MEDICAL ETHICS

William L. Allen, M.Div., J.D.

ETHICAL PRINCIPLES AND CONCEPTS

1. Define the following terms in relation to the patient and physician-patient
relationship: “beneficence,” “nonmaleficence,” and “respect for autonomy.”
& The concept that the physician will contribute to the welfare of the patient
through the recommended medical interventions
& An obligation for the physician not to inflict harm upon the patient
& The obligation of the physician to honor the patient’s right to accept or refuse a
recommended treatment, based on respect for persons

2. What is fiduciary duty?
A duty of trust imposed upon physicians requiring them to place their patients’ best interests
ahead of their own interests.

3. What is conflict of interest?
A situation in which one or more of a professional’s duties to a client or patient conflicts wi
the professional’s self interests, or when a professional’s roles or duties to more than one
patient or organization are in tension or conflict.

4. How should conflicts of interest be addressed?
 Avoided, if possible
 Disclosed to institutional officials or to patients affected
 Managed by disinterested parties outside the conflicted roles or relationships

5. What is conscientious objection?
Objection to participation in or performance of a procedure or test grounded on a person’s
sincere and deeply held belief that it is morally wrong.

6. What is a conscience clause?
A provision in law or policy that allows providers with conscientious objections to decline participati
in activities to which they have moral objections, under certain conditions and limitations.

7. Describe futility.
The doctrine that physicians are not required to attempt treatment if there will be no medical
benefit from it. This has become a very controversial term in recent times, in part because of
inconsistency in definition and usage. In its clearest sense, it is not so controversial. For
example, when the substance laetrile, derived from apricot pits, was rumored to be a cure
for cancer in the early 1970s, desperate cancer patients besieged their physicians to give them this drug. Most physicians in this country declined to do so on the grounds that such a
treatment would be futile and the exercise of professional autonomy warranted refusal of their
patients’ requests in this case. Futility is sometimes inappropriately invoked when the chance
of a treatment’s efficacy is significantly limited, but not zero, and the physician determines that
minimal chance of efficacy to be “futile.”


INFORMED CONSENT


8. How should one request “consent” from a patient?
Consent is not a transitive verb. Sometimes a medical student or resident is instructed to
“go consent the patient.” This implies that consent is an act that a health professional
performs upon a passive recipient who has no role in the action other than passive acceptance.
A health professional seeking consent from a patient should be asking the patient for either an
affirmative endorsement of an offered intervention or a decision to decline the proposed
intervention.

9.   What is consent or mere consent?
Consent alone, without a sufficiently robust level of information to justify the adjective
“informed.” Although  “mere consent” may avoid a finding of battery (which is defined as
physical contact with a person without that person’s consent), it is usually insufficient
permission for the physician to proceed with a procedure or treatment.

10.   What is informed consent?
Consent from a patient that is preceded by and based on the patient’s understanding of the
proposed intervention at a level that enables the patient to make a meaningful decision about
endorsement or refusal of the proposed intervention.


11.   What are the necessary conditions for valid informed consent?
- Disclosure of relevant medical information by health care providers
- Comprehension of relevant medical information by patient (or authorized representative)
-Voluntariness (absence of coercion by medical personnel or institutional pressure)

12.   What topics should always be addressed in the discussion regarding informed
        consent (or informed refusal)?
&  Risks and benefits of the recommended intervention (examination, test, or treatment)
&  Reasonable alternatives to the proposed intervention and the risks and benefits of such  alternatives
&  The option of no intervention and the risks and benefits of no intervention

13.   What are the different standards for the scope of disclosure in informed
      consent?
&  Full disclosure: Disclosure of everything the physician knows. This standard is impractical, if not impossible, and is not legally or ethically required.
&  Reasonable person (sometimes called “prudent person standard”): Patient-centeredstandard of disclosure of the information necessary for a reasonable person to make a meaningful decision about whether to accept or to refuse medical testing or treatment.This standard is the legal minimum in some states.
& Professional practice (also called “customary practice”): Physician-centered standard of  disclosure of the information typically practiced by other practitioners in similar contexts.
Sometimes the professional practice standard is the legal minimum in states that do not acknowledge the reasonable person standard.
&  Subjective standard: Disclosure of information a particular patient may want or need beyond what a reasonable person may want to know. This is not a legally required minimum, but is ethically desirable if the physician can determine what additional information the particular patient might find important. 

