The Ethical and Legal Issues - Case Study Example

154609     When looking at the above problem it is necessary to examine the ethical and legal issues surrounding the treatment of Mrs Trueman. The starting point therefore revolves around the area of informed consent1 (Worthington, 2002). In order for Dr Parker to avoid legal action being taken against him he would have to demonstrate that the consent given by Mrs Trueman for the operation was informed consent2. (Van Staden & Kruger, 2003). For the consent of the patient to be valid the doctor must prove that the patient had been informed of the risks involved and that they had notified the patient of all the possible complications that might occur when performing the operation3 (Hope, Savulescu and Hendrick, 2003. The doctor is also under a duty to ensure that the patient is competent4 to give their consent to the operation and be able to show that the patient was not coerced into giving consent. Consent is normally required to be in written form, though there are some occasions where the patient is unable to sign before the operation is performed. This might be the case if the patient was admitted to hospital with life threatening injuries and that any delay in treatment would mean that the patient would die. This kind of treatment can be classified under the doctrine of necessity5 (O’Neill, 2003). This doctrine is recognised in common law and applies where a patient will come to harm unless a procedure is carried out6. It is usual in these circumstances to seek written consent from the next of kin of the patient if the patient is unable to give consent because they are unconscious when they are admitted, though there may be the odd occasion when no next of kin can be traced. There is no requirement in English law for the doctor to obtain consent for an adult patient, and the doctor can avoid action being brought against him where there has been no consent to treatment if he can prove that he was acting in the patient’s best interest when he performed the operation7 Jones 1989). In some circumstances doctors often have to assume that consent would have been given if the patient were able to consent. Doctors could find themselves faced with legal action against them in such circumstances as they may discover once the patient has recovered that the patient would not have consented had they been ale to make that choice. This could occur if the patient is a Jehovah’s Witness and the doctor unaware of the religious beliefs of the patient performs an operation and gives the patient a blood transfusion in order to help them survive8. In this particular scenario Mrs Trueman is able to give her consent and the issue here revolves around whether she can be said to have had informed consent before the operation9(Worthington, 2002). It could be argued that the consent was informed as she was aware of the possibility of the complications from a report she had read on the internet. The fact that she has asked him about the possibility of this occurring in her case shows that she was aware of the dangers involved with the procedure. Where the doctor could face difficulty is that instead of discussing with her in detail the chances of this happening and fully explaining the risks involved with the type of surgery she was about to undergo it could be argued that her consent was based on the assurance given to her by Dr Parker that he had never had a failure of this kind himself with previous operations he had performed. Instead of warning her of the possibility that there are some instances when the reaction she is now experiencing has occurred he tells her that the only risk from the treatment would be a minor post operative infection which could be easily treated. A further problem the doctor could face with this situation is that there has been an article in the Lancet which centred on the increased risk of severe sensation loss that patients could have following the procedure, particularly with immuno- compromised patients. Given that Mrs Trueman has recently had treatment for oral cancer there is a higher likelihood that she would fall into the above category and therefore be more susceptible to suffering the side effects mentioned in the article. The fact that the doctor did not read the article could mean that Mrs Trueman has a greater chance of winning her action against him as she would have expected someone of his experience to keep himself fully informed of the latest findings in respect of the types of treatment he is carrying out. When looking at the area of informed consent it is necessary to analyse the amount of information required by law to be given to a patient prior to performing surgery for the law to regard the consent as fully informed10. Bristow J in Chatterton v Gerson11 made the comment that “in my judgement once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass”. This in essence means that Mrs Trueman’s action against the Dr is in negligence. In order to prove that he was negligent in the amount of information that he gave her she would have to show that another doctor would have told her of the risks involved. In general terms the courts have come to accept that “a doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art12”, as laid down in the Bolam test13. In Sidaway v Board of Governors of the Bethlehem Royal Hospital14 it was established that the Bolam test would be used to determine how much information doctors are legally obliged to give to patients. This would mean that a doctor is not acting negligently provided that the amount of information