Legislation for Healthcare - Essay Example

Part A. The availability of timely medical treatment under the NHS depends very much upon the part of the country in which the patient lives. This isinconsistent with patient rights. Moreover, where the treatment is of a life-prolonging nature, its denial to patients on the basis of scarce resources amounts to a form of involuntary euthanasia in which the courts, with their well-known reluctance to interfere, have colluded. Article 2 of the Human Rights Act, requires the state to take positive action in order to safeguard life; “everyone’s right to life shall be protected by law.” However, these qualifications have no application in cases concerning the provision of health carei. In the landmark case of R v. North & East Devon Health Authorityii, ex p. Coughlan, Pam Coughlan, a chronically ill patient, was persuaded to move from a traditional NHS hospital into a modern hospital, Mardon House, and was promised permanent residence. This was done because the health authority considered her to be the legal responsibility of social services and not of the NHS. However later the health authority believed the home had become uneconomic and proposed to close it and decided to move Ms Coughlan elsewhere. The Court upheld this decision, but on appeal the Court of Appeal held these actions to be unlawful. Coughlan is a landmark case, because, first, the concept of a substantive legitimate expectation was created; that is, if a public body makes a promise it must keep it. Secondly, it was established that there were limits to what social services were empowered to provide. The principle established in this case was that if a person’s primary need was for health care and not for social care, then the NHS had to incur this expenditure in full. Various studies have demonstrated that the utilization of hospital services is inversely related to the distance of the patient from the hospitaliii. Legislation akin to the European working time directive, imply that more staff will be requirediv. Research has indicated that the resources available to patients under the care of more specialist professionals, for example cancer patientsv and those involved in serious accidentsvi, are better. In R (Grogan) v. Bexley NHS Care Trustvii‘Grogan’, it had to be decided whether Mrs. Grogan suffering from deteriorating multiple sclerosis, dependant odema with the risk of ulcers breaking out, double incontinence and nil mobility was in law, the funding responsibility of health, social services or both. The Court found that the criteria drawn up by the SHA and adopted by the Trust did not reflect the fact that those with a primary health need should be NHS funded. The judge quashed the decision not to fund Mrs. Grogan’s care and ordered the Trust to reconsider her case again in line with Coughlan. The Trust claimed its decision was in line with Department of Health guidance and therefore lawful, but the Court rejected this claim and called on the Department to revisit it ‘not least to promote a consistency of approach to the relevant issues which concern important and widespread issues of public importance and …which can have a profound effect on the individuals concerned’. The cases of Coughlan and Grogan have paved the way for obtaining wider access to NHS services. Conventionally, it has been thought that any provision of services under the National Health Service Act 1977 was not a duty but only an aspiration. In L.C.B. v. the United Kingdomviii, the Court recognized that the authorities are duty bound to protect a person from life threatening illnesses. Failure to protect a person’s life merely on the grounds of lack of resources violates Article 2ix. The authorities cannot justify delays on the grounds of heavy workloads of the court or on the shortage of resources. In Scialacqua v Italy the applicant pleaded that refusal of the authorities to provide financial covering for the medical treatment he was taking constituted a breach of his right to life. The Commission dismissed the case as the imposition of the provision of Article 2 on the member states would be unfair as the required medicines were not listedx. Till now, the NHS has succeeded in gaining the support of the court in limiting life-saving treatment to those in most need. The criteria of determining patients in need differ widely from country to country. Some queries thrown up by this debate are whether; patients suffering from multiple sclerosis receive the latest drug available on the market despite its expense? Or, should all people suffering from Alzheimer’s disease be placed on Arizept, a drug not universally available on NHS? In R v Cambridge Health Authority Ex Parte Bxi, Jayne Bowen was refused treatment of bone marrow transplant for acute myeloid leukaemia because the NHS would not pay for it. The Court allowed the appeal of the Cambridge Health Authority and supported the principle that the NHS has finite resources and concluded that it was not in a position to decide on the correctness of the difficult and agonizing judgments which the Health Authorities had to make, as to how a limited budget was best allocated to the maximum advantage of the maximum number of patients. In the so called twins case, The Court of Appeal in England confirmed a lower courts ruling that doctors could perform an operation to separate recently born conjoined twins. The doctors were of the opinion that this might save one of the babies while the other would lose its life and if this operation was not performed, then it could result in the death of both these twins within months of their birth. The Manchester team of doctors, who were inexperienced in this type of surgery, went to court in order to overturn the parents’ refusal to allow this operation, without seeking a second medical opinion for the Great Osmond Street team, which had the requisite experience. These people were Italians who had come to England believing in the superior medical facilities of England. An Italian hospital had consented to provide medical care in accordance with the parents’ wishes. In a number of analogous cases the world over, surgical teams had refused to operate because they could not morally accept the killing of one of the conjoined twins for the benefit of another. The Court of Appeal was in concurrence to this position as depicted in Re T, regarding refusal of medical treatmentxii. The decision of the court to support the decision of the doctors to separate the twins even at the cost of the life of one of the twins indicates that first, sound and fair decisions made by caring and loving parents in conformity to their religious beliefs can be set aside by the courts. Secondly, the opinion of doctors are to be presumed to be sacrosanct and the Courts will support this contention and thirdly, a life can be taken if this benefits another lifexiii. That the courts have colluded in this respect is clearly demonstrated in a case where the court referred to the best interest condition as set out in F v West Berkshire Health Authorityxiv and held that medical treatment, which includes artificial feeding, could be withheld if doing so was in the patients best interests. To determine what course of action would further the best interests of the patient, the court used the test laid down in Bolam v Friern Hospital Management Committeexv, namely whether the proposed conduct would be in accordance with the opinion of a large informed and responsible group of medical practitioners. As the cessation of life-supporting treatment in this case was in accordance with the criteria set out in a discussion paper by the British Medical Associationxvi, the court found that there had been compliance with