Although healthcare might seem rather detached from ethics, not to mention legal issues, both have quite a tangible relation to the former, seeing how healthcare involves performing actions and surgeries that might lead to health issues and, in the worst-case scenario, even trigger the death of a patient. Therefore, medical practice is inseparable from ethics and criminal law in that it is supposed to be aligned with the basic postulates of the latter two. That being said, it should be mentioned that, despite all the attempts to make sure that medical practice should be carried out in correspondence with the existing ethical laws and legal regulations, in a number of cases, certain misconceptions arise, the issues regarding medicine and consent being among the key ones. Because in a number of cases, a patient’s consent is unattainable, either due to the age restrictions or because of the patient’s mental or physical state, medical treatment cannot be performed, which may result in the patient’s death or health state deterioration (Pons & Markovchick, 2012, p. 51).
It is worth keeping in mind, though, that the problem of consent, which, as it has been explained above, concerns not only legal age but also the ability of the patient to agree to the medical treatment that he or she is suggested to receive, is not the only legal issue that the present-day medicine specialists have to face on a daily basis (Classen & Tutgat, 2010, p. 50). When it comes to specifying the point at which the issue of attaining legal consent becomes ambiguous, the concept of autonomy in relation to consent is often brought up: “It is the concept of autonomy and its relationship to the concept of consent in law that lies at the root of what follows” (McLean, 2009, p. 3). Therefore, the consent of a patient is only accepted once the patient is labeled as autonomous, i.e., not being underage or mentally challenged. Herein, however, the basic problem lies; though legally, a person might be considered as fully capable of making a decision, in reality, the person in question might not be capable of making a choice. As Mclean explains, “[…] the fact that someone is legally considered to be autonomous does not necessarily imply that their decisions are in fact truly autonomous” (McLean, 2009, p. 3), making it clear that, with lack of competence in a specific medical issue, a patient might not be able to embrace the consequences of his or her refusal to undergo treatment. The aforementioned problem begs the question of whether a patient can be considered autonomous when it comes to the lack of professional knowledge in a patient: “The extent to which they can properly be called autonomous will hinge on a number of factors, such as information, understanding and opportunity” (McLean, 2009, p. 3). Therefore, a healthcare official faces an important medical dilemma, which is whether he or she should allow the patient to make his or her choice and threaten his or her health, or act against the patient’s will.
The above-mentioned ethical dilemma can be approached from two ethical perspectives, which are the Kantian ethics, Deontology and the Utilitarianism approach. From the Deontological point of view, the intentions are the key factor defining the value of the action; hence, in the case of choosing between the patient’s well-being and the breach of the patient’s consent, the latter seems the most legitimate choice (Leino-Kilpi, 2000, p. 49). The Utilitarianism approach, however, suggests that the outcomes should be considered as the only valid point in making the choice, which clearly shows the necessity to follow the latter option (Dickenson, Huxtable & Parker, 2010, p. 40). Finally, the Kantian ethics, namely, the Categorical Imperative, makes it obvious that disregarding the issue of consent for the patient’s sake cannot be regarded as a desirable course of actions (Wertheimer & McCullough, 2009, p. 47), since, when adopted, as a rule, it obviously becomes absurd.
With that in mind, it cannot be argued that both the current law and the basic ethical principles point to the necessity to follow the rule of consent. Even though in specific cases, the patient’s consent seems something to be neglected for the greater good and for the well-being of the patient in question, the patient’s consent must remain the pivoting point in the choice of the treatment methods. Since a number of people might benefit from the death of a patient, it is crucial that the consent of the latter should be acquired in order to conduct a specific course of treatment (Bonner, Carpenter & Garcia, 2007, p. 363).
Apart from the consent problem, the issue of confidentiality must be named. The given issue has already been touched upon in the discussion of the patient’s inability to confirm his or her agreement to the treatment provided and the following introduction of the third party, i.e., parents or other relatives, into the process of treatment. Legally defined as “unwarranted publication of a person’s private affairs with which the public has no legitimate concern, such as to cause outrage, mental suffering, shame, or humiliation to a person’ of ordinary sensibilities” (Sanbar, 2004, p. 647), breach of a patient’s privacy is generally considered one of the most difficult ones in medicine. However, in some cases, the problem of confidentiality can be taken to an even further degree. For example, the process of transferring the information concerning the patient’s case from one hospital to another, or, on an even smaller scale, from one doctor to another, can be viewed as a problem in terms of the possible confidentiality breach. Again, the given problem can be viewed from both ethical and legal sides of the argument. Legally, the breach of confidentiality is defined as a crime that has to be punished accordingly. From what the existing sources say, the breach of medical confidentiality can cost a healthcare specialist considerable amount of money or even his or her freedom: “The penalties begin with an initial penalty of a $50,000 fine and imprisonment of not more than one year, or both” (American Society for Healthcare Risk Management, 2010, p. 125). Ethically, the issue of confidentiality breach is a comparatively more complicated problem, which often presupposes an ethical dilemma to be solved. To make the matter even more complicated, the issue of confidentiality breach can be approached from several angles, depending on the choice of the ethical theory and ethical dimensions. The given controversy results in several amendments to the existing rule of patient’s privacy: “Theories based on invasion of privacy have supported recovery involving breach of confidentiality” (Sanbar, 2004, p. 647).
