The Patients Right to RefuseTreatment - Case Study Example

Law Assignment One of the basic principles under Australian law is that treatment cannot be administered without the patient’s consent. This has been set out as follows: ”People have the right to decide for themselves whether or not they will undergo medical treatment.”1 While earlier, the patient’s right to give consent was to ensure that the medical practitioner exercised due care to avoid battery or interference with the patient’s bodily integrity, this principle has been revised over the years to require the medical practitioner to provide the patient with “sufficient information to enable the patient to give informed consent.”2 The Medical Practice Act of 1992 which has been adopted in Queensland as well, requires that medical practitioners must “respect the right of patients to be fully involved in all decisions about their care” and “respect the right of patients to decline treatment”3. The case of Eddie raises two issues – first, the question of (a) failure to obtain consent and (b) trespass to the person. Failure to obtain consent: The principle of consent, applied in Eddie’s case, appears to indicate that at the outset, there may be grounds for Eddie to bring some cause of action because (a) he was not fully involved in the decision about his care and his right to decline treatment was not respected. The Bolam principle4 which placed the onus of medical decisions on the doctor and was reiterated in Battersby v Tottman5 where the Courts held that information may be withheld from the patient on the grounds of therapeutic privilege, no longer offers a medical practitioner protection from legal action of a patient claiming the lack of informed consent. Earlier, Cardozo J in Schloendorff v Society of New York Hospital had stated, “a surgeon who performs an operation without his patient’s consent, commits an assault.6” Negligence: On the basis of the above, the issue of negligence also arises against the doctor who performed the blood transfusion, because it was performed without Eddie’s consent. In the case of Rogers v Whitaker7, it was held that the Bolam8 principle would not be applicable in Australia and the patient’s right to be fully informed about all medical treatment could not be waived under any circumstances, including therapeutic privilege. In this case, the doctor was held liable for negligence, not because of incompetent performance of a medical procedure but because he had failed to warn the patient of possible risks and side effects. In Eddie’s case however, there were no adverse side effects, rather his life was saved as a result of the blood transfusion. The major issue is therefore, the question of whether the patient’s right to refuse treatment had been breached. The right to refusal of treatment: In the case of F v R, King CJ clearly stated that the appropriate standard of care that needs to be administered to a patient should be determined after giving weight to the “paramount consideration that a patient is entitled to make decisions about his own life.”9 It may be noted that Eddie specifically carried a card requesting that blood transfusions not be administered to him due to his religious beliefs and his right to make decisions about his own life appears unquestionable in the light of King CJ’s statement in F v R. As Callinan J opined in the case of Rosenberg v Percival, “the more inquisitive, or demanding, or less or more sophisticated perhaps, or obsessive, or suspicious, or hypochondriacal the patient may be, the greater the need for identification of and elaboration upon the slightest risks because such a patient may be likely to attach significance to them.“10 Eddie had a staunch religious conviction and the evidence on the card suggested that he held those beliefs for 16 years. This was also corroborated by his friend Jill. The refusal to receive a blood transfusion did pose a danger to Eddie’s life, but his right to make decisions about his own life would also include the right to decline treatment. In the case of Re MB, the Court held that a patient has the absolute right to refuse consent to medical treatment for any reason, even if those reasons are irrational and even when such a decision could lead to his or her death11. Trespass to the person: On this basis, it would appear that Eddie’s right to refuse treatment would be legally upheld even if it was detrimental to his own life; and carrying out the surgical procedure against the patient’s specific wishes and without the patient’s specific consent would amount to assault12 and could give rise to an action in trespass. Section 20 of the Transplantation and Anatomy Act in Queensland13 also permits an individual to refuse a blood transfusion at any time, even if there is a threat to his or her life. Since an assault would occur even if a medical practitioner intentionally creates the apprehension of unwanted physical contact, Eddie may have grounds for claiming assault and violation of his bodily