Medical and Ethical Dilemma Case Study: Mental Capacity and Human Rights

8510 words (34 pages) Dissertation

16th Dec 2019 Dissertation Reference this

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Introduction

My intension is to present a problematic case that poses a medical-ethical dilemma for patients, families, and healthcare professionals. As my scenario is based on a real case, some details have been changed in the effort to maintain patient confidentiality. The intent of this coursework is also to offer ethical analysis and medical recommendations that are consistent with moral principles. I will also be exploring the weakness of professional healthcare when the patient lacks capacity and the ‘prescribed’ duty of the medical team to either save life or promote recovery.

Other interesting ethical questions in this case will also involve conflict between the demands of commonly-held moral values.  The conflict is between the duty of the medical team to respect the instructions of the patient’s next of kin, who have explicitly given consent to firstly medical intervention and (perhaps) a duty owed to Dina to pay attention to her wishes. Supposing Dina had capacity and could give consent, then there would not be a dilemma.

Further into my assessment, I will be conceptually examining ‘adult patients’ in mental capacity law and the human rights law. I will aim at analyzing the central claim that the mental capacity law has been devised with a commitment to achieving patient-centered care; care that honors where possible a patient’s own, reflectively endorsed values as well as whether or not that patient has decision-making capacity. I will be using case law to consider whether or not Dina is a competent adult and has a right to accept or refuse hospital admission as well as the life-saving treatment during her hospital admission.

To reach that conclusion, my analysis will aim for conceptual clarity on whether Dina’s attending doctor offered her rights within case law or that because of her Alzheimer’s condition the medical team denied her rights and took a completely autonomous decision because the law appears to be edging towards giving these groups more recognition.

 

The Scenario

Dina has spent all her life as an English school teacher. She retired ten years ago when she began to suspect that she was suffering from depression. Dina has always been a chain smoker. After retirement, Dina, who has never married and never had children, sold her home, and moved into a Nursing Home.

Dina has lived at this Nursing facility for nine years where she has slipped into what her doctor agrees is Alzheimer’s disease. She appeared to be initially very happy at this home. Before the Dementia progressed, she was a very bubbly lady who could be found wherever a group had gathered. But the progression of her condition has been relentless, and Dina has become more withdrawn. She was smoking more than usual now.

It’s been noted lately that Dina has been spending more time in her room, communicating with very few words. Within the last week, the Nursing Home staff began noticing a behavioral change in her. Dina was no longer found sitting in her chair smoking when she was in her room; she was spending more time in bed, complaining of being “tired”.  She was also eating less, often reluctant to go to the dining room. She never requested to have her cigarettes. She appeared paler than usual

The manager at the Nursing Home became alarmed and after consulting with her staff it was decided that Dina is transferred to a hospital facility for clinical investigations.  Numerous blood tests and scans at the hospital showed that her platelet blood count is abnormally low and her spleen was mal-functioning (scan showed metastasis tumor). The complexity of her case meant that Dina needed urgent medical intervention.

This decision was communicated to her only living brother, named as her power of attorney and he gave his consent. Dina has been in the hospital for six days now and it is clear she is receiving the appropriate treatment. She has requested to smoke but have been ignored on numerous occasions. She is receiving supplemental nutrition through IV Fluids, but this has resulted in swelling in her arm making it twice its normal size and it is painful.

Subsequently, Dina became hypotensive and went into septic shock. She was transferred to the Intensive Care Unit (ICU), but her condition deteriorated. Two days later, after discussions with the ICU staff and Dina’s brother, it was agreed that she is moved from the ICU, and the care level was changed to palliative care status. Dina finally died ten hours later

 

Has ‘Caregiving’ gone wrong here?

Was there negligence in the hospital setting?

 

 

 

 

 

Ethical Principles and Ethical Theories

In nursing ethics there are many theories and moral principles that help with ethical decision making such as the theories of deontology and utilitarianism as well as the four fundamental principles, also referred to as principlism. (Brent, N. J., 2000). These four principles consist of respect for persons’ autonomy, principle of beneficence (and non-maleficence) and the principle of justice. It must be noted that together they all help aid decision making in ethical dilemmas (Ambrosino and Goldstein 2008).

Autonomy 

Major health care interventions are based on the principle of autonomy. This principle requires that a patient’s right to make their own decisions about their care and treatment is respected. Section 3.2 of the Nursing & Midwifery Council Code of Professional Conduct for instancestates that “you must respect patients’ and clients’ autonomy- their right to decide whether or not to undergo any medical or health care intervention – even where a refusal may result in harm or death to themselves”. It must however be mentioned that within this same code of practice, section 3.8 conflicts the whole autonomy idea and states that “where treatment is necessary to preserve life, care should be provided without the patients’ or clients’ consent”.

This principle acknowledges that patients have the right to control their own lives and so can decide when to accept treatment or not. But patients’ classification into competent and incompetent helps to establish their level of capacity. The test for establishing capacity level will be further covered under my Mental Capacity section below.

