Patient Autonomy As One of the Most Central Ethical Principles in Medical Law - Research Paper Example

Patient autonomy may indeed be one of the most central ethical principles in medical law, but its importance has become exaggerated. 1. Introduction Modern legal and ethical requirements have significantly impacted doctors’ approach to patient involvement in decisions in relation to treatment with a “discernible tendency to overload the information dumped upon patients about infinitesimal risks until the unhappy souls are either scared out of their wits or disregard the lot as incomprehensible mumbo-jumbo1”. From a moral perspective, Christman posits that “individual autonomy is an idea that is generally understood to refer to the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces.2” Christman further extrapolates that “in the western tradition, the view that individual autonomy is a basic and political value is a very much modern development”. Additionally, in terms of the moral rationale for autonomy, Buss claims that “to be autonomous is to be a law to one self”3. However, Buss further comments that directly correlated to the concept of autonomy is the scope for lack of accountability if we are not autonomous, which is clearly pertinent to medical consent and liability. In terms of UK law, the notion of consent therefore mirrors the ethical concept that individuals have an implied right to self determination and autonomy. If we consider by analogy the classic statement of Justice Cardozo in the US case of Schloendorff v Society of New York Hospital4 “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages”5. Accordingly, the general legal position is that a competent adult will be entitled to reject treatment even if this risks serious injury or death and is not in their best interests. In UK law, the general position is that lack of consent will give rise to liability in the tort of battery and trespass, where a defendant will be liable for all damages resulting from the invasion even if no injury has been caused by the lack of consent6. Legal concepts of consent within the ambit of medical ethics establish three fundamental elements of proper consent: - capacity; - voluntary participation; and - sufficiency of information7. Academic reasoning propounds that the fundamental purpose of obtaining patient consent to a specified treatment is to protect doctors against committing an actionable tort of battery. Lord Donaldson emphasised this justification in Re W (a minor)8 adopting the analogy of a legal “flak jacket”, which protects doctors from litigious claims and sanctions their right to proceed with treatment without litigious consequences. In highlighting the legal purpose of consent as operating as a “flak-jacket”; Lord Donaldson also pointed out the clinical purpose of consent, which is essential to efficacious medical practice. However, some commentators have posited that the nature of disclosure obligations coupled with a judicial propensity against floodgate medical negligence claims has in practice undermined the absoluteness of patient autonomy in medical law. The focus of this analysis is to critically evaluate patient autonomy and the proposition that its importance has become exaggerated in medical law. To this end, I shall evaluate general principles pertaining to the law of patient consent in English law in Part 1. It is submitted that the dynamic of the principles of consent and patient autonomy fundamentally alter in the complex area of consent and minor patients, which is an often controversial legal minefield. Accordingly, in section 2, I shall critically evaluate the law in relation to minor consent to medical treatment and consider how far the courts preserve autonomy of children in reaching difficult decisions. Furthermore, it will also be necessary to consider the law relating to patient consent, parental responsibility and consent and the right of medical practitioners to withdraw or withhold life prolonging treatment. Part 1: Patient Autonomy, Consent and Applicable Legal Principles As stated above, the general position is that a competent adult will be entitled to reject treatment even if this risks serious injury or death and is not in their best interests. For example, if we consider by analogy the decision in the Canadian case of Malette v Shuman9, the patient was a Jehovah witness and was rushed into hospital and given a blood transfusion. The relevant hospital authority was held liable for battery and trespass as the patient had not validly consented to the treatment. This further correlates to Buss’ point that autonomy and accountability is directly interrelated and that “when an individual makes a declaration about some sphere of her own life, she, too is, denying that anyone else has the authority to control her activity within this sphere; she is saying that any exercise of power over this activity is illegitimate unless she authorises it herself10.” As such, the general position is that health workers cannot commence medical treatment without express or implied consent in cases where