Legal and Ethical Conditions - James Situation - Case Study Example

[Module] [Module [Module Leader] [Number] Words 3000 [minus references] Informed Consent Thesis A patient’s informed consent or that of their legal representatives to medical procedures should not be in conflict with the law or put the life of the patient at a greater risk. Contents Introduction 2 Definition 4 History and Background to informed consent 5 Cases where informed consent is not valid 6 Minors and Informed Consent 7 Legislation on Consent to treatment in children 8 Exceptions on informed provided by the Health Care (Consent) and Care Facility (Admission) Act 9 Legal Action 10 Probable Choice in James situation 11 Conclusion 11 References 12 Introduction In the medical world there are Clinical ethics and laws put in place to instil disciplines in the medical environment that safeguard the rights of both the patients and the medical practitioners. There are many laws relating to people practicing their right and freedom to make decisions. An example in this area is that people have the legal ability or right to make most of their health care decisions as long as they are in sound mind and are conscious (Sabatino, 2012). It is the doctor’s role to provide the necessary information to a patient about particular tests or treatment in order for the patient to decide on whether to agree or disagree to undergo the procedure. As a doctor or medical practitioner, one is supposed to provide the patient with clear explanations of the treatment they need to undergo and all risks involved. It is the patients’ right thereafter to agree or disagree with the medical procedure on their own free will; this is what is known as informed consent (Wagner, 2012). The person giving the consent must be in a position to have adequate reasoning faculties to be able to make sound decisions and must be aware of all the relevant facts before giving the consent (Tillett, 2005). This means that there are limitations to this decision and a person making informed consent needs to meet the certain requirements. This essay uses James case study to explain some of the legal and ethical issues that surround the right or the limitation of making an informed consent to a medical procedure. This essay particularly focuses on the parents’ decisions and a minor’s right to make informed consent especially putting in mind that they base their decision on religious grounds (Woolley, 2005). The article also explains what a medical profession needs to do in case the consent is denied and the patient is in critical condition. Looking at the facts provided in James case study it leads to the argument why doctors should pay attention to taking the necessary steps to save the life of a minor despite the parents’ views. An informed consent should be based on the medical facts provided and the danger the patient is exposed to rather than religious beliefs or any other non-medical beliefs. Definition An informed consent is a medical phrase often used in law refer to the free will decision a person gives prior to undertaking a medical procedure and the person should meet certain required standards. In such an event, it is clearly stipulated that the patient be provided with the relevant facts and be able to understand them well bearing in mind the future consequences of the decision made (NMC, 2011). It should be noted that the informed consent not only means getting the patient to sign the written consent but rather it should provide an avenue for the patient to communicate with the physician and be able to make the right choice that should lead to a positive outcome (AMA, 2000). It is required by law for the physician and not a delegated representative to reveal and discus with the patient the following key points before making the consent: The first issue should be the patient to understand the diagnosis Next the patient should be informed about the purpose of the proposed procedure or treatment The benefits and risks involved if the proposed procedure or treatment is carried out and the chances of it being successful The patient should also be made aware of the available alternatives, this should be regardless of the costs involved or the extent to which health insurance covers The benefits and risks involved if the patient decides to take the alternative procedure And finally the risks or benefits that the patient will be subjected to in the event that they refuse to undergo the proposed procedure or treatment. In law a health practitioner is not advised to provide any healthcare without the consent of an adult (Austin, 2012). The law insists that consent can be given or refused on any grounds including religious and moral grounds even in the event it will lead to death. The law also gives an individual the right to revoke consent. Another right is the ability to select the form or type of medical healthcare basing on any grounds be it moral or religious. The patient is also has the right to be informed and indulged in all cases involving decision making and planning. Finally the informed consent and admission act gives an individual the right to expect compliance and respect from their healthcare giver on their refusal, revoke or consent (RSBC, 1996). History and Background to informed consent In historical times most of the available writing s indicate that medical professionals were guided by guidelines that advised physicians to conceal information for the benefit of the patient. It was believed that since the doctor knows better than the patient, then the doctor is supposed to take care of the patient in any way possible because the patient’s opinion was not better than the doctor’s (King, et al., 1986). Henri de Mandeville (1300), a French surgeon further brought in the fact that it was best for the patient to have confidence that the doctors prognosis is in the patient’s best interest (King, et al., 1986). In the 18th century there was a movement dubbed “Age of Enlightenment”. This movement pushed for Benjamin Rush a physician from US emphasize for doctors to share more information with their patients and respect the patients decisions (Chester, 1977). In 1847, the America Medical Association was founded and produced the first book that entailed basic guidelines to medical ethics. The idea for the book was to explain to physicians the need for fully disclosing patient details to other physicians however it did not emphasize on the need to disclose the information to the patient (King, et al., 1986). In 1849 Worthington Hooker, a physician from the US published the book Physician and patient. The book revolved around medical ethics and gave a radical demonstration and understanding of the previous text by AMA guidelines. In his text however he disagrees with the directives that it was right for a doctor to lie to the patient and described it as benevolent deception which he strongly disagreed terming it as an unfair practice to the patients (King, et al., 1986). The first court case where informed consent was mentioned was in 1957 by Paul G. Gebhard concerning a medical malpractice (King, et al., 1986). Cases where informed consent is not valid Informed consent can sometimes become complex to assess with some of the reasons being that the expression of understanding nor the expression of consent does not imply that the full adult consent was given. Sometimes the argument whether the patient was able to comprehensively take into account the relevant issues and internally digest (List , 2008). Before seeking an informed consent the physician needs to be sure that the patient must in a reasoning a capacity and be informed. It is for this reason that that there is a group of people that cannot be given this responsibility. Such situations happen when the patient is in either a situation of state that will impair their judgement or reasoning. This medical situations or mental situations can be a patient who is in a coma, severe mental illness, high stress levels and severe sleep deprivation. The other reasons could be mental retardation, Alzheimer disease and high levels of intoxication (Gold & Nash, 2007). In the situation that it is proven a person cannot give informed consent, the common law jurisdiction allows for a health care proxy to make the healthcare decisions on behalf of incapable adult (Vollmann, et al., 2011). On the other side for “minors” an area where there is a lot of differences in certain jurisdictions, they are deemed as incompetent to consent (Sabatino, 2012). Minors therefore require consent from their parents or legal guardians. Minors and Informed Consent From James’ case study there is enough reason why there should be more factors to be considered when it comes to informed consent with minors. Just like in James situation his inability to make his own informed consent and relying on that of his parents poses a major challenge to his life (Larcher, 2004). His parents’ beliefs and recommendations cannot be termed as ethical in a medical situation where they have exposed James to a bigger risk without his views or the doctor’s recommendations under consideration. James situation can create a large basis for a debate on whether minors should be left to carry on their own informed consent at what age should they start carrying out this role. The other view can also be in what capacity a physician should take matters into their own hands in saving a minors life despite the parents’ views (Hickey, 2007). Additionally, what factors can lead to a legal action either on the parents or on the physician concerning a minor’s informed consent and the parent’s informed consent to the child’s medical care. We ought to understand that when it comes to minors there are several issues that arise on the subject of informed consent. This is because some laws allow minors to make informed consent in the event they can prove they are mature (BYU, 1996). According to the law the legal age for a child to be able to make their own decisions without supervision by the parent is 18 years. Any other activity that involves external factors that could affect the child such as being involved in research or going through critical medical procedures requires the assent of the child and permission from the parents (Rotchester institute of Technology, 2010). One of the issues that arises in the event of an informed for minors is the age limit and basis for considering one to be mature. In the US a minor is strictly anybody under the age of 18 years while in other jurisdictions such as Canada and most European nations the presumption may change if enough proof is provided to show they are mature. This presumption known as the Gillick Competence started to be considered in medical law in England after the Gillick court case (Gillick v West Norfolk and Wisbech Area Health Authority, 1985). It was proven that a child aged 16 and above years was mature enough to make their own informed consent. This law later spread to New Zealand, Canada and Australia. Scotland also recognises the same law and Ireland with the need for separate legislation in the health department. Legislation on Consent to treatment in children According to legislation on consent to health care in children it emphasises on the need to involve children in all manner possible before making decisions about their care. This is despite their inability to