The Right of a Patient to Choose over the Obligation of the Medical Practitioner - Essay Example

?Medical Law Introduction The most sacrosanct right conferred to man is the freedom of choice. However, much controversy is generated when the autonomy of choice is exercised over right to life or in its negative form, the right to terminate life. Man, when faced with mortality, reacts differently but nonetheless when an option is made refusing medical treatment or procedure, the wisdom or motivation of such preference is put to test not to mention the mental state of the person making it is similarly questioned. It would appear that the capacity to think rationally or make an intelligent choice is diminished when it involves a medical decision to prolong or terminate life. Right to life is absolute and demands utmost respect from all human beings including the state. Protection and preservation of life is therefore an inherent right. If a person refuses further treatment, or a woman elects her own life over her unborn child or a person’s living will is ambiguous, The objective of this paper is to harmonize the right of a patient to choose over the obligation of the medical practitioner to respect their wishes A. This is the dilemma spawned by 15 year old Adrienne who, enabled by the support and understanding of her parents, refused a third round of kidney transplant and a lifetime regimen of anti-rejection drugs to save her life. The doctors strongly believe that Adrienne should have the surgery and doubts if Adrienne, a minor, had made valid and informed choice considering her parents’ unconditional encouragement to decline further kidney transplantation if Adrienne so desires. The South Hertfordshire Primary Care Trust (Trust for brevity) must strike a balance between the advocacy of doctors to promote and preserve life or to abide by the patient’s choice to decline further treatment. It is emphasised however that doctors cannot override the medical decision of the patient even if the decision is perceived to put the patient in harm’s way and entails a shorter life span. Autonomy of choice (Hope)1, either to undergo or desist further treatment, should be a product of competent, voluntary, deliberate and informed consent. The obligation of the medical practitioner is simply to furnish information which would guide the patient, including his family, in the decision making. The prognosis, potential risk involved, quality of life after surgery and other consequences of the treatment or lack of it must likewise be laid down for the determination of the patient. It is not sufficient though that the medical practitioner perfunctorily mutter the information, rather it must be ensured that the patient understood the choices available. After giving the potential benefits and risks of the proposed treatment, any choice exercised by the patient must be respected and any treatment must in accordance with the patient’s will and instructions. In arriving at the decision, the patient must display mental competence or intellectual capacity to make informed choices including the consequences if any. Capacity or competence may be gleaned from the questions propounded or views expressed by the patient regarding the treatment (Mental Capacity Act 2005)2. The medical practitioner must be available to answer the questions but nonetheless the advice must be free from biases or prejudice and must not influence the patient one way or the other to undergo surgery or treatment unless it is the explicit desire of the patient (General Medical Council)3. The primordial motivation of a medical practitioner is to promote health for the benefit of the patient under beneficence principle (Hope)1. In the promotion of the patient’s benefit however the medical practitioner must subordinate his professional recommendation if it runs counter with the belief or intention of the patient. Respect to the patient’s instructions should prevail over the expert assessment notwithstanding that without such medical treatment, the patient is exposed to a more serious health problems. In giving medical advice, it is likewise incumbent upon the medical practitioner not to inflict or cause undue harm unto the patient. Non maleficence (Hope)1. The medical practitioner must respect the choices made and must still ensure that appropriate medical treatment is provided notwithstanding refusal of treatment to manage pain or ease discomfort. The Trust, in the exercise of due diligence, in ascertaining competence, voluntariness and informed consent in Adrienne’s refusal to undergo kidney transplantation may go to court for the appointment of a guardian considering that her parents may have abrogated parental responsibility by giving her complete medical control to Adrienne (Children Act 1989)4. The appointment may not necessarily supplant the medical decision made by Adrienne and her family but merely to ensure that the refusal for treatment is for Adrienne’s