Paternalism

“When the consent of the patient is not sought for any treatment or intervention, that person’s life is devalued. A paternalistic stance is taken; truth telling or honesty is compromised; trust is lost, individual freedom cannot be exercised: in other words, harm is done.”  (V. Tschudin 1989:339).

The principle of paternalism can be seen in Dina’s case as it holds that decisions can frequently best be taken on behalf of others by those who have the best interests of those others at heart. This is why Dina’s brother is seen to be taking a paternalistic approach. On other occasions, medical consultants who are in possession of all the facts may take the form of ‘the doctor who knows best’ view. This principle will result in the denial of the patient’s autonomy and right to play full part in decisions about their treatment but will be justified by the belief that patients cannot possibly be as well informed as their doctors and can therefore make no useful contribution to decision making. (M. Komrad 1988).

When a paternalistic stance is taken the principle of respect for autonomy comes into conflict with other ethical considerations like beneficence and non-maleficence.

 

Beneficence and Non-maleficence

The principle of beneficence is often seen as the overriding duty in healthcare. Beneficence which means the ‘duty to do good’.  (Rumbold 2000) is often used by doctors as an argument against informed consent. This principle explains why in British law, a doctor has the right to choose what information is provided before consent is given. There is always a dilemma in applying treatment decisions, in that, doctors often consider what course of action to take in order to promote a patient’s best interests. For instance, when Dina was admitted into hospital, she was immediately given the appropriate treatment because she was owed the duty ‘to do no harm’. Decisions continued to be taken on Dina’s behalf until she went into hypotensive shock and eventually her death. Would her condition have improved if Dina had the capacity to make her own medical intervention decisions?

Non-maleficence means “not to do harm” is considered to be the positive opposite to beneficence (Rumbold, 2000). Physicians should not provide ineffective treatments to patients as these offer risk with no possibility of benefit. In addition, physicians must not do anything that would purposely harm patients without the action being balanced by proportional benefit. Because many medications, procedures, and interventions cause harm in addition to benefit, the principle of non-maleficence provides little concrete guidance in the care of patients.

Ultimately, the patient must decide whether the potential benefits outweigh the potential harms. It can be seen in Dina’s case that she suffered pain as well as swelling of her arm as a result of the side effects of receiving the IV Fluids. This further led to a decision to stop her medication when it was noted that death was inevitable and she was transferred from ICU to palliative care. It must be noted that this ultimate decision may not have been in her best interest as in the case of Sidaway vs Bethlem Royal Hospital Governors 1985.

The Sidaway case makes reference to a patient who was left with paralysis after an operation to relieve a trapped nerve. In the court of appeal, the patient claimed negligence as she had not been informed of the risk of this procedure. The judge rejected the petitioner’s claim as a respectable body of medical opinion agreed that it was not necessary to warn a patient of every risk (Bolam test – see below). The case did however establish in English common law that a doctor has a duty to provide patients with sufficient information for them to reach a balanced judgement. Patients must be informed how necessary a procedure is, any alternatives, and any common or serious consequences of it (Sidaway vs Bethlem Royal Hospital Governors 1985).

There however remain some debate of what constitutes “common” or “serious”. If a patient is not properly informed and suffers harm as a result of the procedure, the doctor will be liable for negligence. In the Bolam testa patient suffered severe injuries as a result of receiving Electro Convulsant Therapy (EVT) without muscle relaxants. The judge ruled that the doctor had not been negligent and noted that “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 act.” (Bolam vs Friern Barnet Management Committee 1957)

The doctor can still be found to be negligent if common practice is thought to be unreasonable by the court. The notion of consent (to be covered below under case law) represents the ethical principle that each person has a right to self-determination and is entitled to have their autonomy respected.

With the explanation and case examples above, it can be noted that Dina’s consultant acted in her best interest even though she suffered harm and finally death as a result. The consultant may not be found negligent if he can prove that his actions were in line with common practice.

 

Rawls in his 1971 publication A Theory of Justice’ argued that people have a duty to act according to the law that they would propose if they were unaware of their present socioeconomic status: “… no one knows his place in society, his class, position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance”.

Rawls goes on to describe ‘Justice as Fairness’ suggesting that any state making rules could be justified in doing so on the basis that the coercion was done under conditions of complete freedom, and would therefore appear to be more of a guidance than an oppression, a ‘social contract’. Therefore, if one is to judge morality by examining the nature of one’s actions rather than by the goals that those actions ultimately achieve, the outcome relative to medical professionals should be that they are praised or blamed only for those actions within their immediate control.

Since higher possible benefit and minimum risk of injury pertain to this scenario, justice is making sure that Dina is given fair access to needed supplies or therapies. On the contrary, one could argue that an appeal to justice would compel cessation of further intervention so that expensive resources would not be used on Dina who was later seen to be benefiting less from the treatment. These resources could be used for other patients who might benefit more. (In reality, there is no quid pro quo: medicines not used on her would have no obvious intended recipient.)