privacy and integrity. Even when the intent is to save the patient’s life, the invasion to the person’s autonomy may itself be deemed harmful and legally actionable in tort. For instance, in the case of Hart v Herron14, the plaintiff brought action on the grounds that he had been given treatment to which he had not consented, and was successful. This may also apply in Eddie’s case because he has not himself consented to the treatment, his friend Jill has signed the consent forms. This is yet another aspect that Eddie can challenge in upholding his claim of assault. Since he was in an emergency situation, he could be held to be legally incompetent to make a decision. In this case however, there was a valid legal directive that should have been applied15, i.e, the card stating his refusal to have a blood transfusion. Since Eddie is not a child, neither has he given power of attorney to Jill to make decisions on his behalf, the consent forms signed by Jill can be contested. The issue of guardianship will arise in this case and the Courts are likely to make the decision about the patient’s treatment based upon Eddie’s best interests. However, a determination about these best interests will be made on the basis of substituted judgment, where an assessment of best interests will be made taking into account the wishes of the patient himself.16 Since it may be possible to establish Eddie’s antipathy to blood transfusions and his strict religious beliefs, there appears to be a good likelihood that Eddie could succeed in his claim of assault and violation of his bodily integrity, because he was given treatment to which he did not give his consent. This would especially hold good in view of the fact that specific direction existed against giving the blood transfusion that saved his life and Jill had no guardianship authority or legal power of attorney to make the medical decision on Eddie’s behalf. 2. The major issues raised by Sally’s disclosure of confidential patient information are (a) breach of confidence and (b) the right to privacy: The Australian medical code of ethics requires health care providers to preserve their patients’ confidences. The principles of equity operating on this issue are that a confidence is formed when one party. i.e., the patient, imparts private medical information to the health care provider on the basis that such information will be kept confidential. Therefore unauthorized use of such information would be contraindicated17. The breach of confidence: In Stella’s case, she is privy to a great deal of confidential medical information about the patient with the history of violence in her capacity as a nurse. The equitable duty of confidence would arise, through application of Meggary J’s approach in Coco v AN Clark, because the information (a) has a “necessary quality of confidence” about it, being the patient’s medical history (b)was imparted in circumstances requiring confidence, i.e, in the medical facility and (c) revealing such information could constitute unauthorized use of such information18 because a health care provider has a duty to not “voluntarily disclose, without the consent of the patient”, information that he or she may have gained in a “professional capacity”.19 This duty may also extend to information the health care provider obtains, not only from the patient but also from other sources20, such as Sally has acquired from forensic psychologists, etc. The right to privacy: Another major issue that arises in this case is the violation of the patient’s right to privacy. At the outset, it would therefore appear that Sally’s revealing the information could violate the patient’s legal right to privacy.21 Although there are no specific privacy provisions in Queensland authorizing the collection and dissemination of information only for specific purposes, there is an administrative provision that exists for use in the public sector, which derives from the Privacy Act of 198822. In the case of Furness v Fitchett23, the issue was a doctor who disclosed his opinion about his patient’s medical condition to a third party. The Court held that such disclosure through expressing a medical opinion to a third party amounted to a breach of confidence and the doctor was held liable. Applying this principle in Sally’s case, it would appear that the detailed letter Sally wrote to the Minister of Health providing confidential medical information she was privy to, could amount to a breach of confidence and the patient’s privacy. Duty of care: The case scenario also raises the question of duty of care. The case of Donaghue v Stevenson held that reasonable care must be taken to avoid acts and omissions that could be foreseen to injure a neighbour.24 In this instance, Sally has a duty of care to the patient, to avoid acts that could be detrimental to him. At the same time however, there is also a duty of care that exists to members of the general public, who could be harmed by the patient’s release. There may be specific instances