Norrie (as cited in Grigg-Seill & Ireland, 1992) argues that the philosophical individuality that lies at the heart of criminal law is flawed and limited, and that the result is distinguished by unreason and lack of principle of that legal policy. He also says that the key to understanding is to expect continuous tensions and illogic, and not to look for rationality and coherence (Norrie, 1992).
In Criminal Law there is a maxim - “the act does not make a person guilty unless his or her mind is guilty” (Diesfeld, 2004; Lecture Notes). If for example an individual was convicted of any crime, two elements would need to be proved, the “actus reus” (the physical or guilty act), and the “mens rea” (the mental component or guilty mind of the accused) (Johnson, 2004). The mens rea of a crime may be present, but if the actus reus is absent, no conviction can be made. It depends on whether both the actus reus and mens rea can be proved, e.g. in a murder situation was “A” responsible for “B’s” actions or was it due to insanity?
Section 151 of the Crimes Act 1961, places a legal duty of care on health professionals, to provide the necessaries of life (Burgess, 2002). Section 155 states that anyone who performs surgical or medical treatment, is under a legal duty to use reasonable knowledge, skill, and care in doing such an act (Burgess, 2002).
Civil action against any doctor is without doubt unsettling to their professional and personal reputation, but it also imposes a duty on them to act in a certain way (Beever, 2003). Under the Civil Law it is the practitioners’ responsibility to adhere to the rules set out in CHDSCR. It is their obligation to obtain consent; to provide information to consumers; to comply with conditions agreed with the consumer; and to not detain a patient unlawfully.
What distinguishes Criminal Law from other laws is that criminal law is designed to punish while the role of torts, under Civil Law is designed to compensate (Burgess, 2002).
Accountability of Health Practitioners
There are general moral obligations instilled in health practitioners to achieve the highest possible results in whatever they undertake. The general codes of ethics require doctors to make the care of their patients their first concern; respect patients’ dignity and privacy; and respect the rights of patients to be fully involved in decisions about their care (Singer, 1993). Correspondingly, in psychology, the ethical principles that are believed to guide psychologists include: respecting autonomy; respect for dignity; treating others with caring and compassion; and accepting accountability (Kosslyn & Rosenberg, 2001).
Arguably, ethical issues involve a choice about what one should do, rather than what one would do.
When Dr C conducted a trial incision and found good blood supply to the tissues below Mrs A’s knee, his objective for her was to give her the freedom to be able to move around freely with a fitted prosthesis leg, hence his decision for BKA.
According to the NZ Society Vascular Surgery (2004), it is usually possible before the operation for the surgeon to decide at what level the amputation will be performed (above knee or below knee). Research shows that one of the most important factors in healing is the blood supply to the tissues. In some patients, it is recommended to try a limited amputation if there is a chance of healing, but to be prepared to proceed to a major amputation if healing doesn’t take place. This in my view is what Dr C did. Unfortunately, there is no test that can predict in every patient whether healing will take place, and it is a matter of surgical judgment and experience whether a wound will heal or not (NZ Society Vascular Surgery, 2004).
Under the circumstances, Dr C overruled the considered opinion of Mrs A, probably because he felt that she was not ‘lucid enough’ to make the right decision at the time. Instead Dr C took the utilitarian approach or acted on paternalism for the best interest of his patient (i.e. on the assumption that doctor knows best). Utilitarianism is primarily concerned with the “greatest good for the greatest number” and because of this, reflects the wants and desires of society (Gillon, 1992). Utilitarianism can face many criticism, e.g. if the majority of people always have their way then the minority will always be left out and will not be given a fair chance (Corey, 1993). Dr C’s approach went against her, therefore she lost her autonomy.
The communication level between Dr G (registrar) and Dr C could be improved, e.g. even though it was Dr C’s responsibility for performing the surgery, he could have involved Dr G (who probably assisted with the operation) in the decision-making process. On the other hand, Dr G could have intervened and reminded Dr C that Mrs A was adamant about having an AKA. Dr C deeply regretted his last minute decision. He sent a letter of apology to Mrs A, and her family. Although his actions were not deliberate, I did not think it was necessary for him to resign from his position. Then again, this incident may have caused him much stress and disturbance.
In different circumstances, Dr G may have wanted to make a report about his colleague’s transgressions, but fear of victimization may have stopped him from “blowing the whistle”. Under the Protected Disclosures Act 2000 (Johnson, 2004), Dr G would be guaranteed legal immunity and protection from retaliation by his colleague or employer. The purpose of the Act is to promote public interest by facilitating the disclosure and investigation of matters of serious wrong doing by an organization. Also under the Act, Dr G can not be held liable in respect of the disclosure, whether civilly or criminally (Johnson, 2004).
I believe that when decision making becomes an issue, decisions should be made with the individual and not for the individual. These issues are often about making judgments about an individual’s ability in decision making and in making choices. That judgment should not fall upon one person but upon a team of people who know the individual well (Crump, 1999).