A large number of resource allocation decisions are carried out by clinicians (nurses, general practitioners, hospital consultants) who decide at the point of a patient seeking medical assistance whether or not to treat them; these decisions occur at micro level within the NHS. Alternatively, macro level resource allocation decisions, ‘are made by the treasury. (Christopher Newdick, 2005)

Hasman et al derived from their study that those who make decisions at micro level, ‘considered clinical effectiveness, cost effectiveness, gross cost, equality and political directive as the most important when allocating resources. (Hasman, A., Mcintosh, E. and Hope, T. 2008)

Jackson however has argued that doctors do not consciously apply rationing to decisions, in day to day practice; at the most ‘If a patient is suffering from symptoms which are very likely to be caused by a minor illness but there is a remote chance that there is something much more serious wrong with them the doctors will adopt a wait and see approach.(Emily Jackson, 2010)

 

Discussion of Ethical Theories

Kantian Ethics – It could be argued Dina was not treated as an end in herself but as a means.

Utilitarianism

Jeremy Bentham introduced the Principles of Morals and Legislation in 1789. He spent his life outlining the implications of Utilitarianism for a variety of social and political institutions. John Stuart Mill was also an advocate of Utilitarianism and his version is: ‘Utility’ or the ‘Greatest Happiness Principle’. He holds that actions are right in proportion as they tend to promote happiness: and wrong as they tend to produce the reverse of happiness. In other words the more happiness and the less unhappiness an action produces the more morally praiseworthy it will be. In a nut shell, the more people we can make happy the better. So long as the aggregate happiness is maximized, there is nothing wrong with minority interests being served on certain occasions.

As a normative theory, Utilitarianism is not a theory about what moral terms mean but is a theory which offers a test which we can use to decide whether an action is right or not. Utilitarianism is primarily concerned with providing a mechanism for deciding what to do in given situations. Jeremy Bentham famously stated, ‘… nature has placed mankind under the governance of two sovereign masters, pain and pleasure’. These he believed were the twin motivators and goals of all human action. However, some moral choices don’t involve getting any happiness at all.

For example, Dina was suffering intense pain from her treatment hence the consultant’s action to stop her IV Fluids to provide some sort of relief to generate happiness. Even though this action may have taken place at a critical stage, the consultant can prove that his action helped to minimize Dina’s pain.

In the case of D. Pretty  v The UK, 2002, the courts exercised a utilitarianism approach and sacrificed Mrs. Pretty’s autonomy interests for the greater good, to protect vulnerable people in society who may be coerced into giving up their life. (Williams G, (2010). However in Purdy v Director of Public Prosecutions (DPP), 2009). The courts took both a utilitarianism approach but also respected Mrs. Purdy’s autonomous, self-determined choice to end her life. Ethical views on autonomous decisions determining whether a life has lost value are gaining momentous. (Yorke J, 2010).

As the theory of Utilitarianism was developed and refined over the years, there emerged two distinct branches of Utilitarianism. These are known as Act Utilitarianism and Rule Utilitarianism.

Act Utilitarianism is arguably the more primitive of the two since it takes literally the requirement that we examine the consequences of each possible course of action in any situation when making our moral deliberations. An Act Utilitarian would say it depends on other aspects of the individual situation. In Dina’s case, the nursing home manager made a decision to refer her to a hospital facility after she became alarmed at her deteriorating state. Kant, Immanuel. 1785.

Rule Utilitarianism, on the other hand, doesn’t believe assessing individual situations is appropriate, or even possible. Instead Rule Utilitarian believe that we should stick to general rules of conduct such as ‘Don’t lie’ or ‘Always keep your promises’ because these rules in turn tend to produce good consequences overall. A hospital setting expects doctors to follow the general rule or principle of saving lives via medical interventions in any given situation. This means that Dina’s consultant acted in his ‘prescribed duty’ by sticking to the rule to promote most happiness as well as the observance of a practice which benefits society overall.

Now, on this occasion, the actions of Dina’s consultant failed to promote the best possible consequences which led to her death. However, if his actions were not a generally accepted practice within the hospital setting then it would generate far more pain for society as a whole.

 

Deontology

Deontologists like Kant believe that the moral worth of an action has nothing to do with any consequences that the act might have. This is because the consequences of an action are often without our control and cannot be easily predicted. Therefore the moral worth of an act must derive from something intrinsic to the act itself rather than extrinsic to it. Another term for the deontological approach is duty ethics. (Kant, Immanuel. 1785)

For deontologists there will be certain actions that are always wrong and should never be carried out, such as lying or murder, and it is our duty to abstain from such actions whether they produce good consequences or not. For Kant the moral rightness of an act was instead determined by the intentions or motives of the act. This contrasts sharply Utilitarianism’s view that any action could in principle be justified, however seemingly vile it is, provided it generated good consequences on that occasion.

