Briefly discuss to what extent could respect for autonomy present difficulties in clinical situations?

7/30/2019 Briefly discuss to what extent could respect for autonomy present difficulties in clinical situations?

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ASSIGNMENT

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TABLE OF CONTENTSPART 1 ........................................................................................................................................... 4

Briefly discuss to what extent could respect for autonomy present difficulties in clinical

situations? Illustrate using relevant case law .............................................................................. 4Case law .................................................................................................................................. 4Case Analysis .......................................................................................................................... 4

When does public interest justify breaching patient confidentiality? ......................................... 5Case laws .................................................................................................................................... 6

W v Edgell (1990) 1 ALL ER 835 .......................................................................................... 6X v Y (1988) 2 ALL ER 648 .................................................................................................. 6

Is it likely that the Human Rights Act 1998 will assist in forcing healthcare professionals to

give someone life sustaining treatment? ..................................................................................... 7Case law ...................................................................................................................................... 7

R v General Medical Council ................................................................................................. 7Describe the process of remediation on a patient if he or she feel they have received poor

medical treatment ........................................................................................................................ 8Complaints process ..................................................................................................................... 8Remediation process ................................................................................................................... 8

PART 2 ........................................................................................................................................... 9What are the legal mechanisms through which a patient may challenge the denial of medical

treatment due to resource allocation? Examine both common law and public law actions

together with any Human Rights issue. Your analysis should be supported by appropriate

authorities including the legal reasoning in judgments and in legal academic texts .................. 9

Case law .................................................................................................................................... 10R v Central Birmingham Health Authority, ex parte Walker ............................................... 10R v West Lancashire Health Authority ex p A and others (2000) 1 WLR 977 .................... 11 Bull and another v Devon area health authority ................................................................... 12


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Common law ............................................................................................................................. 12Case law .................................................................................................................................... 13

Winterbottom v. Wright 1842 ............................................................................................... 13Public law.................................................................................................................................. 14Principles of public law ............................................................................................................ 15Areas of public law ................................................................................................................... 15Public law remedies .................................................................................................................. 16Conclusion ................................................................................................................................ 16

References ..................................................................................................................................... 17

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PART 1

Briefly discuss to what extent could respect for autonomy present difficulties in

clinical situations? Illustrate using relevant case law

Autonomy can be defined as self rule or the ability of an individual to exercise the freedom of

self direction. An individual is said to be autonomous when he is capable of deliberating personal

goals without influence (Macklin, 2003). In sound medical practice, the respect of autonomy is

important. To respect a persons autonomy is to give weight to their opinions and choices

without interference unless they intend to harm others. When a persons autonomy is denied,

their freedom to act is infringed. The capacity for autonomy matures during a persons life and

some people lose their autonomy wholly or in part because of illness, imprisonment or

immaturity. The autonomy of the incapacitated also needs to be protected and respected (Gillon,2003). The respect for patient autonomy present difficulties in the delivery of healthcare

especially in cases where patient is incompetent, comatose or imprisoned. The autonomy of a

prisoner is limited by coercive institutionalization while that of a retarded person is limited by

incapacitation. When a person lacks autonomy they are influenced by others. In a clinical setting

the lack of autonomy becomes a problem when informed consent, disclosure, voluntariness and

comprehension are needed. In cases of incapacity, choices are not autonomous and therefore the

other principles of biomedical ethics become applicable. For a patients decision to be considered

autonomous, the decision has to be voluntary, informed and made by a competent person.

Case law

C. v. Wren, 1987, 35 D. L. R. (4th) 419 Alert

C, a pregnant 16 year old girl left home and made arrangement to have an abortion. Her parents

were opposed to the abortion and wanted to prevent the procedure claiming that C had no

capacity to consent.

