Consent to medical treatment medical law
Consent to medical treatment, medical law
Medical treatment and law are interrelated, the relationship between the two resulted to medical law which is of greater help for millions of people in the whole world. Medical law varies in different countries. They all serve the same purpose of protecting the interest of patients during the time of medication process. Medical law covers different areas of medication and it contains different sub-laws that define different areas of medication. The issue of consent is one of the critical issues that are addressed by this medical law. This is because there have been many cases where patients have been subjected to medical treatment without their will. Medical law gives patients the right to make decisions of their will without any influence but under certain conditions like capacity of the patient to make decisions. The torts of negligence and battery are also common issues that are addressed under medical law. The two torts register the highest number of cases in courts because they are commonly violated by the medical practitioners. The objective of the paper is to critically analyze the concept of consent, tort of battery and tort of negligence. The analysis will be supported by different case laws under each concept.
Consent is a situation where a patient is given the right to decides what should be done to his or her body. If a medical practitioner touches the patient without this concept, the act is referred to be unlawful. A medical practitioner is said to act lawfully when touching a patient under the following circumstances, but it is good to note that each circumstance depends on the category of the patient. The major categories of patients are; adults who are competence, adults who are incompetence, young people of below 16 years old and patients who require urgent care. For the case of competence adults the medical practitioner must get the concept of the patient before subjecting him or her to medical treatment. The consent should be from the person but not any person because the law views a competence adult as a person who can make right decisions. If the physician touches the patient without his or her concept, the act is completely unlawful.
In the category of incompetent adult, the medical law defines that the person cannot make right wise decision and thus the physician should not comply with the person’s consent. However, this does not mean that the physician has the right to subject the person to medication. The physician should get the concept of the court of law or close family member of the person and in this case, the physician can touch the person lawfully. The category of Children of below 16 years old can be well explained using the Gillick vs. West Norfolk health facility. In this particular case, the West Norfolk was changed in the court of law because of subjecting girls of below 16 years old to contraceptive treatment without the concept of their parents. This indicates that a medical practitioner should not touch a child of below 16 years without parental or legal consent and thus it is lawful for a medical practitioner to touch a child under the consent of parents. In the category of emergence cases where urgent treatment is required, the physician should first use all the means possible in order to get the patients consent. However, the physician can subject medication to a patient without consent and it becomes lawful under the following situations which are highlighted in the medical law act. If the patient is disabled in search a way that he or she cannot be able to communicate, if there is a language barrier between the patient and the medical practitioner, if the delay would cause dangerous complications to the patient, if all possible ways of getting the patients consent has been exhausted and if there is a good reason that the patient cannot refuse the treatment. The above reasons give the physician the right to touch a patient lawfully.
There many instances where the medical practitioner acts against the consent of the patient. The medical practitioner commits a tort of negligence. This is a very dangerous tort because it has left many people dead and others disabled, it is mostly caused by lack of proper concentration and seriousness of physicians in their medical operations. There are many cases where the physicians have been sued because of acting against or without the consent of the patient. A good example is the Alexander Baez vs. Sylvester. Alexander was a body builder and he decided to go to a medical practitioner for Pec implants the doctor by operated him implanted him with breast implants instead of pec implants. This is just a representation of millions of cases that involves tort of negligence.
The issue of consent is very critical; this is because the medical practitioner is usually reliable for touching a patient without consent and also treating a patient with consent which is not well informed. The main issues lies on to what extent should the medical practitioner advice the patient when coming up with the consent. Two cases can be of greater help in the process of analyzing this issue.
The first case is the case between Sidaway vs. Bethlem. Sidaway was a patient where she had gone for a surgery in order to remove a trapped nerve. Bethlem was the one who handled the patient. After surgery, the patient paralyzed and he sued the doctor because of negligence. He claimed that the doctor had not disclosed the negative effects of the surgery and thus it was a form of negligence.
The second case is between Chester vs. Afsher. Where Chester was a journalist and she had a problem of back pain and one of her medical practitioner advised her for a surgery. Chester decided to visit Afsher as a private patient and she requested for a spinal surgery. The surgery caused nerves damage and she became paralyzed. As a result of that, she sued the doctor for negligence because she claimed that the doctor had not disclosed all the information about the negative of the surgery.
