Elements guiding validity of consent

Discuss about the Medico-Legal And Ethical Issues In Healthcare.

The medical profession, being an interaction-based profession has both legal and ethical components. In the treatment of patients, legal and ethical issues are bound to arise and it is the obligation of every health practitioner to be aware of the legal hurdles and ethical considerations so as to provide the best quality care, that is acceptable, equitable and sustainable. The present paper will discuss these legal and ethical considerations. Both will be analyzed with reference to a case study of a patient presenting for care. The legal issues discussed will include; elements required for consent to be valid, legal consequences of health care without consent, legal hurdles related to refusal of care by the patient, legal authority for consent in decision impaired individuals, legal guidelines in case substitute decision makers disagree, and legal guidelines on withdrawal of life-sustaining measures. The ethical issues presented will include; principles of ethics and how they apply to the case, values held by stakeholders and how they conflict with the principles and use of Kerridge et al, 2013 model to resolve the conflicts.

Elements guiding validity of consent

Consent is either a written or verbal permission that a patient provides to the health care practitioner before any intervention is carried out on them (Johnstone, 2011). Ross first presented to a local medical center for treatment of his severe headache. The elements that must be present for consent to be valid is competence to give consent (Fleming & snow, 2014). The consent should be given voluntarily and should cover the procedure to be done. An example is in case of Marshall v Curry (1933) 3 DLR 260 whereby a testicle was removed when consent was for a hernia reduction. The final element is information that qualifies the consent as informed consent. A person is deemed competent and with capacity, if they can understand what was said, retain the information, believe the intervention and make a decision regarding the same (Appelbaum, 2007). This legal definition requires that competence be assessed otherwise the right to give consent is moved to a substitute. The legislation in Australia from Guardianship and Administration Act (1986, s36) states that an individual cannot give informed consent if they are not able to understand  the nature and effects of the procedure or treatment and if they choose not to indicate if they consent or not. It is therefore paramount that Ross is legally competent and clinically has the capacity to decide for his consent to treatment of the headache to be valid.

Legal consequences of health care without consent

Since informed consent is part of patient autonomy and has a provision in the law, failure to abide by the guidelines regarding consent will lead to legal consequences. Queensland Criminal Code s 245 provides for liability in the case of lack of consent and deems the case as an assault. This is, therefore, a criminal act punishable by law.

From the case study, Ross refused treatment at several turns and even refused to be examined. The legal guidelines for the refusal of care in Australian also encompass consent. As long as a competent adult refuses treatment, the paramedics have no legal basis to start treatment even if the treatment is lifesaving (Dignam, 2014). The legal framework that gives the paramedics a legal bearing to give treatment despite refusal is if there is an assessment of competency and Ross is deemed incompetent (Fleming & snow, 2014). An example is the case of a woman who refused lifesaving surgery for a goiter and appeared competent but later neuropsychiatrists found her incompetent and the surgery was carried out without her consent (Fleming & snow, 2014).

Ross had sustained considerable trauma with subarachnoid hemorrhage, rib fractures, pneumothorax and facial fractures. These render him incapable of decision making and in extension, the capacity to give consent (Howard, 2006). The healthcare team continued to offer him lifesaving surgery for these traumatic injuries. Under the law, if the operation is lifesaving and there is no authority to give consent then it is legally allowed to carry out the procedure. This is provided under emergencies or necessities of treatment for example in mental health (Guardianship and Administration Act 2000). The rationale is that is the procedure is not done the patient will not survive hence the need to wait for consent becomes unresonable.

Several statutes provide an avenue to obtain consent in the scenario of lack of decision-making capacity. The Queensland Guardianship and Administration Act 2000 provides for consent if the patient lacks decision-making capacity and there is adequate reason to deem the treatment as urgent or emergency.