Another important legal and ethical issue that can be faced by the people employed in the sphere of healthcare is related to malpractice. A rather broad term, it can be referred to a number of issues and be related to the issue of consent and confidentiality breach, malpractice should definitely be listed among the key scourges of the XXI century medicine. Despite the futile attempts of the legal officers and the officials employed in the field of medicine to address the given issue, the instances of malpractice remain among the basic legal and ethical concerns of the present-day medicine. It is remarkable, though, that medical malpractice as a phenomenon is not restricted to the aforementioned problem of mishandling the consent issue and can be stretched to the most remote corners of the territory of medical, legal and ethical controversies. Therefore, the existing definitions of malpractice are rather broad and diverse; however, by far the most comprehensive and all-embracing definition was provided by Emily Lynch Morissette: “Medical malpractice is negligence” (Morissette, 2008, p. 118). Though admittedly a very broad statement, the given definition engulfs major ethical issues in medicine, including the problem of the patient’s consent.
The last, but definitely not the least, the issue of relationships must be given a proper mentioning. Occurring notably fewer times than the ones that have been listed above, the given issue can be related to the breach of both ethical and legal regulations (Subotsky, Bewle & Crowe, 2010, p. 3). Also related to the problem of consent as defined by the legal regulations, the given problem concerns mainly the level of a healthcare professional’s involvement into the patient’s case. The degree to which the healthcare specialist ought to be involved with the patent has not been specified yet, even though vague rules on the issue exist. As Article IV, Section 2 of the current healthcare code says, “Health Educators strive to make the educational environment and culture conducive to the health of all involved, and free from sexual harassment and all forms of discrimination” (Ethics, n. d.). The existing code, therefore, draws the line between being involved with the patient and his or her case, and displaying sexual interest towards the patient. The given idea, however, begs the question whether any kind of emotional involvement is an option for a healthcare specialist. Indeed, on the one hand, emotions allow a healthcare specialist to empathize with the patient and, therefore, provide the best services possible; on the other hand, emotions may stand in the way of logical thinking and the process of decision-making, therefore, bringing the quality of the healthcare services down a few notches. The idea of being romantically involved with the patient is an especially absurd concept that deserves a separate discussion. The results of such practice can be drastic, which the categorical tone of the regulations adopted in 80s and 90s point at explicitly: “Sex with a patient is unethical” (Dyer, 1988, p. 33). The regulations of the XXI century are far not that straightforward: “Sexual contact between a physician and a patient is always inappropriate” (Fischer & Oneto, 2009, p. 62); however, the basic idea as starting romantic relationships with a patient remains inappropriate.
Although the issues that have been brought up in relation to the problem of consent in medicine might seem somewhat distant from the topic discussed, in the light of ethics and legal issues in medicine, the problems discussed above can clearly be related to the problem of the patient’s consent; more of the point, these issues are the logical continuation of the problem of consent in medicine. While it must be admitted that some of the problems discussed above can seem quite far-fetched in regard to the consent issue, they still show clearly how far the latter can be pushed unless the appropriate measures are taken. Moreover, the way in which the issues listed above can be linked makes one question the current legislation system in regard to medicine. Even though the existing system of legislation seems to work well for the rest of the fields, in medicine, it clearly must be enhanced in order to avoid the instances in which the inability to obtain the patient’s consent might lead to the death of the patient.
No matter how hard it is to accept the fact that at present, common sense is not a sufficient reason for providing a treatment without the patient’s consent, at present, it is hardly possible to come up with the amendments to the current legislation that could possibly make the situation better, at the same time providing enough security for the people under age or disabled people by making sure that no one is using their legal status for his or her own benefit. It could be argued, however, that in some cases, exceptions should be made, as long as the patient is considered sane; however, it should still be mentioned that such issues should be considered on a case-by-case basis, which means that a general rule for the issue of legal consent cannot be worked out at present.
American Society for Healthcare Risk Management (2010). Risk management handbook for health care organizations (7th ed.). New York, NY: John Wiley & Sons.
Bonner, S., Carpenter, M., & Garcia, E. (2007). Care of the critically ill medical patient. Atlanta, GA: Elsevier, Ltd.
Classen, M., & Tutgat, G. (2010). Gastroenterological endoscopy. New York, NY: Thieme.
Dickenson, E. D., Huxtable, R. & Parker, P. M. (2010). The Cambridge medical ethics workbook (Cambridge medicine). Cambridge, MA: Cambridge University Press.
Dyer, A. R. (1988). Ethics and psychiatry: Towards professional definition. Arlington, VA: American Psychiatric Press, Inc.
Ethics (n.d.). Web.
Fischer, C. & Oneto, C. (2009). Kaplan medical USMLE. Medical ethics. New York, NY: Kaplan Publishing.
Leino-Kilpi, H. (2000). Patient’s autonomy, privacy and informed consent. Amsterdam, the Netherlands: IOS Press.
McLean, S. A. M. (2009). Autonomy, consent, and law. New York, NY: Routledge.
Morissette, E. L. (2008). Personal injury and the law of torts for paralegals. New York, NY: Aspen Publishers.
Pons, P. T., & Markovchick, V. J. (2012). Prehospital care pearls and pitfalls. Shelton, CT: People’s Medical Publishing House.
Sanbar, S. S. (2004). Legal medicine. Philadelphia, PA: Mosby, Inc.
Subotsky, F., Bewle, S., & Crowe, M. (2010). Abuse of the doctor – patient relationship. London, UK: Royal College of Psychiatrists.
Wertheimer, A. & McCullough, J. G. (2009). The ethics of consent: Theory and practice. Oxford, UK: Oxford University Press.