Medical Ethics

Student Number: 0715423 Module Leader: H. Barker

Medical Law & Ethics

In regards to Mimi this question deals with medical treatment consent to treatment and non-consensual treatment.

The general legal and ethical principle of medical treatment is that a doctor or other healthcare professional may not provide any medial treatment to any patient without lawful justification or legal valid consent of the patient. If medical treatment is given without lawful justification or consent the doctor or health care professional will be liable for the tort of trespass to the person under battery, this was held in the case of Schloendroff v New York Hospital, Cardoza J stated,

“Every human being of adult years and sound mind has a right to determine what shall be done with his body and a surgeon who performs an operation without his patients consent commits an assault”.

If non consensual treatment is given it is said to be a breach of human rights under article 3 (degrading of life) and 8 (respect of private life) of the European Convention of Human Rights 1950, however there are exceptions where treatment may proceed without the consent of a patient. Theses exceptions are where a patient is incompetent, minors under 16, treatment under health public health legislation and necessity, where an unconscious patient needs life saving surgery.

Mimi the famous pop singer is unconscious at her arrival to the hospital therefore she will be regarded as an incompetent adult as he lacks the capacity to make competent decisions with regard to medical treatment.

The chief case on the treatment of incompetent or incapacitated adults is that of Re F, the House of Lords held that no-one, can be authorised by law to give consent on behalf of an incompetent adult.
Where a patient is incapable of giving consent it is held lawful to give a patient such treatment ‘as was necessary to preserve the life, health or well being’ of the patient, such treatment must be in the ‘best interests’ of the patient if it is carried out to ‘save their life or to ensure improvement or prevent deterioration in their physical or mental health’.

The concept of what is in the patient’s best interests is determined in accordance with the ‘bolam test’; this test is an objective test which considers whether a responsible body in the same circumstances would presume the medical treatment as ‘in the patient’s best interest’.

As Mimi is unconscious, so under the common law is said to be temporarily incompetent. In an emergency situation where a patient is temporarily incompetent, i.e. unconscious, a doctor or health care professional may treat the patient under the doctrine of necessity.

Under the doctrine of necessity if there are no known objections to treatment, the doctor or health care professional are allowed to do no more than what is reasonable and necessary in the particular circumstances, and that which is in the best interests of the patient before the patient recovers competence, as in the case of Marshall v Curry where it was held that if the patient is unconscious and needs life saving treatment the necessary treatment must be immediate and life saving surgery. Therefore the doctrine of necessity acts as a defence to an action in trespass for the tort of battery where the patient is temporarily incompetent and there are no known objections to the treatment.

The facts suggest that Mimi arrived at the hospital unconscious with life threatening injuries and immediate surgery by Mr Quick was carried out. Under the doctrine of necessity Mr Quick’s action can be justified the treatment given was reasonable and necessary and no known objections to treatment were known at the time of surgery.

A contentious issue arises where a doctor or health care professional, whilst undergoing a particular treatment, discovers some other condition which they believe requires treatment, but for which they have not obtained the patient’s consent, albeit in the belief that it was in the patient’s best interest, this could constitute negligence. The doctor or healthcare professional may be negligent if they performed an act quite unconnected to the procedure to which the plaintiff did consent.

The facts suggest that Mr Quick removed a rare tumour from Mimi’s liver before waiting for her to regain consciousness it could therefore be argued that Mr Quick performed an act which was unconnected to the life saving procedure and unreasonable in the circumstances. Therefore the doctrine of necessity may not be a valid defence, even though it is suggested in the facts that the treatment was carried out in the patient’s best interest as it suggests that the tumour was rare, it could be argued that Mr Qucik should have waited for Mimi to regain consciousness and consent ...