general welfare or best interests and not by mere expediency. Though it is recognise that Adrienne may be declared competent to choose a medical course of action which she deems proper in the light of the 2008 Hannah Jones’ decision giving imprimatur to the right of minors to refuse treatment notwithstanding that such refusal will lead to certain death. Hannah Jones situation is parallel to the instant case. Jones then 13 years old refused to undergo a heart transplantation procedure was declared competent to make medical decision as she had displayed mature understanding on her predicament and openness to accept the consequences of her decision. Another case which may be appropriate to support the right of minors to make a medical choice is enunciated in Gillick v West Norfolk and Wisbech Area Health Authority. This was later known as the Gillick competent where the child though not having reached the competent age of 16 and above may be held to possess capacity if it is shown that such child is intellectually and emotionally mature to understand the consequence of his/her actions and thus make informed decisions. However, the Gillick and Jones cases should not be deemed as the standard as intellectual and emotional maturity among minors is slow to develop which may impair their capability to make informed decisions. Thus, the Gillick and Jones standards must be the exception rather than the norm. In fact, the inability of a child below 16 years old to make informed and intelligent decision is emphasised by the turn-around of Hannah Jones’ pronouncement to undergo heart transplant despite earlier adamant protestation refusing further treatment. Thus, if it shown that Adrienne does not possess the necessary intellect and emotional maturity to make informed medical decision, the courts may acquire jurisdiction over her person and order treatment necessary to preserve her life. This is likewise applicable if her consent is shown to be involuntary, vitiated or procured under duress. Under this circumstance, it is the bounden duty of the courts to take cudgels under the doctrine of parens patriae as Adrienne is subjected to abuse or negligence by her parents by withholding medical treatment where potential recovery is great and a chance of an independent life after surgery is likewise significant. The courts’ action may likewise be justified under the Convention on the Rights of the Child (Unicef)5 where the most basic human rights to ensure the best interest of a child such as the right to survival; protection from harmful influences, abuse and exploitation; and entitlement to health care for the best interest of the child are enshrined. B. Laws are crafted and implemented to have order or structure in society otherwise anarchy and chaos would ensure however what may be legal or lawful may not necessarily be ethical. This is especially true in the exercise of the right to life. A contentious, if not emotional, issue is sought to be resolved—whether 18-year old girl, Bessie, may be compelled to undergo emergency caesarean section to ensure the survival of 38 weeks foetus in her womb. While it is universally recognised that all persons have the inherent right to life, such right in this jurisdiction does not vest to the unborn child. Birth determines the juridical personality or capacity thus until a foetus is delivered alive, it cannot claim civil existence or recognition. If civil personality or recognition is conferred only upon birth then Bessie’s unborn child does not acquire any legal right to demand protection not to be killed or otherwise compromised. In Paton v BPAS [1979] 1 QB 276, it was declared that the foetus cannot have a right of its own until it is born and has a separate existence from its mother. The pronouncement in Re F [1990] 2 AC 1 is equally relevant as it was held that courts’ cannot acquire jurisdiction over unborn child as to permit it would arrogate unto the state control over the mother’s actions. Verily, it would limit the right of the mother to exercise absolute control over her person. Under the English Common Law, a competent person has the freedom or right to refuse treatment even if the decision would result in the loss of life. This autonomous right extends to a competent woman whose choice may even have deleterious effect over her life or that of her foetus. Any act contravening the specific directive of the patient refusing medical treatment is therefore illegal. In the event that a patient should choose her own life instead of her unborn child, she cannot be denounced or censured for such act of self-preservation. Neither can the patient be held liable for the loss or the possible damage that may be inflicted upon the foetus for any untimely or delayed medical treatment. The patient cannot similarly be ostracised for choosing a fate which may terminate the life of her unborn child and by electing to continue with her pregnancy, the patient is thus estopped from refusing