Medical Ethics And Law

An Introduction

Victoria Tippett

• Publisher: CRC Press
• Year: 2018
• Print ISBN:
  9781138443020
• eBook ISBN:
  9781315345628
• Topic: Law
• Subtopic: Medical Theory, Practice & Reference
• Index: Law

This book is to help you understand the main ethical and legal details you need to know in order to practice medicine safely and well. Medical ethics is an inherently fascinating subject, and throws up new issues every day. Good ethical thinking requires practice and application and there are essentials that are easy to grasp and learn quickly - this book will show you how. It contains short summaries, with examples, and guidance on your legal position, of a series of core topics of medical ethics and law. Its aim is to give you some guides to effective, safe and good clinical practice.

CHAPTER 1

Truthfulness, trust and good communication

Victoria Tippett

Truthfulness is essential to the doctor-patient relationship, and to the trust which patients place in their doctors. If these vital elements break down the therapeutic relationship, which plays such a large role in how patients accept and respond to treatment, loses its strength. Clear and effective communication is at the heart of an honest doctor-patient relationship, but historically this has been ignored in medical education. The assumption has been made that all doctors have medical knowledge and are therefore intrinsically good communicators. New medical curricula are addressing this issue, although the manner in which communication skills are presented to students means that they are often taken less seriously than other more scientific studies. These efforts can only have a positive impact upon medical practice and the maintenance of honest, truthful relationships between patients and their doctors.

This chapter is more discursive and has less legal content than later sections, but covers important issues and relevant clinical situations. The topics explored include the ethical concept of paternalism, and how it is balanced with the rights of an autonomous patient, why truth matters, where truthfulness is difficult in everyday medical practice and why doctors lie, the boundaries of clinical discretion to withhold information, and how effective communication can build and maintain trust within the doctor-patient relationship.

Paternalism and autonomy

Paternalism: actions carried out for the protection of those seen to be vulnerable.

Autonomy: the right of an individual to exercise choice about any aspect of their life.

Doctors perceive their patients to be vulnerable and in need of their assistance and protection. This is unsurprising, as in most cases the doctor-patient relationship is initiated by the patient seeking advice and help from their doctor, and thus the stage is set for a paternalistic encounter. In recent times paternalism has been seen as a dirty word, and has been used when describing doctors as a group of arrogant and patronising individuals who interfere with and restrict their patients’ choices. Whilst in some instances this is likely to be the case, it is an abuse of the term paternalism. It is not necessarily the case that the principles of autonomy and paternalism are in direct opposition.

It could be argued that paternalism lies close to the heart of medical practice, in that the actions of doctors are designed to protect and care for the sick – by definition a more vulnerable group in society. However, this does not necessarily mean that all sick patients have lost the ability to exercise their autonomy. By engaging with their patients and ascertaining their preferences and views, doctors can formulate plans of treatment that protect the vulnerable whilst respecting their wishes and allowing the patient to exercise their autonomy. In most everyday medical practice the wishes of the autonomous patient will not conflict with the advice of the paternalistic doctor.

As in much of ethics, there are limits to paternalism, just as there are limits to autonomy. Broadly speaking, autonomy ceases to be regarded once a patient is incompetent. From there on, decisions are made in that patient’s ‘best interests’ – a paternalistic concept designed to protect the vulnerable incompetent patient. When a competent patient refuses a medical intervention, against the advice of their doctor, then autonomy is the overriding principle and the paternalistic wishes of the doctor are no longer important. These are, however, the black and white extremes of a broad grey area in which good communication can facilitate a balance between autonomy and paternalism.

Truth and trust

The doctor-patient relationship is built upon a foundation of trust, the essential component of which is the expectation that both parties will be truthful with each other. So fundamental is this concept that one of the duties of a doctor, as listed by the GMC, is to be ‘honest and trustworthy’. In most cases this is not a problem – the patient feels it is in their best interests to tell their doctor the truth about their symptoms and the doctor feels it is in the patient’s best interests to hear the truth about their condition. Cases in which the patient elects to lie to their doctor are beyond the scope of this chapter. However, there are many situations in which doctors feel it is in their patient’s best interests for them to either lie or omit certain pieces of information.

Is an omission the same as a lie?

Debate is ongoing. Some argue that as omission is a failure to act, you are less culpable for an omission than for a lie, as that involves an act of dishonesty. Others argue that if the consequences are the same, the means by which they are achieved (either act or omission) is irrelevant. The limits of a doctor’s discretion are outlined by the General Medical Council (GMC), British Medical Association (BMA) and ultimately the law, and are described later in the chapter.

What motivates doctors to lie to their patients?

When doctors give their patients information, it is usually only when that information is ‘bad’ news (as perceived by the doctor) that they will consider lying to their patient. It is this situation which is discussed below.

A combination of the principles of beneficence – acting to benefit your patient – and non-maleficence – to do your patient no harm – is often cited as a reason to lie. If you feel that terrible news would cause your patient significant psychological harm and may even adversely affect their prognosis, for example if they give up hope, you may lie to protect them from that harm. Although there is no research which supports the assertion that patients given bad news deteriorate more rapidly, this is a widely held belief amongst doctors.