By basing morality on reason we not only guaranteeing its objectivity but also its authority or sovereignty. For Kant, to deny that lying is wrong is the same as denying that 2+2=4. To break a moral rule is like committing some sort of logical error. For that reason alone, Kant regards moral rules as binding on everyone. (Kant, Immanuel. 1785)

Kant also argues that a good will is not good because of what it achieves; it is intrinsically good in and of itself. Even if someone were some sort of moral imbecile, and their every effort to do the right thing resulted in their doing the opposite, Kant would claim that their good will would ‘… still shine through like a jewel for its own sake as something which has its full value in itself.’ So as long as they had good intentions, we can be guaranteed that their act was a morally good one. This is not to say however that consequences never matter. Indeed they are extremely important in many other aspects of life. However, as far as moral assessments go, they are irrelevant in calculating the moral worth of an act; only good intentions or motives matter. As in the case of the scenario, it can be noted that Dina’s only brother had good intentions by granting his consent for her prompt transfer to the hospital for medical care to commence. (Kant, Immanuel. 1785)

Kant also believes in the motive of duty which is merely a prudent one and not moral one. Simply put ‘acting from duty is doing so simply because you know it’s the right thing to do, and not for any other reason.’ Kant is particularly keen to emphasize the distinction between acting from duty and acting from inclination. Professional duty is therefore placed on Dina’s consultant to act in a morally good way by providing urgent medical interventions as required. (Kant, Immanuel. 1785)

Universal Law

The English legal system does not have a ‘good Samaritan rule’ neither is there ‘no duty of easy rescue’. Fitzjames Stephen gave a classical example of ‘A seeing B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, A will have committed no offence (S Fitzjames, Digest of Criminal Law1887).This example clearly shows that there is no positive duty for B to act, even though B holding his hand out may have saved A’s life.

In simple terms, there is generally no liability for failing to act, however there are six exceptions and if a person fails to act then they will be committing a criminal law offence. This is where the law will require an individual to act where there is a special relationship. It is generally recognised that the more closer the relationship the more likely the law will impose a duty (French Penal Code Article 63). Such relationships include that of a parent and child, that of spouses as well as that of doctors and patients. There is a vast amount of case law in this field which will be used to illustrate the exceptions to an omission. For the purpose of this essay, I will only highlight the situation where there is a special relationship between doctors and patients.

A replica of Dina’s situation which occured  in Airedale NHS Trust v Bland. The case involved a doctor-patient special relationship where a victim from the Hillsborough disaster had irreversible brain damage and could only live artificially with the help from a life support machine, the NHS trust and the family decided in the best interest of the patient would be to end his treatment, however the doctors wanted assurance from the courts if it is permissible for them to switch off the machines, the House of Lords held that the switching off of a life support amounted to an omission and not positive act which means there will be no liability for the doctors.

 

Virtue Ethics

Supporters of Virtue Ethics (VE), like Aristotle for example, don’t believe in locating the goodness of the act in the consequences or the motives. They instead proceed by concentrating on the character of the person who performs the act, outlining which virtues they typically have rather than what actions they perform or what motives they have. In fact, as Aristotle contends, the virtuous person may have no conscious motives at all when they act, they may be so used to acting correctly that they do it instinctively, without thinking. (The ethics of Aristotle: 1976)

It must be noted that virtues exist to show one’s caring nature for the well-being of others and an unwillingness to cause harm. David Hume provides almost thirty virtues in total: honesty, loyalty, sincerity, courage, reliability, trustworthiness, benevolence, sensitivity, helpfulness, cooperativeness, civility, decency, modesty, openness, cheerfulness, amiability, tolerance, reasonableness, tactfulness, wittiness, gracefulness, liveliness, magnanimity, persistence, prudence, resourcefulness, cool-headedness, warmth, hospitality. David Hume, An enquiry concerning the principles of morals, 1998.

The nursing home staff displayed serious sensitivity and warmth towards Dina’s withdrawal from living her normal life in the home she has spent her retirement years. Many of these virtue traits can also be seen in the character of Dina’s brother as he was very cooperative with the hospital consultants’ views to provide medical interventions on his sister. He also showed a positive attitude towards the whole medical process to benefit his sister.

Compassion

The hospital seemed to act promptly when Dina’s condition deteriorated and immediately continued to treat her with compassion despite the decision to withhold further medical or surgical intervention. The emphasis was placed on pain and symptom management by promptly changing Dina’s care level to palliative care.

 

Emotivism

Emotivism is often associated with the philosophers David Hume (1711-1776). He argues against the existence of objective moral facts in a discussion of murder found in his Treatise of Human Nature (1739). For Hume, the wrongness lies not in the object but in us. When we see certain actions a feeling or sentiment arises within us and we adopt either a disapproving or approving attitude towards it. Moral approval and disapproval, therefore, is not a fact about the world but is a matter of our emotional response to a given situation.