conforms with accepted medical practice15. In this case the House of Lords reached the conclusion that Sidaway should not be seen as a total endorsement of the view that providing a doctor follows current medical practice in deciding on the advice to give patients, he or she will be immune from legal attack. Rather, the courts should maintain ultimate control of the definition of doctors obligations. In the United States of America they operate under what is termed the prudent patient test. The UK is moving towards the same approach as was demonstrated in Bolitho (Deceased) v City and Hackney HA16 where one of the Lords involved with the case made the observation that “if there is significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of the doctor to inform the patient of that significant risk”. Furthermore the GMC guidelines, which would be taken seriously by a court, emphasise a doctor’s duty to fully inform patients17.” The Department of Health issued leaflets addressed to patients entitled Consent- What You Have A Right to Expect in 200118 in which it listed that the patient should be provided with sufficient information of the probable risks involved with the procedure to be carried our so that they can make an informed choice as to whether they wish to undergo the treatment. The same guidance was given to doctors in 2001 and pointed out that a health professional who does not respect this principle may be liable both to legal action by the patient and action by their professional body. Employing bodies may also be liable for the actions of their staff. (Department of Health, 2001, p. 8). Recent cases have demonstrated that a patient should be informed of risks if the incidence of the risk is sufficiently high, if the risk materialised it would have serious consequences for the patient of if the patient specifically asks about a risk. In this scenario Mrs Trueman satisfies the requirements that she should have been fully informed on all three points. The article on the internet and in the Lancet is sufficient proof to establish that the risk is sufficiently high (Mason & McCall Smith, 1999). The consequences for her as a patient could be said to be serious as she now faces have to be fed via a tube indefinitely. It was also stated above that she specifically asked about the possibility of such complications. Some recent cases have moved away from the Bolam test for negligence in the giving of appropriate information. In Pearce v. United Bristol Healthcare NHS Trust19 a pregnant woman, Mrs Pearce, was concerned that her delivery was 14 days overdue. She requested that her baby be induced or delivered by Caesarean section. Following an examination, her consultant explained the risks and disadvantages involved in this procedure and advised in favour of a natural delivery. Mrs Pearce accepted his advice and was admitted to hospital one week later, when she gave birth to a stillborn baby. Mrs Pearce sued in negligence, arguing that the consultant should have advised her of the increased risk of the baby being stillborn if delivery was significantly delayed. She contended that had she known of this fact, she would have insisted on delivery by Caesarean section. Mrs Pearce lost her case as the increased risk of stillbirth was extremely small, and even if she had been informed of the risk it is likely that she would still have agreed to a vaginal delivery. The court also expressed its reluctance to interfere with the clinical opinion of an expert medical man who would be in the best position to decide what information should be given to the patient (particularly, as here, where the patient is distressed). A further point in her favour is that several of the doctor’s colleagues are prepared to testify that they would not have acted in the same manner if she had been their patient. It is stated above that other doctors at the hospital would have explained the risks involved and would have informed the patient of the likelihood of the complications she is now experiencing. This could be used by Mrs Trueman to establish that Dr Parker did not satisfy the Bolam test with regard to professional conduct. Under the Bolam test the doctor could face action against him for negligence as he failed to warn the patient of the risk involved and that risk has come to fruition. Mrs Trueman could rely on the case of Chester v Afshar20 to substantiate her claim that the doctor was negligent. In this case the appellant, a consultant neurosurgeon, appealed against a finding that he was liable in damages for his failure to warn the respondent of a risk inherent in surgery that he had performed on her. The respondent suffered repeated episodes of low back pain and had been referred for surgery to the neurosurgeon, who was experienced in disc surgery. Chester underwent the surgery and suffered a rare complication known as cauda equina syndrome, a risk in respect of which Afshar had failed to warn her in advance. The judge had not found that Afshar had been negligent in the actual performance of the surgery. However, he had found that he had failed to warn Chester of the small risk that the operation could adversely affect her, and that had she been warned of the risk, she would not have undergone the surgery at the time she did. The court dismissed the appeal by Afshar with Lords Bingham and Hoffmann making the comment that a judgment in Chester’s favour could not be based on conventional causation principles. The "but for" test was satisfied since Chester would not have had the operation when she did if the warning had been given. But