the individual lacks mental capacity. It is the very nature of valid consent that provides essential protection to medical professionals for liability.11 However, whilst the theoretical concept of patient autonomy is a sacrosanct principle of law and medical ethics, the UK courts have adopted an ad hoc approach to doctor liability in battery and consent cases, which has led some commentators to question the absolute importance of consent in medical law. For example, all voluntary patients treated under NHS jurisdiction are required to complete consent form to protect the relevant NHS trust from liability for lack of consent. In the case of Williamson v East London & City Health Authority12 the plaintiff had consented to a breast implant removal however was subsequently given a mastectomy and was awarded damages on grounds of lack of consent. The operation undertaken whilst eventually proving necessary was not life threatening and the plaintiff would not have consented to the risk if she had been asked. Alternatively, the defence of necessity will protect against liability for lack of consent if the relevant trust can establish that the treatment was in the patient’s interests as established in the case of F v West Berkshire HA13 In this case the House of Lords highlighted the “best interest” concept and asserted: “a doctor can lawfully operate on, or give other treatment to adult patients who are incapable, for one reason or another, of consenting to doing so, provided that the operation or other treatment concerned is in the best interests of the patient”14. However, this concept of “best interest” has been developed on an ad hoc and often inconsistent basis, further creating ambiguity as to the parameters of patient autonomy in consent cases. Moreover, the concept of informed consent raises complex issues pertaining to the amount of information that patients should be given in order to satisfy the legal definition of informed consent. For example, in Chatterton v Gerson15, which involved an operation to relieve pain, the patient lost mobility and sensation in their right leg. The plaintiff brought a claim for battery arguing that this risk was not disclosed to her and therefore negated consent. However, Bristow J presiding asserted that once a patient had been informed in broad terms the nature of the procedure and given their consent, the consent was a real and a claim for failure to address the risks gave rise to a claim in negligence and not trespass16. However, the legal test for medical negligence arguably limits medical liability in practice, thereby further vitiating the importance of consent in medical law. For example, the relevant duty of care imposed in medical negligence cases is asserted by the Bolam17case, which requires standards of medical treatment which must be in accordance with a responsible body of opinion, even if another body of opinion differs in opinion. Moreover, the Bolam test provides the relevant standard of care as being “of the ordinary skilled man exercising and professing to have that special skill, a man need not possess the highest expert skill18”. Indeed, the Bolam test is relevant to the information disclosure obligations upon which valid consent is based. Therefore provided a responsible body of medical opinion sanction the disclosure as reasonable then the courts will be unwilling to find negligence or battery, which has effectively undermined the concept of autonomy and relinquished control of informed consent to the discretion of the medical profession19. Alternatively, whilst the Bolam test has been criticised for acting as blanket immunity from medical negligence claims,20the complex nature of medical science arguably inherently requires a common sense approach to the “reasonable man test”. Additionally, in the case of Hunter v Handley21 it was acknowledged that scope for genuine differences in medical opinion had to be taken into account in considering the appropriate standard of care. However, the Bolam case has been created controversy and the first case to reject the argument that Bolam rendered medical negligence claims outside the parameters of judicial scrutiny was the case of Hills v Potter22. In this decision, Hirst J asserted that “I do not accept that by adopting the Bolam principle, the court in effect abdicates its power of decision to the doctors. In every case the court must be satisfied that the standard….. Upheld by a substantial body of medical opinion, and that this body of medical opinion is both respectable and responsible23”. When determining whether the practice is accepted and responsible, the courts will consider who has adopted the practice24. If we consider the practical application of negligence claims for disclosure, in the case of Siddaway v Board of Governors of the Benthlem Royal and the Maudlsey Hospital25, the doctor had failed to tell a patient of the 1% risk of spinal injury in an operation, which was held to be in accordance with the practice of responsible body of neurosurgeons passing the Bolam test. Moreover, Lord Diplock asserted that the patient