 

The Law

Laws are a familiar concept, and provide a basic social framework of right and wrong to which the majority adhere. Ethical theories may also be applied to all issues of uncertainty, including those not covered by laws or professional guidelines. They create a mechanism within which issues of moral uncertainty may be questioned and resolved (P. Jones, Human Rights, Macmillan 1994). Typical law areas of moral dilemma to be considered in this essay are Informed Consent, Patient Participation, Best Interest Decision Making, Mental Capacity Act as well as Human Rights Act.

 

 

Patient Participation & Informed Consent

 

In its simplest terms, consent may be defined as giving permission:

“… in current usage consent is defined as a voluntary compliance, or as a permission. ‘I consent’ means ‘I freely agree to your proposal’, which is an explicit statement that my consent to a certain course of action has been sought and granted without any element of coercion. C. Faulder (1985:32)

 

However, in recent years this definition of consent has been deemed inadequate. Consent may be regarded as invalid if the consenting individual does not know what they are consenting to. It is for this reason that the adjective ‘informed’ has been used to clarify its meaning. (V. Tschudin 1989).

Treatment without consent may be regarded as battery, but legally this consent still does not have to be fully informed in the UK. The amount of information provided is at the discretion of the doctor, as demonstrated by Sidaway v. the Board of Governors of Bethlhem Royal Hospital (1984).

Consent may be implied, verbal, or written, but accurate records must be kept by the professional as to the information given and the consent granted by the client. The Guidance for Professional Practice -(UKCC 1996).

In another typical case, Justice Cardozo proclaimed in his classic statement that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”Schloendorff v Society of New York Hospital 211 NY 125 (1914).

 

 

Best Interest Decisions

Reference can be made to the case of Mr Leslie Burke v GMC which concerned a wide range of issues, most of which related to decision-making at the end of life. However, the key point is the Court of Appeal’s opinion that doctors are under no legal or ethical obligation to agree to a patient’s request for treatment if they consider the treatment is not in the patient’s best interests. Mr Leslie Burke v GMC [2005]

 

 

 

Case Analysis using the Mental Capacity Act (MCA), 2005

I am hoping to explain the ‘general philosophy’ of the Mental Capacity Act 2005 (MCA); and Baker J’s ruling in Re M, a case that reportedly addressed for the first time the question of whether the best interests of a patient in a minimally conscious state (MCS) were not served by continued provision of life-sustaining food and hydration.

The law provides—on its face—two concepts: those who have, and those who lack, capacity. Section 1(1) MCA stipulates that we should assume that adults have capacity, and the tests in sections 2 and 3 provide the means by which that assumption might be displaced. Capacity, as is widely observed, is decision-specific, and invites examination of a patient’s practical reasoning. As such, at any given time (depending on the circumstances under issue), section 4(6) of the Mental capacity law presents three sorts of patients. First, patients who have capacity. Then, within the band of those who lack capacity, there are two further concepts of the patient: those who once had relevant capacity but are deemed now to lack it; and those whose values cannot be (satisfactorily) ascertained. For the purpose of this assignment, my patient (i.e. Dina) can be grouped with the latter two.

Patients who never held (relevant) values can be exemplified through analysis of the case of Re Y (Mental Patient: Bone Marrow Donation) [1997] which concerns a woman who lived in an institution, and possessed extremely limited awareness and understanding. Connell J found a means of holding that Ms Y’s best interests were served by her submitting to the painful process of being a bone marrow donor, so that she might help save the life of her sister. He did so in part by imputing specific values to the patient, holding that because Ms Y’s family could be said collectively to espouse the sort of values that would support a decision to donate, Ms Y herself could be said to do so. Despite such judicial reasoning, in Y, we find a patient who cannot in any concrete sense be said to have previously (or currently) held values that can be drawn on and applied in reaching a decision that accords, as best possible, with what she would have reflectively endorsed as serving her interests.

Dina could also belong to the group of patients who’s past and present values conflict. This group can still present thornier conceptual, legal, and ethical problems. As indicated, the MCA gives little help in adjudicating between the patient’s own inconsistent views. Legal rules regarding anticipatory decision-making suggest that a patient’s more recent values should be prioritized if there is a conflict or apparent change over time. Equally, in cases of uncertainty; the dominant rule at law is that decision-making should err on the side of life. Consider the sort of patient represented by Ronald Dworkin’s fiction Margo, who suffered dementia and as a result lived a contented life, but not one that her ‘former self’ would have recognized as part of her ‘biography’. While in Dworkin’s argument Margo’s previous values should be determinative, and lead to a life-ending decision, at law the weight of argument suggests that her current values should be prioritized

Section III of the MCA goes on to consider patient values in relation to the concept of the medical decision, which requires to be understood by reference to the multiple ‘stakeholders’ involved in it: the patient herself (Dina), the authority responsible for resource allocation (the nursing home and hospital) as well as the person making the clinical determination (the doctors / hospital). There is a requirement for emphasis to be made to autonomy within capacity law. It is best conceived as being about respecting a patient’s determination of her interests by reference to her reflectively endorsed values, rather than non-substantive reverence for bare choice in itself. The law’s position asks that we attempt to apply the patient’s reflectively endorsed values, whether these are inferred directly by asking for consent (in the case of a patient with capacity) or drawn through inferences given the facts that can be determined about a patient’s values by other means (in the case of a patient who lacks, but once had, relevant capacity). In either case, the patient’s values should not themselves be displaced at law.