14.   What are the exceptions to the obligation of informed consent?

&  Implied consent: For routine aspects of medical examinations, such as blood pressure,

temperature, or stethoscopic examinations, explicit informed consent is not generally

 required, because presentation for care plausibly implies that the patient expects these

measures and consent may be reasonably inferred by the physician. Implied consent does
not extend to invasive examinations or physical examination of private or sensitive areas
without explicit oral permission and explanation of purpose.
&  Presumed consent: Presentation in the emergency room does not necessarily mean that
emergency interventions are routine or that the patient’s consent is implied. The justification
for some exception to informed consent is that most persons would agree to necessary
emergency interventions; therefore, consent may be presumed, even though this
presumption may turn out to be incorrect in some instances for some patients. Such
treatment is limited to stabilizing the patient and deferring other decisions until the patient
 regains capacity or an authorized decision maker has been contacted.


15.   What should you do when a patient requests the physician to make the
      decision without  providing informed consent?
When a patient seems to be saying in one way or another, “Doctor, just do what you think is
best,” it is appropriate to make a professional recommendation based on what the physician
believes to be in the patient’s best medical interests. This does not mean, however, that the
patient does not need to understand the risks, benefits, and expected outcomes of the
recommended intervention. This type of request is sometimes referred to as requested
paternalism or waiver of informed consent. It is best in this situation to explain, in terms of
risks and benefits of a recommended intervention, the reasons why you recommend the
intervention and why it would seem to be in the patient’s best medical interest and ask the
patient to endorse it or to decline it.

16.   What is a physician’s obligation to veracity (truthful disclosure) to patients?
In order for patients to have an accurate picture of their medical situation and what clinical
alternatives may best meet their goals in choosing among various medical tests or treatments
or to decline medical intervention, patients must have a truthful description of their medical
condition. Such truthful disclosure is also essential for maintaining patient trust in the
physican-patient relationship. Truthful disclosure, especially of “bad news,” however, does
not mean that the bearer of bad news must be brutal or insensitive in the timing and manner of
disclosure.

   17.   Define “therapeutic privilege.”
A traditional exception to the obligation of truthful disclosure to the patient, in which disclosures
that were thought to be harmful to the patient were withheld for the benefit of the patient. In
recent decades, this exception has narrowed almost to the vanishing point from the recognition
that most patients want to know the truth and make decisions accordingly, even if the truth
entails bad news. Nevertheless, some disclosures may justifiably be withheld temporarily, such
as when a patient is acutely depressed and at risk of suicide. Ultimately, however, with
appropriate medical and social support, the patient whose decisional capacity can be restored
should be told the information that had been temporarily withheld for her or his benefit.

         CONFIDENTIALITY

   18.   What is medical confidentiality?
The confidential maintenance of information relating to a patient’s medical and personal data.
Maintaining the confidential status of patient medical information is crucial not only to trust in
the physician-patient relationship but also to physician’s ability to elicit sensitive information
from patients that is crucial to adequate medical management and treatment. The Health
Information Portability and Accountability Act (HIPAA, a federal statute) as well as most state
statutes provide legal protections for patients’ personally identifiable health information (PHI),
but the professional ethical obligation of confidentiality may exceed these minimal protections
or apply in situations not clearly addressed by HIPAA or state statutes.