Case Analysis

In deciding whether to respect the patients choice, the doctor has to ascertain the patients

competency and capacity to make rational independent decisions. According to Dawson and

Garrard (2006) for autonomy to be fully exercised an individual has to be away from controlling

influences and has to have the capacity for intentional action. The medical practitioner has to


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make a decision based on the rationality of the patient. In medical practice, an autonomous

patient is capable of thinking, deciding and acting freely and independently (Gert, Culver and

Clouser, 2006). The respect for patient autonomy demands that health professionals help patients

make their own decisions and adhere to these decisions. The respect for patient calls for

following a patients decision even when a health professional thinks the patients decision is

wrong. A patients decision should be respected at all times unless he or she intends to harm

others. In this case, the patient clearly has no intensions of harming others. The patient

understands her condition and the consequences of her choice. According to Beauchamp and

Childress (2001) the respect for autonomy advocates for telling the truth, respecting the privacy

of others, the protection of confidential information, obtaining consent for patient interventions

and helping other make important decisions when called upon to do so. The concern of

practioners in medical context is if apatients choice or decision is. C. knew and understood her

situation and the consequence of her choice. The courts sympathized with both parties but made

the decision in favor of the girl. The girl could give a valid consent to a therapeutic abortion. The

court concluded that she was competent to give a valid consent and that her parents wishes were

not relevant. The court added that the parental right to make treatment decisions for a child

terminated if and when the child achieves a sufficient understanding and intelligence to fully

comprehend the proposed treatment.

When does public interest justify breaching patient confidentiality?

Public interest refers to the welfare and general well being of the masses. Patient confidentiality

should be upheld. Respect for patient autonomy gives the patient the right to have control over

his life. To some extent this also includes the decision on access to patient information. When

confidentiality is breached, a patient loses confidence in his doctor (Slowther and Kleinman,

2007). Human rights Act 1998 article 8 protects a persons right to private and family life. The

act stipulates that there should be no interference by a public authority with the exercise of this

right with the exception being in cases of national security, public safety, the countys economicwell being and for the prevention of disorder or crime. The data protection act of 1998 also

protects a persons right in respect to personal data. While the access to health records act 1990

gives patients the right to access their health information (Hope, and Hendrick, 2008).


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Case laws

W v Edgell (1990) 1 ALL ER 835

In this case the patient W was convicted for the murder of five people and wounding others. The

patient requested the mental health tribunal to a transfer him to a regional unit. Ws legal

advisers asked Dr. Edgell to provide an expert opinion that stat that the prisoner was no longer a

danger to the public. The doctor was of a contrary opinion which led to the withdrawal of Ws

application (Dolan, Psychol and Barrister, 2004). The doctor went further and sent copies of the

patients notes to the medical director of the hospital and to the home office. The patient sued the

doctor for breach of confidence where the court of appeal ruled that the breach was justified

(UKCEN, 2003).

X v Y (1988) 2 ALL ER 648

In this case a health authority was looking for an injunction to prevent a newspaper from

publishing the names of practicing doctors who were had AIDS. The court ruled that due to a

wide ranging public debate about AIDS, publishing the information would be of little importance(UKCEN, 2003).

The General Medical Council provides guidance on confidentiality in cases where patient have

to be reported to the DVLA or DVA. According to GMC: Confidentiality (2009) the law

recognizes confidential medical care as being in the public interest. Public interest can also be

considered in disclosing information. This could be in lieu of protecting individuals and the

society from risks like crime, communicable diseases, aid medical research, education and other

uses of information that are beneficial to the society. The department of health also givesguidance through the NHS Code of Practice 2003 which requires the respect of confidentiality

and patient consent when their health records are to be used for any other thing than for their

treatment (NHS, 2010).

According to MPS (2011) a patient should be informed if his medical records have been

disclosed. The patient should also be told the reason for the disclosure. In cases of communicable


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diseases, the medical practitioner is allowed to disclose the information even without the

patients consent. A patients information can only be disclosed only if is in public interest but

there needs to be a balance because not all instances of disclosure are important.

Is it likely that the Human Rights Act 1998 will assist in forcing healthcare

professionals to give someone life sustaining treatment?

Healthcare professionals have the duty of giving their patients the best treatment possibly

available and within the constraints of the law. The human rights act 1998 article 2, states that no

one shall be deprived of his life intentionally except in the case of execution of a court sentence

of the conviction of crime. Article 3 of the same act stipulates that no individual should be

subjected to torture, inhuman, or degrading treatment. Article 8 of the act also states that each

and everyone has the right to respect for private and family life. This right should be upheld withan exception in cases public interest (The guardian, 2009). Article 14 prohibits discrimination of

any kind. Medical practioners are expected to respect patient autonomy, the right to life and non

discrimination.

