Health Professionals and Trust

The Cure for Healthcare Law and Policy

Mark Henaghan

• Publisher: Routledge-Cavendish
• Year: 2012
• eBook ISBN: 9781136621055
• Edition: 1
• Topic: Medicine
• Subtopic: Law Theory & Practice

An ever increasing number of codes of conduct, disciplinary bodies, ethics committees and bureaucratic policies now prescribe how health professionals and health researchers relate to their patients. In this book, Mark Henaghan argues that the result of this trend towards heightened regulation has been to undermine the traditional dynamic of trust in health professionals and to diminish reliance upon their professional judgement, whilst simultaneously failing to trust patients to make decisions about their own care.

This book examines the issue of health professionals and trust comparatively in a number of countries including the USA, Canada, Australia, New Zealand and the UK. The book draws upon historical analysis of legislation, case law, disciplinary proceedings reports, articles in medical and law journals and protocols produced by management teams in hospitals, to illustrate the ways in which there has been a discernable shift away from trust in healthcare professionals. Henaghan argues that this erosion of trust has the potential to dehumanise the unique relationship that has traditionally existed between healthcare professionals and their patients, thereby running the risk of turning healthcare into a mechanistic enterprise controlled by a 'management processes' rather than a humanistic relationship governed by trust and judgement.

This book is an invaluable resource for students and scholars of medical law and medical sociology, public policy-makers and a range of associated professionals, from health service managers to medical science and clinical researchers.

Chapter 1

Healthy Healthcare Law Depends On Trust

Introduction

The idea for this book came from a comment made to me by an anaesthetist at a medical seminar. The anaesthetist described seeing an elderly male patient in significant pain that would be best alleviated by an epidural. The anaesthetist asked the patient if he knew what an epidural was. The patient said, ‘Yes, I have had one before, give me one now. I am in pain.’ The anaesthetist’s medical instincts were to give the patient an epidural immediately; however, her fear was whether administering an epidural in these circumstances would align with the informed consent provisions contained in New Zealand’s Code of Health and Disability Services Consumers’ Rights (Code of Consumers’ Rights).¹ In actual fact, the anaesthetist could establish adequate informed consent under the Code of Consumers’ Rights because the patient was in immediate pain, had previously had the treatment so knew about its consequences and was requesting it right away.² Fortunately for the patient, the anaesthetist, despite her apprehension about the Code of Consumers’ Rights, administered the epidural. The patient trusted the anaesthetist and ultimately the anaesthetist trusted her own medical judgment. Both parties’ trust could have been undermined by the perception that an external piece of paper, the Code of Consumers’ Rights, dictated a different outcome.

All of the healthcare professionals at the medical seminar acknowledged that they often felt concerned and unsure about how a particular legal guideline or hospital policy impacted on decisions that they made. One healthcare professional went so far as to say that if they passed the scene of an accident, they would think twice about stopping to help in case something went wrong and they were held legally responsible. Trust is particularly crucial in accident and emergency situations because these patients are often unconscious and in serious trauma. These patients are at their most vulnerable and all they can do is trust that healthcare professionals will make the right medical decisions to ensure the patients’ wellbeing.

Events that Eroded Trust

Trust is at the heart of all medical decisions. We would not ask healthcare professionals for their advice if we did not trust their expertise and judgment. The erosion of medical trust in New Zealand began with what has been called the ‘unfortunate experiment’.³ This so-called ‘experiment’ involved gynaecology specialist Dr Herbert Green, who worked at National Women’s Hospital in Auckland, New Zealand. Between 1966 and 1982, Dr Green carried out a study to see what would happen to women with cervical cancer symptoms if their symptoms were observed rather than treated.⁴ His patients were not informed at any stage that they had symptoms of cervical cancer.⁵ Some of these women died needlessly because they were systematically deprived of medical intervention that could have saved their lives.⁶

It is difficult to assess the motives behind Dr Green’s actions. However, it seems Dr Green was trying to prove his personal hypothesis; that by not treating the symptoms of cervical cancer (which involved invasive treatment), his patients may not develop cervical cancer.⁷ Dr Green’s mistake was that he did not tell his patients what he was doing. Dr Green’s patients trusted that he was doing the right thing for them, but his study was carried out on them without their informed consent. If asked, some of his patients may have chosen to follow Dr Green’s hypothesis; others may well have said they would prefer the standard treatment. His patients should have been given the opportunity to make these decisions about their medical treatment.

