Essentials of Kumar and Clark’s Clinical Medicine, 6e
Ethical and legal issues are integrally involved with patient care. A doctor with clinical responsibility for a patient has three corresponding duties of care:
• Protect life and health. Clinicians should practise medicine to a high standard and not cause unnecessary suffering or harm. Treatment should only be given when it is thought to be beneficial to that patient. Competent patients have the right to refuse treatment, including lifesustaining treatment. Such decisions should be informed by a clear explanation about the consequences of refusal.
• Respect the right to autonomy. Clinicians must protect the patient’s right to respect for autonomy and self-determination, and support patients in reasoning, planning and making choices about their future. Wherever possible, patients should remain responsible for themselves. Informed consent gives meaning to autonomy and, alongside the duty to respect patient confidentiality and human dignity, represents a fundamental feature of good medical practice.
• Protect life and health, and respect autonomy with fairness and justice. All patients have the right to be treated equally and without prejudice or favouritism, regardless of race, fitness, gender, sexuality or social class.
Various regulatory bodies, common law and the Human Rights Act 1998 regulate medical practice and ensure that doctors take their duties of care seriously. The ethical standards expected of healthcare professionals by their regulatory bodies (for example in the UK, the General Medical Council (GMC), the Royal College of Physicians and British Medical Association) may at times be higher than the minimum required by law.
LEGALLY VALID CONSENT
It is a general legal and ethical principle that valid consent must be obtained before starting a treatment or physical investigation, or providing personal care for a patient. This principle gives meaning to respect for autonomy and reflects the right of patients to determine what happens to their own bodies.
For instance, common law has established that touching a patient without valid consent may constitute the offence of battery. Furthermore, failure to obtain valid consent may be a factor in a claim of negligence against the health professional involved, particularly if the patient suffers harm as a result of treatment.
In order for consent to be valid it must be:
• Given by a patient who has capacity to make decisions about his/her care
• Voluntarily given, i.e. free from coercion
Patients must have capacity in order to make choices about their health or treatment. Patients over the age of 16 are presumed to have capacity to consent to treatment unless it can be shown otherwise, and judgements about capacity must not be assumed by specific diagnoses or impairments. Capacity to consent to treatment requires that the patient must be able to comprehend and retain information given about the proposed treatment, use this information in the decision-making process and be able to communicate their decision.
Capacity is not an ‘all-or-nothing’ concept; patients may have the capacity for some choices but not others, and capacity can fluctuate. Hence, assessments of capacity are decision specific and should be reviewed regularly.
Doctors should be aware of factors which can enhance or diminish a patient’s capacity. A competent patient’s decision about their care or treatment must be respected regardless of whether doctors agree with it or not.
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