The Right to Consent to Treatment - Coursework Example

The Right to Consent to Treatment Name Course Lecturer Date Introduction It is generally accepted that the corollary of the right to consent to treatment is the right to refuse it. This paper will include a discussion of this statement based on ethical theory and case law. A patient has a fundamental ethical and legal right to decide what is done to his or her body. Therefore, legitimate consent to treatment is very vital in all types of healthcare. Moreover, seeking consent constitute a matter of usual courtesy between patients and health professionals. Nevertheless, English common law extends this and has instituted the provision that, touching patients without a valid consent might amount to criminal or civil offence1. According to Habiba, consent to treatment and investigation is viewed as a keystone in doctor-patient relationships. Effective relationships between doctors and patients are dependent on trust. In order to establish such trust, health professionals ought to respect the autonomy of patients, which implies the right of patients to choose whether to undergo a given medical intervention or not. The autonomy ought to apply even in cases where refusal of treatment may lead to a patient’s harm or death2. Requirements of informed consent Informed consent calls for the patient’s understanding about the diagnosis of his or her health condition and its uncertainties. Under informed consent, a patient also needs to understand the various treatment options available along with their achievable outcomes, advantages and disadvantages3. However, the level of information that patients require in making informed consent may differ depending on risks and complexity of treatment along with the wishes of the patient. Moreover, individual patients usually have different understanding and intellectual capacities of their health condition. It is thus mandatory to tailor the information given to individual patients to their present situation4. For example, an emergency situation such as acute myocardial infarction will permit less time for discussing diagnosis and intervention with the patient compared to an elective endoscopy. To ascertain whether a patient has actually comprehended the provided information or not might be difficult. As a result, there is a possibility of the patient making treatment decisions that are not informed. Such a possibility makes physicians doubt whether the consent of their patients is really informed. Consent that is based on limited information might be invalid; however, the patient and the treating physician may fail to notice that. The provision of an absolute right of the patient to consent can be easily challenged by limited information. The right highly depends on the readiness of the health professional to provide the patient with full information, as well as on the ability of the patient to comprehend it and assess the available options. Legal framework Selinger maintains that, a medical intervention that is done without a valid informed consent of the patient constitutes a criminal wrong and the doctor can be prospected for battery. Examples of situations that may lead to law suits include administering a treatment to a patient that is against his or her will, giving a different treatment other than the one consented by a patient, and treatment that is guided by a consent that is based on the provision of wrong information5. Guidelines for consent have been formulated by GMC. Though nobody can consent on behalf of a competent grown-up, UK laws regulate consent for a minor, patient with permanent or acute incapacity and patients with severe mental conditions6. Minors Children aged 16 years are deemed as adults, and are thus, considered to have the ability to make consents relating to their health. Children are below 16 years might have capacity, which depends on their level of understanding. When a child who is competent refuses treatment, people assuming his or her parental responsibility might approve this or a court might overrule the decision of the child. Incompetent children should be treated under the consent of an individual assuming their parental responsibility7. In the case of minors, the right to consent to treatment cannot be considered as the right to refuse treatment. This is because; their refusal to undergo a treatment or not is subject to either court ruling or parental approval. According to medical ethics, a patient deserves the autonomy to decide what happens to his or her body. Accordingly, a patient’s autonomy is compromised in case of minors. Permanent and acute incapacity Patients lacking decision-making capacity because of a chronic or acute illness are not in a position to make decisions regarding their treatment. In such cases, the doctor has a responsibility to act according to the patient’s best interest. Though a family member or caregiver may be consulted on the preferences of a patient, he or she does not have the right to refuse or consent a treatment8. It can thus be argued that, ethically, the right to consent to treatment should not imply the right to refuse treatment for patients with decision-making incapacities, even where a patient has made advance directives, especially where such directive may lead to a patient’s death. According to medical ethics, a physician dealing with an incapacited patient should choose a treatment that he or she considers the most ideal9. Mentally ill patients The 1983’s Mental Health Act directs hospital admission and medical treatment of patients who are mentally patients and refuse to voluntarily undergo assessment or treatment. According to the