Medical Law in the UK - Essay Example

of the of the of the Medical Law Part One Cindy had to undergo a caesarean section. Dr. Fell entrusted this task to an inexperienced Dr. Mo, who failed to clean the surgical equipment, leading to a serious infection to Cindy. In addition, he sterilized Cindy, without proper assessment due to his inexperience; and without her consent. Nancy was advised by Dr. Maki to undergo a caesarean section; which she declined. Moreover, she refused to be administered an epidural anaesthetic. Dr. Maki told her that in the absence of a caesarean section, her baby was unlikely to survive. Medical practitioners are legally considered to be negligent in their work, if their actions are not in accordance with what is expected of a medical professional with analogous skill and competence. The general opinion is that negligence claims originate due to inadequate communication by medical professionals, in situations involving medical complications. Physicians who do not caution their patients, in cases where the results prove to be serious, are deemed to guilty of negligence1. The duties of doctors are set out in medical ethics or deontology. Doctors are under a duty to protect the best interests of their patients, protect third parties and maintain confidentiality. The Mental Health Act and the Children’s Act of the United Kingdom specify the professional ethics to be followed by medical practitioners2. However, all the duties of doctors are not enshrined in a single Act, and there are several applicable acts. The General Medical Council maintains the list of duties that doctors are required to follow in an ethical manner3. Doctors have to provide medical care that corresponds to the medical status established by general medical opinion. Medical practitioners have to take the utmost care while discharging their duties. Doctors have to ensure that their medical treatment does not infringe the patient’s freedom. This was established in Mallette v. Shulman. In that case, the plaintiff was a Jehovah’s Witness. The doctor at the clinic had given her a blood transfusion in order to save her life4. The plaintiff sued the defendants on charges of battery, and the trial court accepted her plaint. The appellate court also upheld this decision; and it became very clear that patients were at liberty to choose any particular medical treatment. It was also established, that patients could refuse to accept treatment; even though such treatment would save their life5. Doctors are under a legal obligation to provide patients with sufficient information about their disease. Patients have the freedom to disregard the advice of the doctor if they have knowledge of the consequences of their decision. The doctors have a professional responsibility to determine the competence and ability of the patients to arrive at such decisions. Hence, competence of the patient is very important6. Patients can reject medical treatment or an operation, if they have the required competence. In such situations, if the doctor proceeds to operate upon the patient against the will of the latter, then the doctor is liable for criminal prosecution under the charges of assault (Johnson). Doctors who perform operations against the will of their patients would be suspended from the medical profession and the medical register7. In case the patient is incompetent to take a decision, the doctor is under a professional obligation to deal with the case in the best possible interests of the patient, which might include a surgical operation. Therefore, doctors who act in the best interests of patients, who are incompetent to take a decision with regard to medical treatment or a surgical operation, would not be liable for prosecution. As such, doctors are under a common law duty to act in the best interests of adult patients who are not competent to accord their consent. The courts would justify the concept of best interests upon the recommendations of a responsible medical body8. In the case of Re F, the House of Lords evaluated the effect of sterilisation to the plaintiff on the grounds of best interests. The plaintiff was an incompetent adult female and the sterilisation was aimed at preventing her from becoming pregnant. Their Lordships, after considering the facts of the case, opined that sterilisation was in her best interests. Their Lordships also provided guidelines for such cases; first, sterilisation should save the life of the patient. Second, it should promote the health and should not deteriorate the physical and mental health of the patient. These general guidelines are applicable to the entire medical profession9. It is very important to obtain the consent of the patients for medical examinations and surgical treatments. This is because such procurement of consent falls within the scope of moral, ethical and legal obligations of the doctors. Patients are at liberty to accept or reject medical treatment. They are also permitted to refuse any medical treatment, even if such refusal would be harmful and endangers their life. Thus, patients are provided with an absolute right to either accept or refuse medical care. Similarly, doctors have to provide the complete details of the treatment and how beneficial such treatment is to the patients. Failure to impart such information would make the doctors face civil and criminal proceedings under clinical negligence. Therefore, the doctors must take care to provide sufficient knowledge to the patients, about their diseases and the appropriate treatment available for such ailments10. English courts are of the opinion that individuals have the liberty, under common law, to decide for themselves, whether to undergo surgery or to undertake medication. Thus individuals have the right to decide for themselves, and in addition, this right allows them to refuse surgery or medication even though such refusal could result in their death. Cindy can take legal action against Dr. Mo, because he had taken a negligent decision. Moreover, he was inexperienced and did not sterilize the surgical apparatus, resulting in serious infection. His action of sterilizing her, made it impossible for her to bear children in the future. Moreover, her religious beliefs were seriously violated, leading to considerable mental anguish. She can lodge a complaint with the General Medical Council regarding the negligent conduct of Dr. Mo. In addition, she can lodge a complaint against Dr. Fell, for having passed on his duty to an inexperienced doctor. In respect of Nancy, her pregnancy was already overdue. Hence, Dr. Maki recommended a caesarean section, in the interests of survival of the unborn child. In some instances, the courts deliver judgements that oppose the