Medical Ethics and the Law (UK) - Essay Example

Medical Ethics and the Law (UK) Total Number of Words: 3,224 Table of Contents I. CaseIntroduction …………………………………………………… 3 II. Ethical Issues Related to the Case of Major Tom ………………. 4 a. Autonomy and Consent to Treatment ……………….. 4 b. The Law of Confidentiality ……………………………… 6 c. Ethical Principles of Deontology, Teleology and the Law of Beneficence and Non-maleficence …….…….. 7 III. Legal Issues Related to the Case of Major Tom …………………. 9 a. Autonomy and Consent to Treatment ………………… 9 b. The Law of Confidentiality ……………………………… 10 c. The Law of Beneficence and Non-maleficence …...… 10 IV. Legal Advice Related to the Legal Rights of Major Tom ………… 11 V. Discussion …………………………………………………………… 12 VI. Conclusion ………………………………………………………….. 13 Bibliography …………………………………………………..……………. 15 - 16 Case Introduction Major Tom was admitted to the NHS hospital due to a plane crash that landed on arrival at the airport in England. Major Tom was in a critical condition and was unconscious at the time he was admitted to the hospital. To save his life, he was given an immediate surgery for his injuries. The surgery was performed by Mr. Botch. While he was performing the operation, the surgeon discovered a rare tumour on one of Major Tom’s lings. Instead of waiting for Major Tom to regain his consciousness as he recovers from the initial operation, Mr. Botch immediately removed the tumour from the affected lung. As soon as Major Tom regains his consciousness, Major Tom told Mr. Botch that if he had been conscious prior to the operation, he would never have given his consent to remove the tumour in his affected lung due to the fact that he believe that only God has the right to determine his fate. Also, Mr. Botch posted his concerns that Major Tom’s lung condition had been caused by some of the vaccines Major Tom received before his duty overseas combined with the exposure to uranium from weapons Major Tom was in contact with on a medical website without getting permission from Major Tom. Lastly, Mr. Botch conducted a further research about Major Tom’s condition and stored his findings on a disc. Mr. Botch accidentally left the disc on the train while he was travelling home. As a result, the newspaper printed the story regarding Major Botch’s health concerns. Even though the news paper and the medical website did not publish Major Tom’s name, some of Major Tom’s friends believe that the story was referring to Major Tom. With regards to Major Tom’s ongoing care and treatment, Mr. Botch prescribed him a new drug. However, Major Tom developed a serious blood disorder that caused him to develop gangrene after taking the drug for some time. As a result, Major Tom had to go through further treatment and was hospitalized longer than he was supposed to stay at the hospital. For this study, the researcher will identify and discuss the ethical and legal issues related to the case of Major Tom. In the process, the researcher will explore the ethical principles and its application within the health care settings. Prior to the main discussion, the researcher will provide some words of advice with regards to the legal rights of Major Tom including how he should take action about his case. Ethical Issues Related to the Case of Major Tom Autonomy and Consent to Treatment As part of the health care ethics, health care professionals are mandated to respect the patient’s autonomy in terms of allowing the patient to make his own decision with regards to his own preferred care and treatment. In relation to respecting the patient’s autonomy, the patient should be properly informed with general information regarding the purpose and process of treatment and care as well as its consequences and other options that the patient may consider in his own decision making. However, there are also some cases wherein the patients are not able to make their own personal decision. In the case of Major Tom, he was critically injured at the time the plane crashes and was unconscious at the time the proposed operation was delivered by Mr. Botch. In this case, Mr. Botch was responsible in balancing his duty of care with regards to autonomy1 or the practice of informed consent; as well as the practice of non-maleficence2, beneficence3 and justice4. (Bailey, 2007) Given that Major Tom was unconscious at the time the treatment was delivered to him by Mr. Botch, Mr. Botch should have referred to and followed the several guidelines that were developed by the Department of Health. This includes the guidelines stipulated in: (1) Reference Guide to Consent for Examination or Treatment (2001); and (2) Mental Capacity Act (2005). Based on the Mental Capacity Act (2005), health care practitioners should avoid making unwise decisions such that any decisions made on behalf of the patient should be for the benefit or the best interests of the patient. In line with this matter, it is a general rule that health care professionals should not restrict the patients from their right or basic freedom to decide for themselves. As part of the legal and ethical health care practice, it is a standard operating procedure for health care professionals to follow the rules behind ‘informed consent’ prior to the delivery of nay treatment, physical assessment or investigation, and the provision of personal care for the patient. (NHS, 2006; p. 8; DOH, 2001a, p. 2; DOH, 2001b; p. 1) Health care professionals should also avoid assuming that the patient will no longer be able to communicate or make any decisions for himself/herself. (DOH, 2001b, p. 9) Basically, the capability of the patient to give consent on a specific care or treatment should always be considered by the health care professionals unless there is are clinical evidences that can prove that the patient will never be able to be mentally capable of deciding for himself. As a general rule, the patient have the legal right to either agree or disagree with the health care professionals’ proposed medical treatment based on the patients’ own set of values and/or religious beliefs. (DOH, 2001b: p. 3) Therefore, it is but ethical for Mr. Botch to respect the personal decision of Major Tom with regards to whether he would go through the lung surgery or not. Since Major Tom was unconscious at the time he was admitted to the hospital, Mr. Botch should first treat his wounds and