medical treatment if it would harm or injure her unborn child. It may be argued that the patient is now under moral obligation to continue to care for the unborn child and choose its welfare over the mother. This position is untenable and flawed. The patient’s act in continuing with her pregnancy has no legal obligation to continue with her pregnancy as it is independent of any decision she may later exercise to promote her own health, whether physical or emotional. It is reiterated that an unborn child has no right under the law and courts had consistently rejected any action to pass judgment on a patient’s decision refusing medical intervention unless the capacity or competency is assailed. Instead courts repeatedly validated in numerous cases the decision of a competent patient to refuse medical treatment notwithstanding that it is not for the best interest to refuse treatment. It has similarly ruled that it is illegal for medical practitioners to ignore an explicit order and administer treatment instead. The freedom or autonomy of choice reigns supreme over any medical or professional advice of a doctor. It is nonetheless important to show that the patient is competent to make an informed decision, understood the nature of the treatment and its consequences, if any and notwithstanding the advice of the medical practitioner to the contrary voluntarily and knowingly refused treatment. The autonomy of choice is not severed by reason of moral compulsion or obligation to give life to the unborn child rather the autonomy gives a patient unbridled right over her body without fear or consequence. A patient therefore retains control over her body even though the foetus is dependent upon her for survival, it cannot be a factor to force her to undergo medical treatment against her will. Conscience or moral scruples cannot give rise to any legal obligation as the right to life has not yet accrued. No separate and distinct person exists as yet. A patient’s choice cannot be made dependent by a foetal activity in her womb thus a choice to undergo caesarean surgery is within the discretion of the patient and the medical practitioner cannot impose his/her own belief or choice to save the life of the unborn. Bessie’s fear of surgery is recognized as valid and reasonable ground to refuse treatment. It could be gleaned that she does not wish to cause intentional harm to her unborn child but uncontrollable fear of surgery altered the medical intervention necessary. The choice made by Bessie is no different from the choice made by a pregnant patient who continues to ingest alcohol and smoke cigarettes. Refusal to undergo treatment to save a foetal life may be morally wrong but so is the negligent and deliberate action of a mother who inflicts potentially harmful substances into her body. The bond between the mother and the unborn child is strong and most pregnant women put the welfare of the unborn over her own. However, when the mother knowingly and voluntarily decides to terminate pregnancy or refuse treatment, it must be recognised that the interest of mothers and unborn children are separate. The medical practitioner is only required to ascertain that the mother’s decision is based on correct and relevant information to make an intelligent and competent decision. The decision of the patient would impact not only her own life but it would also greatly affect the life of her future child. The medical practitioners should act within the confines of the law as well as the ethical standards to give justice to the wishes of Bessie. If permitted under the circumstances, the medical practitioner should endeavour to save both the lives of the patient and the unborn child. Certainly, the medical practitioner is not precluded to protect the unborn child as it is his/her sworn duty not to cause harm or injury but the foetus’ survival should be subordinated to the will of Bessie should conflict arise. The law protects the innocent however the loss of sustenance of an unborn child is not considered felonious. Bessie was merely exercising an option conferred to her—the right to avail or refuse treatment to save life as well as to repel or defend life against any form of infringement. The act of Bessie in refusing caesarean surgery is justified under the autonomy of choice. Bessie is given sole right in deciding her options when it came to her health and that of her unborn child. If the medical practitioners would go against her wishes, it would constitute as a usurpation of her right to autonomy. It is similarly recognise that no other person is in a better place to determine what is best for person when it came to their health or well-being. Doctors should give utmost respect to the woman’s liberty which includes the right to ignore or reject professional advice even if it would be at the expense of another life. Another justifying circumstance which would support Bessie’s action is her right to privacy. A patient, particularly