Ethics, the Law and Statistics

Chapter 10
Ethics, the Law and Statistics



  1. Ethics
  2. The law
  3. Statistics
  4. Further reading

Ethics



  • Ethics derives from the Greek word ‘ethos’, which means custom, habit, character or disposition.
  • Defining ethics as a concept is difficult.
  • It can mean ‘a system of moral principles that defines what is good for individuals and society’.

    • Medical ethics applies these principles to the practice of medicine.

  • Ethics can provide the tools and a framework to think about moral issues.
  • There is often no single correct answer to difficult issues.
  • Being able to objectively think through problems can be more helpful than simply acting on gut instinct.

Ethical codes



  • An ethical code is a set of behavioural guidelines for a profession.
  • In medicine, we have the following examples:

Hippocratic oath



  • Taken by doctors, believed to be written by Hippocrates (5th century BC).

Geneva declaration



  • Adopted by the World Medical Association (1948); last amended in 2006.
  • Intended to modernise the Hippocratic oath in light of medical crimes committed in Nazi Germany during the Second World War.

Helsinki declaration



  • Governs human experimentation; adopted in 1964; last revised 2013.
  • Incorporates principles of the Nuremberg code (1946) on medical research.
  • One guideline states that the control group in trials should receive standard treatment, not simply placebo.

    • It would be unethical to randomise a patient with melanoma to a ‘no treatment’ arm.

General Medical Council



  • Publishes a list of ethical guidelines for good medical practice in the United Kingdom.

The four principles of medical ethics



  • Proposed by Beauchamp and Childress; can be applied to any bioethical issue.
  • By applying each principle to an ethical problem, the ‘correct’ course of action may become apparent.
  • If two opposite courses of action are recommended, the merits of each are weighed.

1 Autonomy



  • Regarded as the supreme medical principle—respect for patient autonomy.
  • It is not right to impose treatment on a patient without valid consent.
  • The right of a Jehovah’s Witness to refuse blood transfusion, even if refusal will bring death, must be respected.
  • A paternalistic approach—the doctor decides what is best and provides that for the patient—goes against autonomy.

2 Nonmaleficence



  • An obligation not to harm others—primum non nocere (Latin for ‘first, do no harm’).

3 Beneficence



  • States that doctors must do good for their patients.
  • Often means doing what the patient considers best for him or herself.
  • Example: giving blood to a Jehovah’s Witness is doing good by saving his or her life.

    • However, from the patient’s perspective, withholding blood is the best way to do good.

4 Justice



  • Doing what is fair, equitable or reasonable.
  • Usually, applicable to issues of access to health care and resource allocation.

Other concepts of medical ethics


Utilitarianism



  • This theory argues that our acts should be for the greater good.
  • Provides justification for not treating a 90-year-old patient with dementia who has suffered 70% total body surface area (TBSA) burns.
  • However, could also be used to justify killing a patient because his or her transplanted organs could save five others.

Deontology



  • The counter-argument to utilitarianism.
  • States that certain actions are good because they are good and right in themselves.
  • Consider the response to an overweight friend asking, ‘Does my bum look big in this?’

    • Saying ‘no’ takes the utilitarian approach to satisfy the greater good, not hurt their feelings or risk a backlash.
    • Saying ‘yes’ takes the deontological approach—telling the truth is the right thing to do.

  • The example of killing a patient so their organs can save five others is not justified in deontology because killing is an absolute wrong, even if good will come of it.

The law



  • This section is largely based on the law as it applies in England and Wales.

Consent



  • Consent is defined in the Mental Health Act Code of Practice (2008) as

    • “…the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent.”


  • The purpose of consent is threefold:

    1. Ethical

      • Recognises the patient’s right of autonomy and self-determination.

    2. Clinical

      • Gaining the patient’s confidence can affect the success of treatment.

    3. Legal

      • Provides medical practitioners with a defence.

Valid consent



  • To be valid, consent must be

    1. Voluntary
    2. Informed
    3. Given by a competent individual who has the capacity to give consent.

  • Consent may be oral, written or nonverbal (implied).

Voluntary consent


  • Means that consent is given without coercion, deceit or duress.
  • The right to consent to treatment is part of the right of self-determination.
  • This principle was reaffirmed by Lord Donaldson in Re T (1992):

    • “An adult patient who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it, or to choose one rather than another of the treatments being offered…This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent…Prima facie, every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death.”

Informed consent


  • There is no doctrine of ‘informed consent’ in the legal system of England and Wales.
  • How much and what kind of information to give a patient can be difficult to judge.
  • This is referred to as the ‘standard of disclosure’ and includes

    • Risks that a responsible doctor would disclose (Sidaway v Bethlem Royal Hospital Governors 1985).
    • Risks that a prudent patient would want to know about.

      • The ‘prudent patient test’ applies in the United States, Canada and Australia.

Capacity to give consent


  • Capacity is defined in the Mental Capacity Act (MCA) 2005:

    1. Capacity is presumed unless incapacity is established by those alleging it.

      • Incapacity testing should demonstrate inability by reason of mental disability to

        • Understand and retain information relevant to the decision.
        • Use or weigh the information as part of the process of arriving at a decision (including inability to believe the information).
        • Communicate his or her decision by any means.

    2. All reasonable steps must be taken to help a person to make the relevant decision.
    3. A person is not to be treated as unable to make a decision merely because the decision is unwise.
    4. Acts done for people who lack capacity must be in their best interests.

      • The process for determining best interests is also defined in the MCA 2005.

Assessment of best interests


  • The following should be taken into account:

    • The patient’s past and present wishes and feelings, beliefs and values that might influence a decision.
    • The views of anyone named by the patient to be consulted.
    • Any carer or person interested in their welfare.
    • Any donee of a Lasting Power of Attorney granted by the person.
    • Any deputy appointed by the Court of Protection.
    • Wishes and feelings of the patient expressed when capable.

  • Nobody can give consent on behalf of an incompetent adult unless:

    • The power to consent has been conferred under the MCA 2005 on a donee under a Lasting Power of Attorney.

  • The Court of Protection or a Deputy appointed by the Court of Protection can also consent.

Consent for minors



  • A minor is any person younger than 18 years.
  • Minors aged between 16 and 18 years can consent for themselves under the Family Law Reform Act 1969.

    • The legal age for medical consent is, therefore, 16 years.

  • Minors who lack capacity can have someone with parental responsibility to consent on their behalf.

Parental responsibility


  • Parents with parental responsibility can consent on a child’s behalf.
  • A mother automatically has parental responsibility for her child from birth.
  • A father usually has parental responsibility if he is married to the child’s mother or listed on the birth certificate.
  • An unmarried father can only get legal responsibility for his child as follows:

    • Jointly registering the birth of the child with the mother.
    • Getting a parental responsibility agreement with the mother.
    • Getting a parental responsibility order from the court.

  • Childminders or close relatives do not have parental responsibility.
  • Parental decisions can be overruled by the courts if they are not in the child’s best interests.

    • Example: withholding life saving treatment from a child is not in their best interests.
    • In such circumstances, the child can be made a ward of court, and the court will make decisions in the child’s best interests.

Gillick competence

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Mar 12, 2016 | Posted by in General Surgery | Comments Off on Ethics, the Law and Statistics

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