Paternalism v autonomy.

UNIVERSITI KEBANGSAAN MALAYSIA

SEMESTER I SESI 2015/2016

IJAZAH SARJANA UNDANG-UNDANGMedical Law (UUUK 6195)

Patient’s Autonomy versus Doctor’s Paternalism: Which should prevail in Malaysia?

Prepared by: Siti Fairuz (P73969)

1. INTRODUCTION

2. THE CONFLICT BETWEEN PATERNALISM &AUTONOMY

3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY

4. CONCLUSION

CONTENTS

1. The medical profession in the past have been accorded with an unparalleled level of deference where it was seen as a profession thatcan do no wrong. However judicial intervention has created rights for patients and nowadays, and followed by a legal duty on thedoctors to observe.

2. Development of medical ethical codes to professional code of conducts:-

INTRODUCTION

The code of Hammurabi1

18th century• King of Ancient Babylon introduced this Code;• It contains the rights & duties of medical men; • Etc punishment for failure of treatment are written as:- “if a

doctor has treated a man for severe wound with a metal knife and has caused the man to die, his hands shall be cut off; or “if a man destroyed the eye of a patrician, then his eye would be destroyed.”

Medical Ethics2

Classic Greek Culture• Plato introduced medical ethics i.e. where Plato held

that only physicians should judge the action of other physicians.

• Aristotle meanwhile emphasized that the only penalty that is applicable to any wrong doing by a physician was limited solely to injury to his reputation and nothing else.

Aristotle

Hippocratic Oath• Hippocratic created an oath for

doctors when the commence practice;

• The oath is on medical ethics & guidelines

• It shapes the social contract between medicine & society;

• The main ethical principle is “beneficence”, “welfare of patients” & “confidentiality”

3

1. 1948:- Declaration of Geneva was introduced;

2. 1968:- International Code of Medical Ethics

4

1981:- Oath of Muslim Doctor was created by the International Organization of Islamic Medicine

5The Patients Charter6Alma-Alta Declaration7

1. The definition of paternalism:-a) it has been defined as “interference with a person’s liberty of action justified by reasons referring exclusively to welfare,

good, happiness, needs, interests or values of the person being coerced.b) It is also referred to as interference by the physician with the patient’s freedom of actionc) Its interference is justified on the ground of the patients best interest, patient is not qualified to comprehend his own

medical condition due to his lack of medical expertise.

2. The definition of autonomy:-a) it has been defined as “the capacity to think, decide and act on the basis of such thought and decision freely and

independently;b) It also means that each patient is entitled to determine his own health destiny.

INTRODUCTION

PROBLEM STATEMENTThe patients nowadays do not want to be treated as passive recipients of medical care. There is an increasing awareness of human rights which included patient’s rights and the public expectation on the medical profession have also changed.

Which of the approach prevail in Malaysia?

Doctor Patient

1. INTRODUCTION



4. CONCLUSION

CONTENTS

PATERNALISM vs AUTONOMY

NO CONTENTS PATERNALISM AUTONOMY

1 STRENGTHS • its emphasis on the beneficence (welfare ofthe patient).

• In this concept it is assumed that welfare orthe best interest of the patient was primarilyidentified by the doctor – doctors will knowwhat will be the correct choice or treatment

• Concept of beneficence becomes the centralto this paternalism concept – “doctor knowsbest rule.”

• Justification for this concept is that thedoctors are expert and have the superiorknowledge in the medical sense.

• Prudent doctor test

• Based on this concept the ideal relationship between doctorsand patient is not on the skills or the intentions of thehealthcare provider but rather on the interests and rights ofthe patient.

• In patients autonomy, it requires bearing in mind “first do noharm, then the harm done to patient autonomy bypaternalistic medical environment and over-controlling caregivers should be avoided.

• But under the law, the legal debate on autonomy is firstlydetermning the competency and secondly consideration ofthe wight to be given to the decisions of the competentpersons.

• Prudent patient test @ doctor‘s duty flows from the patient‘sright.


NO CONTENTS PATERNALISM AUTONOMY

2 CRITICS • there exists informational imbalance betweendoctor and patient that makes the patientvulnerable.

• Atkins :-” the need to accede to ourfundamental fallibility and an epistemologicalhumility” – while self-evidently we consultdoctors precisely because they haveexpertise in health matters, neither theirknowledge nor their recommendations defineour best interest.

• Doctor cannot and can never know enough about their patient’s wants, needs, interests, hopes and fears to make decision for the patient.

• the biggest failure is that the assumption that medical values or medical good is the highest good and that it has an absolute quality which overrides other values.

• Critics on autonomy argue that the change from paternalismto autonomy – posed a serious challenge to the historicalauthority of physicians and will likely have impact on thepatients’ care – for example dominance of autonomy mayreduce the influence of medical information or medical adviceon patient’s decision and also will make the relationshipbetween the doctor and patients sterile.

• Pellegrino & Thomasma argue that :- “ …autonomy shouldnot be viewed as an absolute model for the doctor-patientrelationship itself because it is insufficient to claim, as themove to patient autonomy often does, that medicalpaternalism is a direct outgrowth of professionalisation..Modern medicine incorporates moments of patient choice aswell as of necessary beneficience paternalism.”

• British Medical Instutite argues that autonomy is in and ofitself only one of the guiding principles of good medicalpractice. Thus while autonomy is an important principle, itmust be balanced in porportion with other moral aspects suchas the doctor’s duty to avoid harm in its widest sense.


NO CONTENTS PATERNALISM vs AUTONOMY

3 CONFLICT 1. Right of Self Determination :- the patient’s interest consist of his right to self-determination @ the right to live his own life how he wishes,

even if it will damage his health or lead to his premature death. However this right will only be recognized when all the legal rules of consent have been satisfied, such as the

patients fully understand the consequences or the inherent risks of the proposed treatment and provided also that the doctor has disclose or advise the patient with proper information;

2. How well can the patient understand? What is the doctor to do when the patient is unable to understand the information disclosed by the doctor? Does the doctor owes a legal duty to ensure that the patient truly understands the information? The doctor

does have the obligation to assist the patient to understand the information, however that is not a legal duty on the doctor.

Lord Templeman in Sideway v Bethlem Royal Hospital Governors states:- “ a patient may make an unbalanced judgement because of his incapability to assess the medical information due to his lack of medical training, his prejudices or personality.

So doctors in defending paternalism will argue that the an inordinate amount of time is required to make disclosure of risks in a comprehensible manner and such time will be better to spent attending to other patients in need.

3. Balancing the rights of self determination with the concept of beneficence:- Because of the medical profession, the medical doctors faced a heavy task in balancing their professional

ethics and ethos of beneficence with the patient’s right of self-determination. This is because beneficence still holds considerably in medical thinking.

1. INTRODUCTION



4. CONCLUSION

CONTENTS

From Autonomy to consent:-1. The major consequences of autonomy is to be respected as autonomous – it implies the capacity or liberty to make decisions, free

from external control and in the expectation that they will be accepted as valid and binding and nobody has the authority to interferewith our bodies and minds without our agreement or consent.

2. The doctrine of consent – when all the elements in the consent are met, then that person is said to be autonomous.

3. The doctrine of consent was said to be stimulated by the need to create a workable doctrine that can accommodate the conflict in theautonomy model.

4. Under the doctrine of consent, there are certain criteria that must be satisfied:-

THE DEVELOPMENT: PATERNALISM TO AUTONOMY

NO CONTENTS CRITERIAS

1 a) Competence:- • It is central to the legal evaluation of patients decision;• If a person is not competent, then even an apparently free and uncoerced choice will not be legally respected;

2 b) Information:- • The patient needs information on which to base his or her choice.• The informed aspect of consent is the element that focuses on the patients right to receive relevant and

sufficient information in order to enable him to make a decision.• The doctor is therefore under the obligation to share information with his patient. The information must be

relevant to the patient to assist the patient to choose the course of action himself.• In this situation, the doctor becomes facilitator rather than a director (as in paternalism).• Once the patient has come to his decision, it’s the doctor duty to inform the patient whether that goal is

attainable and if not, to help him to choose another and then to determine and discuss the means requiredto hopefully reach such goal.

3 c) Understanding:- • In order to deliberate rationally, it is argued that a patient must be able to comprehend the relevant factsand circumstances of the patient’s situation.

• After considering the options for medical treatment, the patients needs to discern which option for medicaltreatment, the patient needs to discern which options best coheres with the patient life plans.

• Faden & Beuchamp said that understanding is of special importance for a theory of informed consent.

4 d) Voluntariness:- • It requires that the patient is free from external pressure to make a particular decision;

5 e) Expression:- • Modes of expressing the patients consent.• For example for patients that cannot talk, using sign language or any other means.

From Autonomy to consent:-

5. Rationale for the informed consent:-• its basically to promote patient’s autonomy.• The decision to undergo treatment is the patient’s and not the doctor’s.• The doctrine gives the right of self determination to the patient;

6. The general principle in order to make a valid autonomous choice, the patient has to be provided with sufficient information to enablethe patient to decide.

7. Doctor’s corresponding obligation to disclose derives from the very fact of the consultation ie when the patients came to seek outmedical advice since the patient do not have clinical expertise. Therefore the patient ability to make an autonomous decision restsfirmly on the extent to which the patients are made aware of the consequences of their choice.

8. Impact of Bolam, it’s a medical defence for the doctor namely that negligence cannot be established if there is a body of responsiblemedicine that agrees with the doctor in question and even if there are other body of opinion that differs from the doctors in questionopinion.

9. But Sideway v Bethlem Royal Hospital Governors & Other (1987) 1 BMLR 132 limit the interpretation of Bolam’s test.

10. While Lords Keith & Bridge decided that the decision to disclose or what to tell patients is a matter of a clinical judgment, LordScarman sees from the view point of a patient and concluded that the doctor’s duty arises from the patient’s rights.

11. The obligations of the courts was to ensure that the medical opinion about the interest of the patient is not to override the patient’sright to decide for himself whether he will submit to the treatment offered to him.


DEVELOPMENT FROM THE CONCEPT OF PATERNALISM TO AUTONOMY TO CONSENT BASED ON DECIDED CASES

NO NAME OF CASE PRINCIPLES IN THE CASE PATERNALISM OR

AUTNONOMY

1 Bolam v Friern Hospital Mgmt (1957) (UK)

• During that time, it was an accepted practice that doctor did not need to warn patient about the risks

• Another reason that the defendant doctor did not warn the patient of the risks is because the doctor viewed that there will be some danger in informing the risk to a patient that is mentally ill.

Paternalism

2 Sideway v Bethlem Royal Hospital (1985) (UK)

• This case followed Bolam test but the judges limit the application of it. • Lord Templeman view is that there is a need for doctors to give sufficient

information to patient to allow patient to make a balanced judgment; • He said:-”Although a patient is not entitled to know everything, neither is a

doctor entitled to decide everything.” • However Lord Scarman rejected Bolam and concluded that a doctor’s duty

arises from the patient’s rights.

Autonomy

3 Canterbury v Spence (1972) (US)

• Developed the concept of patient’s right to self-determination – which shapes the duty of the doctor to reveal;

• All risks potentially affecting the patient’s decision must be unmasked; • The law must provide the standard for adequate disclosure; • Introduced the concept of “therapeutic privilege”- where there are situations

that the doctor is not obliged to disclose, for example if it can be established by means of medical evidence that such disclosure would pose a serious threat of psychological treatment to the patient. (an exception to autonomy)

Autonomy




AUTNONOMY

4 Reibl v Hughes (1980) (Canada)

• In cases of emergency and when there is no consent obtained, action for negligence is not appropriate

• Unless in emergency, consent in needed in surgery or other medical treatment – if there is none, there can arise a cause of action on battery.

• Introduced the concept of allowing the patient to make an intelligent choice:-Merely because medical evidence establishes the reasonableness of a recommended operation it does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced against it.

Autonomy

5 Rogers v Whitaker (1992) (Australia)

• All medical treatment is preceded by the patient’s choice to undergo it. @ in other words it means that in legal terms, the patient’s consent to the treatment may be valid once she is informed in broad terms of the nature of the procedure which is intended.

• Since the decision is by the patient, it would be illogical to hold that amount of information that influences the patient’s decision. (the right to self-determination).

• A risk is material if in the circumstances of particular case, a reasonable person, if warned of the risks would likely attach significant to it. If that risk is material, the doctor has a duty to warn the patient of the material risk inherent in the proposed treatment.

Autonomy




AUTNONOMY

6 Pearce v United Bristol Healthcare NHS Trust (1998) (UK)

• The law is, if there is a significant risk which would effect the judgement of a reasonable patient, then in the normal case it is the responsibility of the doctor to inform the patient of the significant risk, if the information is needed so that the patient can determine for him as to what course he should adopt.

Autonomy

7 Re T (1992) (UK) • The right to determine with one’s own body is a fundamental right in our society. Free individual choice in matters affecting this right should be accorded high priority.

Autonomy

8 Chester v Afshar (2004) (UK)

• Applied prudent patients test and said that it’s the doctor duty to warn the risks

Autonomy

9 Foo Fio Na (1999) (Malaysia)

• (in this case the manner of taking the consent was not right. There were 2 consent taken. The 1st consent was taken before the doctors come to the conclusion to have the surgery. While the 2nd consent was taken without Plantiff’s actual knowledge and actual understanding of the nature of the 2nd

consent.) • There is need for members of the medical profession to stand up to the

wrong doings; if any as is the case of professionals in other professions. On this basis, the Whitaker test would be more appropriate and a viable test of this millennium than the Bolam test.

• The phrase “Doctor knows best rule should now be followed by the qualifying words “if he acts reasonable and logically and get his facts right.”

Autonomy


1. INTRODUCTION



4. CONCLUSION

CONTENTS

1. Based on the cases discussed above, it seems to shows that the autonomy prevails over the doctrineof paternalism.

CONCLUSION

• However, the medical profession still holds on to the conceptof beneficence. According to an author, the concept ofbeneficence can be conceptualized differently.

• For example, it would require the doctor active engagement inhelping the patient to make an autonomous decision. Thebeneficent act is engaging actively by sharing relevantinformation and guide the patient if the doctor thinks thatpatient is making the wrong decision but not to coerced thepatient into making it.

• If beneficence is interpreted in such a way, then there will beno conflict between these 2 concepts and no conflict will arisebetween the doctor’s duty and the patient’s rights.

• However, the law is still required to play a role in interpretingthe doctrine of informed consent in Malaysia and to whatextent should an information can be disclosed to the patient.Therefore, in Malaysia, it can be right to say that betweenautonomy and paternalism, neither one prevails.

• Instead each of the principle lends an important role in thedelivery of a healthcare and decision making by an individual.

• By paternalism, the doctor still feels ethically obligated toprovide the suitable health solutions to his patients and byautonomy, the patient will have the right to know of anymaterial risk in his treatment. In other words, the twoprinciples are balanced and shared equally between the doctorand the patient.

A. Books:-• Medical Law in Malaysia by Kartina Aisha Choong, 31 July 2012, Wolters Kluwer Law & Business

• Medical Negligence Law in Malaysia by Dr. Puteri Nemie bt Jahn Kassim, ILBS, 2003

• Autonomy, Consent and the Law by Sheila A.M. Mclean, Baiomedical Alw and Ethics ;Library,Cavendish

B. Articles & Journals:-• Medical Paternalism versus Patient Autonomy: Solving conflicts in Medical Decision Making by Dr.

Puteri Nemie bt Jahn Kassim (2003) 2 MLJ xxxiv

• Contemporary Legal and Ethical Dilemmas raised by Advancement in Medicine, Science & Technologyby Dr. Puteri Nemie bt Jahn Kassim (2004) 2 MLJ I

• The Patient, The Doctor, Their Lawyers and the Judge : Rights and Duties by The Right HonourableThe Lord Irvine, Medical Law Review (1999) 7 (3):255

C. Cases:-• BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:-

• BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY(1997) 4 ALL ER 771:-

• ROGERS v WHITAKER (1992) 109 ALR 625:-

• CANTERBURY V SPENCE (1972) (US)

• REIBL V HUGHES (1980) (Canada)

• PEARCE V UNITED BRISTOL HEALTHCARE NHS TRUST (1998) (UK)

• Re T (1992) (UK)

• CHESTER V AFSHAR (2004) (UK)

• FOO FIO NA v HOSPITAL ASSUNTA & ANOR (1999) 6 MLJ 738 (HCT), (2001) 2 MLJ 193 (COA) &(2007) 1 MLJ 593 FC

REFERENCES

Paternalism v autonomy.

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