The two cases were addressed in different ways though they look the same, the judge in the Sidaway case sided with the doctor’s side while in the majority in the Chester case sided with the patient side. The two cases were under the English law that states that the patient must be provided with all information whether positive or negative about the medical operation for the purpose of making balanced decision. In both cases, the patients complained that they had not been well informed about the possible consequences. The first case judgment was against the English law because the doctor had not provided with all the information. In the second case, I strongly agree with the majority in that case who supported Chester. This is because failure to provide the necessary information to the patient is a form of negligence and thus the doctor went against the law.
Self-determination of patients influences the consent making process in a greater way. In the Sidaway case, lord Scarman endorsed therapeutic privileges. This has massive effects to the patients because it raises the self-determination of the patient. If patient’s self-determination is triggered there is a possibility that the patient would make decisions out of excitement. This has resulted to a lot of cases of negligence which are indeed out of patient’s high hopes in making their consents. That is the reason why the medical practitioners should provide the both sides of information in order to give the patient a chance to make balanced decision which are not out of excitement or any influence. This would reduce many cases of negligence which affects both parties depending on the jury addressing the issue. There is no danger of informing the patient about all the information concerning the operation regardless of how simple it is because it is not easy to know the information that will have an impact in the decision making process of the patient.
Operation to correct sticking years is an operation that is carried out by medical practitioners in for prestige because stick ears have no health complications. Many parents prefer to take their children’s for this operation while they are still young. However, anything that might happen to the child during the operation is justified and the medical practitioner cannot be responsible of anything.This is because the consent of parent is enough to legalize the child operation. However, there are some circumstances that can prevent this justification. The medical operator should provide all the necessary information about the operation and failure to do so can result to lack of justification. Beauchamp vs. Childress case is a good explanation for this point because the case addressed the issue where Childress organization sued parents and physician who operated a child and the child developed problems. The jury ruled in favor of parents and physicians because the stick year operation was done in consent of parents.
The issue of circumcision is related to the above case but it takes different angles, this is because there is child circumcision and adult circumcision. In the case of child circumcision, the consent must be from the parent and they have the legal right to make the decision. In this case, the circumcision process is justified and thus the doctor has no blame if there is proper application of skills.
The situation can be unjustified if the medical operator shows any kind of unprofessionalism or if the child experiences complications which are as a result of physician’s era. There is a difference between the law of circumcision in males and females. The male law on circumcision is not well established because male circumcision is viewed as a normal process. The male law of circumcision states that parents of a child have the right to circumcise their male child or not. It is good to note that this law does not tackle the issue of circumcision based on cultural or religious believes. When it comes to female circumcision, the law does not support it in any way. It is illegal to operate a female whether in her consent or in the consent of another person. The law prohibits parents form influencing their children for circumcision in any way. The law also prohibits the gentle mutilation whether with the consent of the child or with the consent of the parent. The law further elaborates this issue the tort of battery, the law explains that a medical practitioner should not in any case use any means to persuade a female for genital mutilation. Male circumcision should not be made illegal because it is performed under the consent of parents and also it does not have dangerous complications. Mental capacity Act 2005 section one two contains detailed guidelines on how best interest of a person who lack capacity should be determined. When a person has no capacity to make decision, the best interest of the person is determined. A person can be disabled in a way he or she cannot be in a position of making any decision or there can be a language barrier between the patient and the physician and that is where the concept of best interest is applied.That Act states that the best interest of the person should not be determined according to the age or physical appearance of the person. Best interest of incapacitated patient should be determined by, consultation of any person who is to the patient, any personal interest that might have been written or said by the patient when he or she was in full capacity and the decision of the attorney. The Act further elaborates that all process that should make the patient to give the consent should be exhausted before deciding the best interest of the person. Lastly, the beliefs if any of the person should be used to determine the best interest of the person because the act argues that the beliefs influence the decision of a person in a greater way.
Least restrictive alternative principle mean is applied when determining the best interest for an incapacitated patient. The principle states that when applying the best interest, the less intrusive option should be considered. This means that some options that are suggested as best interest are not the same, there are some which are more convenient to the person and they should be given the first priority. In case of unconscious person in a surgery table and the doctors operating the person notices that they would have an additional operation that they had not explained to me, the following is the best suggested for them that they can proceed with. Since the person is unconscious which means have no capacity of giving his or her views, the best interest evaluation process should be carried out. The doctor should consult the relatives of the person concerning the issue if any. They should also assess the previous agreements in order see whether there was any document that the patient had written that could be of any help. The principle of the least restrictive alternative should be taken. The best option should be continuation of the process because it would of benefit to the patient and it would be the only chance for the survival of the person.