did not ask about the risk and the doctor could not be expected to address all known information. Moreover, in a direct attack on autonomy, Lord Diplock commented that patients were not always in the best position to understand their own best interests even if all information was disclosed. As such, patient autonomy further required a patient to ask about the risks themselves and appears to render patient autonomy dependent on the uncertain concept of “best interests”. A further evidence of the pro-doctor approach was the Court of Appeal decision in the case of Smith v Tunbridge Wells HA26, which upheld the principle that if a reasonable body of opinion agreed with the defendant regarding information given for the purposes of informed consent, this would negate a battery and negligence case for lack of consent. However, in the case of Bolitho v City of Hackney HA27, the courts held that medical practice could be rejected if “the court fully conscious of its own lack of medical knowledge and clinical experience led to views that no reasonable body of doctors could have held”28. In this case the House of Lords adopted a revised explanation of Bolam and emphasised that only a “responsible” body of medical opinion was relevant and stated that where expert opinion was not capable of withstanding logical analysis then the judge would have authority to reject it29. Additionally, although the standard of a doctor or surgeon’s care is measured against their peers, if a significant body of fellow practitioners would have acted in the same way when faced with the same circumstances the Bolitho case has now asserted that “if one of a number of alternative methods of treatment was used even though it was supported by a body of medical practitioners, a finding of negligence may still result if the method of treatment did not stand up to logical analysis”30. To this end, the Bolitho decision was an extremely important case in redefining the standard of care required by medical practitioners under law for the purpose of medical negligence claims and restricts the apparent immunity granted from the Bolam test. Nevertheless, it has been commented that a significant drawback of the Bolitho decision is that many claims failing the Bolitho test will often be determined by out of court settlements, which therefore renders it difficult to see how far Bolitho has gone to strengthen patient autonomy in practice31. Moreover, plaintiffs have the burden of proving they would have refused treatment if properly informed and whilst Bolitho decision moves more towards patient autonomy to a degree, it simply reshapes Bolam and still preserves the judicial propensity towards protection of the medical profession. Additionally, the issue of capacity is important particularly in cases where consent is refused raising conflict as to the best interests of the patient in terms of medical negligence. For example, in ReT32, Lord Donaldson asserted the primacy of autonomy by according the overriding right of the individual over the upholding of human life. Nevertheless, Lord Donaldson indicated that where there was a doubt, preference would go to the preservation of life, which has created ambiguity in terms of patient autonomy. For example, in Re C33, Thorpe J held that whilst the patient’s medical condition reduced general capacity, the patient understood information and therefore had the right to self determination, setting out the following test when addressing the fully competent patient: 1) could the patient comprehend and retain the necessary information? 2) was he able to believe it? 3) was he able to weight the information balancing the risks and need to arrive at the choice34? As such, the Re C test adopts the different approach in considering whether the patient is in a position to refuse the particular course of action as opposed to a test of their capacity in general, which provides further medical leeway arguably undermining the absolute concept of autonomy. On the other hand, such a test is arguably necessary due to the inherent nature of medicine not being an exact science. For example in the case of Re MB, which contrasts with ReC, the courts found in favour of the doctors in a case involving a woman in labour due to the danger to child and mother. However, there is a lack of certainty as in the case of B v An NHS Hospital Trust35 it was held that a non-voluntary caesarean constituted trespass and there was no valid reason to accord the foetus superior legal rights over the rights of the mother where the patient’s view was merely objectionable as opposed to indicating lack of capacity to consent. Alternatively, mental capacity cases have accorded the medical profession significant inroads into the concept of patient autonomy. On the one hand, the concept of capacity to consent is directly related to autonomy and therefore to this end the capacity cases could be seen as legally necessary as opposed to vitiating autonomy. For example, in the case of T v T36 an abortion was authorised on a 19 year old girl with severe mental disabilities on grounds that