the Bolam requirement. In this manner it becomes very clear that the courts either passively or actively support involuntary euthanasia for a variety of reasons like lack of resources and the like. Part B. Although both the common law and statute ostensibly prevent medical information being released against the wishes of the patient, in practice such disclosures are not difficult to justify. Medical confidentiality, as it has traditionally been understood by patients and doctors, no longer exists. This ancient medical principle, which comprised every physicians oath and code of ethics since Hippocratic times, has been rendered an old, worn-out, useless and decrepit concept. Psychiatrists have tacitly acknowledged the impossibility of ensuring the confidentiality of medical records by choosing to establish a separate, more secret record. Discussions on medical confidentiality had focused on the tug – of – war between a physicians responsibility to keep information divulged by patients secret and a physicians legal and moral duty, on occasion, to reveal such confidences to third parties, such as families, employers, public-health authorities or law enforcement authorities. In all these instances, the central question relates to the stringency of the physicians obligation to maintain patient confidentiality when the health, wellbeing, and safety of identifiable others or of society in general would be jeopardized by a failure to reveal information about the patient. The conflict of interests in such cases is between the good of the patient and the good of others. Further challenges to confidentiality arise because the patients personal interest in maintaining confidentiality comes into conflict with his personal interest in receiving the best possible health care. Modern high-technology health care available principally in hospitals requires many trained and specialized workers and is very costly. The existence of such teams implies that information previously held in confidence by an individual physician will now necessarily be disseminated to many members of the team. Furthermore, since health-care teams are expensive and few patients can afford to pay such costs directly, it becomes essential to grant access to the patients medical record to chart reviewers, financial officers, insurance auditors and quality-of-care assessors. Finally, as medicine expands from a narrow, disease-based model to a model that encompasses psychological, social, and economic problems, not only will the size of the health-care team and medical costs increase but more sensitive information such as ones personal habits and financial condition will now be included in the medical record and will no longer be confidential. Health care professionals should always keep secret their patients’ confidential information as Lord Phillips MR in Ashworth Security Hospital v MGN Ltdxvii stated, “It is well settled that there is an abiding obligation of confidentiality as between doctor and patient, and in my view when a patient enters a hospital for treatment, whether he be a model citizen or murderer, he is entitled to be confident that details about his condition and treatment remain between himself and those who treat him.” Current medical practice has certainly made the issue of confidentiality more complex. A patient in a hospital is likely to be treated by a large number of health care professionals each dealing with different aspects of her treatment. Each one may need to have access to her medical records. Also internal and external audits of NHS Trusts may require managers to have access to at least parts of a patient’s medical records to be able to ensure high standards of treatment are being offered. Further the inevitable increase in use of computer technology in relation to patients’ records, while easing the passing of information to those who need to know, makes protecting confidentiality more complexxviii. The Hippocratic Oath states, “Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart there from, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secretsxix.” The World Medical Association’s International Code of Medical Ethicsxx declares “A doctor shall preserve absolute secrecy on all he knows about his patient because of the confidence entrusted to him.” Confidentiality is seen as an essential aspect of effective medical treatment. Further, the BMA states that “ Frank and open exchange between health professional and patients is the ideal and patients need to feel that their privacy will be respected before they can enter into such an exchangexxi.” Despite all these opinions and exhortations, the principle of confidentiality is honoured as much in the breach as in the observance. When the protection of the innocent is at stake then the clinician has to violate confidentiality, in the case Tarasoff v Regents of the University of California, failure to do so resulted in the death of Tatiana Tarasoffxxii. The high status of healthcare confidentiality can be found in several European Union (EU) laws. The ‘data protection directive’, refers to certain data being ‘processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy’xxiii. The rules of confidentiality in respect of clinical trials are set out in Recital 9xxiv. These Standards clarify these shared principles and rules within the rich diversity of the European community and in an international context. While each patient’s healthcare information is protected by the ethical and legal obligations of confidentiality, a number of situations exist where the use and disclosure of personal information may occur for legitimate purposes. In A B & Others v. Tameside & Glossop Health Authority and Trafford Health Authority, the health authorities allowed a HIV positive health worker to attend on pregnant women. The Judge considered the extent of damages to be awarded as this non disclosure was considered illegal and detrimental to the patientsxxv. In Sue Axon v. The Secretary of State for Health, Sue Axon, made an application wherein she contended that a doctor is under no obligation to keep confidential treatment in respect of contraception, sexually transmitted infections and abortion and must therefore inform the parents of the patient. The Court dismissed this appealxxvi. In H v Associated Newspapers Ltd & Ors, H was suffering from AIDS this was disclosed to the people he had attended upon without his consent, the court allowed his appealxxvii. The right of the press to inform the public and the right of the public to be informed are important tenets of common law, this has been amply illustrated in the cases R v Secretary of State for the Home Dept ex parte Simmsxxviii and Reynolds v. Times Newspapers Ltdxxix. The veritably rare occasions when the court interferes with this freedom of the press under Article 10(2) of the Convention, is illustrated in the cases of Jersiki v. Denmarkxxx. In conclusion it is essential to note that absolute confidentiality is not possible. While confidentiality remains central to the doctor patient relationship, the right of an individual to privacy and confidentiality has to be balanced with the rights of society and the rights of innocent third parties. Doctors therefore are duty bound, both ethically and legally, to maintain patient confidentiality in most situations and also at the same time to divulge information, which on being kept confidential would endanger third parties. Furthermore, the courts by extension, will almost always support disclosure where such disclosure is beneficial to the public or where suppression of facts could prove harmful if not fatal. Under rare circumstances, as has been cited above, the courts will prohibit such disclosures. Read More