Duty of Care

Author: Brad Robinson MBBS IV, 2004

THE NEW AND IMPROVED

KING

ETHICS

MBBS ETHICS SUMMARY

Contents

(1). The Four Principles of Medical Ethics.

(2). Duty of Care.

(3). Consent.

(4). Refusal of Treatment.

(5). Standard of Care and Medical Negligence.

(6). Informed Decision Making.

(7). Advance Health Directives.

(8). Confidentiality.

(9). Notification.

(10). Boundary Violations.

(11). Commercialisation of Medicine.

(12). Ethical and Legal Issues in Treating Psychosis.

(13). Professional Regulation & the QLD Medical Board.

(14). Impaired Doctors.

(15). Second Opinions.

(16). Immunisation - Ethical Aspects.

(17). Delivering Bad News.

(18). Medical Certificates.

(19). Relationship btw Doctors & Pharmaceutical Industry.

(20). Abortion.

(21). Human research Ethics Committees (HRECs).

(1). THE FOUR PRINCIPLES OF MEDICAL ETHICS

The four-principles provide a method by which clinical decisions can be evaluated ethically.

The four moral principles are:

1.  Autonomy.

2.  Beneficence.

3.  Non-maleficence.

4.  Justice.

(1). Autonomy:

·  Self-determination, free will, self-rule.

·  John Stuart Mill argued that all persons should be able to develop according to their own values or beliefs as long as they do not interfere with the autonomous actions or beliefs of others.

·  In bioethics the principle of autonomy asserts that humans have a right of non-interference when making decisions about themselves.

·  Respect for autonomy only has prima facie standing and can be constrained by competing moral principles or by respect for the autonomy of others.

·  In health care the principle of autonomy forms the basis for ideas about:

o  Treatment: Consultation with patient and agreement needed.

o  Privacy.

o  Confidentiality.

(2). Beneficence → ‘Do Good’:

·  Active well doing, altruism, or conduct aimed at the good and well being of others.

·  Requires that practitioners provide both appropriate treatment and an assurance that treatment will not produce more harm than good.

·  Health professions have responsibilities towards society not just to the individual patient.

o  Practical expression of beneficence requires judiciousness and genuine concern for the well-being of the total society.

o  For example the wise use of scarce resources, and some recognition of the financial limits of clinical medicine.

·  If a patient’s autonomy is overridden due to a concern for beneficence, this is known as paternalism → there are two types of paternalism:

o  Weak: Beneficent action towards people clearly not in a position to make informed decisions themselves.

o  Strong: Based on the belief that it is sometimes ethical and proper for the health care worker to effect beneficent actions even if the patient is competent and disagrees with the decision made.

o  Weak generally accepted – strong thought to be generally indefensible.

(3). Non-maleficence → ‘Above all, do no harm’:

·  Difficult to separate out beneficence and non-maleficence, as many bioethical issues require consideration of both.

·  Issues of non-maleficence and beneficence are particularly apparent in decisions regarding the institution of dangerous therapy, or withdrawal of therapy that is no longer thought to be beneficial.

·  After consideration of beneficence and non-maleficence together, need to produce net benefit over harm.

·  Need to separate the two out when circumstances are such that you can not recognise any obligation of beneficence but still have a duty not to harm them.

(4). Justice:

·  Fairness, rightness, equity, integrity.

·  In the general sense, justice refers to standards and expectations which any society holds concerning relations between members of that society.

·  Notion of justice often described in three ways:

1.  Justice as fairness: Connotes equality.

2.  Comparative justice: Appropriate levels of health care can only be afforded to individuals by weighing up the competing claims of other people - resources need to be distributed on the basis of impartial indicator such as need.

3.  Distributive justice: Distribution of resources on the basis of various moral, legal and cultural rules that form the cooperative basis for society. Strive for an average or common good that protects against any neglect of the disadvantaged.