Section IV then considers judicial interpretations of how best interests should be understood and applied. It challenges the application of best interests as conceived in Airedale NHS Trust v Bland which responds to concerns that best interests and substituted judgment might wrongfully be elided. Finally, it explains the coherence of ‘objective best interests’ being informed or determined by reference to subjective values, concluding that it is erroneous to suppose that a decision is based on a patient’s best interests other than deciding in line with what would have been done if she had capacity.

For treatment to be lawful it is requisite that:

  • It is established to reflect, or at least be consistent with, the patient’s personal view of her interests: this may be established through gaining consent, or by reference to proven facts about the patient’s values.
  • It is judged by reference to professional opinion to be in the patient’s best interests: this will be established by reference to the doctor(s) agreeing that the intervention is indicated as a worthwhile intervention because of the benefits—whether therapeutic or otherwise—that it will provide.
  • It is judged, by reference to principles of sound public decision-making, to be worth funding through the health care system: this will be established by the particular resource allocation model that governs access to treatment.

 

Human Rights Act 1988

In the UK, our human rights are protected by law. This law is called the Human Rights Act 1998 and fully came into force in 2000. Public authorities, like a local authority or the NHS, must follow the Act. The Human Rights Act may be used by every person resident in the United Kingdom regardless of whether or not they are a British citizen or a foreign national, a child or an adult, a prisoner or a member of the public. Judges must therefore read and give effect to other laws in a way which is compatible with Convention rights. If a public authority breaches someone’s human rights, they may be able to take action under the Act http://www.yourrights.org.uk/index.html

Public authorities must respect and protect your human rights when they make individual decisions about you. They must also follow the Human Rights Act when they plan services and make policies. Sometimes they must also take positive steps to protect your rights when your life is in danger or you’re threatened by other people. http://www.bihr.org.uk/

The human rights contained within this law are based on the articles of the European Convention on Human Rights. The Act ‘gives further effect’ to rights and freedoms guaranteed under the European Convention. In total, there are 16 rights set out in the Human Rights Act. Each right is referred to as a separate Article. For the purpose of this essay, I will only be discussing Articles 2, 3 and 8 of the Act: Right to life, Prohibition of torture and inhuman or degrading treatment and the Right to respect for private and family life.

Article 2: Right to Life – is an absolute right and states that public authorities have a reasonable duty to protect your life. They cannot take a person’s life unless it is absolutely necessary. This duty also applies to people who are informal patients. These are people like Dina who are on hospital admission but are not detained under the Mental Health Act 2005. They should be able to come and go from the hospital within reason and are able to discharge themselves if they decide to go home.

Article 3: Prohibition of torture and inhuman or degrading treatment – is an absolute right and states that

Restraint will generally not be seen as torture unless too much force is used, or it is used to limit your movement in a way other than to protect or prevent further damage.  http://www.liberty-human-rights.org.uk/.  An example of possible breaches of this Article in my scenario can be linked to allegations of abuse. Dina’s later life in the nursing home during which she was unable to get out of bed. A question into whether or not the staff took time to change her bedding regularly when soiled. Also whether or not she was offered assistance and encouragement to get out of bed and engage with the other residents. Another pointer may be a question into her refusal to attend to dine and eat properly. Was she offered the necessary alternative to be served in her room and encourage to eat or even be fed by the staff or were trays of food left and cleared up with food untouched? http://www.equalityhumanrights.com/

 

As in the case of Dina whose request to be allowed a cigarette was continuously ignored because she was attached to IV Fluids. This could be treated in law as a form of degrading treatment as Dina may have become very distressed at the refusal. Was she offered escorted chances in a smoking area to exercise her wish? An example of this was the Winterbourne Inquiry which led to series of investigations into the failings of the care system. A final ruling was aimed at promoting a culture and a way of working that actively challenges poor practice and promotes compassionate care across the system. Department of Health Review: Winterbourne View Hospital: Interim Report: (June 2012).

Article 8: Right to a private and family life – is a qualified right, which includes: respect for your sexuality, the right to make choices for yourself, and the right to have your body and mind respected.

respect for private and confidential information, particularly the storing and sharing of this information (in the UK this is largely covered by the Data Protection Act 1998: the right to have confidential and unlimited communication with others, the right to control how information about your private life is shared, http://www.equalityhumanrights.com/

 

The hospital can however challenge this and claim that Dina has been detained under section 3 and she is not allowed to smoke while in hospital. She is not allowed to leave the hospital grounds. The ban on smoking in hospitals is not discrimination because it does not breach Article 8.