Another avenue is the provision of consent by a substitute decision maker (Howard, 2006). In Ross’s case, it could be his wife or his father. The Queensland Civil and Administrative Tribunal (QCAT) can appoint a guardian to make decisions on behalf of the patient (Queensland government, 2018). A binding power of attorney can also grant someone the power to make consent decisions (Powers of Attorney Act, 1998). The third option is through an advance health directive also termed a living will that can grant powers of decision making and other health decisions (Queensland government, 2018).

Legal guidelines related to refusal of care by the patient

Ross’s care was being overseen by Rachel, his wife, and Joey, his father. They both have the power to give consent in matters of his care but they disagreed. The disagreement can be settled if the patient has an advance health directive that specifies the directives to be take in such a scenario (Queensland government, 2018). The other option is via power of attorney (Powers of Attorney Act, 1998). The individual with power of attorney has the power to make decisions on behalf of the patient as long as they are in accordance with legal principles. If the disagreements persist the government under the office of the public guardian (OPG) can help resolve the disagreement in accordance with the law (Queensland government, 2018).

The decision to withdraw an intervention is based on the principle of clinical futility where the intervention is deemed futile and won’t impact the management or survival of the patient (Lawrence, 2012). The factors to be considered include prospects of recovery or quality of life post recovery and available avenues of treatment (White et al, 2016). In Ross’s case, his prospect of survival was low and he was not functional or responsive for several months. The other factor is the family preparedness, as guilt, remorse and disagreements concerning futility may arise (Downar, Delaney, Hawryluck, & Kenny, 2016).

Ethical principles

According to the bioethics and human rights declaration, medical ethics include autonomy, beneficence, justice, and non-maleficence (Judkins-Cohn, Kielwasser-Withrow, Owen, & Ward, 2013). The two principles that fit Ross’s scenario are autonomy and beneficence. Autonomy is the principle that defines a patient having the right to dictate how his care should be and encompasses informed consent before any procedure (Page, 2012). Beneficence refers to the care that has the patient’s interests in mind and always acting to the patient’s benefit (Page, 2012).

Autonomy applies to Ross’s scenario in several ways. When he presented to a medical center in Rockhampton, he chose to seek care for his severe headache and was discharged with medication. However, three days later he refused to be reviewed and examined by paramedics who were taking him to hospital. At the hospital, he continued being uncooperative and refused observations. Due to lack of consent, the paramedics and nursing staff respected his decision and did not go against his wishes. He had the right to control his care and was competent to choose that decision. However, the principle of autonomy becomes difficult once Ross reached the point of lack of decision-making capability due to his traumatic injuries. His decisions will have to be taken for him including withdrawal of lifesaving care via substituted consent. This basically undermines his autonomy.

Legal authority for consent in decision impaired individuals

The medical practitioners tried to act in Ross’s benefit despite his refusal of treatment. This is shown by the offered medical assistance he was given for the treatment of his headache. This principle applies even when Ross lost his capacity for decision making. The healthcare team wheeled him into surgery for lifesaving evacuation of hematoma and to fix fractures. This was for his benefit as impending mortality would have followed. With substituted consent, this principle will be tested as the benefit of the patient lies in the hands of those with the power to affect his care.

The two important stakeholders, in this case, are Rachel, his wife, and Joey, his father. Rachel believes that the care should be stopped as he is not improving and had previously voiced his concerns about such a situation. Ross had told her that in such a case whereby he cannot provide for his family, is a nuisance or cannot care for himself, the decision should be made to discontinue care. Joey knows about this wish too but does not wish for the care to be discontinued. He sees hope and thinks that Ross might recover or even gain functionality. There is a conflict with the ethical principles that should entail his care. Joey feels that Ross should remain on support despite medical evidence that it is not beneficial or good for him violating the principle of beneficence. Ross’s principle of autonomy has been taken away by both stakeholders who choose for him his care options.

