Legal and Ethical Issues in Medicine

Legal and Ethical Issues in Medicine
د.وليد عزيز العميدي
I. LEGAL COMPETENCE
A. Definition
1-To be legally competent to make health care decisions, a patient must understand the risks, benefits, and likely outcome of such decisions.
2-All adults (persons 18 years of age and older) are assumed to be legally competent to make health care decisions for themselves.
B. Minors
1- Minors (persons younger than 18 years of age) usually are not considered legally competent.
2-Emancipated minors are people under 18 years of age who meet at least one of the following criteria.
a. They are self-supporting or in the military.
b. They are married.
c. They have children whom they care for.
d. Emancipated minors are considered competent adults and can give consent for their own medical care.
C. Questions of competence
1-If an adult s competence is in question (e.g., a mentally retarded or demented person), a judge (not the patient s family or physician) makes the legal determination of competence. Physicians are often consulted by the judge for information about whether the patient has the capacity to make health care decisions.
2-A person may meet the legal standard for competence to accept or refuse medical treatment even if she is mentally ill or retarded, or is incompetent in other areas of her life (e.g., with finances).
3-The Folstein Mini-Mental State Examination (MMSE) correlates to some extent with clinicians evaluation of capacity. While score s be low 20 on the Folstein Mini-Mental State Examination indicate significant cognitive impairment, the test score alone cannot be used to declare a patient incompetent.


II. INFORMED CONSENT
A. Overview
With the exception of life-threatening emergencies, physicians must obtain consent (verbal or nonverbal) from competent,informed adult patients before proceeding with any medical or surgical treatment.
1-Although a signature may not be required for minor medical procedures, patients usually sign a document of consent for major medical procedures or for surgery..
2-Other hospital personnel (e.g., nurses) usually cannot obtain informed consent.
B. Components of informed consent
1-Before patients can give consent to be treated by a physician, they must be informed of and understand the health implications of their diagnosis.
2-Patients must also be informed of the health risks and benefits of treatment and the alternatives to treatment.
3-.Patients must know the likely outcome if they do not consent to the treatment.
4-They must also be informed that they can withdraw consent for treatment at any time before the procedure.
5-Physicians must also obtain informed consent prior to entering a patient in a research study . However, if a patient s condition worsens during the study as a result of lack of treatment, placebo treatment, or exposure to experimental treatment, the patient must be taken out of the study and given the standard treatment for his or her condition.
C. Special situations
1-Competent patients have the right to refuse to consent to a needed test or procedure for religious or other reasons,even if their health will suffer or death will result from such refusal.
2-Although medical or surgical intervention may be necessary to protect the health or life of the fetus, a competent pregnant woman has the right to re fuse such intervention (e.g., cesarean section) even if the fetus will die or be seriously injured without the intervention.
3-While all of the medical findings are generally provided to a patient, a physician can delay telling the patient the diagnosis if the physician believes such knowledge will adversely affect the patient s health (e.g., a coronary patient), or until the patient indicates that he or she is ready to receive the news.
4-The opinions of family members, while helpful for information about the patient s state of mind, cannot dictate what information the physician tells the patient. At the patient s request, family members may be present when the physician provides the diagnosis.
D. Unexpected findings
If an unexpected finding during surgery necessitates a nonemergency procedure for which the patient has not given consent (e.g., biopsy of an unsuspected ovarian malignancy found during a tubal ligation), the patient must be given the opportunity to provide informed consent before the additional procedure can be performed. In an emergency in which it is impossible to obtain consent (e.g., a "hot" appendix is found during a tubal ligation), the procedure can be done without obtaining consent.
E. Treatment of minors
(i.e., people younger than 18 years of age, unless emancipated )
2- Only the parent or legal guardian can give consent for surgical or medical treatment of a minor.
2-Parental consent is not required in the treatment of minors in the following instances :
a-Emergency situations (e.g., when the parent or guardian cannot be located and a delay in treatment can potentially harm the child)
b. Treatment of sexually transmitted diseases (STDs)
c. Prescription of contraceptives
d. Medical care during pregnancy.
e. Treatment of drug or alcohol dependence.
3. Most states require parental notification or consent when a minor seeks an abortion.
4-A court order can be obtained from a judge (within hours if necessary) if a child has a life-threatening illness or accident and the parent or guardian refuse s to consent to an established (but not an experimental) medical procedure for religious or other reasons.
5-Because the likelihood of a poor outcome is extremely high, infants born before the 22nd week of gestation are generally not resuscitated if they do not breathe at birth.
6- Treatment of minors:
a- If the disorder has a pediatric onset and preventive therapy or treatment is available (e.g., cystic fibrosis), genetic testing should be offered or even required.
b- If there are no preventive therapies or treatments for the disorder and it has a pediatric onset (e.g., Tay-Sachs disease), parents should have the discretion as to whether or not to test the child.
c- If the disorder has an adult onset (e.g., Huntington disease), genetic testing usually should not be done.
d- If genetic testing reveals information (e.g., issue s of paternity ) unrelated to the presence or absence of the genetic disorder, it is not necessary for the physician to divulge such information to anyone.
III. CONFIDENTIALITY
A. Although physicians are expected ethically to maintain patient confidentiality , they are not required to do so if :
1-Their patient is suspected of child or elder abuse.
2-Their patient has a significant risk of suicide.
3-Their patient poses a serious threat to another person.
B. Intervention by the physician if the patient poses a threat
1-The physician must first ascertain the credibility of the threat or danger.
2-If the threat or danger is credible, the physician must notify the appropriate law enforcement officials or social service agency and warn the intended victim (the Tarasoff decision).