   19.   What are recognized exceptions to patient medical confidentiality?
&  Duty to warn (Tarasoff duty): A basis for justifying a limited exception to the rule of patient
confidentiality when a patient of a psychiatrist makes an explicit, serious threat of grave
bodily harm to an identifiable person(s) in the imminent future. The scope of this warning is
limited to the potential victim(s) or appropriate law enforcement agency, and the health-care
provider may divulge only enough information to convey the threat of harm.
&  Reporting of communicable disease to public health authorities.
&  Reporting of injuries from violence to law enforcement.

   20.   What is the obligation to veracity to nonpatients?
Physicians are not obligated to lie to persons who inquire about a patient’s confidential
information, but they may be required simply to decline to address such requests from
persons to whom the patient has not granted access.

         DECISION-MAKING CAPACITY

   21.   How do physicians assess decision-making capacity in patients?
Whereas most adult patients should be presumed to have intact decisional capacity, some patients
may be totally incapacitated for making their own medical decisions. Totally incapacitated
patients will generally be obvious cases. But decisional capacity is not an all-or-nothing category,
so it is not uncommon for patients to have variable capacity depending on the status of their
condition and the complexity of the particular decision at hand. Thus, one crucial aspect of
assessing decisional capacity is to determine whether the patient can comprehend the elements
required for valid informed consent to the particular decision that needs to be made.

   22.   What are common pitfalls in assessing patient decisional capacity or
         competence?
If one uses the outcome approach, the  patient’s capacity is determined based on the
outcome of the patient’s acceptance of the physician’s recommendation. The physician may
incorrectly assume that the refusal of a recommended treatment indicates incapacity. Refusal
of a recommended treatment is not adequate grounds to conclude patient incapacity. Nor is
patient acceptance of the physician’s recommendation an adequate means of assessing patient
capacity. An incapacitated patient may acquiesce to recommended treatment, whereas a
capacitated patient may refuse the physician’s best medical advice. If one uses the status
approach, patients with a history of a mental illness or memory impairment may be considered
incapacitated. Psychiatric conditions or other medical conditions that can result in incapacity
may have resolved or may be under control with appropriate therapy that mitigates the
condition’s impact on patient capacity for decision making. Patients with memory impairment
or dementia may also be able to express wishes regarding treatment.

23.   What is the best approach to assessing patient capacity?
The functional approach, which determines the patient’s ability to function in a particular
context to make decisions that are authentic expressions of the patient’s own values and goals.
Determining whether a patient is capacitated for a particular medical decision entails assessing
whether the patient is able to:
&  Comprehend the risks and benefits of the recommended intervention, risks and benefits of
 reasonable alternative intervention, and the risks and benefits of no intervention.
&  Manifest appreciation of the significance of his or her medical condition.
&  Reason about the consequences of available treatment options (including no treatment).
&  Communicate a stable choice in light of his or her personal values.

Appelbaum PS: Clinical practice. Assessment of patients’ competence to consent to treatment, N Engl J
 Med  357:1834–1840, 2007.

24.   What is involuntary commitment?
Assignment of a person to an inpatient psychiatric facility without patient consent when the appropriate criteria are met. The patient must be unable to provide informed consent owing to a mental illness and,  owing to the same mental illness, pose a danger to themselves or to others.

25.   What is assent?
The obligation prospectively to explain medical interventions in language and concepts the
 patient can comprehend even if the patient is deemed to be not capable of full informed
consent, such as children or mentally impaired adults. The patient’s agreement is elicited, even
 though the final decision requires parental, guardian, or other legally authorized decision
maker’s permission.

      ADVANCE DIRECTIVES

26.   What is an advance directive?
A generic term for any of several types of patient instructions, oral or written, for providing
guidance and direction in advance of a person’s potential incapacity. The instructions and
authorization in an advance directive do not take effect until the person loses decisional
capacity and the advance directive ceases to be in effect if or when the patient regains capacity.