it was in her best interests and she lacked capacity to consent. However, ReS37, the Court of Appeal overturned a sterilisation and allowed procedures as treatment for pain and illness alleviation only in capacity cases, without the need to seek a high court approval in each case. Whilst heralding a significant change, it is posited that a central drawback of this distinction has been the interpretation and inconsistent application of the law in practice, with the result being increased doctor autonomy. Part 2: Minor Patient Autonomy The Human Rights Act and Minor Patient Autonomy It is important to further mention the impact of the Human Rights Act 1998 (HRA)38 and its impact on the issue of consent under English Law. NHS healthcare authorities are “public authorities39” for the purpose of the Act and as such, NHS trusts are required to act in accordance with the European Convention on Human Rights (ECHR40). The HRA implements and grants ECHR protection to patients in the UK and in considering the issues in relation to consent and minor autonomy, courts have a positive obligation under the HRA to uphold directly enforceable rights under the ECHR. The rights of the ECHR which are most likely to be relevant when addressing minor patient rights are to be found in the following: Article 2, the right to life (which may conflicts parental wishes to withhold or continue treatment depending on the factual circumstances); Article 3, the prohibition of torture or inhuman and degrading treatment (if minors are forced to continue with treatment against their wishes there is potential for breach here); Article 4, the right to liberty and security of the person; and Article 8 – the right to respect for private and family life. Not all the rights under the ECHR are absolute and can be restricted under interests of national security and the protection of health, rights and freedoms of others. However, any such restrictions are limited within specified legal grounds, in pursuit of a legitimate end41. Furthermore, the degree of interference with an ECHR right must be proportional to the aim to be achieved by such interference. Accordingly, it is imperative that in considering the best course of action, NHS Trusts and courts must take account of the rights granted under the ECHR. All appropriate policies and relevant consent forms should take account of the ECHR to ensure compliance42. Furthermore, from an ethical viewpoint regarding consent to treatment, the General Medical Council’s ethics guidelines43 (the Guidelines) focus on the need for patient autonomy and highlights recommendations for informing patients at all stages of the treatment process. Accordingly, NHS trusts must ensure that all options available have been communicated to and discussed regarding a minor patient’s treatment including the risk of undergoing the proposed treatment and the risk of refusing treatment. 2. Right to Refuse Treatment It is important to highlight at the outset that in order for any patient consent to be valid, the patient must have received sufficient information to be regarded as having “informed consent44”. The law as enshrined in the Guidelines45 asserts the concept of informed consent, which imposes a positive duty on doctors to give all relevant facts to a patient in comprehensible form. This includes a non-exhaustive guide including non-operative methods and non-treatment, a description of the expected outcome for each alternative procedure. Commonly, case law has focused on a minor patient’s autonomy to withhold consent to treatment. In strict adherence to legal principles, although a minor under the age of 16 may not want to continue with the proposed treatment due to the poor prospects of survival and constant suffering under the statutory provisions the very fact of being a minor will render the patient legally incapable of giving consent. However a degree of flexibility in relation to consent of minors is enabled under the common law depending on the circumstances of the case. In the case of Gillick v West Norfolk Health Area Authority46, the House of Lords gave guidance on what consent could be given by minors. The rules laid down by the House of Lords in the Gillick case have also been incorporated into the Guidelines, which NHS Trusts’ must follow as good practice in approaching the issue of minor capacity to consent. The Gillick rules are as follows: 1) The test is whether the child had sufficient understanding and intelligence to enable him or her to understand fully what is proposed; 2) Each child must be assessed separately in relation to each different procedure. Accordingly, competence to consent must be assessed in relation to the specific new treatment suggested and not be judged on understanding of previous treatment; 3) There is no specific age at which a child becomes competent to consent. It ultimately depends on the particular child and on the seriousness and complexity of the treatment proposed; and 4) The Gillick test is about capacity and not the ability of the child to make a choice that people might consider wise. Furthermore, in