Ethical and Legal Issues in Modern Surgery

Nadey Hakim, Vassilios Papalois, Miran Epstein

• Publisher: ICP
• Year: 2014
• ISBN:
  9781783266098
• Topic: Jura
• Subtopic: Medizinrecht

Over the last quarter of a century, the fields of medical ethics and of legal issues related to medical practice have rapidly developed for a number of reasons. Firstly, the provision of healthcare nowadays is based on a complicated partnership between healthcare providers, patients, administrators and organizations responsible for providing finance; this complicated partnership frequently results in clashes of views, opinions, and priorities, which have a major ethical and legal dimension. Secondly, a major event of the 21st century is the development of multicultural societies; healthcare-related decisions thus have to be made on the background of so many different ethnicities, religions, cultures and languages, resulting in a great spectrum of ethical and legal implications. Thirdly, in the modern world, people are more mobile and can easily and cost-effectively seek treatment outside of their country of origin or residence, which raises many ethical and legal issues. Lastly, the development of new medical specialties, modern and advanced treatments for very challenging patients, and the introduction of new technologies in medical practice have dramatically broadened the spectrum of ethical and legal issues related to medical practice. This book will therefore aim to cover in detail general principles and specific issues related to the ethical and legal dimensions of modern surgical practice.

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Contents:

• General:
  • Ethical Issues in Surgery: The Patient's Perspective (Amanda Venters)
  • Consent for Clinical Interventions and Medical Research (Miran Epstein)
  • Ethical Issues in Medical Confidentiality and Privacy (Philip Hébert)
  • Resource Allocation in Healthcare (Ariel Zosmer)
  • Ethical and Legal Issues in Clinical Research (Andrew J T George)
  • Medical Negligence and Malpractice (Bernard M Dickens)
  • Surgical Training (S R Patel, P Chadha and N Hakim)
  • Great Expectations: Towards a Greater Understanding of Ethics in Policing by Exploring Practices in the Medical Profession (Allyson MacVean)
• Specialist Practice:
  • Ethical and Legal Issues in Anaesthetics (Jeremy Campbell and Felicity Plaat)
  • Neurosurgery: Ethical and Legal Issues (Howard Morgan, Louis Whitworth, Christopher Madden and Duke Samson)
  • Ethical and Legal Issues in Modern Cardiothoracic Surgery (Kamran Baig and Jon Anderson)
  • Obstetrics and Gynaecological Surgery: The Ethics and Law of Abortion and Sterilisation (Ariel Zosmer)
  • Ethical Issues in Plastic and Reconstructive Surgery (Ivo Pitanguy, Henrique Radwanski and Aris Sterodimas)
  • Ethical Issues in Transplantation (Miran Epstein)
  • Ethical and Legal Issues in Composite Tissue Allograft (Face, Arm, and Uterus) and Microsurgery (Richard Huxtable and Alice Guilder)
  • Ethical and Legal Issues in Trauma Medicine (Rebecca C H Brown)

Readership: Ethicists, lawyers, clinicians, academics and general public.
Key Features:

• Specifically addresses ethical and legal issues in surgical practice
• Deals with the implications in a particularly interesting manner
• Chapters written by well-known academics with extensive and well-respected expertise in the field of medical ethics or medical legal issues and by internationally renowned academic surgeons who have combined expertise in the specific field with special interest in medical ethics and medical legal issues

Part 1
General

1

Ethical Issues in Surgery:
The Patient’s Perspective

Amanda Venters

What might an average patient consider to be the ethical issues in surgery? Does a patient even consider that the surgeon might not behave ethically and if not what does an average patient think are the motivations and principles that a surgeon is governed by?

1.1 The Nature of the Relationship between Patient and Surgeon

The very nature of the relationship between patient and surgeon is unique — it is quite obviously not one of two equals in an absolute sense, but instead one where the commitment to the best possible result is, or should be, equal on behalf of both the patient and the surgeon.

For the patient the relationship with the surgeon is particularly unusual and intense — they are required to place an unparalleled amount of trust in someone who they have had potentially very little personal contact with and who they will very likely not interact with much, if at all, after the event. The patient is generally a complete novice with little or no knowledge of the intervention, options, and other variables or indeed what their role could or should be. Uniquely the patient is almost being asked to bare their soul as much as their body because the surgeon may have the potential via their actions to dictate the long-term future of the patient. It is no wonder that major surgery is often judged to be one of the most stressful life events possible.

If one takes this thought further (it is not the most obvious thought process to a patient) surgery is also a somewhat peculiar process. The thought that a relative stranger may literally have your life in their hands, that they have seen you at your most vulnerable, and via their actions they have changed your body (and life) forever is a sobering one.