(2). DUTY OF CARE

Negligence

Three basic elements needed to establish a case of medical negligence:

1.  That a defendant owes a duty of care to the plaintiff;

2.  That the appropriate standard of care has been breached; and

3.  That as a result of the breach damage has been caused to the plaintiff and the likelihood of damage was not ‘too remote’.

(1). Duty of Care

·  Must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour.

·  Who is my neighbour?

o  Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called into question.

o  Depends on foreseeability and proximity.

·  Reasonable foreseeability that a person or class of persons would likely be affected by the action or inaction.

·  Three types of proximity that act as limits on the notion of foreseeability in establishing duty of care:

1.  Physical.

2.  Circumstantial.

3.  Causal.

Lowns vs. Wood:

·  A boy is fitting on the beach.

·  This case found that a Doctor does not have a duty of care to assist even if failure to do so results in injury or death if that person is not and has never been in a relationship with the doctor.

·  Proximity – and therefore relationship - was established as found to be in physical, circumstantial and causal proximity.

·  Special circumstances created the relationship of proximity despite lack of previous doctor/patient relationship.

(2). Standard of Care – Was it breached?

·  Establish the relevant standard of care and decide if there has been a breach of that standard.

·  Those who undertake work or activities requiring special skill must not only exercise reasonable care but must measure up to the standard of proficiency that can be expected from the ordinary skilled person exercising and professing to have that special skill.

(3). Damage:

·  No action can be brought in negligence unless some damage has resulted from the breach of the standard of care.

General:

·  A doctor is under no duty to attend a person who is sick even in an emergency if that person is one who the doctor is not and never has been in a professional relationship of Doctor and patient.

·  In general the common law does not impose a duty to assist a person in peril even where it is foreseeable that the consequence of a failure to assist will be injury or death of a person imperilled.

·  BUT in Lowns Vs Wood proximity – therefore relationship therefore duty of care - was established → however, ethically this is not necessarily the same.

Kinds of Medical Negligence:

·  Failure to attend an emergency.

·  Failure to adequately inform of consequences and risks.

·  Failure to diagnose or incorrect diagnosis.

·  Failure to diagnose at an appropriate time.

·  Failure to attend (eg failure to make a house call) or examine.

·  Failure to provide adequate advice.

·  Failure to refer.

·  Failure to adopt recognised precautions.

·  Failure to treat appropriately for a particular condition.

·  Failures in communication.

(3). CONSENT

Consent is authorisation by a competent person of an action which affects the authorising person.

·  Failure to obtain consent is equivalent to interference without authorisation.

Elements of consent:

·  Authorisation is voluntary.

·  Patient is informed.

·  Patient comprehends the information.

·  Patient is a competent person.

Legally valid consent:

·  Must be given for a legal procedure.

·  Covers a specific procedure.

·  Must be given to a specific doctor.

Elements of competency:

·  Comprehension → plus ability to recall the nature, purpose and effects of the proposed treatment.

·  Decision conforms to the patient’s life values and beliefs.

·  Decision making involves appropriate considerations regarding alternatives and consequences.

·  Moral reflection.

·  Ability to make a decision and defend the choice.

·  Ability to communicate the decision to others.

·  Capacity to persevere with the choice until the decision is acted upon → i.e. act on it.

Consent and trespass

Failure to gain consent constitutes trespass.

·  Trespass is a civil wrong against the person/land/property.

Invalid consent = unauthorised invasion = trespass = assault and/or battery.

·  Assault = Intentional/reckless act causing fear or harm.

·  Battery = intentional/reckless application of force without consent → may occur even if the patient didn’t know it happened.

Trespass is actionable even if life is saved as a result of the action and no harm was caused → trespass does not require damage.

·  In contrast, negligence requires damage.

If a patient has been generally informed of the procedure, and hence valid consent was obtained, if complications arise any failure is considered negligence instead of trespass as it represents a breach in the duty of care.

·  Actions in trespass relate to the issue of valid consent → advise patients in broad terms.