the Gillick case, the House of Lords asserted that the parents’ rights to take decisions “yield to the child’s rights to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own on the matter requiring decision47”. Under the Gillick test, whether or not a minor is competent depends on his emotional and intellectual maturity. However, whilst the Gillick test clearly recognises the right to minor autonomy, the subjective nature of the test ultimately creates uncertainty as to how far this right extends in reality. Moreover, even if the relevant Trust can establish through clear and effective communication with a child patient that they are competent in the Gillick sense, English law on minor consent distinguishes between consent to treatment and refusal of treatment, which clearly limits the scope of minor patient autonomy. This does not appear to be Lord Scarman’s intention in the Gillick case as he expressly asserted that the competence test was referring to “the right to determine whether or not a minor child below the age of 16 years will have treatment.48” However in practice, the courts have undermined this express intention limiting its application to positive consent to treatment. For example, in the case of Re R,49 it was determined that a child under the age of 16 can consent to treatment but cannot refuse treatment especially in the event of proxy consent by someone with parental responsibility.50 Although this case considered refusal of treatment vis-à-vis parental consent, subsequent cases have also adopted this distinction.51 Accordingly, it would appear that even if a minor patient is determined to be Gillick competent for capacity purposes, the relevant NHS Trust will not be bound by his refusal of treatment and is only required to consider the patient’s wishes. This limitation on child patient autonomy is further highlighted by cases involving conflict between the patient’s wishes and parental rights in consent cases. 4. Conflict with Parental Rights With regard to minor patients, the general rule is that anyone with parental responsibility can consent to treatment on the child’s behalf52. Parental responsibility is defined under sections 2 and 3 of the Children Act 1989 (CA)53. Although individuals with parental responsibility are legally entitled to refuse consent to treatment, the British Medical Association Ethics Guidelines54 assert that people with parental responsibility are not entitled to refuse treatment which is in the child’s best interests. This is further supported by the reasoning in the case of Re C (HIV Test) 55where it was held that a parent’s wishes are not always the final determination of a situation involving medical treatment. In this case the Court of Appeal (COA) faced a mother’s refusal to agree to medical treatment of her child. In determining whether this refusal was binding the COA highlighted that the issue of whether a child should be treated was rooted in the overall objective of welfare of the child and not the parent’s rights and accordingly the relevant consideration was the best interests of the child. Whilst this decision highlights that parental opinion regarding consent will not be overriding per se, the judicial rationale is based on the CA guidelines of ensuring the welfare of the child, as opposed to any notion of deferring to minor patient autonomy. The relevant consideration is what is in the child’s best interests and courts have broken precedent in certain circumstances. For example in the case of Re T56 the Court of Appeal attached significant weight to the parents’ wishes, although it is arguable that these decisions are distinguishable on the grounds that there is a general trend to give consideration to parent’s wishes in the case of handicapped newborn children. 5. Conflicting Views of Parents vis-à-vis Minor Patient The inherent complexity of this area of law is further compounded in the event that the minor patient’s parents have conflicting views regarding treatment options for the child. Furthermore, Article 8 of the ECHR concerns respect for private and family life and should be at the forefront of any considerations about the involvement of parents in decision making on behalf of the child. Although recommended as good practice57, there is no mandatory requirement for joint parental consent. The case of Re R58 was the first case post Gillick to consider the issue of a competent child for the purpose of consent. Although minor in this particular case lacked competence for consent, Lord Donaldson addressed the situation where those with parental responsibility may override the refusal to consent by a competent child. Lord Donaldson asserted that even if a child was “Gillick competent” and as such refused treatment, the parent’s right to consent did not automatically disappear, but it could not simply be used by itself to defeat consent given by a child. In addressing the conflict of this view with Lord Scarman’s assertions of “terminating” and “yielding” in the Gillick case, Lord Donaldson made a distinction and suggested that Lord Scarman was referring to