Ethical Principles, Consent and Confidentiality

Richard Dawson

Aims

• To provide to time discuss ethical principals, consent and confidentially issues in relation to primary care.

Objectives: Scope of session

• Raise awareness of ethical and legal dimensions of clinical decision making

• Practise skills in ethical analysis and its application to clinical situations (especially in GP context)

• Provide overview of key areas of English law relating to clinical practice

Why learn about ethics?

Previously Dr’s have used a pragmatic system governed by the use of experience, intuition and common sense?

Why learn about ethics?

• More chance of recognising the full range of issues in any given situation

• Could promote a wider choice of options for action

• Gives insight into deep-seated attitudes and prejudices that influence decisions

• Could provide impartiality and the chance of better outcomes for patients

Some areas raising ethical considerations

• Professional duties• Confidentiality• Consent• Reproductive issues• End of life issues• Mental health

• Children• Screening• Rationing (resource

allocation)• Genetics• Research

The 4 ethical principles

• Approach should be applicable by anyone, whatever their personal philosophy, religion etc

• Respect for autonomy• Beneficence• Non maleficence• Justice

• They may conflict with each other• A framework for analysing ethical dilemmas, not a

formula for solving them

Four Ethical Principals.

• Autonomy (‘self rule’)– Help patients to make their own decisions and respect these

decisions even if you disagree– Understanding, Freedom from coercion, Capacity

• Beneficence (Do Good)– Doing what is best for the patient – but what is the best? May conflict

with autonomy• Non-maleficence (Do no Harm) • Justice/Equity

– time and resources– Societal justice

Consent

• The agreement by a person to a procedure or intervention

• Form of consent (implied or explicit)• Legal: Intention, Voluntariness, Competence • Autonomy: Understanding, Freedom from

coercion, Capacity• Treatment without consent could lead to charge of

battery (criminal or civil law) or negligence (civil law)

To have capacity to consent, patient must be able to

• understand in simple language what the medical treatment is, its purpose and why it is being proposed

• understand its principal benefits, risks and alternatives • understand in broad terms what will be the

consequences of not receiving the proposed treatment • retain the information for long enough to use it and

weigh it in the balance in order to arrive at a decision

Who is ‘competent’ (has capacity to consent)?• People over 16 presumed to be competent unless there

is evidence to the contrary• Under 16s are only considered competent if they have

sufficient intelligence and understanding to understand fully what is proposed

• Parent can consent on behalf of anyone under 18 who lacks capacity

• If someone over 18 lacks competence, no one can consent on their behalf - decision to be made by medical team ‘in the best interests of the patient’; consulting relatives considered good practice to help medical team make decision

Power of Attorney

• Enduring Power of Attorney (pre 2007) only applied to financial affairs

• Lasting Power of Attorney (since Mental Capacity Act 2005, implemented 2007) - 2 kinds– Property and Affairs LPA (like Enduring Power of

Attorney pre 2007)– Personal Welfare LPA which can specifically include

health decisions. Attorney’s decision could override Advance Directive made prior to the POA being registered

Advanced directives

• Advanced directive specifies how you want to be treated if circumstances arise when you don’t have capacity to make decisions

• Now considered binding in Common Law and under the Mental Capacity Act 2005

• Not valid if– Unsigned– Doubt re authenticity (e g not witnessed)– Concern it was written under duress– Concern about mental state at time of signing

• Advisable to discuss with family before writing

Confidentiality

• All personal info given to a health professional must be treated confidentially except in particular circumstances

• This includes friends and relatives• Duty of confidentiality continues after death• Most breaches of confidentiality are

inadvertent

Confidentiality

• Underlying ethical principals:

– Non-maleficence: damage to relationship, career etc

– Autonomy: the right of the patient to determine want information is passed on and to whom

– Societal Justice: where serious harm may be prevented by disclosure without consent

Exceptions to confidentiality

• Patient’s consent• Need to know• Statutory duty (eg DVLC)• Instruction from Judge (in Court or via a warrant

under Police and Criminal Evidence Act• Wider public interest• Child Protection

Access to information

• Data Protection Act 1984 (computer records)• Access to Health Records Act 1991(manual

records)• Access to Medical Records Act 1988 (medical

reports)• Data Protection Act 2000 (access to all records)• Safeguards against having to disclose harmful or

third party information

Other important legal areas

• Mental Health Act

• Reproductive Issues

• End of Life Issues

• Human Rights Act

When you have an ethical dilemma, consider

• Talking to colleagues

• Getting advice from your defence organisation

Your experience of an ethical dilemma

• Write down the story• What made it an ethical dilemma? (not just a situation

where you didn’t know what to do)

• What was most important to you about the decision you had to make? (e g getting it right, protecting yourself, avoiding conflict)

• What did you base your decision on? (e g guidelines, law, advice (who from?), your moral values or just feeling it was the right thing to do)

• What was the most difficult thing about it? (e g not having enough information, upsetting other people, or the responsibility you had)

Further info

• RCGP curriculum statement refs• GMC website• BMA website• Ethics in General Practice - a practical

handbook for personal development - Anne Orme-Smith and John Spicer. Radcliffe Medical Press 2001