Medical Ethics and Law - Essay Example

Medical Law There are three major issues that rise in this case. Firstly, is Mr. Botch guilty of a violation of duty of care and patient’s right to informed consent? Secondly, has Mr. Breach breached the privacy of Major Tom? Thirdly, is Mr. Botch guilty of medical malpractice? Can Mr. Botch can be held liable for a breach of duty of care owed to the patient, Major Tom in terms of treatment already administered? The standard for duty of care and whether a doctor can be held liable for treatment already given to a patient, was first established in the case of Bolam v Friern Hospital Committee1, in which it was held that a doctor has not acted negligently if (a) he acted in the best interests of the patient and (b) his actions were in accordance with a responsible body of medical opinion, because in that case, he would have met the required standard of duty of care. Applying this criterion in the case of Mr. Botch, the actions he has taken to perform surgery for the patient’s life threatening injuries is likely to be considered to be in the patient’s best interests by other doctors as well. But the Bolam principle was criticized in the recent case of Bolitho2, on the basis that it allows the standard to set on a subjective basis by doctors themselves. In assessing the impact of this decision, Samantha and Samantha point out that subsequent to this case, the Courts will now enquire more closely into the justification for a doctor’s actions, which must be explained on a logical basis3. Applying this criterion, Mr. Botch may be able to explain the necessity for surgery which was performed without Major Tom’s consent because he was unconscious, as being in the patient’s best interests due to the threat to his life . However, where the tumor is concerned, a logical explanation for overriding patient consent is more difficult, because it is not a life threatening issue. The principle that no medical practitioner may provide treatment without first gaining the consent of the patient was first articulated by Justice Cardoza based on the autonomy of the individual to “determine what shall be done with his own body.”4 The principle was subsequently upheld in several cases5. The case of Re B (Consent to treatment: Capacity)6 and held that a competent patient is at liberty to refuse treatment and may also ask for ongoing treatment to be withdrawn, even if such withdrawal would result in the patient’s death7. If treatment is continued in the face of such refusal, it would amount to battery. Lord Donaldson stated that treating a patient “without his consent or despite a refusal of consent will constitute the civil wrong of trespass to the person and may constitute a crime…”8 As pointed out by Stein and Swain, the case of Re B as cited above serves to confirm the legal rights of competent adults to refuse medical treatment. It also serves as a warning to doctors who seek to impose such treatment, because they may face claims for substantial legal damages.9 Major Tom was admitted to the hospital for other life threatening injuries, not for the tumor on his lung. Mr. Botch in performing the operation on his lung without his consent has committed the civil wrong of trespass to the person of Major Tom and may thus be liable. The second issue is whether Mr. Botch breached Major Tom’s privacy by posting his concerns on a medical website. The publication of any information regarding a patient’s medical history in medical journals, especially where such information may make a patient identifiable, has been held to be unethical by the International Committee of Medical Journal editors10. Patients have the right to privacy of their medical records which should not be divulged without their informed consent. Identifying information should not be divulged in the form of written descriptions, or photographs unless sit is necessary for scientific research purposes and even then, only with the patient’s informed consent11. It may be noted that in Mr. Botch’s case, he has not only published information about Major Tom on a public medical website, but he has posted enough information that Major Tom’s identify is compromised. Further, he has also not exercised due care in preserving the confidentiality of his research information on Major Tom and has carelessly left it on a train, so that the information has been publicly published in a newspaper, again making Major Tom identifiable. This is a serious violation of the confidentiality of patient records and Mr. Botch is thus guilty of unethical conduct. While it may be argued that Mr. Botch made use of this information for research purposes, he has done this without Major Tom’s consent and is therefore guilty of unethical conduct, for which he may be liable. Major Tom may also be able to take legal action against Mr. Botch in a court of law for breach of his right to privacy under the provisions of Article 8 of the European Convention of Human Rights, which was incorporated into UK law through the Human Rights Act of 1998. Kearns has also discussed the application of Article 8 within the context of UK law and the cases where the individual right to privacy has been upheld12. The third issue is the question of breach of duty and medical malpractice that arises through Mr. Botch’s prescription of a new drug for Major Tom, which had not been adequately tested. Since Mr. Botch is a professional, there will be a higher standard of duty of care expected from him.13 In view of the fact that the drug was the subject of controversy, Mr. Botch’s choice to administer it would also not pass the Bolam test, because it appears unlikely that a majority of medical opinion would have supported the decision. The courts have also found doctors guilty of negligence in medical cases where they failed to perform to an expected standard of duty of care.14 In the case of McGhee v National Coal Board15the Court held that when a breach of duty results in the likelihood of injury, then there will be a cause of action for negligence arising against that breach. Similarly, in the case of Wilshire v Essex area Health Authority16the negligent administration of excessive oxygen was held to be the cause of blindness of a child. Applying these precedents, it appears very likely that Mr. Botch will be held liable under the tort of negligence for a breach of his professional duty of care, since his administration of an uncertain, untested drug caused Major Tom’s blood condition. Bibliography: * KEARNS, P. ““Privacy and the Human Rights Act 1998.” New Law Journal, 5 (6975): 377, 2001 * SAMANTHA, Ash and Samantha, Jo. “Legal standard of care:” a shift from the traditional Bolam test”, Clinical medicine, 3: 443-6, 2003. * STEIN, Richard and Swaine, Frances. “Mrs B v An. NHS Trust: the patient’s right to choose”, New Law Journal, 152.7029: 642, 2002. * “Style Matters: Protection of patients’ rights to privacy” British Medical Journal, 311: 1272, 1995, (11 November). * VOLLMEN, Jochen and Helmchen, Hanfried,. “Publishing Information about Patients”, British Medical Journal, 312:578, 1996 Cases cited: * Bolam v Friern Hospital Management Committee (1957) WLR 582 * Bolitho v City and Hackney Health Authority (1997) 39 Butterworths Medico-Legal Reports, 1 * Hedley Bryne v Heller (1964) AC 456 * McGhee v National Coal Board (1972) 3 All ER 1008 * Schloendorff v Society of New York Hospital (1914) 105 NE 92 * Rees v Darlington Memorial Hospital NHS Trust (2004) 1 AC 309 * Re B (Consent to treatment: Capacity) ( 2002), 2 All ER 442 * Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, CA; S v McC; W v W [1972] AC 24 * Re T(1993) Fam 95 * Wilshire v Essex Area Health Authority (988) AC 1074 Read More