Bad news for a patient can sometimes signify personal failure for their doctor, and requires that professional to accept that they are not in control of the situation and cannot solve everything. This may be a difficult position for the doctor – a person usually associated with successes and cures – to face, and so they may lie to their patient so that they do not have to deal with their own failure.

When breaking bad news to a patient, it is likely that the patient will have a significant emotional response to the information they receive. This may well be very difficult for the doctor to deal with. They are a person too (contrary to popular belief!) and the patient’s distress can have a very negative impact upon their own emotional state. This is another factor that can make it easier for doctors to lie to their patients rather than to tell them the truth.

The legal limits of withholding information

The law recognises certain circumstances in which doctors may be justified in withholding information from their patients. These are clearly outlined and are supported by guidance from the BMA and GMC.

Patients require honest information about their diagnosis, prognosis, treatment options, likely treatment outcomes, common or serious side effects and timescale of treatment in order that they can give their informed consent to the treatment. UK law is not black and white when it comes to informed consent. To an extent, the Bolam principle applies. In its original form this states that:

‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is a well-established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art.’¹

In this case the above means that the information given to the patient must be that which most other doctors would give to their patients. However, in some cases, courts have ruled contrary to this, deeming that some risks ought to be disclosed to patients, even if most doctors would not make such disclosures.

‘... the court must decide whether the information afforded to the patient was sufficient to alert the patient to the possibility of serious harm of the kind in fact suffered.’²

The GMC advises that patients have a right to information about healthcare services available to them, and that it should be presented in a way that is easy to follow and use. ‘They also have a right to information about any condition or disease from which they are suffering. This should be presented in a manner easy to follow and use, and include information about diagnosis, prognosis, treatment options, outcomes of treatment, common and/or serious side effects of treatment, likely time-scale of treatments and costs where relevant. You should always give patients basic information about treatment you propose to provide, but you should respect the wishes of any patient who asks you not to give them detailed information.’³

The BMA has concerned itself with not just the situations discussed above, but also the economics of healthcare in the 21st century. Their guidance includes what patients should be told about the range of treatment options available to them when there is little or no likelihood that some of those options will be funded on the National Health Service (NHS). This encompasses not just embarrassing issues for doctors to discuss, but also areas of scientific uncertainty, and how this should be explained to patients in the context of novel unlicensed or experimental treatments.

The BMA currently advises that:

‘Doctors should be as open as possible with their patients on clinical matters, whilst remaining aware of the particular needs of individual patients. Recognising the importance of informed and independent clinical judgement, the BMA considers there is no obligation for doctors to inform patients about treatments which the clinician believed would be futile for them.

Doctors should take their cue from patients as to the amount of information to impart about treatment options. Patients should have as much information as possible about why certain treatments were not available on the NHS (or through their insurer). In giving such information about the efficacy of the treatment for that individual, the strength of existing evidence about its effectiveness generally, and the financial constraints which control the availability of the treatment, [sic]

The public should be helped to gain awareness, in general terms, of issues of funding and rationing in the NHS. Concern has sometimes been expressed that clinical evidence about efficacy of some procedures is not being widely disseminated due to lack of funding.’⁴

Communication

It has long been recognised that the discrepancy in power and, often, in social class between the doctor and their patient has hindered effective communication. This is compounded, especially in urban areas, by an increasingly diverse population of patients. A patient’s religious and cultural sensitivities will both affect the way in which they communicate with their doctor. On a practical level, many patients may speak little or no English, and interpretation facilities are stretched and limited. Communication is often, unsatisfactorily, conducted with a member of the family translating, and the patient’s true narrative may be difficult to untangle from their relative’s version of events. These are not excuses for poor communication between doctors and their patients, but an awareness of these issues can help doctors to overcome them. Communication skills are not something a person is born with – not even a future medical student – and development of these is a lifelong process.

Legally, if poor communication results in a patient not understanding a procedure, they cannot give their informed consent for it – even if they have signed the consent form. That consent would simply not be valid. In more everyday terms, effective communication is essential to the doctor-patient relationship and to maintaining the bond of trust that unites doctor and patient in a common cause.

Where you stand

• Doctors have a duty to be honest and trustworthy.
• Truthfulness is central to any encounter you have with a patient and to your therapeutic relationship with them.
• Patients must have honest and complete information in order that they can give their informed consent.
• Every patient should have basic information about the treatment you propose.
• If a patient asks you not to give them detailed information you should respect that wish.
• Every effort must be made to communicate effectively with your patient, being sensitive to cultural, gen...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Forewords
• About the authors
• Acknowledgements
• Chapter 1 Truthfulness, trust and good communication
• Chapter 2 Consent
• Chapter 3 Confidentiality
• Chapter 4 Children, medicine and law
• Chapter 5 Mental health
• Chapter 6 Life and death, dying and killing
• Chapter 7 Human reproduction
• Chapter 8 The GMC, complaints and whistleblowing
• Chapter 9 Medical research
• Chapter 1 0 Rationing and resources
• Chapter 11 Healthcare rights
• Chapter 12 The new genetics
• Resources
• Cases
• Statutes and bills
• Appendix
• Index