wishes of the patient. These decisions take into account the best interests of the mother and the unborn child. In the twins’ case, the court disregarded the wishes of the parents and permitted a surgical separation of these twins. In this manner it had accorded greater importance to the interests of the child11. Hence, Nancy’s wish to abstain from a caesarean section will not be permitted by a court, because it endangers her unborn child. In addition, her refusal to undergo an epidural anaesthetic will have to be ratified by a competent doctor, who will decide upon this matter, after taking into consideration the best interests of Nancy and her unborn child. Part Two English law considers euthanasia or assisted suicide to be illegal and unlawful. No individual can hasten the death of another person. In R v. Cox, in order to relieve the patient from terrible pain, Dr Cox administered a lethal dose to end her life. The court held that he was guilty of attempted murder and imposed a suspended sentence of a year’s imprisonment12. In Airedale N.H.S. Trust v Bland, it was held that the life supporting system connected to the patient should be withdrawn and that the patient was to be permitted to die with dignity. This proved to be a land mark decision with respect to euthanasia13. The decision in Bland involved passive euthanasia, which permits individuals to be terminated, without their consent. Tony Bland’s feeding tubes were withdrawn, resulting in his death. The Law Lords held that the doctors were not under a duty to provide tube feeding to Tony Bland, even though it was a part of the medical treatment. This was due to the fact that such medical treatment was not in the best interests of the patient and moreover they were futile14. Withdrawing nutrition, hydration and life support mechanisms from a living patient is frightening. Therefore life sustaining methods should be continued to patients till their natural death. This is also applicable to the patients with terminal diseases, and euthanasia by omission is against the ethics of medicine15. The British Medical Association established the code of conduct for doctors, which was incompatible with the duty of care owed by doctors towards their patients. Subsequent to Bland, this code of conduct was deemed to be compatible with the duty of care owed to patients, if such conduct was aimed at terminating the life of a patient by the withdrawal of treatment or life support systems16. Tony Bland had not consented to his death. He was not permitted to die as he was not dying. All that was done was that the tubes supplying him with nutrition and hydration were withdrawn from his body. This is gruesome and poses a very grave threat to those who unable to communicate their agreement or disagreement, and the family, doctors and the judges decide the worth of such a helpless person’s life17. In the year 1999, Diane Pretty was diagnosed with Motor Neurone Disease. She wanted to die at home while all of her family members were present. She disliked being in a situation, where she had to suffer physically and psychologically18. The position of English Law in prohibiting or disallowing assisted suicide was established in the Dianne Pretty case. There was overwhelming support and sympathy for her suffering and her wish to die with dignity, but the court did not allow assisted suicide. Furthermore, the European Court of Human Rights had also refused to allow Dianne Pretty’s case to be taken up for hearing19. Dianne Pretty contended that the Human Rights Act contained the right to die20. Moreover, she argued that this act empowered an individual to choose when to die and the manner in which such death was to take place21. This was not accepted by the court and Diane Pretty’s further attempt to obtain the court’s assurance that her husband would not be subjected for criminal prosecution in the event of his helping her to end her life, was rejected22. In 2004, there were five hundred eighty four thousand seven hundred and ninety – one deaths in the United Kingdom; of these nine hundred and thirty – six were cases of voluntary euthanasia. In one thousand nine hundred and thirty cases, a physician had been involved in ending the life of patients without their consent23. According to Clive Seal, euthanasia and doctor assisted suicide are sensitive issues. However, doctors in the United Kingdom are not willing to carry out end of life actions, like in other countries. In the opinion of these doctors, all that the patients have to be provided with is the best possible comfort and quality of life, rather than ending their life24. From the foregoing it can be concluded that on occasion, the English courts permit assisted suicide, after carefully considering the best interests of the patient who is on the threshold of death. However, euthanasia per se is disallowed by these courts on the grounds that it is unethical. Works Cited Airedale NHS Trust v. Bland. No. (1933) 1 All ER 821. "Article 2 of the Human Rights Act 1998." BBC NEWS. Euthanasia ‘extremely rare in UK’. 17 January 2006. 30 March 2008 . Chaloner, C and K Sanders. Euthanasia: the legal issues. 2007. 30 March 2008 . "CODE OF PRACTICE." March 1999. Mental Health Act 1983. 31 March 2008 . Diane Pretty’s Right – to – Die case: High Court clears way for Judicial Review. 31 August 2001. 30 March 2008 . Dyer, C. "Consultant suspended for not getting consent of cardiac procedure." British Medical Journal (1998): 316:955. Euthanasia. 30 March 2008 . Green, Dr Ben. Medical Ethics. July 2001. 1 April 2008 . Green, James and Saj Wajed. Surgery: Facts and Figures. Cambridge University Press. ISBN:1900151960, 2000. P.223. Hippisley-Cox, Julia and Stephen Hippisley-Cox. "Let the courts decide - Competency, consent, and the Duty of Care." British Medical Journal (19, September1998). "Human Rights Act 1998." Johnson, AG. Pathways in medical ethics. London: Edward Arnold. Ist ed., 1990. Malette V. Shulman et al. No. (1990) 67 D.L.R. Ontario Court of Appeal. Mason, JK and RA McCall Smith. Law and medical ethics. London: Butterworths. 3rd ed., 1991. Ozimic, Anthony and Dr John Fleming. What is Euthanasia by neglect and why is it wrong? 30 March 2008 . Pretty v. United Kingdom (European Court of Human Rights). No. (2002) 2 FLR 45. R v. Cox. No. (1992) 12 BMLR 38 . Re A (Children) (Conjoined Twins: Surgical Separation) . No. 2 WLR 489. 2001. Re F. No. (1990) 2 AC 1. The House of Lords. Results of first ever UK-wide study into Euthanasia and end – of – life decisions. 17 January 2006. 30 March 2008 Shaw, M. "Competence and consent to treatment in children and adolescents." The British Journal of Psychiatry (2001): Vol. 7. Pp 150 - 159. Tony Bland and PVS. June 2002. 30 March 2008 Read More