V. ETHICAL ISSUES INVOLVING HIV INFECTION
A. HIV-positive colleagues
Physicians are not re quire d to inform either patients or the medical establishment about another physician s HIV-positive status since, if the physician follows procedures for infection control, he or she does not pose a risk to patients .
B. HIV-positive patients
1-Ethically and legally, a physician cannot re fuse to treat HIV-positive 1. patients because of fear of infection.
2-A pregnant patient at high risk for HIV infection cannot be te ste d for the virus or treated (e.g., with zidovudine [AZT ] and/or nevirapine [Viramine]) against her will, even if the fetus could be adversely affected by such refusal.
After the child is born, however, the mother cannot refuse to allow the child to be tested for the virus or treated.
3-If a health care provide r is exposed to the body fluids of a patient who may potentially be infected with HIV (e.g., a nurse is stuck with a needle while obtaining blood from a patient whose HIV status is unknown), it is acceptable to test the patient for HIV infection even if the patient refuses to consent to the test.
4- Physicians are not re quire d to maintain confidentiality when an HIV-positive patient habitually puts another person at risk by engaging in unprotected sex (see section III. B. above).




VI. INVOLUNTARY AND VOLUNTARY PSYCHIATRIC HOSPITALIZATION
Under certain circumstances that vary according to state law, patients with psychiatric disorders who are a danger to themselves or others may be hospitalized against their will (involuntary hospitalization(
a- In psychiatric emergency situations, patients who will not or cannot agree to be hospitalized may be hospitalized against their will or without consent if they are certified by one or two physicians. T hey may be hospitalized for up to 90 days (depending on state law) before a court hearing.
b-Even if a psychiatric patient choose s voluntarily to be hospitalize d, he or she may be required to wait 24–48 hours before being permitted to sign out against medical advice.
c-Patients, who are confined to mental health facilities, whether voluntarily or involuntarily, have the right to receive treatment and to refuse treatment (e.g., medication, electroconvulsive therapy). Patients who are actively psychotic or suicidal, however, generally cannot refuse treatment aimed at stabilizing their condition.
VII. ADVANCE DIRECTIVES
A. Overview
1- Advance directives are instructions given by patients in anticipation of the ne e d for a medical decision. A durable power of attorney and a living will are examples of advance directives.
a- A durable power of attorney is a document in which a competent person designate s another person (e.g.spouse, friend) as his or her legal representative (i.e., health care proxy) to make decisions about his or her health care when he or she can no longer do so..
b- A living w ill is a document or oral statement in which a competent person gives directions for his or her future health care if he or she becomes incompetent to make decisions when he or she needs care.

2-Health care facilities that receive Medicare payments (most hospitals and nursing homes) are required to ask patients whether they have advance directives and, if necessary, help patients to write them. They must also inform patients of their right to refuse treatment or resuscitation.

B. Surrogates
1- If an incompetent patient does not have an advance directive , people who know the patient, e.g., family members) surrogates), must determine w hat the patient would have done if he or she w e re competent (the substituted judgment standard). The personal wishes of surrogate s are irrelevant to the medical decision.
2-The priority order in which family members make this determination is the 1) spouse , 2) adult children, 3) parents, 4)siblings, and, finally, 5) other relative s. If there is a conflict among family members at the same priority level, assembly of the members for discussion or, for intractable disagreement, legal intervention (e.g., by a judge or court( may be used.
3-Even if a health care proxy or surrogate has been making decisions for an incompetent patient, if the patient re gains function (competence) even briefly or intermittently, he or she regains the right during those periods to make decisions about his or her health care.

