Legal and Ethical Background
Consent denotes permission being given to something or giving assent for something to be undertaken. Medical law is the stream where consent of the patient is deemed as a crucial element for any treatment. The consent plays dual role in terms of protecting the patients and the treatment providers (Heywood, Macsakill and Higgins, 2010). For the latter, consent acts as a defence in such an instance where criminal charges are brought in terms of assault or battery against civil claim of trespassing against another individual. Consent is a term which is also a source of controversy owing to the number of legal and ethical issues which are raised in this context (Howe, 2008). This is because it is crucial to give the patients the right of making their decisions, particularly in context of what takes place in their body. The patients cannot be forced to undergo a particular treatment till they give their consent. Yet, there are cases where the doctors can force treatment on a patient, even when the consent of such patient has not been undertaken, based on specific cases (Murgic, et al. 2015). This discussion attempts to highlight this very aspect of consent in context of legal and ethical issues which can be raised under the Mental Health Act.
In the healthcare industry, consent is often referred to as informed consent, where the individual gets permission on something, after they have gained detailed knowledge on the facts of the matter and the results which would be derived from taking such acts. In medical life, informed consent plays a key role as the patients are to be made aware of full details revolving their case and the effects of treatment being proposed by the doctor. This gives the patient with the chance of weighing the pros and cons of a particular course of treatment and deciding if they want to take the risks associated with such treatment (Wear, 2012). Such informed consent is based on clear understanding and appreciation of factual background, its consequences and implications. When it comes to the ethical aspect of informed consent, it is rooted in the dignity of a person. To respect the dignity of any person, they need to be given a chance of proper reasoning before they make crucial decisions of their life (Brown, 2011).
Again, the informed consent is based on basic human rights and the principle of patient autonomy. All the patients are given with the freedom of making decision on what takes place in their body and what happens with it, before any kind o procedure, test or surgery is undertaken. There can be no coercion for a patient and the doctors are required to play the role of being a decision making facilitator for the patients (Kingsholm and Kappel, 2017). Again, the legal aspect of consent is also present. This is in terms of a case of battery or assault being raised against the doctor, where they undertake any procedure, surgery or test on a patient without the informed consent. Thus, consent is crucial even in the daily physical examinations. So, the communication between doctor and patient in terms of permission, choice and authorization are crucial (Rao, 2008).
Legal and Ethical Issues
The conflict which is raised in context of informed consent is the clash between autonomy and paternalism. The basic principle under the professional medical ethics is patient autonomy. The ability of fostering and recognizing it coves different dimensions which hold significance in the clinical competence of physicians. Autonomy has been accepted as the four core principle of medical ethics by Beauchamp and Childress (2001). It relates to the self determination whereby the patients deicide on treats which they would get in an autonomous manner (Tai and Tsai, 2003). The problem is raised when the concept of paternalism comes to light. This principle opposes the theme set by autonomy and provides that the doctors are moral agents of patients and they undertake the decisions for patients. This is done when the patients can make the decision for themselves. The reason for this is that doctors are experts, who are properly educated and experienced in their role, and have the capability of making decisions and judgments, where they know which aspects have to be emphasized upon and which aspects have to be ignored. The healthcare professionals face an ethical dilemma in this context as they have to make a choice between giving the patients their autonomy and giving the paternalistic freedom to doctors in choosing what is the best option for the patient being treated by them (Lepping, Palmstierna and Raveesh, 2016).
The conflict between autonomy and paternalism raises a major ethical issue under the medical ethics. This can be elucidated from an example. A 32 year old pregnant lady went forward with a vaginal delivery. She had two babies before this pregnancy through emergency c-section. The birth of second baby had been just one year back. This led to the doctors warning the wife on avoiding any risk and to go forward with delivery of this baby through a c-section as well. However, the parents of the unborn child did not agree to this even after repeated attempts of the medical staff to convince them. The patient was sent back home to wait for normal labour. Two week later, the patient came back with strong pains and during the delivery the uterus ruptured. The baby was delivered normally but the mother had to be shifted to ICU for close observation. Within a few weeks, the mother died (Sayani, 2015).