legally make decisions on their own (Wheeler, 2006). There are general principles that safe guard the health of children or minors in cases of informed consent. These principles are aligned in accordance with legislation under the young people and children toolkit in British law (BMA, 2010). The first principle implies that when a physician is requesting for consent they must first establish the competence of the child that is if they have the capacity to consent (Knott, 2011). According to the British law anybody above the age of 16 is presumed to be able to have the capacity to consent to medical care unless there is enough proof to warrant otherwise (Knott, 2011). Unless it is an emergency the law allows for someone with the responsibility over the child to give or refuse consent on their behalf. In all cases of emergency proper medical care will be undertaken without the consent of a representative. This will be applicable as long as it is to safe guard or prevent from severe medical condition or to save the life of the young person or a child. The principles however state that this legal positions will be taken depending on the age of the young person either under or above 16 years (Lynch, 2010). It should however be noted that children above the age of 16 are not automatically able to make informed consent (Dalla-Vorgia & Skidas, 2001). There are guidelines that assess the capability of child to be deemed competent. These include the following points. A competent person is able to: Understand, comprehend and retain information concerning the decision on their care Can contemplate from the given information and be able to come up with a valid decision Is in a position to freely communicate their decision Children with learning disabilities should not be denied a chance but rather be given the information in an appropriate manner to which they can easily comprehend. If a child is seen as incompetent then a person with a parental authority should be the one to make the decision If conflict arises among the representatives then legal advice should be sort after (Knott, 2011) Exceptions on informed provided by the Health Care (Consent) and Care Facility (Admission) Act Basing on James situation we can take a look at some of the sections provided in the Healthcare and Care Facility Act that could give James or James’ Doctor an exception to carry out the required medical procedures necessary to safeguard James safety. The exceptions can be made only after resolution to give or deny consent is sought after incompliance with sections 11, 14 and 15 of the Act (Beauchamp & Childress, 2008). The first exception recognised by the Act is in where a substitute representative, decision maker or guardian consents on behalf because of unavoidable circumstances clearly outlined by the physician. The second exception is where there is need for urgency especially in an emergency situation (AMA, 2000). However it should be noted that the Act provides provision where emergency may not warrant consent. This can happen if sufficient evidence prove that the person while capable expressed an instruction or wish that refuses consent to health care if such event occurs (RSBC, 1996). The consent healthcare Act also exempts the need for informed consent for carrying out preliminary examinations. This is if an adult implies that he or she is seeking medical attention from a healthcare provider or a close friend or relative implies the same. In the event of a major healthcare condition it is advisable for the physician to provide the care without the adult’s consent (RSBC, 1996). This exception applies if the care is major and any efforts to contact the close friends or relatives is futile. It could also be applied if the person does not have any close relatives or friends to give consent. The other situation that could serve as an exception for informed consent is when it involves a minor health care procedure (Begley, 2008). Legal Action All the above exceptions provide an avenue where informed consent can be foregone to ensure that a patient receives the proper and rightful medical care. Perhaps one of the sections that can apply to James situation is exception can be granted when the medical condition warrants to be an emergency. The clause under section 12.1 indicates that a physician can provide the necessary healthcare despite a refusal of consent by the person’s representative or guardian (RSBC, 1996). James physician can decide to proceed with the medical care despite his parents’ refusal citing that it is an emergency situation and without the proper medical attention proposed James’ life could be in great danger (NMC, 2012). The physician however in applying this rule must consider that James parents might seek legal justice by suing him for refusing to comply with their decision. The physician in this situation with enough evidence can sue the parents under parens patriae which is Latin for “parents of the nation” (Samata & Samata, 2006). This law was created to safeguard children against neglect or abusive parents and guardians. The state may decide to intervene and act as the parent of the child who is seen as in need of protection (Chester, 1977). Probable Choice in James situation Following the above explanations, James situation can be classified as an emergency and it is best for his doctor to take the right medical procedures to safeguard James life despite the parents’ failure to consent. In the event that an assessment is carried on James and he is found to be competent enough to have consent over the medical procedure then he should be left to decide since he has attained the age of 16 years (Nelson, 2005). If the parents’ consent