Case law

R v General Medical Council

R Burke appealed against a court ruling claiming that his rights in regard to GMCs guidance on

withholding and withdrawing life prolonging treatment were breached. The patient R suffered

from congenital degenerative brain condition which confined him to a wheelchair. His brain was

functioning well but the medical personnel feared that other aspects of his life would deteriorate.

Under such circumstances, he would eventually need artificial nutrition and hydration (ANH) by

tube to survive. The initial court had made its judgment based on the GMC guidance that stated

that it was lawful for a doctor to withdraw ANH from a patient (BMJ, 2010). However the

decision of the court of appeal overturned the initial ruling stating that the court ought not to be

used as a general advice centre. The previous judge, Munby J was accused of acting beyond the

issues that were raised by the case. He was accused of dealing with public interest issues instead

of dealing with what was specific to the patients case. He was accused of ruling to the provision

of both competent and incompetent patients. The court of appeal set aside the declarations of the

GMC guidance and restricted itself to addressing the patients fear that ANH would be removed

while he was still competent to express his will that ANH be provided while he had the ability to


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communicate this decision. The court was of the belief that there was no need for making

declaration regarding the GMC guidance (Medical law review, 2006). The court said that the

doctor taking care of the patient would be under legal obligation to provide ANH in line with the

patients wishes, as long as the treatment was life prolonging.

Describe the process of remediation on a patient if he or she feel they have received

poor medical treatment

Remediation is the process of finding solutions to performance concerns with the aim of enabling

a practitioner to return to safe practice.

Complaints process

Health and social care organizations should deal with patient complaints at the local level first

and only let them reach the ombudsman if an understanding has not been reached or if the patient

is still disgruntled. The complaints process provides a way through which things can be put right

for patients and practitioners. Taking care of patients complaints gives the hospitals an

opportunity to have a positive relationship with the complainants and to develop an

understanding of patients concerns and needs. The process begins with the local resolution

where a solution for a patients complaint is sought locally. It gives both the complainant and the

organization an attempt at prompt and fair resolution of the complaint. At the local level, hospital

staff works closely with the complainant to find an early resolution to a complaint. At this stage

every opportunity is taken to resolve complaints at the source through discussion and

negotiation. When necessary, complaints are dealt with when they are lodged. A local complaint

process should be easy to access, should be fair, flexible and encourage communication on all

sides. Local resolution process should also have a well outlined process of investigation and

complaint resolution.

Remediation process

It is always the wish of hospital trust to solve issues at the local level. But if a patient feels that

their grievance has not been taken care of, then they have a right to go to the health service

Ombudsman. When a complaint is lodged, it goes through one stage where resolution is sought.

This stage is the local resolution. The local resolution gives a disgruntled patient an opportunity

to say what their grievance is and what they would like to happen. The patient and the hospital

get to discuss the incident at this stage. Once a patients complaint is resolved, it can b used to


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improve the services of the hospital. The process begins with a written complaint from the

patient. If the complaint is verbal then the hospital manager will write it down and give the

patient a copy. Once a complaint is lodged, the hospital responds by letting the person or

department that the patient has complained about know about the complaint. The person or

department concerned then contacts the patient to try and solve the problem with the

complainant. At this stage the complainant is informed on how the issue will be handled. The

problem can be solved through an investigation, meetings that give the complainant an

opportunity to speak about what happened, or a mediator who can arrange a meeting with the

involved parties. Once the investigation is complete, the complainant can be contacted and told

what was found and the actions that have been taken. If the complainant does not feel satisfied

with the local resolution, then he can lodge the complaint with the Ombudsman.

