Respect patient autonomy

‘The English courts only pretend to respect patient autonomy. In any difficult case, the judges prefer the doctors’ judgement of the patient’s best interests. ‘ Discuss. Self governance or autonomy fundamentally depends on capacity to make ones own decisions. Mentally competent people are said to enjoy the right to autonomy, not least in their own health and treatment of illness. When a conflict of interest arises between how someone would have them self treated and how they have been treated, the courts have been called upon, either to stop a treatment proceeding or provide compensation when it has been seen as unlawful.

In this case, when performed without the correct consent required. The law in the past has almost always sided with medical opinion. The ‘doctor knows best’ idea has been part of society for a long time. Recent cases have proven this is not always correct. We will examine how far the courts have actually progressed in maintaining autonomy and whether it is in their ‘best interests’ to do so. The tort of battery is uninvited and un-consented physical contact not seen as an everyday occurrence.

A doctor will commit battery and possibly the crime of assault if a patient consents to a different procedure they receive. The defendant is then liable to all damages which flow from this invasion even if a specific injury has not been established. 1 In negligence, the cause of the injury must be established, and with reference to autonomy is due to the lack of information the patient received, committing them to a procedure they would not otherwise have followed. Here the patient must prove harm and can only recover damages which should have been reasonably foreseen.

2 A health care worker (HCW) therefore, cannot proceed with a treatment without expressed or implied consent. Should a patient be unable to express their wishes for treatment, non voluntary treatment can take place; such as in an unconscious or incapacitated person. 3 Non voluntary treatment of a minor by proxy consent is also lawful except in disagreement, if the minor is proven to be ‘Gillick competent’. Here they must have ‘sufficient understanding and intelligence to make the decision and [capacity] is not to be determined by… any judicially fixed age limit’.

4 In his ruling Lord Scarman considered a fixed threshold on the age of consent would fail to recognise that development does not proceed in a staged, ordered way and would not respect the rights of the minor. 5 Autonomy seems to have been upheld in this case; however, it is the doctor who would decide if the patient is ‘Gillick competent’ and if a specific treatment is in their best interests. Informed Consent All voluntary patients treated within the NHS are expected to complete a consent form which attempts to clarify that the patient’s consent was informed, and the procedure’s intended risks and benefits were correctly explained.

6 A case where a woman consented to a breast implant removal but was subsequently given a subcutaneous mastectomy was awarded damages. Her operation, which would have eventually been necessary, was not immediately life threatening and she would have not consented if asked. 7 Necessity for life saving treatment in an unconscious patient will however protect the HCW. What patients may have wished can be expressed by their relatives. Although not legally binding, this is evidence of an attempt to establish the patient’s interests.

8 In such cases the law has no choice but to let the HCW determine the best interest of the patient, if doctors were too fearful of litigation they may practice defensive medicine rather than the treatment which (they perceive) would benefit the patient most. Here the law protects autonomy by allowing patients to recover damages for non-emergency treatments they would not have had. Informed consent raises the issue of the amount of information which needs to be given to the patient for it to be informed, whilst not overloading a patient with facts and figures.

The proposed therapy should be explained in terms of its nature, risks, consequences and alternatives. 9 In Chatterton v Gerson10 an operation to relieve pain (due to scarring from previous surgery) resulted in loss of sensation and mobility in the patient’s right leg. She claimed in battery that she had not been informed of this risk, and this lack of information effectively vitiated her consent. The ruling by Bristow J. stated ‘once the patient is informed in broad terms of the nature of the procedure… and gives her consent, that consent is real… a claim for failure to go into risks and implications is in negligence and not trespass’.

11 If a patient however is deliberately mislead into a treatment they didn’t need, 12 the apparent consent given was obtained by fraud and is effectively nullified amounting to battery. 13 It appeared the courts were reluctant to find HCW’s guilty of battery and more in negligence regarding inadequate information and advice. 14 A non HCW committing the same act is guilty of battery, suggesting they have no business interacting with the patient this way. HCW’s therefore have certain privileges on their patients providing the patient fully understands what is going to be done and why.

How then does the Doctor decide how much information to tell the patient? The American courts state it is what the prudent and reasonable patient would require. 15 English courts however adopted the Bolam test where reasonable medical opinion became …

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