VIII. DEATH AND EUTHANASIA
A. Legal standard of death :
1-In the United States, the legal standard of death (when a person s heart is beating) is irreversible cessation of all functions of the entire brain, including the brain stem. T his standard differs among states but commonly involves absence of
a-response to external events or painful stimuli
b. spontaneous respiration
c. cephalic reflexes (e.g., pupillary, corneal, pharyngeal(
d. electrical potentials of cerebral origin over two ?v from symmetrically placed electrodes more than 10 cm apart
e. cerebral blood flow for more than 30 minutes
2-.Physicians certify the cause of death (e.g., natural, suicide, accident) and sign the death certificate.
3-If the patient is dead according to the legal standard, the physician is authorized to remove life support. A court order or relative s permission is not necessary.
4-The patient s organs cannot be harvested after death unless the patient (or parent if the patient is a minor) has signed a document (e.g., an organ donor card) or informed surrogates of his or her wish to donate..
B. Euthanasia
According to medical codes of ethics (e.g., those of the American Medical Association and medical specialty organizations),euthanasia (mercy killing) is a criminal act and is never appropriate .
1-Physician-assisted suicide is not strictly legal in any state, but is not generally an indictable offense as long as the physician does not actually perform the killing (e.g., the patient injects himself). When Dr. Jack Kevorkian challenged the law in Michigan regarding physician-assisted suicide by actually administering a lethal injection to a patient himself, he was convicted of murder.
2-Under some circumstances, food, water, and medical care can be withheld from a terminally ill patient who has no reasonable prospect of recovery but is not legally dead..
3-If a competent patient requests cessation of artificial life support, it is both legal and ethical for a physician to comply with this request. Such action by the physician is not considered euthanasia.
IX. MEDICAL MALPRACTICE
A. Overview
1-Medical malpractice occurs when harm comes to a patient as a result of actions or inactions of a physician. The elements of malpractice (the 4 Ds) are
a. Dereliction, or negligence (i.e., deviation from normal standards of care), of a
b. Duty (i.e., there is an established physician-patient relationship) that causes
c. Damages (i.e., injury(
d. Directly to the patient (i.e., the damages were caused by the negligence, not by another factor(.
2-Surgeons (including obstetricians) and anesthesiologists are the specialists most likely to be sued for malpractice.
Psychiatrists and family practitioners are the least likely to be sued..
3-Malpractice is a tort, or civil wrong, not a crime. A finding for the plaintiff (the patient) results in a financial award to the patient from the defendant physician or his or her insurance carrier, not a jail term or loss of license.
4. Recently, there has been an increase in the number of malpractice claims. This increase is mainly a result of a breakdown of the traditional physician-patient relationship because of
1-Technological advance s in medicine, which reduce Personal contact with the physician.
2-Limits on time for personal interaction and physician autonomy, partly as a result of the growth of managed care.
B. Damages.
The patient may be awarded compensatory damages only, or both compensatory and punitive damages.
1-Compensatory dam age s are given to reimburse the patient for medical bills or lost salary and to compensate the patient for pain and suffering.

2-Punitive dam age s are awarded to the patient to punish the physician and set an example for the medical community. Punitive damages are rare and are awarded only in cases of wanton carelessness or gross negligence
(e.g., a drunk surgeon who cuts a vital nerve)

C. Relationships with patients
1-Sexual relationships with current or former patients are inappropriate and are prohibited by the ethical standards of most specialty boards..
2-Patients who claim that they had a sexual relationship with a physician may file an ethics complaint or a medical malpractice complaint, or both.
3-Physicians should avoid treating family members, close friends, or employees since personal feelings can interfere with professional objectivity, and familiarity may limit questions or physical examinations of a sensitive nature.
X. IMPAIRED PHYSICIANS
A. Causes of impairment in physicians include
1. Drug or alcohol abuse
2. Physical or mental illness
3. Impairment in functioning associated with old age
Removing an impaired colleague, medical student, or resident from contact with patients is an ethical requirement because patients must be protected and the impaired colleague must be helped. The legal requirement for reporting impaired colleagues
varies among states.
1. An impaired medical student should be reported to the dean of the medical school or the dean of students.
2-An impaired resident or attending physician should be reported to the person directly in charge of him or her (e.g., the residency training director or the chief of the medical staff, respectively).
3-A licensed physician who is impaired should be reported to the state licensing board or the impaired physicians program, usually part of the state medical society