have waited for Major Tom to regain his consciousness and discuss with him about the tumour that was found in one of his lungs. The Law of Confidentiality Health care professionals should also practice the law of confidentiality. (OBrien & Chantler, 2003) It is generally unethical for health care professionals to talk about or disclose the health condition of the patient to other people regardless of whether the mode of communication is verbal or in written. As a rule, Mr. Botch should have personally obtain a consent from Major Botch prior to posting his health condition on the medical website or conduct a further study with regards to the possible causes of Major Tom’s lung condition. In case Major Tom was unconscious by the time Mr. Botch decided to post the patient’s health condition on the medical website or conduct a further study with regards to the possible causes of Major Tom’s lung condition, the guidelines stated in Mental Capacity Act (2005) with regards to the proper disclosure of the patient’s personal health information should be applied. With regards to Mr. Botch’s plan to post his health condition in the medical website, Mr. Botch should have waited for Major Tom to regain his consciousness so he could personally seek consent from Major Tom regardless of whether Major Tom’s name was posted in the medical website or not. The same condition and procedure should be applied in the case wherein Mr. Botch decided to conduct a further study with regards to the main causes of tumour in Major Tom’s lung. Ethical Principles of Deontology, Teleology and the Law of Beneficence & Non-maleficence Based on the principles of deontology, health care professionals should do positive actions based on the acceptable nursing ethics and law. (Seedhouse, 1988) In other words, health care professionals should act not based on pure motive alone. Instead, health care professionals should consider what is logically right as well as the probable outcome of their action each time they deliver care and treatment to patients. Similar to the ethical principles of deontology5, the law of beneficence states the health care professionals should do only good actions that could increase the health benefits or welfare of the patient. (Tuckett, 2005) In line with the principle of beneficence, all the decisions made by Mr. Botch should be for the greater benefits or the best interest of Major Tom. (Mental Capacity Act, 2005; DOH, 2001b: p. 9) On the other hand, the principles of non-maleficence states that the health care professionals should avoid injuring the patients during the delivery of care and treatment. (Bailey, 2007) Mr. Botch’s decision to prescribe Major Tom a new untested drug as part of the patient’s ongoing care and treatment is clearly a contradictory to the main principles of beneficence. The new drug that was prescribed by Mr. Botch is not widely used by the local physicians. It means that the drug has not been proven to be safe and effective. In line with this matter, the the drug that was prescribed by Mr. Botch was only known as a subject in a lot of different articles and medical journals. Based on the ethical principle of teleology, the consequences of the health care professional’s action or the end result of an action should always be for the greatest benefit of the patient. (Audi, 1999: p. 247) Given that the intake of the new drug made Major Tom suffer from a serious blood disorder which resulted to the development of gangrene, it only means that the action chosen by Mr. Botch was not the best decision after all. It is also clear that Mr. Botch violated both the principles of beneficence and non-maleficence since Major Tom ended up with a more serious health condition. Legal Issues Related to the Case of Major Tom Autonomy and Consent to Treatment For consent to be considered as legal, the consent should be voluntarily given by the informed individuals who are at least 18 years old and above6. (DOH, 2001a: p. 4; DOH, 2001b: p. 7) As a general rule, the practice of informed consent is considered to be a part of the legal process when it comes to providing a major medical intervention on the health services rendered by the health care professionals. (DOH, 2001a: p. 8) This includes a major surgery that was given to Major Tom in order to remove the tumour from his affected lung. Based on the principles of informed consent, the patient has the right to be informed about the main procedure, purpose, consequences and the danger attached with the health care treatment that will be given to the patient regardless of the patient’s mental and/or health condition. Since Mr. Botch violated the principle of informed consent, Major Tom could anytime file a legal action to Mr. Botch and/or the rest of the entire group of health care professionals who actively participated in the lung surgery that was performed on Major Tom. (DOH, 2001a: p. 2) In line with this matter, Major Tom could make Mr. Botch ans the rest of the health care professionals that were directly involved in Mr. Tom’s lung surgery be liable for the act of negligence especially in the case wherein Major Tom suffers from physical or mental harm related to lung surgery. (DOH, 2001a: p. 5) The Law of Confidentiality Given that Mr. Botch violated the law of confidentiality; Major Tom could legally sue Mr. Botch for the grounds of disclosing his health condition to the public. Regardless of whether or not Major Tom’s colleagues were able to identify Major Tom to be the subject that was posted on the medical website or the article written in the news paper, the fact that Mr. Botch did not seek consent from Major Tom prior to posting the article on the medical website as well as conducting further study in the main cause of Major Tom’s tumour that was found in his affected lung is enough ground to sue Mr. Botch for the act of negligence. The Law of Beneficence and Non-maleficence The fact that the new and untested drug that was prescribed by Mr. Botch made Major Tom suffer from a serious blood disorder which resulted to the development of gangrene aside from the need for Major Tom to stay at the hospital longer than expected is enough ground for Major Tom to sue Mr. Botch for the act of negligence. (DOH, 2001a: p. 2) Legal Advice Related to the Legal Rights of Major Tom Patients will always have the right to freedom and the right to