Clearly (and somewhat uniquely within medicine) the ability to judge short-term success is immediate. The surgeon will have undertaken to repair, add, remove, or even reuse body parts in an agreed procedure and at the end of it the objective will have a definable outcome. Of course that is not the end of the process because the fact that the immediate technical expectations have been achieved might not lead to the desired long-term outcome for many reasons.

1.2 Patient Autonomy

The patient is not an object to be treated at the discretion of the professional — whilst the patient has no right to demand treatment they are certainly entitled to refuse it. However, in order to do this they need to understand the situation and they need to be equipped to make their decision.

It is probably not unusual for patients to appear to be about as engaged with their surgical options as they are when they take their cars in to be serviced. In those circumstances they may be told that various strange parts are wearing out and need replacing at a huge cost and they have no idea what the parts are, let alone if they need replacing, but just agree because they do not know otherwise. This apparent apathy may be borne of a lack of understanding of what, in an ideal situation, their role could, or indeed should, be rather than a lack of willingness to engage usefully.

1.2.1 Equipping the patient to use their autonomy

Even if they have researched their symptoms and conditions, the average person has probably managed to have too much data yet not enough information to make a reasoned decision on the facts and circumstances of their particular case without the support and guidance of the surgeon.

Therefore there needs to be a real commitment from the surgeon to the patient to help and guide them through the process. Just as whilst on the side of the surgeon there might at least be the temptation to be quite patriarchal and do what they believe is in the patient’s best interests; after all they might need to expend more time and effort on guiding the patient through the process (which might in any case be the same), on the side of some patients there might be hesitation or even fear which prevents them from fully engaging in a process which they feel ill equipped for. This engagement should ultimately ensure that the best possible result is achieved by this participation, rather than the patient merely being there as an object or even perceiving themselves more as a “victim”.

The surgeon should take a patient with all their available health information, explain to them all the options and reasonably foreseeable outcomes, and allow that patient to decide on the right risk/reward balance. Then, using their theoretical and practical professional skills, they undertake the surgery with the intention of achieving the most desirable outcome in the circumstances.

If a competent patient chooses not to make a decision then there can be no consent and no treatment, conversely if they choose to make a decision which appears totally irrational then that is their choice.

1.2.2 Autonomy and outside influences

A patient alone, if competent, is of course legally entitled and indeed obliged to make an autonomous decision about their treatment options. That does not mean that they cannot seek assistance, it merely means that the individual should decide the extent to which they wish their family, religious leader, or other person(s) to participate in the decision making process.

An obvious place for outside influences to occur would be within the patient’s family, and their involvement and its appropriateness might be an issue which needs to be addressed in the process. Is it either appropriate or desirable?

In the course of a brief relationship (however intense) a surgeon cannot possibly understand all the family dynamics which may be as complex and unfathomable in a patient family as in any other. They need to make a judgement call as to the risks and benefits of both their involvement and lack there of, but ultimately they need to do their best to ensure that the decision is not borne of coercion but is actually what the patient wants and not merely what the family or others want.

It follows that the best interests of the patient might be served by giving them the “time and space” to process the information without the family pressures but equally that having the wider family involved might help them understand the information better by allowing the family to assimilate “unfiltered” information — i.e., direct from the surgeon so that they are all operating on the same base information. It is always interesting that the intention of the conveyance and receipt of the information can have major differences in its interpretation.

It is fraught with danger to assume a particular intent on the part of the family when they are involved — in a positive sense they know the patient better, and they would know how the rehabilitation and/or range of outcomes would most likely work and possibly be more supportive of that. In a negative sense they may have their own phobias, beliefs, and emotions, or even agenda, which might not be supportive of or compatible with the patient’s best interests.

The other obvious type of outside influence is cultural and/or religious. In this case it can be a more complex dilemma because the consequences of the patient’s decision are potentially not just on the way that the treatment decision is made but possibly also on their position and reintegration into their community or religious body.

In many ways the stronger the belief is, based on a specific circumstance or teaching, the easier it is to understand and possibly even rebut. Where there are cultural or religious influences which appear to go outside the patient’s best interests then the surgeons should consult and ask for support from chaplains and/or appropriate “experts” to resolve the issue such that the patient has as broad a spectrum of knowledge as possible to deal with.

1.3 Informed Consent, a Process not a Signature

What is the right thing and how do both the patient and the surgeon end up with the proverbial meeting of minds? It is all too easy for patients to not truly participate in the process, to place blind trust in the superior knowledge of the expert, and assume all is well unless the outcome is not what they imagined or were prepared for.