a woman, has the right not to have her body invaded or even touched without her consent.1 If her privacy has been violated, it can be considered battery as she did not wish to have any procedure performed upon her person even if it is intended to save the life of her unborn child. The third overriding reason to support Bessie’s act is the lack of personality on the part of the unborn child. Foetal status has not yet accrued upon the unborn child. Under Common Law, a foetus has no status until it is born. No rights are transmitted to it unless it is born alive. Therefore, the rights of the mother should not be forgone for a thing that has no status yet. According to E. T. Engelhardt1, foetuses do not have the right to claim status and rights since they are not rational or self-conscious beings. They do not qualify as human beings as they do not have the characteristics of human beings as yet. So also, public policy requires that when medical intervention is necessary, medical practitioners should be conscious of their obligation to the mother and any personal views they harbour should be subjugated. Any transgression of failure to respect the patient’s rights shall be actionable. Lastly, even if the mother had acted erroneously in choosing her life over her unborn child there can be no legal wrong committed as she was acting pursuant to her inherent right to life to the exclusion of all others. C. A person who is terminally ill and in danger of losing mental capacity may communicate in advance the manner with which medical treatments shall cease to be undertaken in the future. This is known in law as the “living will” or “advance directive” which may either be written or verbal statements. The “living will” or advance decision contemplates an advance vegetative stage where the declarant is no longer competent of making informed decisions. Any advance decisions will be given effect if at the time it is written or communicated, the declarant still possesses full mental capacity and not afflicted with debilitating disease which will vitiate consent at the time of the writing. Stated in clear manner the circumstances upon which treatment cease, the voluntariness of the act is affirmed by witnesses that no undue influence, threat or violence was made against the person of the declarant and any contradictory declaration has been revoked or accordingly modified. All advance decisions to refuse treatment are now covered by the Mental Capacity Act of 20052. In the instant case, Derek executed a living will after he was diagnosed with a progressive degenerative illness indicating that in the event he requires assistance with breathing, he wishes all treatment to be stopped. The ethical conflict arose when he was placed in a ventilator to help with his breathing due to respiratory infection which will respond well to antibiotic treatments. Derek’s doctor is aware of his living will. If antibiotic treatment is administered is there defiance in Derek’s directive not to resuscitate? "For medical interventions it is widely accepted that consent means a voluntary, based on free will decision, made by a sufficiently competent or autonomous person on the basis of adequate information and deliberation, to accept rather than reject some proposed course of action that will affect him or her.” (Gillon E., 1987)6. Though Derek gave specific instruction that treatment should stopped when his symptoms would progress to such state that he will require assistance to breath, it is clear that the symptoms are not fatal or his difficulty in breathing was caused by his illness. The living will cannot be invoked as effective as of this time since the symptoms are treatable and the chances of recovery is high. A living will envisions a situation where the declarant is already incapacitated, unconscious or otherwise unable to communicate his wishes. However, to give effect to the living will, a medical evaluation and certification issued by at least two doctors stating that the declarant is afflicted with terminal illness or permanently unconscious where recovery is no longer feasible. Applying the foregoing standard to Derek’s case, his living will cannot be given effect as yet as his breathing discomfort is brought about by infection and that he was not permanently unconscious thus he can still be resuscitated and treated with his symptom. Medical protocols require that instructions contained in a living will consider a medical state where the declarant is unresponsive to treatment and the chance of recovery is nil. “However, once a person loses capacity (such as when they lose consciousness) the status of their refusal of treatment changes. If a doctor were to offer treatment in such circumstances, the person responsible for the patient would be in a position to consent to that treatment. In working out what is in the patient’s best interests, the person responsible would have to take into account the wishes of the patient as expressed