 

 

 

 

 

 

 

 

 

 

Conclusion

There is no ready, simple answer to this very difficult dilemma.  Working out what to do in a case like this can take all the moral thoughtfulness and sensitivity and reasonableness that we can muster.  We can increase our sensitivity, sharpen our moral reasoning skills, by thinking hard about such cases, and the moral theories which underlie our responses to them, in a context of academic inquiry and discussion.

In conclusion I believe that patient autonomy has huge importance in English law but that it has not gained too much importance. I believe that it is justifiable for patient autonomy to be the most important principle as ultimately it is the patient who should decide what happens to their own body and not family members or officials for societal good.

There still seems to be scope for other interests to play a role in medical law, as shown by the societal interest being paramount in the utilitarian approach and issues of patient information as shown above. I believe though that these interests have been somewhat limited as shown by the Health Secretary after the Liverpool and Bristol body organ scandals. It has even been argued that there should be more emphasis placed on society’s interests.

Harris and Woods argue that patients have a moral duty as in everyday life to public interest and medical law should be no exception. This argument is probably more feasible when we talk about restricting informational rather than physical autonomy. This would have to be protected by using restrictions and only when these are in place could inroads into patient autonomy be truly justified. This does illustrate nicely the law and the public’s increasing acceptance of others apart from the patient as having say in what procedures are allowed.

 

 

 

 

 

 

 

 

 

 

 