Whose responsibility is that — do the patients have as much responsibility to engage and participate in the process or can they “opt out” of their participation in any of the preparation and decision making? Conversely how much responsibility is there upon the surgeon to ensure that they have done a “reasonable job” of fully engaging the patient and have they really obtained informed consent?

1.3.1 Information overload

Some patients will come in having done a great deal of research from a number of sources, potentially both appropriate and inappropriate — what is the surgeon’s duty to engage with them in these circumstances?

The obvious idea would be to be able to point the patient to reliable sources of information and explain to them why these are the most appropriate sources (i.e., from a professional association, the NHS, etc.) and also if they have managed to find sources which are not reliable to give an overall indication as to why these sources are not appropriate (i.e., not verified, not factually correct, the flat earth society, etc.) and possibly rebut myths.

Of course it is also possible that the patient may have tapped into sources which publish legitimate concerns but which the surgeon does not necessarily agree. In this case the time and effort should be invested to ensure that the patient understands the basis on which the surgeon’s beliefs are held and it will underlie their consent should they choose to give it.

1.3.2 Devolving decision making

Every patient is different and the onus lies on the medical team as a whole to ensure that the patient has the appropriate level of detail for them to make the decision to either grant or withhold consent.

What happens if the patient simply says, “I will leave it up to you doctor to do what you think is right”? Is it any more ethical for someone to wish to devolve their decision making to a doctor than to someone else — perhaps a family member or religious or spiritual advisor who may or may not have a better understanding of the situation in its physical and spiritual context than the patient?

The obvious interpretation is that just as a competent patient is allowed to make an irrational decision over treatment options they are able to devolve that decision making to another person — as long as that devolution is made by a competent patient to a competent person who is willing to accept that responsibility.

However, is it ever ethical for a doctor to take over that decision making? It would seem logical that the doctor could go ahead as if with a patient who lacked competence in the patient’s best interests, but they would need to be sure that the patient would not be better served by more effort to engage them, rather than taking over. The real risk of accepting this devolution is if the outcome is not what the patient either anticipated or wanted — if all went well it would not be a problem.

1.4 Where the Patient Lacks Competence

1.4.1 Whose best interests?

In cases where the patient is not competent to make a decision and there is no Enduring Power of Attorney then the ethical and legal requirement on all members of medical staff is to act in “the patient’s best interests”; but what might those be and how do the various parties’ expressions of their views of the patient’s “best interests” get weighed up?

Since doctors generally go into the profession to heal people they would understandably err on the side of treatment for the individual by inclination, and of course in the case of potential litigation they could feel that to treat would be more desirable than not to.

First, the practicalities of the patient’s real life outside the hospital can sometimes be completely outside the experience of the surgical team and/ or wider multidisciplinary team. It is a very human desire to give as much of a chance for a patient to enjoy “life” outside the hospital but sometimes by that very desire they could be condemning the patient to a life that they do not want to lead and which leaves them with no quality of life, but the moment that that could have been avoided was changed by a well meaning, albeit ill-judged, professional intervention.

Whilst various religious groups believe in the sanctity of life, and others believe that outside life there is nothing, it should not be presumed what the patient’s view might be without due consideration of all available facts.

It may be true to say that a completely healthy patient cannot possibly conceive how they might have a good quality of life outside perfect health; it does not mean that their stated unwillingness to tolerate that has no validity. Morally what is the greater “sin” — that of commission or omission?

Does an intervention against the patient’s wishes which results in a quality of life which they would not seek, but have no real choice but to tolerate, really result in a valid interpretation of the patient’s best interests? Even if that quality of life would be perfectly acceptable to another patient or even “most” patients? Of course it depends upon the consequences of the lack of intervention.

Weighing up the evidence of a patient’s best interests is clearly harder if the natural physician’s response to do their best to “heal” someone (however small that possibility might be) comes up against the family’s or loved ones’ inclination to do nothing. It is more clouded if the family have not previously discussed with the patient what they might do in certain situations, or even have feelings of guilt because their motivations might not be at all compatible with what the patient would really want.

1.4.2 AND versus DNAR

Most people are familiar with the “Do Not Attempt Resuscitation” (DNAR) order but certain hospitals in the US have another saying of “AND” — “Allow Natural Death” — which would seem to be a much more apposite saying. It gives a dignity and demonstrates the fact that death is inevitable and what most people would prefer is a good death after a good life.

It seems that as a society we have moved further away from death being viewed as part of life and almost that death is the worst thing that can happen to a person/patient. Realistically if one considers that option it cannot be so, even if one does not believe in a life after death. How can even “nothingness” be worse than someone merely existing as a shell of the person they once were? Just as our Western norms have moved us away from truly accepting a person’s departure a...