is adhered to it means that John will not be able to go to theatre therefore putting him in a state that deteriorates his life, which is against the law (Faden & Beauchamp, 1986). Therefore James’ doctor should make an informed decision based on clinical ethics and laws to provide him with the required attention taking into account that a patient’s life should always be priority. In case the doctor faces difficulty coming from James parents then he should let the hospital authorities know and file for legal advice (Baumrind, 1964). Conclusion Using James situation we get to understand that there are a lot of legal and ethical conditions that are involved in making medical decisions. As much as the law safeguards the ability of an individual or the ability of an individual’s right to consent or refuse a medical procedure or treatment, there are situations that the law must be exempted and the doctor safeguards the right to life of a patient. Just like in James case emergency situations ought to be treated separate when it comes to informed consent. This is because if the doctor complies with his parents then the doctor, just like many other doctors will not be carrying out his duties sworn to him by oath; to always put first and safeguard the life of their patients. References AMA, 2000. American Medical Association: Informed Consent. [Online] Available at: http://www.ama-assn.org/ama/pub/physician-resources/legal-topics/patient-physician-relationship-topics/informed-consent.page [Accessed 8 March 2013]. Austin, J., 2012. Birth Takes a Village: Understanding Informed Consent. [Online] Available at: http://www.birthtakesavillage.com/informed-consent-in-childbirth/ [Accessed 11 March 2013]. Baumrind, D., 1964. "Some thoughts on ethics of research: After reading Milgrams "Behavioral Study of Obedience.". American Psychologist Journal, VI(19), pp. 421-422. Beauchamp, T. L. & Childress, F. J., 2008. Principles of Bio-Medical Ethics. 6th ed. Oxford: Oxford University Press. Begley, A. M., 2008. Begley A.M., 2008. Truth-telling, honesty and compassion: a virtue-based exploration of a dilemma in practice. International Journal of Nursing Practice, I(14), pp. 336-241. BMA, 2010. Children and young people toolkit, Birmingham: British Medical Association. BYU, 1996. People v. Bennett: Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment. BYU Law Review 186, 17 August, pp. 227-234. Chester, B. R., 1977. Legacies in ethics and medicine.. 1st ed. New York: Science History Publications. Dalla-Vorgia, P. & Skidas, P., 2001. Is consent in medicine a concept only of modern times?. Journal of Medical Ethics, I(27), pp. 59-61. Faden , R. R. & Beauchamp, T. L., 1986. A History and Theory of Informed Consent. 5th ed. Oxford: Oxford University Press. Gillick v West Norfolk and Wisbech Area Health Authority (1985) BAILII. Gold, R. & Nash, E., 2007. State Abortion Counseling Policies and the Fundamental Principles of Informed Consent. Guttmacher Policy Review, x(4), pp. 12-34. Hickey, K., 2007. Minors Rights in Medical Decision Making. JONAs Healthcare Law, Ethics, and Regulationns, IX(3), pp. 100-104. King, R. R., Beauchamp, T. L. & Nancy, M. P., 1986. A history and theory of informed consent. 5th ed. New York: Oxford University Press. Knott, L., 2011. Consent to Treatment in Children (Mental Capacity and Mental Health. [Online] Available at: http://www.patient.co.uk/doctor/consent-to-treatment-in-children-mental-capacity-and-mental-health-legislation [Accessed 10 March 2013]. Larcher, V., 2004. ABCs of adolescence: consent, competence, and confidentiality. BMJ, X(330), pp. 353-356. List , J. A., 2008. Informed Consent in Social Science. Science, 322(5902), pp. 672-674. Lynch, J., 2010. Consent to Treatment. 2nd ed. Boston: Radcliffe Publishing. Nelson, R., 2005. A developmental approach to child assent. Paper presented at: Current Controversies in Pediatric Research Ethics, Seattle: Wash. NMC, 2011. Regulation in practice. [Online] Available at: http://www.nmc-uk.org/Nurses-and-midwives/Regulation-in-practice/ [Accessed 10 March 2013]. NMC, 2012. Nursing and Midwifery Council. [Online] Available at: http://www.nmc-uk.org/Nurses-and-midwives/Regulation-in-practice/Regulation-in-Practice-Topics/consent/ [Accessed 9 March 2013]. Rotchester institute of Technology, 2010. The informed Consent Process with Children. [Online] Available at: http://www.rit.edu/research/hsro/informed_consent_process_children [Accessed 10 March 2013]. RSBC, 1996. Health Care (Consent) and Care Facility (Admission) Act. [Online] Available at: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96181_01 [Accessed 10 March 2013]. Sabatino, C., 2012. The Merck Manual Home Health handbook: Overview of legal and ethical Issues in Healthcare. [Online] Available at: http://www.merckmanuals.com/home/fundamentals/legal_and_ethical_issues/overview_of_legal_and_ethical_issues_in_health_care.html [Accessed 8 March 2013]. Samata, A. & Samata, B., 2006. Advance directives, best interests and clinical judgement: shifting sands at the end of life. Clinical Medicine, I(6), pp. 274-278. Tillett, J., 2005. Adolescents and informed consent: ethical and legal issues. Journal Perinat Nurs., II(19), pp. 112-121. Vollmann, J., Rauprich, O. & Gordon, J. S., 2011. Applying the Four Principle Approach. Bioethics, VI(25), pp. 293-300. Wagner, R., 2012. Informed Consent. eMedicineHealth, 12 March, pp. 1-14. Wheeler, R., 2006. Gillick or Fraser? A plea for consistency over competence in children. Bioethics Medical Journal, VIII(332), p. 807. Woolley, S., 2005. Children of Jehovahs Witnesses and adolescent Jehovahs Witnesses: what are their rights?. Arch Dis Child, VII(90), pp. 715-719. Read More