Act, such patients can solely be admitted in a hospital if their condition threatens their lives or the lives of others. However, any treatment for other conditions besides the mental illness cannot be done against the wish of the patient. Where necessary, a court will rule about the patients’ treatment of other non-psychiatric illnesses10. Ethics is all about doing what is right. Ethically, it can be argued that, mentally ill patients do not have the capacity to know what is good for them. Thus, their relatives or healthcare providers should consent about their treatment of other illnesses not related to their mental disorders. The right to demand or refuse treatment British law explicitly presents competent patients with the right of refusing any treatment, with the exceptions of minors, patients with permanent and acute incapacity and mental illnesses. On the contrary, however, there is no patient who has the right to demand for certain treatments. The 2008’s regulation by GMC asserts that in case a patient demands for a treatment that has no clinical indication in the view of the doctor, there is no legal or ethical obligation to offer such a treatment11. Burke, who had a chronic neurological illness, disputed this guidance. He wished to be given artificial nutrition and hydration (ANH) after he lost his swallowing ability and he did not want physicians to make decisions without involving him. He argued that the related GMC guidance breaches his human rights and filed a court case, which he achieved a positive ruling initially12. Justice Munby made the ruling in Burke’s case that, the 1998’s Human Rights Act entitles an individual person to order life-prolonging medical interventions such as ANH13. The judge based his ruling on articles two, three and eight claiming that the right of a competent individual to autonomy and life constitute a right to ANH14. The Court of Appeal reversed this ruling though the right-based assessment of Munby’s verdict was acknowledged. The decision was justified using two arguments. Firstly, the Airedale NHS Trust vs Bland (1993)15 case, an advance command to stop treatment in a persistent vegetative condition ought to be respected, did not automatically result in a reverse resolution in conflicting cases16. Secondly, a prior directive requiring life-prolonging medical intervention would not adhere to provisions of the Mental Capacity Act. The Act requires the physician to take into account the best interest of the incompetent patient17. Another feature of demanding a certain treatment relates to its impact on the broad community. Graber and Tansey claim that ordering a certain treatments, especially which are more expensive but equally effective, results in injustice18. In such a case, health practitioners may feel obliged to act according to the wishes of their patients. On the contrary, honoring such wishes may lead to organizational and financial constraints in the system of public health care and in the society at large. This is because; it may make other patients to fail to receive the treatment they need. At the present, in the United Kingdom, patients do not have a legal right to demand a particular treatment. Besides, such demands breach justice by preventing resources from being distributed according to need19. Conclusion According to medical ethics and law, a patient has a right to informed consent to treatment. Informed consent charges health professionals with a duty to provide patients with detailed information about their health conditions before they make treatment decisions, which includes refusing treatment. However, it is hard for the practitioners to ascertain whether a patient has understood the information provided. Thus, the right to consent treatment should only constitute a right to refuse treatment where the provided information is fully understood. When it comes to minors, the right to refuse treatment is only applicable for those above 16 years old. The law gives incapacited patients the right to make advance directives about their treatment. However, from an ethical perspective, doctors should choose the best treatment for such patients, and ignore directives that may have negative impacts on the patient’s health. Mentally ill patients should be treated for other none-psychiatric illnesses against their wish since they do not have the capacity to know what is best for them. Bibliography Airedale NHS Trust vs Bland, 789, A.C, 1993. Burke v General Medical Council (defendant) and Disability Rights Comission (interested party) and the Official Solicitor (intervenor), 1879, EWHC, 2004. GMC, Seeking patients’ consent: The ethical considerations, General Medical Council, London, 1998. GMC, Withholding and withdrawing life-prolonging treatments: Good practice in decision making, General Medical Council, London, 2008. Graber, MA & JF Tansey, "Autonomy, consent, and limiting healthcare costs," Journal of Medical Ethics, vol. 31, no. 1, 2005, pp.424-426. Habiba, M.A, "Examining consent within the patient-doctor-relationship," Journal of Medical Ethics, vol.26, no. 1, 2000, pp.183-87. NHS Foundation Trust, Consent policy for examination, treatment and post mortem, Cambridge University Hospitals, Cambridge, 2008. Samata, A & B Samata, "Advance directives, best interests and clinical judgement: shifting sands at the end of life," Clinical Medicine, vol.6, no. 1, 2006, pp.274-78. Selinger, Christian P, "The right to consent: Is it absolute?" British Journal of Medical Practitioners, vol. 2, no. 2, 2009, pp.50-54. The Stationary Office, "Human Rights Act (1998)," 1998. The Stationary Office, "Mental Health Act (1983)," The Stationary Office, 1983. Read More