This is a preview of the whole essay

Mimi after gaining consiciousnes, told Mr Quick that had she been conscious prior to the operation, then she would not have allowed the operation to go ahead, because of her belief of that it should be left into the hands of the supernatural, she may have not consented to any treatment at all. In the case of Mallette v Shulman it was held that the doctor was liable for a trespass to the person when he administered medical treatment to a patient who he knew would not consent to it as part of his supernatural beliefs. However, in this case because there were no known objections at the time the treatment was carried out and the treatment was in the best interests of Mimi the doctrine of necessity will act as defence for Mr Quick.

Thus fore Mimi may have a successful claim of trespass to the person but it is a question of fact for the court to decide.

In regards to Mimi this question is concerned with medical confidentiality.

Healthcare professionals and doctors are generally expected to preserve the confidences of their patients; this relationship must be based on the understanding of mutual trust, respect and confidence.

The issue of the obligation of confidentiality in the modern nature of health care is challenged sufficiently and its matters are well established morally legally and professionally.

Morally the duty of confidence is established under the Hippocratic Oath and the Declaration of Geneva. The Hippocratic Oath requires a duty of secrecy with regards to its patients it states,

“All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and never reveal.”

The international code of medical ethics also states a doctor shall preserve absolute secrecy on all he knows about his patients because of the confidence entrusted in him; this is similar to the Declaration of Geneva, this declares,

“I will respect the secrets which are confided in me, even after the patient has died.”

Professionally the duty of confidence is established under the General Medical Council (GMC), this imposes a strict duty on medical practitioners to refrain from disclosing, voluntarily, any third party information about a patient which he has learnt directly or indirectly in his professional capacity.

Legally the law recognises that in the absence of a contract to the effect the law recognises a common law duty and equitable obligation to respect the confidences of patients. In Hunter v Mann the court held,

“the doctor is under a duty not to [voluntarily] disclose, without consent of the patient, information which he, the doctor has gained in his professional capacity”

Furthermore it is said that this common law duty and equitable obligation applies to all confidential information not just medical information, in AG v Guardian Newspapers (No2) the court held

“a duty of confidence arises where confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be jut in the circumstances that he should be precluded from disclosing the information to others.”

Megarry, V-C in Malone v Commissioner of police of the Metropolis outlined three elements which give rise to an action for a breach of confidence,

The information divulged must have a necessary quality of confidence about it
That information must have been imparted in circumstances importing an obligation of confidence
There must be an unauthorised use of that information (to the detriment of the party communicating it

This was later approved by Lord Goff in AG v Guardian Newspapers Ltd (No2).

Where a patient clearly does not wish information to be shared or disclosed their wishes should be respected unless one of the exceptions to the duty of confidence allows for disclosure. The codes of professional conduct do not have the force of law but do have persuasive authority i.e. GMC allows for a disclosure of confidential information in the following circumstances

Disclosure with patients consent
Disclosure required by law
Order of a court
Disclosure that is necessary and justifiable in the public interest.
information shared with other health professionals participating in caring for the patient;
where, in particular circumstances, on medical grounds, it is undesirable to seek the patient’s consent, information regarding the patient’s health may sometimes be given in confidence to a close relative;
where disclosure to a third party is in the patient’s best (medical) interests;
compliance with a statutory requirement;
disclosure by order of a court;
public interest;
medical research, teaching and audit;
disclosure to employers and insurance companies (but need patient’s consent);
disclosure after death (in exceptional circumstances);
disclosure to inspector of taxes

At common law, the only recognised exceptions to the duty of confidence are those of the patient’s consent and disclosure in the public interest.

The exception, disclosure with the patients consent suggests that a patient, or someone authorised on their behalf, may certainly give express or implied consent to pass confidential information to a third party this will justify a breach of confidence. Implied consent may be given where a patient has no objections to the sharing of information.

The facts suggest that Mr Hackitt informed Joshua’s wife Miriam of his condition, this can be said to be breach of confidence as the facts state that Joshua was still unconscious when Miriam was informed of his condition so no valid consent was given.

However, the exception under the GMC code of professional conduct that, information regarding the patient’s health may be given in confidence to a close relative without the patients consent, maybe regarded as a defence for a breach of confidence.