PART 2

What are the legal mechanisms through which a patient may challenge the denial of

medical treatment due to resource allocation? Examine both common law and

public law actions together with any Human Rights issue. Your analysis should be

supported by appropriate authorities including the legal reasoning in judgments

and in legal academic textsWhen a patient is denied medical treatment because of resource allocation their right to life is

breached. This would constitute contravention of the human rights act 1998 article 2 which states

that:

The government is required to allocate resources reasonably and equitably across the nation. This

scenario also breaches the acts article 8 which provides the right to respect for private life and

family. The second part of the human rights act 1998 article 8, gives the government permission

to restrict this freedom in cases of public interest. Contravention of article two comes into play

when an elderly patient is denied treatment because of their age. Denial of treatment because of

resource allocation could also breach article 14 of the human rights act 1998. Lack of resources

or unequal distribution of resources amounts to discrimination. The allocation of resources

should cost effective. The available health resources should be allocated equitably to maximize

health benefits for the patients.


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A patient who has been denied medical treatment because of resource allocation can appeal to

the court through judicial review. The court will then seek to find out if the decision to deny

treatment was taken lawfully. The court also tries to find out if the correct procedure was

followed and if all relevant consideration were considered before the decision was made.

However the court does not have the responsibility to find the decision unlawful.

Case law

R v Central Birmingham Health Authority, ex parte Walker

In this case, a baby could not be operated on due to financial constraints. This also meant that the

baby could not get access to intensive care beds and specially trained nurses. The court stated

that the fact that the case was inhuman and distressing, it did not want to interfere in it. The court

also stated that it was not reasonable on the part of the medical practitioners to refuse to perform

a surgery on the baby

In this case the babys right to live was breached. The baby was denied treatment that was

supposed to save her life. Her right to life was not upheld.

Right to life

i) Everyones right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of a crimefor which this penalty is provided by law.

ii) Deprivation of life shall not be regarded as inflicted in contravention of this Article when itresults from the use of force which is no more than absolutely necessary:

a) in defence of any person from unlawful violence;

b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c) in action lawfully taken for the purpose of quelling a riot or insurrection.


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Another human right that was contravened was article 14 of the act. The article prohibits

discrimination.

Prohibition of discrimination- The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social origin, association with a national

minority, property, birth or other status (Haggett, 2001).

The baby was denied treatment because of her financial status. The baby was also subjected to an

inhuman and degrading treatment thereby breaching article three of the human rights act which

states that

Prohibition of torture- No one shall be subjected to torture or to inhuman or degrading treatment

or punishment.

This baby was also denied the right to respect for private and family life. This contravenes article

8of the human rights act

Right to respect for private and family life

i) Everyone has the right to respect for his private and family life, his home and his

correspondence.

ii) There shall be no interference by a public authority with the exercise of this right except such

as is in accordance with the law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the country, for the prevention of

disorder or crime, for the protection of health or morals, or for the protection of the rights and

freedoms of others.

By refusing to treat the baby on the basis of financial challenges, the hospital and medical

practitioners were denying her the right to be with her family.

R v West Lancashire Health Authority ex p A and others (2000) 1 WLR 977

This case was about the refusal by a doctor to give a patient gender reassignment surgery. The

court said that it was unfortunate that stat funded regional health authorities had preferences of

the treatments they would give. The court also acknowledged the fact that the regional health

authorities would give priority to life threatening illnesses than to other less demanding medical


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conditions. The court also stated that these priorities and their allocation varied in each regional

authority. But in the process of prioritizing these treatments, the regional authorities had the

obligation of meeting all the medical requirements of the people under their jurisdiction

(UKCEN, 2003). The court ruled that putting transsexualism low in the list of priorities and to

refuse to treat it except in cases where it overrides clinical needs was irrational. Each request for

treatment should be looked into.

In this case the doctor discriminates against the patient thereby breaching the patients right not

to be discriminated.

Prohibition of discrimination- The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social origin, association with a national

minority, property, birth or other status.

Bull and another v Devon area health authority

A patient gave birth to twins but one of the twins was brain damaged because the hospital could

not handle obstetrical emergencies. To their defence the hospital said it did not have the

resources to enable it take care of such emergencies (Sibbald, 2000). The hospital further stated

that it should not be blamed for doing its best with the available resources. The court did not

accept the hospitals defence and stated that it was not enough to blame the lack of resources in a

situation of negligence. The court found the hospital negligent by providing insufficient

emergency services (McLaughlin, 2000). It was therefore held accountable for the damages

caused by their incapability to deliver the second twin in time. The hospital failed on its duty to

care the patient.

