out realising they have and unless they specifically ask for the information to be strictly confidential, then that information will be shared amongst other professionals within that profession. Therefore, when Jodie discussed her personal information with Dr. Vernon she automatically gave this form of consent and thereby there is not a logical assumption to be made to view this as a breach of the patient/doctor confidentiality either. This kind of consent is usually present when a client or resident can not make decisions about their information being shared, maybe the client is unconscious or has learning disabilities, or in Jodie's case so physically ill that they are not lucid enough to authorize such personal information. The Dept. of Health in Britain and in England has stated currently that those professionals in this position must be trusted to act in their patient's best interests. One of the difficulties of confidentiality could be carers and professional workers being burdened with the choice on whether or not to share certain information about their clients. For example, if a client or resident has been ill, the carer may not know if it was alright to discuss this with the clients' relatives or not. Cordess (2001) suggests that if a worker is struggling with the decision of whether or not to disclose information about a client, then the worker should approach their line manager to discuss what should happen. Although, sometimes, it can be very difficult for a professional worker in health care to know what information and how much can be disclosed about a client and to whom, there exists also the knowledge of knowing when to do the right thing in regards to safeguarding other innocent bystanders from facing a viral epidemic, such as in this case. Confidentiality is important, and in order to build a level of trust then a certain amount of confidentiality must be in place as well. The discussion has shown that there are different types of consent Dr. Vernon could act upon in order to safeguard his patient as well as those who are at risk of becoming infected due to her viral illness. Although confidentiality can be a difficult aspect of medical care, common sense is often times what it takes to make the right decisions. The main point is how much information a professional worker can disclose about a patient or client and if they disclose too much, this could be breaching patient/professional confidentiality, but in another view this could be helping in a way to augment the patient. In regards to this particular case there would be no breach but rather quite the opposite because Dr. Vernon would be guaranteeing the well being of Jodie by providing her proper care and also following up with her family and friends, as well as patients to ensure they maintained a quality level of health as well. In all regard this is the right and humane thing to do in this type of situation according to the laws and the codes of medical ethics within the UK and for that matter in many places around the world. References Aiken, Tonia & Catalano, Joseph. (1997). 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New York: Everest House Publication. Keown, John. (1995). Euthanasia Examined: Ethical, Clinical, and Legal Perspectives. New York: Cambridge University Press. Landau, Elaine. (1988). Surrogate Mothers. Toronto: Moffa Press. Maguire, Daniel. (1974). Death by Choice. Garden City: Double Day Publications. Posner, Richard. (1989). The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood. Journal of Contemporary Health Law and Policy, 5, 23. Surbone, A. (1997). Information, Truth, and Communication: For an Interpretation of Truth Telling Practices throughout the World. Annals New York Academy of Sciences, 809, 7-16. Zuckerman, Amy. (1988). Surrogate Parenting. New York: Pharos Books. Read More