If Dr Green’s hypothesis had been correct and based on the informed consent of his patients, the patients would have survived and their trust in him would have been enhanced. However, Dr Green’s patients were completely betrayed because his hypothesis was wrong, the patients were not informed and their symptoms were not treated. The patients’ trust in Dr Green was rightly gone.

Dr Green’s actions led to a major inquiry chaired by District Court Judge Sylvia Cartwright (as she was then),⁸ and the release of what has become known as the Cartwright Report.⁹ The report documents an environment where healthcare professionals believed that so long as their actions would ultimately benefit patients, there was little need to communicate with patients.¹⁰ Society had given permission for doctors to act as they thought best.¹¹ We had all assumed that we could trust the medical profession to do the right thing. When it turned out to be the wrong thing, an atmosphere of distrust began in New Zealand.

Similar events in the United States and United Kingdom began the erosion of trust in those countries. The Tuskegee syphilis experiment in the United States – where a number of vulnerable African–American men who had syphilis were not told they had syphilis, nor that penicillin could cure their affliction – shows what happens when trust is abused.¹² When the trial began in 1932 in Tuskegee, Alabama, there was no known cure for syphilis.¹³ The trial involved a total of 600 African–American men.¹⁴ The United States Public Health Service diagnosed 399 of them with syphilis, but told them only that they had ‘bad blood’ and that their health would be monitored.¹⁵ The monitoring would continue until they died and then an autopsy would be carried out to see the effects that syphilis had on their biological systems. A control group of 201 healthy African–American men were studied at the same time.¹⁶ Both groups were offered free meals, transport to the clinic and a free burial.¹⁷ When penicillin, a cure for syphilis, became available in the 1940s, the researchers did not tell the men who had syphilis about the possible treatment.¹⁸ Many of the men, who could have been saved, died from syphilis.¹⁹ It was not until a news media leak in 1972, 40 years after the research began, that the full implications of the research became public knowledge.²⁰ The healthcare professionals involved in the Tuskegee syphilis experiment prioritised their experiment, which was to observe the full effects of syphilis, over the care and wellbeing of their patients who had a condition that would certainly kill them without the available penicillin treatment.

It is difficult to think of a more gross breach of the trust that a patient is entitled to put in healthcare professionals. The patients were highly vulnerable; they were economically poor and socially disadvantaged. The free meals and transport would have been a strong incentive for them to take part. The difference in economic and social power between these men and the doctors carrying out the experiment was immense. There was no thought given to the fact that as fellow human beings, the patients were the equals of the doctors. The doctors treated them as inferiors, as a means to the ends of their research.

In 2010, the President of the United States, Barack Obama apologised to the President of Guatemala, Alvaro Colom for the Guatemalan prisoners, soldiers, prostitutes and mental patients who had been infected with sexually transmitted diseases without their knowledge.²¹ Susan Reverby, a medical historian at Wellesley College in Massachusetts, unearthed the US-sponsored study that took place in Guatemala in the 1940s. The study was found in a University of Pittsburgh archive, among the papers of the United States Public Health Service researcher John Cutler.²² Reverby discovered the records when she was researching her book about the Tuskegee experiment, Examining Tuskegee: The Infamous Syphilis Study and its Legacy.²³ John Cutler was also responsible for the Tuskegee research.²⁴ The research in Guatemala involved approximately 1,500 men and women. These people were infected with syphilis without their knowledge ‘through cuts in their skin or through sex with prostitutes who had syphilis or were infected by researchers’.²⁵ The purpose of the study was to see whether syphilis could be prevented with penicillin, a new drug in short supply between 1946 and 1948. Seventy-one of the patients in the experiment died but, not surprisingly, the researchers w...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgements
• Preface
• 1. Healthy healthcare law depends on trust
• 2. What is trust?
• 3. The emergency situation: a premium on trust
• 4. Complaints processes: a chance to build trust
• 5. What happens when trust breaks down?
• 6. Trust, emerging technologies and indigenous peoples
• 7. Building trust into the healthcare system
• Bibliography
• Index