decide on whether or not he/she will accept specific medical services or treatment as proposed by the health care providers. (Department of Health, 2001a) Since it is clear that Mr. Botch violated the following: (1) the law of autonomy and informed consent prior to the provision of care and treatment; (2) the law of confidentiality; and (3) the law of beneficence and non-maleficence; Major Tom has the legal right to file a list of complaints against Mr. Botch for multiple acts of negligence. Major Tom should also be advice to read through the ‘Human Rights Act 1998’ to enable him to know his personal right as an individual. (OBrien & Chantler, 2003) In general, the common law in health care profession is more or less based on the ‘Human Rights Act 1998’. For this reason, Major Tom will have a better idea with regards to the boundaries and limitations of his right as a patient. Major Tom should also be advice to be familiar not only with the said regulation but also with topics related to: (1) ‘protection of rights to life’; (2) ‘prohibition of torture, inhuman or degrading treatment or punishment’; and (3) the ‘freedom of thought, conscience and religion’ among others. (Department of Health, 2001a, p. 3) Aside from reading the ‘Human Rights Act 1998’, Major Tom should either make a research on several case law that has been interpreted by the court. (Panting et al., 2001: p. 5) These case laws should be related to topics like informed consent prior to treatment and administration of drugs (Panting et al., 2001: p. 5); violation of patients’ confidentiality (Panting et al., 2001: p. 7); and the area of clinical negligence specifically in the prescription of inappropriate medication causing toxicity and other related detrimental health problems (Panting et al., 2001: p. 12). The case of Major Tom is a serious one since Mr. Botch did not only caused serious harm to Major Tom’s health caused by prescribing him an untested new drug but also violated his private life by posting his health condition over the medical website without his consent and losing the disc that contains the disc that contains the medical findings on Major Tom’s case. Another major malpractice done by Mr. Botch is the fact that he pushed through the tumour surgery in one of Major Tom’s lung without seeking the patient’s consent first. Discussion In general, the principles of health care ethics and law serve as the standard clinical practices among the health care professionals. To avoid unnecessary legal problems when rendering their health care services to the patients, health care professionals should know by heart the principles behind health care ethics and law. Health care professionals should be very careful not to breach any of the health care ethical principles or the ethical rule and regulation since violating this rule may cause a health care professional to be liable for medical malpractice or a professional negligence. (A Medico-Legal Guide to Crimes against Women and Children , n.d.: p. 82) The act of negligence is basically referring to the legal concept wherein the health care professionals fail to perform a reasonable standard of care to the patients. (Panting et al., 2001: p. 9) As a result, health care professionals who are liable for the act of negligence are required by the law to provide a financial compensation for the damages he/she has inflicted or caused to a patient. There is a legal and moral obligation on the part of the health care professionals with regards to the law of confidentiality. As a general rule, health care professionals should not disclose any forms of patients’ information to the public unless: (1) the court of law orders a particular health care professional to make a disclosure; (2) an act of parliament requires the health care professional to make a disclosure; or (3) the patient consented the health care professional to make a disclosure. (A Medico-Legal Guide to Crimes against Women and Children , n.d.: p. 92) The case of Mr. Botch, he intentionally posted the medical concerns of Major Tom on the medical website without seeking the patient’s consent. With regards to unconsciously leaving the disc with Major Tom’s medical records and test results on the train is not intentional. Nevertheless, Mr. Botch is still responsible for the public disclosure of Major Tom’s medical record due to the fact that Mr. Botch violated the ethical guidelines of informed consent. Conclusion The readers can look at the case of Mr. Botch and Major Tom in two sides: (1) the negligence on the part of the health care professional such as in the case of Mr. Botch; and (2) the case of Major Tom and how he as a patient could legally protect himself from health care professionals who violates the ethical rules behind the delivery of proper medical care and treatment. Basically, Mr. Botch as a health care professional should avoid violating the rule behind the law of informed consent. Failure to seek informed consent from the patient could easily make the health care professionals guilty of the act of negligence. Since Major Tom was unconscious at the time Mr. Botch discovered the tumour in one of Major Tom’s lung, Mr. Botch should have waited for Major Tom to regain his consciousness before they go through another surgery in case the patient agree with the treatment procedure. In case the patient decided not to go through the lung surgery, Mr. Botch cannot do anything but to respect the final decision made by the patient. Mr. Botch should also avoid disclosing the medical records or information about the patient without seeking the patient’s consent. Also, as a health care professional, Mr. Botch should ensure that any drug he prescribes to the patient will not cause any unknown side-effects. In case there is a reported list of side-effects with a specific drug, Mr. Botch should inform the patient about it. As a patient, Major Tom should know his rights as a patient. Knowing his rights will enable him to sue any health care professionals who go against the ethically acceptable medical practices. In case Major Tom is unsure about his rights, he could either conduct his own research or seek a legal professional help to enable him to fight for his own human rights. Bibliography: “A Medico-Legal Guide to Crimes against Women and Children .” n.d. 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