Common law

Also known as case law, it is a law that is developed by judges through court decisions. These

law making judges were taken from successful lawyers. Because the laws in common law were

crafted by judges, they are sometimes referred to as judge laws. Common law has its origins in

1066 when it came up as a result of the union between older Saxon law and the custom of the

Norman conquerors. Barristers and judges nurtured this law in London courts and as a result the

older Roman law was developed (Cantor, 1997). Common law was spread more during the

period of colonization. The law was originally written in Latin but has since been translated to


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English. Under common law, the law systems place great weight on the decisions made by the

courts. Common law developed in areas where disputes were decided by oath, ordeal or battle

(Kellogg, 2003). Basically the law was crafted by judges and fact finding was done by

neighbours who were considered to be the jury. The neighbours were used because they were

thought to know the background of the matter. They were given the responsibility of hearing the

evidence and deciding. Today, the US still uses the jury. The proceedings under common law are

oral and it is difficult to overturn the verdict (Arthur, 1985). Common law was adopted by most

former British colonies and in countries where common law is used; the legal system does not

have a clear structure. Countries that use common law are; Ireland, the USA, Canada, Australia,

New Zealand, India, Pakistan, Kenya, Uganda, Zambia, Nigeria and Ghana. Of the countries that

use common law, only Israel has been able to get rid of it the rest dont seem to want to get rid of

it.

According to Richard (1993) there are two fundamental common laws: do all you have to do and

do not encroach on other persons or their property. In places where common law is in use, to

determine what the law states in any given situation, there has to be several levels of research

and analysis. This process begins with the ascertaining of facts followed by the location of

relevant cases and statutes. Decisions and statements by other courts on the matter are then

looked at because they help determine the ruling of the next case. Decisions of higher courtshave more influence than those of lower courts. Decisions made in one court may not be binding

in other jurisdictions. However, decisions made in higher courts are binding on lower courts in

the same jurisdiction. Holmes (1986) argues that common law courts are not bound to precedent

but can revise the law without legislative intervention to keep up with the current situation.

Case law

Winterbottom v. Wright 1842

Winterbottom a driver who was employed by the postmaster to drive a mail coach sued Wright

who was also contracted by the post master to maintain the coach because the coach collapsed

while he was driving. He sustained some injuries in the accident. He claimed that Wright was

negligent and was in disregard of the contract because he failed to perform his duty. The court

ruled that Wright was negligent (Feinman, 2004). He failed to maintain the mail coach properly.
http://www.loc.gov/law/help/guide/nations/ireland.htmlhttp://en.wikipedia.org/wiki/Winterbottom_v._Wrighthttp://en.wikipedia.org/wiki/Winterbottom_v._Wrighthttp://www.loc.gov/law/help/guide/nations/ireland.html


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This ruling protected the manufacturer of the mail coach and put the blame on the maintenance

contractor. This meant that manufactures would not be held responsible in case a consumer got

an injury from their products. In this case negligence amounted to the breach of a contract.

Because the driver who was the plaintiff had not entered into a contract with Wright who was the

defendant, the ruling was done in favor of the plaintiff on the basis of the doctrine of privity of

contract. Under a contract of privity, the right and obligations under a contract cannot accrue or

be claimed by any person who was not a party to the contract. There are cases of exceptions that

permit third parties to be privy to the contract. These case are; contracts between third parties

and one of the contracting parties, trusts and third party insurance (Beatson,1998).

Common law can be used to predict if a proposed course of action is lawful or not because it

gives precise guidance (Yeo, 2006). Common law is made up of the body of principles and rules

of action that relate to government and security of persons and property that get their mandate

from customs and judgements of courts that recognize and enforce such customs.

Public law

Public law regulates the relationship between the government and its citizens. Human rights

laws, immigration laws and criminal law fall under public law. Basically, public law

encompasses all the facets of law that bring citizens in contact with their government. A case is

said to be public law if it involves a public body or authority. Because of the lack of a distinctpublic law system in the UK, it is difficult to distinguish it from private law. In some countries

there is a separate administrative system for public law. The debate about the lack of public law

in the UK was started by Dicey in the 19th century when he stated that the UK does not have a

public law system (Loughlin, 1992). Authors view public law differently with other stating that it

should treated like a separate branch of legal study. Public law is viewed in two faces the first

being related to the government and the second being a subset of private law. Loughlin (1992)

argues that public law is a product of political ideologies and negotiations.