The facts further suggest that Mr Quick divulged details of Mimi’s condition to Daily Dirty News, as he believed Mimi’s condition was caused by addictions to drink and drugs. Mr Quick also believed that Mimi’s addictions had been the cause of the car accident, as he believed that Mimi was under the influence of drink and drugs when she was brought into the hospital, this could be argued as a breach of confidence as information about Mimi’s health condition was given without consent. The question therefore arises as to whether Mr Quick can raise the defence of public interest.

The defence of public interest is recognised both professionally and legally. Disclosure in the public interest is a situation where the right of an individual to confidentiality as contemplated by statue, case law and professional guidance may be overruled by society’s interest in disclosure. A doctor or health care professional may receive information, directly or indirectly, which may or may not directly affect the patients care but may have implications for the rest of the society.

Lord Goff in AG v Guardian Newspapers Ltd (no2) stated,

“although there is a public interest in preserving confidences which should be preserved or protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure.”

Furthermore the two contrasting cases which illustrate the English courts approach to the issue of breaching confidence in the interests of protecting the public are W v Dr Egdell and Xv Y. It was held by Brazier in Medicine, Patients and the Law 1992 that for a disclosure of information to be lawful there must be an overwhelming public interest which may only be abated by means of breach of confidence. In W v Egdell the court emphasised the severinity of the offence and said the risk of the public must be real, immediate and serious.

Mr Quick could argue that he had told Daily Dirty News about her state due to public intrest as Mimi had prior to the article being disclosed to the newspaper company, she presented her self as to the media, and to her fans, as a clean-living person who, consequently, was looked upon as a role model

Once the disclosure of information has been justified as being in the public interest it has to be further considered whether the disclosure of information was lawful. A disclosure is lawful as long as it is made to the appropriate authorities and the disclosure is of necessary information.

In regards to Mimi this question is concerned with medical malpractice (negligence).

Medical malpractice is any unjustifiable act or failure to act upon part of the doctor or healthcare worker which results in harm to the patient.

For Mimi to succeed in action of medical negligence he will have to prove the necessary elements for negligence, duty of care, breach of duty and causation. Mimi will have to show that the hospital owed him a duty of care, the hospital breached that duty of care by failing to confirm to the standard of care required and as a result of the breach caused Mimi to suffer legally recognised damage.

A common law duty of care is recognised to exist between a healthcare professional or provider and the patient, as Mimi is the patient and Mr Quick is the duty doctor in the scenario it is evident that a duty of care is owed. In Barnet v Chelsea and Kensington Hospital Management Committee it was held that a duty of care arises between the hospital and the patient the moment the patient arrives at a hospital.

In order to establish a breach of duty Mimi must show that Mr. Quick has fallen below the standard of care required of him by the law, due to Mr Quick prescribing Mimi a new drug. After taking this drug for some time, Mimi developed a serious reaction which caused injury to her throat and resulted in permanent injury to her vocal cords. The drug prescribed by Mr Quick is not widely used and had been the subject of a series of articles in a leading medical journal. These articles had shown that there were differing medical opinions about the safety and possible side effects of the drug prescribed by Mr Quick. This states that healthcare professionals and providers should exercise ‘reasonable care’ in performance of their skills. The standard of care is currently practiced under the ‘Bolam Test’ in Bolam v Friern Hospital Management Committee McNair J formulated the 2-part test, it states,

Therefore the standard of care expected from a doctor toward his or her patient is that of the reasonably skilled and experienced doctor who has the same expertise in that field with no concessions being made for inexperience.

Mimi may be able to establish that Mr. Quick is in a breach of duty as he used a pioneering method of surgery, of offering Mimi the drugs, which is not widely looked upon due to the undesired reactions.