where a disclosure of information may not be a breach of confidence or privacy. Exceptions to the rule of confidentiality: A doctor’s duty of confidentiality could be bypassed when there is a danger posed to members of the general public as a result of the patient’s release. The doctor has an overriding duty to society, which is a permissible exception to the rule of confidentiality25. The nature of the information Sally has communicated is relevant because it is in the public interest; the patient poses a danger to society in general because of the possibility that he may commit a violent crime. If information is “public property and public knowledge”26 then it may not necessarily be a breach of confidence to disclose it. In the case of Rice v Connolly27 it was held that a doctor is not obliged to provide assistance to the police by answering questions about his patients, although he cannot give misleading information. The question of disclosure and the extent to which the health care provider chooses to disclose it, is left to their discretion. In this instance, Sally is not being approached for information, rather she is disclosing the information herself and her duty to society could provide a basis to justify the overriding of the rule of confidentiality. If the patient is released as per the plans, the likelihood of his committing a serious offence is high and this is a cause for concern, that could justify the disclosure of the information.28 The information Sally has sent could directly affect the outcome of the decision to release the mental patient and could result in a reassessment of the medical condition of the patient and whether or not he is fit to be released or whether he could pose a threat to society. Since Sally’s concerns are valid and justified, it appears that there are grounds to justify Sally’s disclosure of the information. Sally has a duty of care to her patient, but she also has a duty of care to prevent violent acts by her patient. While she is not bound under law by that duty of care to members of the general public, neither is she bound to a “general duty to rescue, safeguard or warn another from or of reasonably foreseeable loss”,29 nevertheless, her disclosure of patient information is likely to be justified under the circumstances because her patient poses a threat to society if he is released. Violation of privacy: The Privacy Act of 1988 imposes a duty upon Sally to keep the patient information confidential. It must be noted however, that although Sally has expressed her concerns to a third party, the party in question is the Minister of Health and she has not disclosed the information publicly. Queensland law30 requires health professionals not to disclose confidential information and imposes penalties for such disclosure.31 It appears likely therefore that the disclosure of information about the mental patient is likely to be restricted to those who are concerned with decision making about the patient. It could be argued that such information is relevant and crucial in the public interest and Sally’s disclosure is limited, hence it does not constitute a violation of the patient’s privacy. The information is not being disclosed to anyone who could make unauthorized use of such information. Rather it is being disclosed to and influence those individuals who are likely to be involved in decision making about the patient and whether or not he is in a fit state to be released from the mental health facility. Bibliography CCH Australian Health and Medical Law Reporter, paras 430-31 Davis, Lisa, 2008. “The Australian medico-legal handbook”, Elsevier Deveraux, J, 2007. “Australian medical law”, Routledge Cavendish. Gurry, F, 1984. “Breach of confidence”, Oxford: Clarendon. Harris, L, 1996. “Patient confidentiality: is the public interest exception a cause for concern?”, 16 No: 4 Proctor 25 The Health Act of 1937 IPP report, Review of the Law of Negligence, at paras 3.35-3.36; Mason, J.K. and McCall-Smith, RA, 1994. “Law and Medical Ethics”, London: Butterworths, Mcilwraith, J, 2006. “Health care and the law”, Lawbook Co. Privacy Act of 1988 (Commonwealth) Standard 2.3 of the Medical Practice Act, cited in McIlwraith, Op. Cit. at pp 54 Skene, L, 2008. “Law and medical practice” (3rd edn) Lexis Nexis Butterworths. Transplantation and Anatomy Act 1979 Cases cited: Bolam v Friern Burnet Hospital Management Committee [19571 1WLR 582 Battersby v Tottman (1985) 37 SASR 524 (CA) Coco v AN Clark (Engineers) Ltd (1969) RPC F v R (1983) SASR 189 Furness v Fitchett (1958) NZLR 396 Hart v Herron (1984) Australian Tort Reports 80-201 (NSWSC) Hunter v Mann (1974) QB 767 Re MB (1997) 8 Medical LR 21 Rice v Connolly(1966) 2 QB 414 Rogers v Whitaker (1992) 175 CLF 479; (1992) HCA 58 Rosenberg v Percival (2001) HCA 18; (2001) 205 CLR 434 at 210 Schloendorff v Society of New York Hospital (1914) 211 NY 1 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1947) 65 RPC 203 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Read More