the parental right to determine whether or not a child should receive such medical treatment and adopted a “key holder” analogy whereby both parent and competent child hold a key and either can give valid consent and if one chooses not to give consent, it doesn’t necessarily stop the other from lawfully doing so. Ultimately, they have to look at what the paramount interest of the child is in accordance with the provisions of the Children Act 1989. The British Medical Association Ethics Guidelines also provide express guidance on the situation where people with parental responsibility disagree. The guidelines assert that discussion aimed at reaching agreement should be sought however the fundamental consideration is what is in the best interests of the child. If consensus cannot be reached the guidelines highlight that the clinician in charge must take a decision as to whose decision to proceed with in light of what is considered the best interests of the child. Accordingly, NHS Trust’s can legally proceed with the child’s consent notwithstanding parental refusal. Furthermore, the GMC guidelines “Withholding and Withdrawing life-prolonging treatments: Good Practice in decision making59” (the Guidelines 2) assert that where a parent successfully overrides refusal of treatment and gives consent, this consent cannot be vetoed by another person with parental responsibility. Under the guidelines on withholding treatment, the GMC asserts that in these difficult scenarios, parents will be led by the clinician’s medical opinion. The above analysis highlights the inherent tension of ensuring a patient’s best interests from a medical perspective and patient autonomy to consent in law. Whilst it is too dogmatic to simply assert that patient autonomy is exaggerate and unimportant in medical law, the judicial propensity towards protection of the medical profession tips the balance in favour of doctor autonomy. Whilst on the one hand such an approach is arguably necessary due to the complexities of medical treatment and the need to prevent floodgate claims, the inherent complexity has been obfuscated by an inconsistent application of the law. This complexity is further compounded by the issue of minor patient consent. Whilst the Gillick competence test was initially heralded as a welcome move towards acknowledging minor patient autonomy, the subsequent judicial development of the test has muddied the waters with creating artificial distinctions between the right to consent to treatment and the right to refuse treatment. Arguably, the very fact that the Gillick competence test acknowledged the need to consider each minor patient’s autonomy on a case by case basis arguably requires the issue of minor patient autonomy to be determined ad hoc. However, the major drawback of this approach has been the interpretation of the law with the result that whilst theoretically minor patients have increased autonomy in consenting to treatment, the overriding consideration for the courts will be medical opinion and parental consent. BIBLIOGRAPHY Bailey, S.H., & Bowman, M.J., (2000). Public Authority Negligence Revisited Cambridge Law Journal Volume 85 132 M. Brazier., (2007). Medicine, Patients and the Law. 4th Edition Penguin Books. Buss, Sarah. Personal Autonomy. Edited by Edward N. Zalta. 28 May 2002 available at http://plato.stanford.edu/archives/fall2008. Accessed 15 May 2009. Christman, John. Autonomy in Moral and Political Philosophy. Edited by Edward N. Zalta available at http://plato.standford.edu/archives/fall2008/entries/autonomy-moral accessed 14 May 2009. Jonathan Herring (2006) Medical Law and Ethics Oxford University Press. Emily Jackson (2006) Medical Law: Text, Cases and Materials, Oxford University Press. Jerry Menikoff, Edward P. Richards (2006) What the Doctor Didn’t Say Oxford University Press The Right Honourable Sir Robert Carswell, Lord Chief Justice of Northern Ireland., (2004). Consent to medical treatment –does doctor know best? The Ulster Medical Journal, Volume 73 No1 pp.37-44. Gilbert and Tripp (2003), Consent, rights, and choices in health care for children and young people, Journal of Medical Ethics 29 Edition 13. J Drake (2001) Informed Consent? A child’s right to autonomy Journal of Child Health Care, Volume 5, Page 101. British Medical Association., (2001) The Medical Profession & Human Rights: Handbook for a changing agenda. London Zed Books (in association with BMA). European Network of Scientific Co-Operation on Medicine and Human Rights (1998). The human rights, ethical and moral dimensions of health care: 120 practical case studies. Council of Europe Publishing J P H Shield, (1994) Children’s Consent to Treatment, British Medical Journal, Volume 308 Page 1182. All case law reports available at www.lawreports.co.uk All UK statute law available at www.opsi.gov.uk and www.statutelaw.gov.uk European Convention on Human Rights available at www.echr.coe.int All General Medical Council reports and guidelines available at www.gmc-uk.org Other Web Resources www.publications-parliament.uk www.patient.co.uk www.bma.org.uk Read More