This example is a good illustration of the clash between the ethical issues which are raised in context of giving the patient’s the requisite autonomy and not paying heed to paternalism. There was a huge possibility of the life of the patient being saved had paternalism been given emphasis over autonomy in this case. Another example can be taken to highlight this ethical issue being raised in the clash between autonomy and paternalism. This instance revolves around matters of suicide in case of individual suffering from an instance of psychiatric illness. A person who has such illness, and is at the risk of committing suicide, cannot be made to enjoy their autonomy. Where the patient is given with such autonomy, they would for sure end their life. Agreed that this raises the ethical issue of freedom of making their own choices not being given to the individual, the doctor is also under an ethical dilemma of allowing a patient to kill themself just to give them their freedom. This is the key cause of ethical dilemma being raised for the health care professionals particularly in context of clash between autonomy and paternalism (Ho, 2014).
Even the judges support the notion of giving supremacy to paternalism in certain cases, particularly where the patient is not able to take decisions for them or is not able to take such decisions in a way where they protect their own dignity. In one of the recent cases, Justice Russell concluded that a man in his fifties did not have the requisite mental capacity of making the decisions regarding his care, and had been found walking in confused state in the street. The judges ruled that the doctors were allowed to sedate the individual to enable them to provide life saving chemotherapy to such patient (Yahoo News UK, 2017).
This again becomes important in case where an autistic man attempts to fight against the life saving treatment which is requisite for saving him. A patient named Monty suffering from double pneumonia had been placed in intensive care. Monty had been placed on ventilator and a breathing tube had also been placed which had been later on removed from it. However, the mask placed on his face to ease his breathing was no comfortable for Monty who attempted to remove it again and again. The situation escalated so much that Monty had to be sedated. Now, if Monty is given the autonomy, he would have to be allowed to remove the breathing mask; but paternalism played substantial role here where the health care professionals did not give the patient to choose if they wanted the treatment or not (Mike, 2011).
Part 4 of the Mental Health Act provides the consent to treatment provisions which are applicable on treatments for mental disorder and for the formal patients who have been detained under particular sections of this act. Section 62 explicitly gives the right to the medical professionals undertake certain actions in urgent treatment cases where it is required to save the life of patient, to save serious deterioration in condition of patient where such treatment is not irreversible, for alleviating major sufferings where the treatment is not hazardous or irreversible, and for preventing the patient from behaving in a manner where they are danger to themselves or other or behave in a violent manner till the treatment is neither hazardous nor irreversible and do show that a minimum level of interference is required (Tidy, 2016).
There are cases where autonomy has been given preference by the courts. The leading case is of Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. This case revolved around consent of a minor individual. In this matter, Gillick had attained contraceptive advice from local doctor when she had been below the age of providing legal consent for intercourse. The basis of this was guidance given by Department of Health and Social Security. Gillick applied for declaration for guidance of department from the court for deeming it as illegal and interfering with paternal rights and duties. It was decided by the House of Lords that extent over minor child of parental control and child giving consent to contraceptive advice or medical treatment against the parents’ wishes or knowledge. This declaration had been dismissed by the court. This was because the consent could be given by a person who had the relevant knowledge to know what had been actually put forward (HRCR, 2018). This shows subjectivity in decision making on individuals having right of giving consent. Yet, this is seen as a victory for adolescent autonomy advocates (Cave, 2014).
So, the basic feature of this discussion in terms of ethical and legal issues in the matter of consent relates to the clash between the individuals giving a right to chose for themselves and a wise decision by healthcare professionals who are skilled and experienced enough to make decisions for them. The issue is of giving significance to either individual’s right of freedom or their lives being saved based on knowledge and experience. Where the autonomy of the patient is not upheld, it may give rise to instances of breach of right, and battery and assault. Where the paternalism is not upheld, it would put the risk on sanctity of life in danger.
Conclusion
In the discussion undertaken in the previous paragraphs, it can be concluded that the matter of consent raises a number of ethical and legal issues in the medical professional life. The discussion highlighted how the clash occurs between the concept of paternalism and autonomy of patients. This was further elucidated through the different cases and examples put forth, where the need for giving emphasis to the concept of paternalism was highlighted. It is true that there is a need to give the patients the right of dignity and for choosing for themselves, but the medical professionals are skilled and experienced enough to undertake the correct decisions. Even the statutory instrument, in terms of the Mental Health Act gives the doctors the autonomy of making decisions for the patients in cases of emergency. There is a need to increase the ambit of this in general sense as well, particularly in context of example given regarding 32 year old pregnant lady. Yet, it is not practical to implement all this. All in all, with regards to the matter of consent, the ethical and legal issues are raised in context of clash between paternalism and autonomy.
References
Brown, B. (2011) Informed Consent: The U.S. Medical Education System Explained. USA: BookBaby.
Cave, E. (2014) Goodbye Gillick? Identifying and resolving problems with the concept of child competence. Legal studies, 34 (1), pp. 103-122.
Heywood, R., Macsakill, A., and Higgins, K. (2010) Informed Consent in Hospital Practice: Health Professionals’ Perspectives and Legal Reflections. Medical Law Review, 18(2), pp. 152-184.
Ho, A.O. (2014) Suicide: Rationality and Responsibility for Life. Can J Psychiatry, 59(3), pp. 141-147.
Howe, E. (2008) Beyond Informed Consent: The Ethics of Informing, Anticipating, and Warning. Psychiatry (Edgmont), 5(10), pp. 42-47.
HRCR. (2018) Gillick v West Norfolk and Wisbech Area Health Authority and another. [Online] Available from: https://www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.htm [Accessed 20/03/18]
Kingsholm, N.C.H., and Kappel, K. (2017) Is Consent Based on Trust Morally Inferior to Consent Based on Information. Bioethics, 31(6), pp. 432-442.
Lepping, P., Palmstierna, T., and Raveesh, B.N. (2016) Paternalism v. autonomy – are we barking up the wrong tree?. The British Journal of Psychiatry, 209(2), pp. 95-96.
Mike, S. (2011) Should an autistic man be forced to have the life-saving treatment he is fighting against? [online] Available from: https://www.ambitiousaboutautism.org.uk/talk-to-others/2015-04-09/should-an-autistic-man-be-forced-to-have-the-life-saving-treatment-he [Accessed 20/03/18]
Murgic, L., Hébert, P. C., Sovic, S., and Pavlekovic, G. (2015) Paternalism and autonomy: views of patients and providers in a transitional (post-communist) country. BMC medical ethics, 16(1), 65.
Rao, K.H.S. (2008) Informed Consent: An Ethical Obligation or Legal Compulsion? J Cutan Aesthet Surg, 1(1), pp. 33-35.
Sayani, A.H. (2015) Conflict between Paternalism and Autonomy. Journal of Clinical Research & Bioethics, 6, pp. 248.
Tai, M.C., and Tsai, T. (2003) Who Makes the Decision? Patient’s Autonomy vs Paternalism in a Confucian Society. Public Health, 44(5), pp. 558-561.
Tidy, C. (2016) Consent To Treatment. [online] Available from: https://patient.info/doctor/consent-to-treatment-mental-capacity-and-mental-health-legislation#nav-5 [Accessed 20/03/18]
Wear, S. (2012) Informed Consent: Patient Autonomy and Physician Beneficence within Clinical Medicine. Berlin: Springer Science & Business Media.
Yahoo News UK. (2017) Confused man can be forced to have cancer treatment, court rules. [online] Available from: https://uk.news.yahoo.com/confused-man-can-forced-cancer-treatment-court-rules-131359049.html [Accessed 20/03/18]
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