Important issues to consider in medical law is consent & capacity, right to confidentiality as well as laws relating to abortion and euthanasia.
Consent and Capacity
Definition of informed consent: Consent is the agreement to do something after being informed about what it entails. Consent must be given by patients whether it is a physical examination, blood test or surgery. Consent may be non-verbal (e.g. holding out their arm for a blood test), verbal (e.g. consent for physical examination) or written down (e.g. before surgery).
Laws about consent: doctors must gain consent from patients before any procedure and should not do anything against patients’ wishes.
Therefore, informed consent should always be sought where possible. There are a few exceptions that do not require consent by law:
- If a patient does not have capacity…
- Doctors should assume that everyone has capacity unless there is evidence otherwise.
- If we suspect that the patient does not have capacity because they have an impairment of the brain or mind then we may proceed to do an assessment for capacity: The patient should be able to understand their decision, retain information about the decision, weigh up the pros and cons and communicate their decision.
- If a patient cannot do these things then a doctor should take all the necessary steps to help a patient reach capacity e.g. by explaining things in more simple terms.
- If the patient still lacks capacity then the doctor may act against the patients’ wishes under the Mental Capacity Act (2005), if it is in their best interest and acting in a way that is least restrictive to the person’s rights and freedom.
- In children under 16, their capacity must be assessed (not presumed competent) but can consent to treatment without parental knowledge if deemed competent via the “Gillick Test”.
- To pass the Gillick test the child under 16 must have sufficient intelligence to fully understand what is involved in the proposed treatment, including its purpose, nature, likely effects and risks, chances of success and availability of other options.
- Like adults, 16-17-year-olds are presumed to be competent and can give consent. On the other hand, if 17 or under then refusal for treatment can be overridden by parental consent.
- Emergency situations…
- Another scenario where you need not gain consent may be in emergency situations where a patient is unconscious or obtaining consent would delay life-saving treatment.
Confidentiality is the principle of respecting a patient’s right to privacy by not sharing their medical or personal details with anybody not involved in the care of the patient without their consent. This is a vital principle to uphold as the patient-doctor relationship is heavily built on trust.
On the other hand, doctors must break confidentiality in certain cases:
- Safe-guarding children
- Safe-guarding vulnerable adults
- The potential of harm to oneself or others
- Inability to safely operate a motor vehicle necessitates contacting the DVLA if the patient does not themselves
- Concerns of terrorism necessities notifying the police
- Doctors must notify the government of certain infectious diseases eg. HIV, TB, measles etc.
Termination of pregnancy was decriminalised in 1967 in England, Scotland and Wales (not Northern Ireland).
- It states that termination of pregnancy is allowed under 24 weeks if continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated.
- In reality anyone under 24 weeks gestation is given an abortion if they request it as continuing to full-term is always considered riskier to the mother’s life than having an abortion. You must have permission from two medical practitioners.
- After 24 weeks abortion may be given if the mother is at risk of death or serious injury or if the child is at risk of being severe physical or mental abnormalities.
Euthanasia is the act of deliberately ending a person’s life to relieve suffering which is illegal under UK law. Active euthanasia is deliberately intervening to end someone’s life whereas passive euthanasia refers to causing someone’s death by withdrawing or withholding treatment with the intent to shorten life.
In the UK, it is legal to withdraw life-saving treatment if it is in the person’s best interests and this is not considered passive euthanasia as the primary aim is not to shorten the person’s life but make them suffer less. Therefore, withdrawing treatment or giving treatment that inadvertently also shortens the life of a person can be a part of good palliative care (making sure the patient is comfortable) and is not euthanasia.
- Dr Moor gave patients large doses morphine. This may have been with the intent to shorten the life of his patients, however in 1999, he was found not guilty of euthanasia as he could argue that the morphine was primarily to ease pain and not to kill.
- Additionally, Tony Bland who was in a persistent vegetative state after the Hillsborough disaster, had his feeding tube withdrawn but this was not considered murder as the tube was not considered to be the patient’s best interests.
- On the other hand, Dr Cox was charged with attempted murder in 1992 for administering a potassium chloride injection (stops the heart) to a patient with rheumatoid arthritis suffering from intense pain. Despite the patient having pleaded with the doctor to end her life and the sons thanking him, he was charged with attempted murder as potassium chloride does not have any analgesic effects so he could not claim he was using the doctrine of double effect. i.e the KCl injection had only one effect and that was to kill.