Bibliography, Journals and References

  1. Airedale NHS Trust v Bland, CA 1992.142 NL.J 17
  2. Ambrosino N. and Goldstein, R: Ventilatory Support for Chronic Respiratory Failure ed: illustrated & Published by Informa Healthcare 2008
  3. (Application no.2346/02) (2002) 35 E.H.R.R 1 )
  4. A. MacIntyre, A short history of ethics, London, Routledge, Kegan Paul, 1967, Ibid,
  5. Ayer; A. J. (1910-1987), Perception and identify, ed. G. F. Macdonald. London
  6. Bolam vs Friern Barnet Management Committee 1957
  7. Brent N. J. : Nurses and the Law: A guide to Principle and Applications, ed: illustrated and published by Elsevier Health Sciences, 2000).
  8.  (Rumbold 2000)
  9. Christopher Newdick, Who should we treat? Rights Rationing and Resources in the NHS ( 2nd ed OUP 2005) 46
  10. C. Faulder, Medical Ethics, Patient Rights & Informed Consent (1985:32)
  11. David Hume (1711-1776)
  12. David Hume, An enquiry concerning the principles of morals (Tom Beauchamp, ed), Oxford University Press, 1998,
  13. Department for Constitutional Affairs, Mental Capacity Act 2005—Code of Practice (TSO 2007)
  14. D. Pretty  v The UK, (Application no.2346/02) (2002) 35 E.H.R.R 1 )
  15. Emily Jackson, Medical Law, Texts Cases and Materials (2nd ed OUP 2010) 64
  16. Ethics & Medicine: An International Journal of Bioethics 27(1), Spring 2011, 13-16
  17. Gary Slapper and David Kelly, The English Legal System—16th ed (Routledge 2015) 98–101.
  18. General Medical Council, Consent: Patients and Doctors Making Decisions Together (GMC 2008)
  19. General Medical Council (UK). Confidentiality: Protecting and Providing Information. September 2000
  20. General Medical Council (2006) Good Medical Practice. GMC.
  21. Hale, B. (2007) The Human Rights Act and Mental Health Law: has it helped? Journal of Mental Health Law, May, 7–18.
  22. Harry Frankfurt, ‘Freedom of the Will and the Concept of a Person’ (1971) 68(1) J Phil 5; Gerald Dworkin, The Theory and Practice of Autonomy (CUP 1988).
  23. Hasman, A., Mcintosh, E. and Hope, T. 2008: Journal of Medical Ethics
  24. Hazel Biggs and Caroline Jones, ‘Legally Vulnerable: What Is Vulnerability and Who Is Vulnerable?’ in Michael Freeman, Sarah Hawkes and Belinda Bennett (eds), Law and Global Health (OUP 2014).
  25. House of Lords House of Commons (2007) Joint Committee on Human Rights: The Human Rights of Older People in Healthcare. Eighteenth Report of Session 2006–07. Volume 1 – Report and Formal Minutes. TSO (The Stationery Office).
  26. http://www.gmc-uk.org/standards/secret.htm
  27. http://www.yourrights.org.uk/index.html
  28. http://www.equalityhumanrights.com/
  29. Hasman, Mcintosh, Hope (n22) 660
  30. Hursthouse, op cit, p 229.
  31. Ian Kennedy, ‘What is a Medical Decision?’ in Ian Kennedy, Treat Me Right: Ethics in Medical Law and Ethics (Clarendon Press 1988).
  32. James R. Thobaben, Health-Care Ethics (Downers Grove, Illinois: IVP Academic, 2009).
  33. Jeff McMahan, The Ethics of Killing–Problems at the Margins of Life (OUP 2002).
  34. J. Bentham, Deontology: or, The Science of Morality, from the MSS, ed. by J. Bowring. Published by, 1834, vol 1
  35. J. Bentham, Principles of Morals and Legislation in 1789
  36. John Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?’ (2007) 15(3) Health Care Anal 235.
  37. Jonathan Herring and Jesse Wall, ‘Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act’ (2015) 35(4) LS 698.
  38. Kant, Immanuel. 1785. “First Section: Transition from the Common Rational Knowledge of Morals to the Philosophical”, Groundwork of the Metaphysic of Morals
  39. Kenneth Veitch, The Jurisdiction of Medical Law (Ashgate 2007)
  40. Lynn A. Jansen, “Consensus and Independent Judgment in Clinical Ethics,” Journal of Clinical Ethics 20, no. 1 (2009)
  41. Mary Donnelly, ‘Best Interests, Patient Participation and the Mental Capacity Act 2005’ (2009) 17(1) Med LR 1
  42. MacIntyre argues that ‘The Ethics shows us what form and style of life are necessary to happiness.’47 Hursthouse’s ‘neo-Aristotelianism’ is illustrated by many other-regarding and self-regarding virtues, and she defines a virtue ‘as a character trait that a human being needs to flourish or live well’.48
  43. MacIntyre, op cit, p 57. Presumably, in the ‘us’, he is stating that Aristotle’s ethics can be used today.
  44. M. Komrad, ‘A Defence of Medical Paternalism: Maximising Patient Autonomy, ‘Journal of Medical Ethics, 1988
  45. Mental Capacity Act 2005: post-legislative scrutiny (HL 2013-14, 139); United Nations Convention on the Rights of Persons with Disabilities.
  46. Michael Dunn, Isabel Clare and Anthony Holland, ‘To Empower or to Protect? Constructing the ‘Vulnerable Adult’ in English Law and Public Policy’ (2008) 28(2) LS 234
  47. Mr Leslie Burke v GMC [2005] EWCA Civ 1003.
  48. Ngaire Naffine: Law’s Meaning of Life (Hart 2009)
  49. Nursing & Midwifery Council Code of Professional Conduct, 2006
  50. P. Jones, Human Rights, Macmillan 1994: pg 237
  51. Philip Bielby, ‘The Conflation of Competence and Capacity in English Medical Law: A Philosophical Critique’ (2005) 8(3) Med Health Care Philos 357
  52. Principles of Morals and Legislation, 1789
  53. Rawl J.: ‘A Theory of Justice’, (Belknap Press of Harvard University, 1971)
  54. Re Y (Mental Patient: Bone Marrow Donation) [1997] 2 WLR 556
  55. Richard Huxtable, ‘ ‘In a Twilight World’? Judging the Value of Life for the Minimally Conscious Patient’ (2013) 39(9) JME 565.
  56. Richard Huxtable, ‘Autonomy, Best Interests and the Public Interest: Treatment, Non-treatment and the Values of Medical Law’ (2014) 22(4) Med LR 459
  57. Robert C Solomon, ‘Corporate roles, personal virtues’ in Statman, op cit, p 217. He also notes a reference to a complete listing: Edmund Pincoffs, Quandaries and virtues, University Press of Kansas, 1986. Pincoffs, a virtue ethicist, provides 65 virtues, broken into categories roughly approximating Hume (p 85).
  58. Robert D. Orr, Medical Ethics and the Faith Factor (Grand Rapids: Eerdmans, 2009)
  59. Ronald Dworkin, Life’s Dominion (Alfred Knopf 1993) 218–37
  60. Schloendorff v Society of New York Hospital 211 NY 125 (1914).
  61. Sidaway v. the Board of Governors of Bethlhem Royal Hospital (1984, cited by Palmer 1993).
  62. Stevenson C. L. (1944): Ethics and Language: New Haven, Connecticut
  63. The Ethics of Aristotle: the Nichomachean ethics (trans JAK Thompson, revised Hugh Tredennick), London, Penguin Books, 1976,
  64. The Guidance for Professional Practice – (UKCC 1996).
  65. V. Tschudin, Ethics In Nursing: The Caring Relationship 1989:339
  66. Williams G, ‘Assisted Suicide, the Code for Crown Prosecutors and the DPP’s Discretion’, (2010), Common Law World Review
  67. Yorke J, The Right to Life and the Value of Life Orientations in Law, Politics and Ethics, Ashgate Publishing Limited, 2010, Page 6

 

 

 

 

 

 

 

 

 

 

 

 

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