Patients: Rights, Values and

the Law.ED HOROWICZ

Objectives

To review the characteristics and beliefs that may influence treatment and care needs.

Discuss how ethical principles apply to these. Introduction to the Equality Act 2010. Introduction to the Human Rights Act 1999. To recognise the rare occasions when beliefs

can be overridden. Exploring how the law protects patients using

case based discussions.

What characteristics influence a patient’s healthcare?

A patient’s healthcare, from decision making to treatment can be influenced by their belief's and values.

These include; Age Disability Religion Culture Gender Social Issues

Group Work

Identify examples of how those characteristics could influence a person’s healthcare.

Consider what the patient could perceive and what the professional could perceive.

AGE

RELIGION

GENDER

CULTURE

DISABILITY

SOCIAL ISSUES

How are these beliefs and values respected and protected?

The Law and professional codes of conduct.

How do we ethically consider a patient’s rights?

Autonomy: “a form of ‘self government’, where a person should be able to control their own lives, including their own bodies, by exercise of their own faculties”(Harris, 1985, at p195).Is it ever ethically acceptable to not

protect the right of autonomy?

Beneficence

Positive obligation to do good for the patient, not the healthcare professional.

How does beneficence affect a patient’s rights and beliefs in healthcare?

Should a patient’s values and beliefs ever be overridden?

Non-maleficence

‘First do no harm’.Is it harmful to not respect beliefs

and values in healthcare?Can beliefs and values be harmful

to a patient?

Justice

Equality and fairness in how beliefs and values are respected.

Are all beliefs and values regarded equally?

Should they be?How do we consider beliefs and

values when they are different to our own?

What legal rights do we have? Anti-Discrimination law for healthcare

professionals is provided by the Equality Act 2010.

The Act provides that it is unlawful for public and private healthcare providers, including healthcare professionals, to discriminate against a person with a protected characteristic.

These characteristics are;Age, Gender, Gender Reassignment, Sexuality, Marital Status, Religion or Belief, Race and Disability.

There are exceptions! Beliefs and values must not contravene any domestic

laws.-Consider a cultural belief that has been interpreted as religious but if manifested would be an illegal act.e.g. Female Genital Mutilation Act If the discrimination is a ‘proportionate means to

legitimate aim’. Consider the transsexual male patient requesting to

be cared for on a female ward/bay.-If no side rooms are available, the legitimate aim may be to keep to the single sex accommodation policy to protect the privacy and dignity of female patients.

The Human Rights Act 1998 Resulting from the European Convention on

Human Rights and Fundamental Freedoms. Renders certain Convention rights enforceable

against public authorities, into domestic law. What essentially does it do?The Act sets out fundamental rights and freedoms that individuals in the UK have access to.Provides individuals with judicial recourse domestically and through the ECHR in Strasbourg.

These rights and freedoms include; Right to life

Freedom from torture and inhuman or degrading treatment Right to liberty and security Freedom from slavery and forced labour Right to a fair trial No punishment without law Respect for your private and family life, home and correspondence Freedom of thought, belief and religion Freedom of expression Freedom of assembly and association Right to marry and start a family Protection from discrimination in respect of these rights and freedoms Right to peaceful enjoyment of your property Right to education Right to participate in free elections

Which of these rights protects values and beliefs?

Article 3- Prohibition of tortureLack of healthcare provided to prisoners is contrary to the value that all individuals should be provided with access to healthcare.

Article 8- Right to respect for private and family lifeLeast defined but considered by the Supreme Court as ‘the right to autonomy’.-Consider imposing treatment without consent of a mentally competent person.-Consider the beliefs and values that a person may hold on end of life care; euthanasia and assisted suicide. However, the state can contravene this right.

Article 9- Freedom of thought, conscience and religion.Right to manifest religion or belief in worship, practice, teaching and observance.-Consider children, does male circumcision based on parental religious beliefs, breach the child’s rights?-Consider the child whose parents refuse to allow a blood transfusion.These would both be considered under the Children’s Act 1989, in whether the parents are acting in the child’s best interests.

Article 14- Prohibition of DiscriminationProhibits unjustified discrimination of Convention Rights.(This is different to discrimination per se)

-Consider the right to marry and found a family under Article 12. If the NHS offered fertility treatment to only heterosexual couples but refused the same treatment to a lesbian couple then Article 14 is breached.

What if a person’s beliefs are considered detrimental?

The Mental Capacity Act 2005 provides that a providing a person is mentally competent, decisions are valid even if they are ‘unwise’.

The exceptions to these in law are; Children, a parent/guardian is not deemed to be acting in the

best interests of the child, under the Children’s Act 1989 this responsibility will be given to the courts/social services.

Where the belief is not based on a patient’s values but as a result of severe mental illness, which after the test for mental capacity under the MCA 2005, demonstrates that they are incompetent.

Safety, if a physical requirement could cause harm during surgery; crucifix necklace remaining on when electrosurgery is to be used.

What if a practitioners beliefs are detrimental?

ODP’s cannot refuse to treat a patient almost without exception.

Any refusal based on a protected characteristic would not only breach HCPC Code of Conduct but would constitute direct discrimination.

The exception to this is elective termination of pregnancy and this is known as Conscientious Objection.

However, an ODP or Nurse cannot refuse to care for a patient before or post termination of pregnancy.

An ODP or nurse cannot refuse to treat or participate in termination where the mother’s life is or could be at risk.

End of Life Issues

The ODP has to recognise that to act in accordance with a person’s beliefs does include respect for end of life care.

Consider provision of religious chaplaincy . Consider continued presence of relatives. After death consider issues such as; burial/cremation, leaving a body unattended and ceremonial duties requested or expected as part of a

person’s faith.

Scenario 1

Liz is a 20 year old paraplegic who uses a wheelchair to mobilise.

Liz has been admitted for elective routine surgery and the policy for transfer to theatre states that patients should walk to theatre (covered up), in order to promote patient dignity.

A theatre porter and the ODP come to escort Liz to theatre but bring a trolley.

Liz asks to wheel herself to theatre. How is Liz protected by law to be treated equally? Could this be refused?

Scenario 2

Don is a 42 year old male who has come for a revision of a total hip replacement.

Don is a Jehovah's Witness and has refused the use of blood products.

How is Don protected by law?Can this ever be overridden?

Scenario 3

Paul is a senior anaesthetic ODP working within an all female team on a gynaecology elective list.

Tim introduces himself to Cheryl, a patient waiting in the anaesthetic room.

Maria states that she will not have any surgery with a male member of staff present.

Is this enforceable by law? How would you handle this?

Summary We have reviewed the characteristics and beliefs that

may influence treatment and care needs. We have discussed how ethical principles apply to

these. We have been introduced to the principles that apply

the Equality Act 2010 to healthcare. We have looked at the Human Rights Act 1999 and

how it applies to healthcare. We have explored the rare occasions when beliefs can

be overridden. We have applied the objectives to learning scenarios.

References

Beauchamp.T and Childress.J, 2009. Principles of Biomedical Ethics, 6th Edition, Oxford: Oxford University Press.

Brazier.M. and Cave.E, 2011. Medicine, Patients and the Law. 5th Edition, London :LexisNexis / Penguin.

General Medical Council. 2008. ‘Consent: patients and doctors making decisions together’. GMC: London.

www.gmc-uk.org/guidance/ethical_guidance.asp (accessed 02/02/2015). Herring.J, 2011. Medical Law and Ethics. 5th Edition, Oxford:

Oxford University Press. legislation.gov.uk