Public law is relevant in everyday life because it covers many areas of the law. Under public law,

the government has the power to make, repeal, implement, enforce and amend the law. These

powers also include the power to legislate. Public law covers applies in; immigration,

entertainment licenses, planning and environmental regulation, criminal law, public services like

NHS, welfare benefits and human rights. Probably the areas of public law that people are com


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into contact with frequently are human rights, and public services like NHS. The relationship

between individuals and the state affects the nature of public services and their delivery.

Principles of public law

The rule of law. It is assumed that the law will be respected by all citizens and that anyone found

breaking the law shall be prosecuted. Under the rule of law no one is above the law regardless of

their status or position in society. Both citizens and the government have a duty to respect the

law. Public agencies should exercise their powers without favoritism.

The separation of power - government organs are separated to check abuse of power. No leader

is given absolute power. In order to keep abuse of power in check, leaders powers are minimal

and they are scrutinized. The judiciary is also independent.

Representative democracy- members of parliament have the responsibility to make laws and

scrutinize government dealings on behalf of the citizens who elected them.

Parliamentary supremacy- parliament as the legislative house has the power to make, repeal and

amend laws on behalf of the nations citizens.

A responsible government- the executive arm of the government should set an example by

obeying the law and may be subjected to judicial review and prosecuted if they act illegally,

broken the law or breached, human rights.

Areas of public law

Administrative law- Defines the powers and authority of public administrative agencies.

Administrative laws are enforced by the executive arm of the state. Some of the areas regulated

by administrative law are; taxation, manufacturing, trade, and pollution (Hughes, 2003).

Administrative law also deals with public institutions (Goldring, 1986).

Constitutional law- Mainly concern with the relationship between the government and citizens. Italso deals with the relationship between the different arms of the government. In the UK this

relationship is unwritten because the UK has an unwritten constitution (Tomkins, 2002). The

constitution of the UK is found in statutes and case laws.

Criminal law- Deals with the punishment defined for crimes committed by non law abiding

citizens and businesses. The punishments stipulated under criminal law are geared towards the


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achievement of social order (Jowell and Oliver, 2007; Hughes, 2003). They also act as a

deterrent to those who might think of committing a crime.

Public law remedies

Public law remedies provide avenues through which citizens can challenge the legality of the

decisions made by public institutions. Some of the public remedies are;

Judicial review- Through judicial reviews the courts get to monitor and supervise the execution

of public power. The judicial review receives complaints from the members of the public who

feel their right have been violated by a state official like a minister.

Ombudsman schemes- The office of the ombudsman looks into complaints of bad

administration.

Conclusion

Doctors and other medical practitioners have had to be careful when handling patients in order

not to breach their human rights. The human rights act article 2, 3, 8 and 14 are breached often.

The governments also need to play their part and ensure equitable resource allocation to avoid

court case where a patient could not be treated or save because of lack of resources. Regional

health authorities need to use their resources for the benefit of those within their jurisdiction.

Every patient needs to be treated as fast as possible and not to be told to wait because their caseis less grave, or because they are financially challenged and or because there are no resources.

Medical practitioners should also avoid instances that would be seen as cases of negligence and

rise to the duty of care. Common law has been and is still being used in most former British

colonies. Proponents of common law argue that it can be changed without much intervention and

previous rulings can be used to give guidance to the next ruling. Public law on the other hand

ensure that citizens and their government are in a good relationship and that no side is taken

advantage of by the other. However in most cases public law protects the citizens from unruly

government officers and ensures that state organs offer first class services and without

favoritism. Through public remedies the general public gets to be heard in cases where they are

offended or treated unfairly by public officers. Patients can also get redress through remediation

and other governing bodies like the GMC.


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Documents

Briefly discuss to what extent could respect for autonomy present difficulties in clinical situations?