According to Kerridge’s model for ethical problem solving, a correct path to solve the conflict should be followed (Hitchcock, 2013). The first step is to state the problem which seems to be a reluctance by the family to choose the best possible care plan that will benefit the patient. The next step involves outlining the facts. In this case, Ross has extensive brain damage with very poor prognosis. He has not been able to move from the ventilator, achieve spontaneous movement or react to voice for months. The next step involves consideration of ethical principles which in this case is Ross’s right to beneficence. This is followed by considering the problem from a different perspective. The health professional perspective could be employed here as they are of the view that continued ventilation is not beneficial for Ross and recovery is not likely. The law is then considered in this regard. According to the law, if such a disagreement of substituted consent arises, there are legal channels that assign consent to the right party. The final step is making an ethical decision to settle the conflict. After following the mentioned steps, the stakeholders can make a decision that does not violate Ross’s ethical rights.

Legal guidelines in case substitute decision makers disagree

Conclusion

The present paper tackled legal and ethical issues relating to the care of Ross. The legal elements validating consent include competence, voluntary choice, consent relating to the case and information. Failure to take consent is a punishable assault on patient rights and has a provision in Australian law. A health practitioner has legal ground to go against patients wishes in the event of refusal of treatment only if the patient is deemed incompetent, otherwise, treatment should not be given. Treatment can also be given without consent in emergency cases where waiting for consent is not beneficial to the patient. Avenues that consent can be obtained in the case of lack of decision-making capacity is through substituted consent. In the case of disagreements of substitute decision-makers, the power of attorney or an advanced health directive should be used. If not available the office of the public guardian should be involved to settle the matter. Factors that should be considered before the withdrawal of care include quality of life of the patient, prognosis, likelihood of recovery and psychological profile of the decision makers.

The ethical issues in the care of Ross were autonomy and beneficence. This principles conflict with values of the stakeholders and the Kerridge model for ethical problem solving can be applied to solve the conflict.

References

Appelbaum, P. S. (2007). Assessment of Patients’ Competence to Consent to Treatment. New England Journal of Medicine, 357(18), 1834-1840

Dignam, P. (2014). Potentially incapable patients objecting to treatment: doctors’ powers and duties. The Medical journal of Australia, 201(5), 268.

Downar, J., Delaney, J. W., Hawryluck, L., & Kenny, L. (2016). Guidelines for the withdrawal of life-sustaining measures. Intensive Care Med, 42(6), 1003-1017.

Guardianship and Administration Act 1986 (Qld) s36.

Guardianship and Administration Act 2000 (Qld) s4

Hitchcock, T. (2013). Ethics and Law for the Health Professions, 4th edition by Kerridge I, Lowe M, Stewart C. The Federation Press, Annandale.

Howard, M. (2006). Principles for substituted decision-making about withdrawing or withholding life-sustaining measures in Queensland: a case for legislative reform. Queensland U. Tech. L. & Just. J., 6, 166.

Johnstone, M. (2011). Nursing ethics and informed consent, Australian nursing journal, 19(5), 29-29

Judkins-Cohn, T. M., Kielwasser-Withrow, K., Owen, M., & Ward, J. (2013). Ethical principles of informed consent: Exploring nurses’ dual role of care provider and researcher. The Journal of Continuing Education in Nursing, 45(1), 35-42.

Lawrence, S. (2012). Ethics and law. The Medical Journal of Australia, 196(6), 404-405.

Marshall v Curry (1933) 3 DLR 260

Page, K. (2012). The four principles: Can they be measured and do they predict ethical decision making? BMC medical ethics, 13(1), 10.

Powers of Attorney Act 1998 (Qld) s 41.

Queensland Criminal Code 1899 (Qld) s245

Queensland government. (2018). Power of attorney and making decisions for others. Queensland: Queensland Government.

Snow, H. A., & Fleming, B. R. (2014). Consent, capacity and the right to say no. The Medical journal of Australia, 201(8), 486-488.

White, B., Willmott, L., Close, E., Shepherd, N., Gallois, C., Parker, M.H., … Gallaway, K. (2016). What does “futility” mean? An empirical study of doctors’ perceptions. The Medical Journal of Australia, 204(8), 318.