When deciding whether a health care professional has been negligent the ‘bolam test’ looks at what medical practice is accepted as proper by a responsible body of medical men and whether the health care professional has moved away from this practice. The essence of the bolam test is that professionals are to be judged against the standard of their peers, so if experts are called upon to give evidence, the defendant may not be found negligent if it is said by an expert that his actions were regarded as acceptable practice.

However the courts may decide differently as it may be argued that Mr. Hackitt disregarded the forty disapprovals made about the technique he acquired. If this is the case then the causation rules will be applied.

Biblography

Medical Law, (Nutshells), 2nd Edition, Peter de Cruz, Professor of Law
Text, Cases and Materials on Medical Law (3rd edition, Cavendish Publishing, 2006) Stauch, M., Wheat, K. & Tingle, J.

Cases

Schloendorff v New York Hospital [1914] USA 105 NE 92;211 NY 125
Glass v UK {2004] 1 FLR 1019.
Re F(Mental Patient: Sterilisation) [1990] 2 AC 1
Re MB (An Adult: Medical Treatment) (Caesarean Section) [1997] 2 FLR 426; [1997] 8 Med LR 217; (1997) 38 BMLR 175.
Marshall v Curry (1933) 3 DLR 260 and Murray v McMurchy (1949) 2 DLR 42;
Mallette v Shulman [1990] 67 DLR (4th) 321
Hunter v Mann [1974] Boreham J
Malone v Commissioner of Police of the Metropolis (No.2) [1979] Ch 344
C v C [1946] 1 All ER 562.
AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109.
W v Egdell [1990] 1 All ER 835; [1990] 2 WLR 471; [1990] Ch 359
X v Y [1988] 2 All ER 648
Cassidy v Minister of Health [1951] 2 KB 343; [1951] 1 All ER 574;
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1969] 1 All ER 1068.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 ,
Nettleship v Weston [1971] 2 QB 691 (CA).
Crawford v Board of Governors of Charing Cross Hospital [1953] The Times, 8 December;
De Frietas v O’Brein [1995] 6 Med LR 1
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; [1985] 1 All ER 635

Electronic Resources

http://en.wikipedia.org/wiki/Medical_ethics
http://www.medicalprotection.org/medicalinformation/medical-malpractice.htm

Schloendorff v New York Hospital [1914] USA 105 NE 92;211 NY 125

Glass v UK {2004] 1 FLR 1019.

Medical Law, (Nutshells), 2nd Edition, Peter de Cruz, Professor of Law, page17

Re F(Mental Patient: Sterilisation) [1990] 2 AC 1

Wolf notes, medical ethics and the law.

Bolam v Freirn Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118.

Re MB (An Adult: Medical Treatment) (Caesarean Section) [1997] 2 FLR 426; [1997] 8 Med LR 217; (1997) 38 BMLR 175.

Marshall v Curry (1933) 3 DLR 260

Marshall v Curry (1933) 3 DLR 260 and Murray v McMurchy (1949) 2 DLR 42;

Mallette v Shulman [1990] 67 DLR (4th) 321

Medical Law, (Nutshells), 2nd Edition, Peter de Cruz, Professor of Law, page 82

Medical Law, (Nutshells), 2nd Edition, Peter de Cruz, Professor of Law,page 82

Hunter v Mann [1974] Boreham J

AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109.

AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109, Lord Goff

Malone v Commissioner of Police of the Metropolis (No.2) [1979] Ch 344

AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109.

W v Egdell [1990] 1 All ER 835; [1990] 2 WLR 471; [1990] Ch 359

C v C [1946] 1 All ER 562.

AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109.

W v Egdell [1990] 1 All ER 835; [1990] 2 WLR 471; [1990] Ch 359

X v Y [1988] 2 All ER 648

Wolf notes, medical ethics and the law

Medical Law, (Nutshells), 2nd Edition, Peter de Cruz, Professor of Law, page 109

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1969] 1 All ER 1068.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 , McNair J, the two part test,

‘[W]here you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not … is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … [A] doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’

Nettleship v Weston [1971] 2 QB 691 (CA).