·  Actions in negligence relate to the issue of informed decision making → need to advise patients in greater detail.

Types of consent:

·  Express, implied.

·  Verbal, written.

·  Advance health directive → consent/refusal in advance in a competent state for a foreseeable situation in which the patient is not likely to be capable of making a competent decision.

Consent forms:

·  Give evidence that valid consent has been given.

·  HOWEVER, consent is a process of communication, not a form/incident.

Consent in childhood and adolescent illness

Young children:

·  Parents or guardians can consent to medical treatment but the treatment must be in the child’s best interests.

·  If such treatment is refused by carers, doctors or others may apply to the family court in order to carry out the treatment.

·  Overturning of parental authority and handing of it to the courts may occur when:

o  Child abuse.

o  Parental incompetence.

o  Parental insistence on futile treatment.

o  Blood transfusions for JW children.

Older children:

·  Only in SA and NSW is there a statutory right for older children who are younger than 18 to consent to their own treatment.

o  In NSW minors >14 can consent to treatment if deemed competent.

·  In other states, including Queensland, older children have a common law right to consent to treatment as mature minors who are competent to decide.

o  Based on understanding of nature and consequences.

o  Based on the Gillick case and endorsed in Australia through Marion’s case.

Gillick competence:

·  A minor is capable of giving consent when he/she achieves a sufficient level of understanding and intelligence to enable him/her to understand fully what is proposed.

·  Parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities grow → this rate of development depends on the individual child.

·  Right of parent to decide in child’s best interests ceases on child’s achievement of capacity.

·  The more serious the procedure the more assured we need to be about the child’s competence.

While a minor may consent to treatment against the wishes of their carer, refusal of treatment is different → they are less able to refuse treatment.

·  In cases where the consequences of refusal would be grave, more hesitation exists in complying with the child’s refusal.

·  Recent English decisions have upheld the right of a court to override a Gillick competent minor’s refusal of treatment where such refusal would result in serious injury.

·  One argument for the double-standard is that as the child is limited in experience and judgement the decision may not be made with a considered long-term view in mind.

Certain procedures are beyond the purview of parental consent/refusal at all.

·  The family court must decide on non-therapeutic sterilisation of a child, and only authorise it if it assesses it in her best interests → Marion’s case.

Need to always consider that while under 18’s may make their own decisions, they remain dependent on their carers and are usually part of a family which is affected by their actions.

Developmental characteristics of mature minors:

·  Need for privacy.

·  Strong identification with peers.

·  Rejection of parental authority → emancipation.

·  Assertion of capacity for responsibility.

·  Decision making competence (in some cases).

(4). REFUSAL OF TREATMENT

There is an absolute symmetry between refusal of treatment and consent to treatment → both require:

·  Voluntary decision.

·  Informed decision.

·  Patient comprehends the information.

·  Competent patient.

·  Relates to a specific procedure.

A decision to refuse treatment is taken to be a personal one, not a medical decision → it is firmly based in the ethical principle of autonomy.

·  Based on the fundamental right of self-determination.

·  However, it must be informed by medial knowledge.

The rule of ‘negative liberty’ applies to health care and is upheld by the common law:

·  You have no right to treat me if I have refused to authorise that treatment → treatment against a patient’s will is battery/assault.

·  Competent patients are entitled to refuse medical treatment even though that refusal may lead to death.

Medical duty of care motivates Doctors to act in a patient’s best interests.

·  Ethical difficulties arise when a competent patient refuses treatment which appears to be in their objective interests.

Forms of refusal:

·  Patient may verbally decline treatment for themselves or others (eg getting child vaccinated).

·  A patient’s action may demonstrate refusal → leaving hospital indicates unwillingness and constitutes his refusal.

·  More formal methods → advance health directives.

Competence and rationality

Competence is the capacity to make decisions.

·  It is the capacity to understand the nature and consequences of medical procedures to be undertaken.

Many factors complicating the refusal of treatment scenario: