Medical Ethics: Key Issues & Patient Relationships

• These notes cover key issues in medical ethics, models of patient-professional relationships, informed consent, substitute decision-making, advance directives, and considerations for children.

Core Ethical and Legal Issues

• Non-Maleficence/Beneficence: Healthcare providers have a duty to provide necessities of life, continue life- saving acts, and avoid harm.
• Principle of Impossibility: No one is obligated to do what is impossible, unless the impossibility is due to their own inappropriate action.
• Doctrine of Necessity: Allows the state or individuals to use another's property under specific, necessary circumstances.
• Utilitarianism Critique: Justifying actions solely on increased social utility is unacceptable (Perka v R, 1984).
• Codes of Ethics: Not inherently ethical; influenced by political and personal interests in their formulation.

Models of Patient-Professional Relationships

• These models outline different approaches to the interactions between healthcare professionals and patients, each with its own set of assumptions and potential pitfalls.
• Paternalistic:
  • Healthcare provider makes decisions based on their expertise and perceived best interest of the patient, disregarding the patient's autonomy.
  • Ignores the patient as an individual, commits the fallacy of expertise, and is often impractical and illegal.
• Partnership:
  • Healthcare provider and patient are seen as equals with shared interests and goals.
  • Fails to account for inequalities in power and knowledge, the patient's vulnerable position, and the fiduciary duties of the professional.
• Rational Contractor:
  • Healthcare provider and patient enter a relationship as equals, with terms explicitly defined, often seen in private healthcare or HMO models.
  • Based on the mistaken assumptions of equality, freedom, and competence, and it ignores fiduciary obligations.
• Friendship:
  • Relationship is personal with a commitment from the professional to the patient.
  • Ignores profit motives, psychological realities, unequal power dynamics, and risks of paternalism.
• Engineering Technician:
  • Healthcare provider presents facts, but the patient makes all decisions, common in cosmetic surgery.
  • Ignores the moral and social obligations of the healthcare professional.
• Fiduciary:
  • Relationship based on trust, where the professional has decision-making power within their competence.
  • Creates issues in e-health, telemedicine (due to inter-jurisdictional complications), and with AI.

Informed Consent and Substitute Decision-Making

• Arrow’s Asymmetric Information Theorem: Information discrepancy between healthcare professionals and patients can lead to suboptimal decision-making by patients.

AC v Manitoba

• A 15-year-old Jehovah's Witness refused blood transfusions based on an advanced directive; the court deemed her lacking capacity, rejected the advanced directive, and ordered a transfusion.
• The child's best interests are paramount, considering factors like parent-child relationships, mental and emotional needs, developmental stage, continuity, the child's views and preferences which can reasonably be determined, and cultural, linguistic, racial, and religious heritage.
• Relevant issues: duty of care, informed consent, advanced directives, substitute decision-making, physician-patient relationship models, and the doctrines of therapeutic privilege and emergency.

Duty of Care

• Not a duty to do "the best" but to provide care appropriate to the circumstances, resource availability, and the professional’s training and ability.
• Applies as soon as a physician-patient relationship exists.
• Ethically, service must be provided if able, based on beneficence, fidelity, non-maleficence, and the monopolistic position of the profession.
• Legally, services must be provided in the institution where the physician works, even when not on duty, with a duty to refer when unable to provide appropriate intervention.

Egedebo v Windermere (1993)

• A patient with serious symptoms was neglected in the ER because doctors were too busy; one doctor declined to see him because he was "not on call."
• Doctors cannot avoid their duty of care by declining to see a patient.
• The duty of care does not include doing the impossible or medically futile.
• Withdrawal of life support is considered an intervention and requires consent (Cuthbertson v Rasouli).
• Ethically, there's a duty to assist even non-patients if able without self-endangerment (beneficence/non-maleficence); legally required in Quebec, "Good Samaritan" legislation addresses liability in BC.

Professional-Patient Relationship

• Physicians have a fiduciary duty (trust-based) to patients, based on ethical and legal duties.

Types of Consent

• Assumed: Healthcare professional assumes consent based on what an average person would want.
• Ethically unacceptable and legally suspect (except in emergencies).
• Entailed: Consent logically follows from previous consent.
  • Ethically and legally acceptable. Example: consent to anesthesia from consent to major surgery.
• Implied: Consent inferred from the patient’s actions.
  • Ethically unacceptable if implied only in the professional’s mind; defensible if following from a consented action. Generally legally acceptable. Example: holding out an arm for phlebotomy.
• Explicit: Consent that is informed, voluntary, competent, clear, and specific.
  • Ethically and legally the gold standard.

Mulloy v Hop Sang Case

• Patient asked surgeon not to amputate hand and did not understand the surgeon's lack of guarantee. The hand was ultimately amputated after anesthesia,.
• Underscores the necessity of clear, understood consent.
• Legal action resulted for costs associated as well as for damages to the patient.

Disclosure and Standards

• Complete Disclosure: Give all relevant information to the patient.
• Subjective Disclosure: Share information based on the individual patient's needs and preferences.
• Professional Disclosure Standard: Give information based on what other professionals would disclose.
• Objective Reasonable Person Standard: Disclose what a reasonable person in the patient's position would want to know.
  • Canadian standard: what a reasonable person in the patient's position would want to know before consenting.
  • Information must be disclosed proactively, in an accessible manner.

Eldridge v BC Case

• Deaf patients needing sign language interpretation to communicate with doctors illustrates the need for accessible communication to ensure equality in healthcare.
• Highlights potential discrimination based on physical disability under the Canadian Charter of Rights and Freedoms.

Reibl v Hughes Case

• Emphasizes the doctor's duty to disclose all information the patient deems relevant.
• Relates especially to material risks known in required medical knowledge.
• A patient suffered a stroke after surgery and argued he was not informed of the risk
• Court referenced the timeframe of his ability to earn a lifetime retirement pension from his employer. A reasonable person would have refused the surgery and waited.

Comprehension and Standards

• Objective Comprehension: Measured by external standards.
• Subjective Comprehension: Geared to the patient's capacity to understand. -Is the ethical and legal standard.
• The ethical basis: principle of autonomy. It applies to any intervention even life saving interventions.

Doctrine of Emergency

• Applies when the patient is incompetent, there is no advanced directive, and no proxy decision-maker is available.
• The physician can make appropriate therapeutic decisions based on what a reasonable person would want.
• The ethical basis is beneficence/non-maleficence and the fiduciary physician-patient relationship.
• Doctors have an obligation to prepare for foreseeable emergencies by requesting advanced directives.

Doctrine of Therapeutic Privilege

• A healthcare provider can withhold information if disclosure would cause serious harm now or interfere with the patient's decision-making ability per the principle of autonomy and quality.
• Based on reasonable professional grounds and must align with patient values.
• The personal interest of the professional is not relevant with minimal relevance to the values of next of kin.
• An attempt must be made to disclose info in a suitable manner.

See also "Reibl vs Hughes"

Consent and Capacity

• Capacity is presumed in Canada, based on autonomy and equality principles.

Starson v Swayze Case

• A mentally ill man's refusal of medication was upheld because he was found to have the capacity to make his own healthcare decisions when competent due to medication.
• A mentally ill patient competent while medicated has the right to give/refuse consent.

Capacity Evaluation

• Cognitive Capacity:
  • Mnemonic: Ability to remember.
  • Conceptual: Ability to understand data and its significance.
  • Inferential: Ability to understand consequences.
• Emotional Capacity:
  • Appropriateness and control of emotions.
• Valuational Capacity:
  • Values align with reality, are authentic to the individual (AC v Manitoba), and reflect the individual's personhood.
• Volitional Capacity:
  • In keeping with the principle of autonomy.
    • Can be affected by external parameters such as: power relationships (Norberg v Wynrib), physical coercion, or undue enticement.
    • Or internal parameters such as: conditioning or addiction.

Norberg v Wynrib (1992) Case

• A doctor providing painkillers in exchange for sexual activity was found to have breached his fiduciary duty.
• Challenges to volitional competence: external parameters.

Substitute Decision-Making

• Ethical basis: equality, beneficence, non-maleficence.

• Legal basis: Section 15 of the Charter of Rights (equality).

• Substitute decision-makers are selected in a specific order:

  • Court-appointed, patient-appointed representative (Representation Agreement Act), spouse (Mawdsley v Austin), child, parent, sibling, or other relative.
    • Proximity and familiarity with the patient's values are key.

• Decisions must reflect the patient's previously competent values or, if unavailable, the values of a reasonable person in that position.

• Healthcare professionals are NEVER the substitute decision-makers unless in emergencies or specifically appointed.

• Must be in the patients BEST INTEREST.

Advance Directives

• Apply to all healthcare interventions, including withholding treatment.
• Directives must be specific; ambiguity renders them invalid unless interpreted by a substitute decision-maker.
• Can be verbally withdrawn without written revocation.
• It's debated whether capacity is necessary to revoke an advance directive.
• Counsel patients that advance directives will be followed unless competently revoked.

Children and Informed Consent

• Children are not automatically incompetent ethically; age is a prohibited ground of discrimination (Charter of Rights).
• Legally considered incompetent if under 19 years old.
• Contradicts S17 of BC Infants Act.
• See also AC vs Manitoba.

Indigenous Children: Case of JJ

• An 11-year-old First Nations girl with leukemia received both medical treatment and traditional healing practices.

• Key ethical considerations involved the indigenous rights which are legally recognized cultural rights. Ethically speaking, indigenous persons are persons, therefore principle of equality applies.

• It is unethical and discriminatory to only use traditional healthcare which is less effective than science based medicine.

• The decision to use both treatment types was deemed ethical.