In conclusion, it is the right of every patient to give consent before any operation is undertaken although this seems to depend on the condition of the patient at that respective time. This would be for the benefit of both the physician and the patient. Based on the above case study and the English law, physicians are at risk of being sued upon failure of notifying the patient on the side effects of the operations. Many doctors prefer getting information from both the patient and the relatives to ensure balanced decision making that is not as a result of influence. The tort of negligence is also posed to be dangerous because it may lead to disablement or death of a patient if the doctor is careless. Both torts, the tort of negligence and battery are said to be the most violated by physicians
Beauchamp and Childress. The Principles of biomedical ethics, (1979) P. 3
Sidaway v. Bethlem Royal Hospital (All Engl Law Rep. Feb 23; 1:1018-36, 1984) p.45
Gillick v West Norfolk and Wisbech Area Health Authority. 1984 (All Engl Law Rep. 1984 Nov 19-Dec 20 (date of decision);1985(1):533-591., 1984) p.120
General Medical Council (UK). Ethical guidance: Confidentiality. October 2009. http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality.aspBeauchamp TL, Childress JF. (2001). Principles of biomedical ethics, 5th edn. (Oxford: Oxford University Press) p. 209
http://www.hpa.org.uk/Topics/InfectiousDiseases/InfectionsAZ/NotificationsOfInfectiousDiseases/ListOfNotifiableDiseases/W v. Egdell. All Eng Law Rep. (1989 Nov 9; 1:835) p.53.
Her Majesty’s Stationery Office (UK). (The Data Protection Act (1998). 1998) p.332
General Medical Council (UK). Confidentiality: Protecting and Providing Information. September 2000) p. 64
JACKSON, E. (Medical law: text, cases, and materials, 2013) p. 74
CHOCTAW, W. T. Avoiding medical malpractice: a physician’s guide to the law. (New York, Springer, 2008) p. 52
Alaisdair Maclean . (2009). The legal regulation of consent – chapter 5 from Autonomy, informed consent and medical law by Alaisdair Maclean (2009).
Jackson E. “Informed consent to medical treatment” and the impotence of tort – (First do no harm, 2009) p. 81
Alisdair Maclean . From Sidaway to Pearce and Beyond: Is the legal regulation of consent any better following a quarter of a century of judicial scrutiny – (article from Medical Law Review, 2009) p .213
Tom Walker What principalism misses – (in Journal of Medical Ethics., 2009) p. 9
Jose Miole One step forward, two steps back: the GMC, the common law and ‘informed’ consent – (From Journal of Medical Ethics., 2010) p. 20
Rachael Mulheron Trumping Bolam: A critical legal anlysis of Bolitho’s “gloss” –( in Cambridge Law Journal, 2010).p. 67
CALLAGHAN AND COMPANY. (1912). Negligence and compensation cases annotated. (Mundelein, Ill. [etc.], Callaghan, 1912) p. 23
JACKSON, E. (2013). Medical law: text, cases, and materials.
BRINDLE, N., BRANTON, T., STANSFIELD, A., & ZIGMOND, T. (A clinician’s brief guide to the Mental Capacity Act, 2013) p. 74
GREAT BRITAIN. Mental Capacity Act 2005: Chapter 9. (London, Stationery Office, 2005) p. 111
TOWNSEND, R., & LUCK, M. Applied paramedic law and ethics Australia and New Zealand. (Chatswood,N.S.W.,Elsevier Australia, 2013) p. 44 http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=520826.
DIAMOND, J. L., LEVINE, L. C., & BERNSTEIN, A. (2010). Understanding torts. (New Providence, NJ, LexisNexis, 2010) p. 56
CHAMALLAS, M., & WRIGGINS, J. B. (2010). The measure of injury: race, gender, and tort law. New York, N.Y., New York University Press.
POZGAR, G. D. (2012). Legal aspects of health care administration. Sudbury, Mass, Jones & Bartlett Learning.
TAPPEN, R. M., WEISS, S. A., & WHITEHEAD, D. K. Essentials of nursing leadership and management. (Philadelphia, F.A. Davis, 1998) p.8