Hobman (1994, as cited in Crump, 1999) argues for the complete independence of advocates for older people. In situations in which important decision need to be made, there should be strenuous efforts to provide advocates who are truly independent and free from any conflict of interest. Only then can the best interests of older persons be served.
Aging and the Rights of Vulnerable Consumers
Ageism is a process of systematic stereotyping or discrimination against people because they are old. The stereotypical view of the elderly person is somebody who has chronic disease; is dependent upon others for the basic tasks of life and; lives in decreasing functional ability; is utilizing heavy amounts of health care resources in direct competition with younger populations (Stuart-Hamilton, 2000). The common belief is that seniors benefit less from health care resources than younger patients. The elderly face many situations that can contribute to their state of wellbeing. Many important social support systems are lost, e.g. death of a spouse or close friend, retirement, or moving to a new home (Stuart-Hamilton, 2000).
Lack of communication was one of the biggest drawbacks for the doctors. When meeting with Mrs A and her family, Dr G could not remember the details of their conversation about the operation, so family members prompted him with clear instructions. This indicates that he did not record or take any notes at a time that was crucial for the family. It is important that Dr G provide correct and relevant information to Dr C when he makes his rounds or performs surgery, as Dr C probably deals with many patients. To omit vital information could prove fatal for the patient (Singer, 1993).
Dr C also told Mrs A that “she would need to prepare mentally to accept AKA again”, Mrs A, being elderly, may have felt nervous and anxious because she probably did not know how to mentally prepare for surgery. Although there are many ways to prepare a patient psychologically for surgery, the most effective approach are those that enhance patients’ sense of control over the situation or the recovery process (Sarafino, 2002). Dr C could have recommended the services of therapists or counselors. These services would have taken her through some breathing exercise or explained how to focus on the medical procedure and not on the unpleasant aspect; and ensure that Mrs A was provided with information about knowing what to expect during or after the medical procedure (Sarafino, 2002).
When Mrs A. went into surgery, she expected an AKA. What caused her to suffer personal injury was the unhealed wound to her BKA. Not only did this experience cause her grief, but it forced her to relive the past events of extreme pain and trauma, which she did not want.
This happened in Childs v Hillock [1993] NZAR 249, where negligence claims against a doctor and the Department of Health in respect of pelvic inflammatory disease caused by an intra-uterine contraceptive device were struck out. This was medical misadventure under the under the 1992 Act (Todd, 1997).
Dr C’s misdemeanor could have been avoided if he had discussed all surgery options with his client about possible outcomes, and the decisions that can be made from it. Dr C breached Right 6 (2) of the CHDSCR - the right to be fully informed. Dr C also failed to take all reasonable steps to ensure that Mrs A had been provided with sufficient information. Without that information, Mrs A would be unable to make truly informed decisions and cannot therefore give informed consent. The reluctance to give information to his patient was seen by Dr C as ‘acting in the best interests’ of the individual, represented by the simplistic belief that ‘what you don’t know, can’t hurt you’. The arrogance in believing this, is paternalism at its extreme.
An example of a similar case is the GP in breach of Opinion 97HDC7669, which demonstrates the importance of providing appropriate information before seeking consent for any proposed treatment.
Under Right 7, every consumer has the right to make an informed consent; Right 7(6) states that consent must be in writing where the procedure is experimental. The Commissioner’s decision went against Mrs A and found no breach. This is unfortunate because despite the signed consent and the BKA (which was not consented for) Right 7(6) allowed the procedure to go ahead. Although Right 7 was not breached, I think that maybe a recommendation and a review of the law should be changed to consider that if a patient is under anaesthetics (for example), then Right 5, effective communication should be considered, whereby a family member should have been a support backup in case the patient was not fully alert under the circumstances.
Did the Commissioner strike a fair balance? In this case, the Commissioner should have looked beyond Rights 6 and 7. There were obvious communication fractures which the Commissioner ignored. Right 5 - Dr C should have ascertained whether Mrs A was in a position to communicate with him, and, if so, advised Mrs A of what options were available. If Mrs A’s condition prevented her from communicating, then her family should have been communicated with, as they would have carried out her wishes. Even after the surgery, Dr C did not facilitate effective communication as to why he performed BKA, therefore in my opinion Mrs A’s right to effective communication was breached. Right 4 -Services of an appropriate standard could have been breached by the surgeon and overlooked by the Commissioner. Mrs A’s family felt that Dr C did not provide her with reasonable care and skill. The doctor failed to provide services (e.g. therapist, counselor) in order to assist Mrs A mentally, for surgery. I also believe the Commissioner should source other legislations or Acts apart from the CHDCSR.
Conclusion
There are many categories of law which may impact upon doctors but, as a general rule, the principles applied by the courts to date in civil proceedings have come principally from the law of negligence and contract (Skene, 1998). Too often we hear ‘doctor knows best’. I think reasonable care challenges this view, because it argues for patient involvement in medical decision-making, and it critically examines approaches based on the assertion of patients' legal rights.
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