in the refusal of treatment. In the event that the person responsible determined that treatment was in the best interests of the patient, they could consent on the patient’s behalf. No action would lie against a doctor for assault or medical trespass in such circumstances. It would be incumbent upon a doctor, knowing of the patient’s refusal, to ensure that the person responsible was informed of that refusal.” (Refusal of Medical Treatment, 2004)7 Under the foregoing circumstances, the medical practitioners cannot be held liable for usurpation of the autonomy of choice indicated by Derek. So also, they cannot be held responsible for battery or any other offence should they treat Derek as his symptoms do not come within the purview of the living will directive. There is no indication that Derek’s organs were no longer functioning or that recovery is no longer feasible. Conclusion: The three cases have affirmed that patient’s right is paramount over doctor’s prerogative to administer treatment on a patient. The right of the patient to terminate treatment or protect his person and provide for future courses of action if in case he is incapacitated to make decision is sacrosanct. However, there are limits and prerequisites before any order contrary to the medical recommendation of doctors is executable. Bessie and Addrianne’s refusal to any medical treatment should be an informed choice. Their choice should be made after the doctor has given them the complete prognosis of the condition, the treatment plan, the possible outcome of the treatment plan. Only after the doctor have given these can the patient refuse or consent to any medical procedure. If the patients are unable to decide for themselves, the next of kin who are authorized to decide shall be the one to give their consent or refusal. However, doctors driven by their Hippocratic oath to preserve and protect life should err on the side of caution. They are within their right to petition the appropriate courts to take cognizance of the case to decide base on the merits. The court’s disposition and ruling should guide all parties accordingly. In the case of Derek’s whose living will mandate strict compliance. The very essence of the will and the rationale behind the will should be taken into consideration. The living will, will take effect if in case there is no chance for Derek to decide for himself. Since the treatment plan can restore Derek’s quality of life the intent of the will has not been satisfied. Be that as it may, like in the case of Bessie and Addrienne, the guidance of the court can also be sought. : BIBLIOGRAPHY Books Hope, T., Savulescu, J., & Hendrick, J.. 2003. Medical Ethics and Law. The Core Curriculum. Churchchill Livingstone. Edinburg London. Gollin, E.. 1987. Philosophical Medical Ethics. Wiley &Sons. Chichester, Great Britain. Articles Barkham, P., The Guardian. 28 November 2008. Hannah’s choice. [online] Available from: http://www.guardian.co.uk/society/2008/nov/12/health-child-protection [Accessed: 4 February 2011] LexisNexis. 2008. A minor’s right to refuse [online] Available from: http://www.lawyersweekly.com.au/blogs/opinion/archive/2008/11/30/a-minor-s-right-to-refuse.aspx [Accessed: 4 February 2011] Thompson Solicitors. 2009. Consent - medical and legal issues [online] Available from: http://www.thompsons.law.co.uk/clinical-negligence/consent-for-medical-treatment.htm [Accessed: 4 February 2011] Weaver, M.,The Guardian. 21 July 2009. Right-to-die teenager Hannah Jones changes mind about heart transplant [online] Available from: http://www.guardian.co.uk/uk/2009/jul/21/hannah-jones-heart-transplant [Accessed 4 February 2009] Legislation United Kingdom. Children Act 1989. 1989 Chapter 41. [online] Available from: http://www.legislation.gov.uk/ukpga/1989/41/contents [Accessed: 4 February 2011] United Kingdom. Mental Capacity Act 2005. [online] Available from: http://www.legislation.gov.uk/ukpga/2005/9/contents [Accessed: 4 February 2011] Cases United Kingdom. House of Lords. Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, [1985] 3 All ER 402, [1985] 3 WLR 830, [1986] 1 FLR 224, [1986] Crim LR 113, 2 BMLR 11 [online] Available from: http://www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.htm. [Accessed: 4 February 2011] Paton v British Pregnancy Advisory Service Trustees QUEEN'S BENCH DIVISION AT LIVERPOOL [1979] QB 276, [1978] 2 All ER 987, [1978] 3 WLR 687, 142 JP 497 Other Written Sources Office of the Public Advocate. Refusal of Medical Treameant 2004. [online] Available from: http://www.publicadvocate.vic.gov.au/file/file/PracticeGuidelines/PG10_Refusal_of_Medical_Treatment_09.pdf [Accessed: 4 February 2011] Unicef. Convention on the Rights of the Child. [online] Available from: http://www.unicef.org/crc/ [Accessed: 4 February 2011] United Kingdom. General Medical Council. [online] Available from: http://www.gmc-uk.org/guidance/ethical_guidance/personal_beliefs.asp [Accessed: 4 February 2011] Read More