Medical Ethics and Duty of care - Essay Example

Medical Ethics and Duty of care The legal dilemma that arises in the case of Dr. Houseman is the issue of consent that is needed from the patient versus the possibility of medical negligence through allowing her to lapse for want of a blood transfusion. If Sandy fails to survive for want of a blood transfusion then Dr. Houseman will be found negligent, while he will also be found to be contravening the ethical standards expected from doctors if he performs any kind of procedure on Sandy without her informed consent. In general, persons who owe a duty of care to others must exercise “reasonable care in the circumstances”. In making an assessment about the circumstances, there are two standards that may be applied from the perspective of doctors (a) an objective standard that is based upon independent standards expected by doctors in general and (b) a subjective element, that is dependent on the individual case, such as for example in an emergency where a doctor may be faced with a personal without the personal capacity to express consent and will be forced to take a decision based upon the circumstances of the particular case. For example, in assessing whether there has been a breach of duty of care, if there is a likelihood that harm will occur, the doctor will be expected to take more precautions.1 Similarly, if the seriousness of the injuries are greater, the defendant doctor will be expected to take greater precautions.2 The Bolam test3 also imputes a higher level of professional liability and standard of care that is expected from a person such as a doctor who professes himself to the best in his field of expertise. In Dr. Houseman’s case, it may be noted that Sandy has been brought to the hospital in a critical condition, therefore he has to exercise a greater degree of care that will be higher than the general standards of duty of care expected by doctors. Taking into account, the circumstances of her case, he has taken the necessary emergency action and performed the operation to ease the pressure on her brain. Now he must determine whether or not he should go ahead with the blood transfusion and this is where the dilemma arises. The consent of the patient is considered vital in medical jurisprudence and the right to consent to medical treatment also implies a corresponding right to refuse medical treatment4. There are also different levels of consent that must be taken into consideration and what must be determined in this case is whether Dr. Houseman can proceed with the transfusion, - this will be conditioned upon whether or not the consent received from Oliver and Sandy’s father is valid. On the one hand, Sandy has a card in her bag that indicates definitely that she is not to be given blood transfusions and her mother also states that Sandy would oppose the procedure. However, Sandy’s relationship with Oliver and her communication to her mother about not wanting to be with the group any more provide some indication that she may not be so rigid about her views on blood transfusion any more. In the face of this ambiguity, Dr Houseman must decide whether to deviate from the standard procedure of obtaining informed consent from the patient or to go ahead with the procedure against her religious beliefs. It was held in the case of Dunne v Nat Maternity Hospital5 that a deviation from a general practice would not necessarily constitute negligence, it can only be a breach of duty if no other professional would have done so in the circumstances. In view of the fact that Sandy’s life is at stake, it is reasonable to assume that other responsible professionals would take the decision to proceed with the transfusion. Moreover, in the case of Sidaway v Bethem Royal Hospital Governors7 the court rejected the claim for damages from a patient for injuries sustained after an operation, on the basis that the Bolam principle should not apply to the issue of informed consent and that elaborate explanations of side effects were not necessary. Therefore if Dr. Houseman makes the decision to proceed with the transfusion, he may not be held liable, if his decision is deemed to be reasonable in the circumstances by his peers.8 From the above, it appears likely that the issue of consent for the blood transfusion will pose a bigger legal problem for Dr Houseman rather than negligence, since it is likely that his duty of care will be deemed reasonable in the circumstances, because his decisions are conditioned by the interest of the patient and her survival. It may be helpful for him to obtain signed statements of consent from Oliver and Sandy’s father before proceeding with the transfusion. Although this will be only a partial consent which may be contested in the courts, it may help indemnify him. The case of Dr. Desai however poses serious problems for which he may be liable. The issue of consent is the critical one in his case, since the Hippocratic oath requires that all that comes to his knowledge while doing his duty must never be revealed anywhere or to anyone. Therefore, he is bound by a duty of confidentiality to Sandy, who is the patient. Although biomedical research has largely been carried out in earlier years without much regulation, modern medical research is bound by codes of practice and human rights protections that have been accorded to individuals. One of the most notable in this aspect is the right to privacy that is guaranteed by the Human Rights Act under article 8 and the duty of confidentiality that Dr. Desai owes to Sandy, both of which he may have breached, thus he may be guilty of medical malpractice.9 He should have proceeded to extract the tissues from Sandy’s body only after obtaining her written consent. Dr Desai is also guilty of not keeping up to date with the developments in proper professional conduct, because it is unethical to make use of the available opportunity arising in the performance of his duties to extract tissues from a patient’s body with her informed consent to such extraction and use in a research project. Dr. Desai may be held guilty of violation of the duty of confidentiality that is expected from a medical professional, and may also have to pay damages to Sandy for invading her privacy without obtaining her consent. Bibliography * Bolam v Friern Hospital management Committee (1975) 1 WLR 583 * Dunne v National Maternity Hospital (1989) IR 1 * Jackson, Emily, 2006. Medical law: Text, cases and materials Oxford University Press * Kelly v Gov of St. Laurence’s Hospital (1988) IR 402; (1989) ILRM 437 * Maynard v West Midlands Regional Health Authority (1985) 1 AER 635 * Mason and McCall-Smith, 2006. Law and Medical Ethics, 7th edn. Oxford University Press * Sidaway v Bethem Royal Hospital Governors (1985) AC 871 * Walsh v Family Planning Services Ltd (1992) 1 IR 496 Read More