the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself, however skilfully and carefully it was carried out. The risk was not increased, nor was the chances of avoiding it lessened, by what the surgeon had failed to say about it. However, the duty of a surgeon21 to warn of the dangers inherent in an operation was intended to help minimise the risk to the patient and was also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when. Afshar had violated Chester’s right to choose for herself, even if he had not increased the risk to her. The judges stated that the function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. On policy grounds the test of causation was satisfied in the instant case. The risk was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty. A further argument that Mrs Trueman could rely on is the guideline issued by the General Medical Council in respect of the requirement of doctors to ensure their own awareness concerning good medical practice22 (Hope, 2004). The GMC issue guidelines to doctors entitled Good Medical Practice and expect doctors to keep up to date with the latest developments in medicine and to ensure they are aware of any change of procedure applicable to them23. In this particular case the fact that Dr Parker did not read the article in the Lancet it could be argued that he had not adhered to the GMC’s rules regarding Good Medical Practice. This could mean that disciplinary action could be taken by the GMC against the doctor for failing to abide by the guidelines. The likely outcome in this particular case is that the courts would make a judgment against Doctor Parker for his negligence in failing to fully inform the patient of the possible risks that were involved with the treatment she was having. It is also possible that the doctor would face disciplinary action for failing to follow Good Medical Practice. Bibliography Ashcroft A, Lucassen A, Parker M, Verkerk M, and Widdershoven G - Case Analysis in Clinical Ethics. Cambridge: Cambridge University Press, 2005. Clinical issues on consent: some philosophical concerns, R Worthington, J Med Ethics; 2002; 28: 377-380 Department of Health Claims of Medical Negligence against NHS Hospital and Community Doctors and Dentists (1989) HC (89) 34 Hope T - Medical Ethics; a Very Short Introduction. Oxford: Oxford University Press, 2004. Hope, Savulescu and Hendrick, Medical Ethics and Law, the core curriculum, Churchill Livingstone 2003, Chapters 3 and 6 Incapacity to give informed consent owing to mental disorder, C W Van Staden, C Kruger, J Med Ethics;2003; 29: 41-43 Jones M A, Medical Negligence, (1989) Sweet & Maxwell Mason & McCall Smith, Law and Medical Ethics, 5th Ed, 1999, Butterworths Mason and McCall Smith. Law and Medical Ethics, J.K. Mason, R.A. McCall Smith, G.T. Laurie, (Butterworths) 2002. Some limits of informed consent, O O’Neill, J Med Ethics 2003; 29: 4-7 http://www.gmc-uk.org http://uk.westlaw.com http://www.dh.gov.uk http://www.pbs.org http://www.opsi.gov.uk Table of cases A (Children) (Conjoined Twins: Medical Treatment) (No.1), Re [2001] Fam. 147 [2001] 2 W.L.R. 480 [2000] 4 All E.R. 961 [2001] 1 F.L.R. 1 [2000] 3 F.C.R. 577 [2000] H.R.L.R. 721 [2001] U.K.H.R.R. 1 9 B.H.R.C. 261 [2000] Lloyds Rep. Med. 425 (2001) 57 B.M.L.R. 1 [2001] Fam. Law 18 (2000) 150 N.L.J. 1453 Times, October 10, 2000 Independent, October 3, 2000 B (A Child) v Leeds HA [2001] EWCA Civ 51 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582 Bolitho (Deceased) v City and Hackney HA [1993] P.I.Q.R. P334 [1993] 4 Med. L.R. 381 Chatterton v Gerson [1981] 1 ALL ER 257 Chester v Afshar [2004] UKHL 41 [2005] 1 A.C. 134 [2004] 3 W.L.R. 927 [2004] 4 All E.R. 587 [2005] P.I.Q.R. P12 [2005] Lloyds Rep. Med. 109 (2005) 81 B.M.L.R. 1 [2005] P.N.L.R. 14 (2004) 101(43) L.S.G. 34 (2004) 154 N.L.J. 1589 (2004) 148 S.J.L.B. 1215 Times, October 19, 2004 Ciarlariello v Schacter [1991] 2 Med. L.R. 391 Gordon v Wilson 1992 S.L.T. 849 [1992] 3 Med. L.R. 401 Hills v Potter [1984] 1 W.L.R. 641 [1983] 3 All E.R. 716 (1984) 128 S.J. 224 Times, May 23, 1983 Markose v Epsom & St Helier NHS Trust [2004] EWHC 3130 [2005] Lloyds Rep. Med. 334 Moyes v Lothian Health Board 1990 S.L.T. 444 Pearce v. United Bristol Healthcare NHS Trust (1999) (Medical Law Review, Vol. 7, pp. 61–64)) Pembrey v General Medical Council [2003] UKPC 60 (2003) 147 S.J.L.B. 1084 R (on the application of B) v Ashworth Hospital Authority [2003] EWCA Civ 547 [2003] 1 W.L.R. 1886 [2003] 4 All E.R. 319 (2003) 74 B.M.L.R. 58 (2003) 100(25) L.S.G. 47 (2003) 147 S.J.L.B. 504 Times, April 24, 2003 R (on the application of Burke) v General Medical Council [2004] EWHC 1879 [2005] Q.B. 424 [2005] 2 W.L.R. 431 [2004] 2 F.L.R. 1121 [2004] 3 F.C.R. 579 (2004) 7 C.C.L. Rep. 609 [2004] Lloyds Rep. Med. 451 (2004) 79 B.M.L.R. 126 [2004] A.C.D. 84 Times, August 6, 2004 Re P (Medical Treatment: Best Interests) [2003] EWHC 2327 [2004] 2 F.L.R. 1117 [2004] Fam. Law 716 Reibl v Hughes (1978) 89 D.L.R. (3d) 112 Rogers v Whitaker [1993] 4 Med. L.R. 79 175 C.L.R. 479 [1992] A.L.M.D. 6993 Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] A.C. 871 [1985] 2 W.L.R. 480 [1985] 1 All E.R. 643 (1985) 82 L.S.G. 1256 (1985) 135 N.L.J. 203 (1985) 129 S.J. 154 Smith v Barking, Havering and Brentwood HA [1994] 5 Med. L.R. 285 St Georges Healthcare NHS Trust v S (Guidelines) [1999] Fam. 26 (1997-98) 1 C.C.L. Rep. 578 [1998] Fam. Law 662 Times, August 3, 1998 Videto v Kennedy (1980) 107 D.L.R. (3d) 612 W Healthcare NHS Trust v H [2004] EWCA Civ 1324 [2005] 1 W.L.R. 834 Times, December 9, 2004 Independent, January 21, 2005. Read More