27.   What are the types of advance directives?
Designation by a capacitated patient of the person the patient chooses to make medical
decisions during any period when the patient is incapacitated, whether during surgery,
temporary unconsciousness or mental condition, as well as irreversible condition of lost
decisional capacity. The decisions the designated person can make include withholding or
withdrawal of treatment in life-limiting circumstances. These may variously be called a
“durable power of attorney for health care,” a “surrogate health-care decision maker,” or a
“proxy health-care decision maker.”
A  living will is a formal expression of a patient’s choices about end-of-life care and
specifications or limitations of treatment, either with or without the naming of a person to
reinforce, interpret, or apply what is expressed to the patient’s current circumstances.

   28.   Who are statutorily authorized next of kin decision makers?
If a patient has not made a living will or designated a person to make decisions during periods
of patient incapacity, state statutes determine the order of priority for persons related to or
close to the patient to assume the role of making medical decisions on the patient’s behalf.
These are typically called “surrogates” or “proxies,” but they differ from decision makers
designated by the patient in the way they are selected, and in many cases, they bear a greater
burden of demonstrating that they know what the patient would want.

   29.   What are the standards of decision making for those chosen either by the
patient or by statute to make decisions for the incapacitated patient?
&  Substituted judgment: The decision the patient would have made if she or he had not
been incapacitated. In some cases, this will not be the same as what others may think is in
the patient’s best interest.
&  Best interest: Choosing what is considered most appropriate for the patient. If there is
substantial uncertainty about what the patient would have chosen for herself or himself,
then the traditional best interest standard is the appropriate basis for decision making.

         END-OF-LIFE ISSUES

   30.   What are end-of-life care physician orders?
Orders that give direction regarding interventions at the time of death or cardiopulmonary
arrest. Patient-directed measures such as advance directives or statutory next of kin decisions
should be the basis for underlying medical decisions that entail informed consent or refusal
issues at the end of life.

     KEY  POINTS:  END  OF  LIFE  ISSUES

1.  Patients should be encouraged to discuss their wishes for end-of-life care with family
members or close friends and physicians while still able to clearly express these wishes.

2.  Forms such as Preferences of Life-Sustaining Treatment can designate the patient’s specific
 requests to accept or decline therapies at the end of life.

3.  Patients are frequently unaware of the numerous, complex therapies related to end-of-life
care and may not be able to write down what is wanted. Designation of a surrogate decision
maker with whom the patient discusses her or his values and goals related to end-of-life care
and also ensure the patient’s wishes will be respected.

   31.   How are end-of-life care orders written?
&  Do not resuscitate (DNR) or do not attempt resuscitation (DNAR): An order written by the
attending physician to prevent emergency cardiopulmonary resuscitation (CPR) for a patient
who has refused CPR as a form of unwanted treatment. The decision of an incapacitated
patient’s authorized decision maker may also be a basis for a written DNR order by the
physician.
&  Physician Orders for Life-Sustaining Treatment (POLST): Similar to the concept of DNR,
 but broadened to include all aspects of end-of-life care based on the choices of the patient
or authorized decision maker, including withholding or withdrawal of care and palliative
 measures. Many states now have statutory acknowledgment that a properly executed
 POLST form, signed by a physician, should be followed by all health-care providers for
          the patient.

          Available at www.polst.org.

32.    What is brain death?
The term used to replace the traditional definition of death by cessation of heartbeat and
respiration. In the most conservative definition of this term, it refers to whole brain death,
cessation not only of higher cortical function but of brainstem function as well.

33.    What is physician-assisted suicide?
The provision of a lethal amount of a medication that the patient voluntarily takes to end his or
her life. Oregon and Washington established legislation to allow these prescriptions, and other
states are considering the issue.

BIBLIOGRAPHY

1. Beauchamp TL, Childress JF: Principles of Biomedical Ethics, ed 6, Oxford, 2008, Oxford University Press.


2. Jonsen A, Siegler M, Winslade W: Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine,
   ed 6, New York, 2006, McGraw-Hill Medical.


3. Lo B: Resolving Ethical Dilemmas. A Guide for Clinicians, ed 4, Philadelphia, 2009, Lippincott Williams &
   Wilkins.