Application of an Ethical Framework
“Consent to Specific Treatment or Procedures” is the most essential document to be signed when providing medical services in any public or private clinic. Consent for treatment involves the patient completing and signing the documents provided before treatment begins. The first ethical standards underlying modern informed consent were established after the Nuremberg Trials of 1945 (Luchian & Florea, 2021). One of its tenets was that voluntary consent was a prerequisite for all medical treatment.
Nowadays, these norms have been formalized into laws that protect patients’ rights. The person consenting to treatment must be legally capable of giving informed consent. If the patient is found to be legally incompetent, the informed consent is signed by the patient’s legal representative.
Consent to treatment cannot be given under pressure or coercion. The wording of the informed consent must be precise and accurate so that the patient can understand it. The patient has the right to choose a doctor and a treatment method, to be consulted if they wish, and to maintain medical confidentiality. The concept of informed consent is used worldwide. It is contained in documents such as the Universal Declaration of Human Rights and the Lisbon Declaration on Patient Rights.
“Informed Voluntary Consent” enables patients to take a realistic view of the proposed treatment and objectively evaluate medical services. Signing the document indicates that the patient is aware of the potential benefits and risks of the treatment process and is prepared to address any challenges that may arise. If the patient is adequately informed about the proposed treatment and complications that may arise during the treatment process, the treatment outcome can be predictable.
In clinical practice, to make a reliable prognosis of patient compliance with recommendations and prescriptions, addressing the preventive assessment of treatment adherence is fundamentally essential, ensuring the patient’s active and conscious participation. For ancient Greek philosophers, the idea of practice could be applied to all non-contemplative or theoretical human activities. In other words, Greek philosophy distinguished between intellectual processes and material processes.
Management competencies are essential at all levels of an organization. Knowledge is needed to manage available resources. Leadership competencies are necessary to influence others positively (to manage people effectively). They are achievable only after other levels of competence – functional and managerial – have been sufficiently developed.
Ethical leadership helps mitigate reputational, environmental, economic, management, and legal risks. However, ethics does not guarantee economic success, and ethical leadership is not an additional means of achieving economic goals. Ethical behavior is a goal in and of itself. It expresses human dignity and respect for human and social values. This is especially important in a field such as health care. Ethical leadership views the healthcare worker not as an object to achieve economic goals but as a subject with dignity and goals. Ethical leadership reflects how hierarchical relationships between superiors and subordinates can be built honestly and humanely.
The document under consideration implies that the patient has the right to receive complete and reliable information about their health condition. The medical worker must provide the patient with information about their health condition, the purpose of the proposed research and treatment measures, the prognosis for possible disease development, and the presence of risks to life and health in an accessible form.
The law also defines exceptional cases in which consent is not required, as well as the possibility of a patient or their legal representative refusing medical intervention. Despite the sufficiently high level of legal regulation of this issue, in practice, the presence or absence of consent and the legitimacy of its provision become the subject of dispute. This document ensures that the patient is continuously informed about their treatment and procedures, and has the right to refuse them.
For example, the use of treatment of a child with severe mental or physical disabilities without the consent of the mother was found to violate Article 8 of the Convention. The child’s mother opposed using diamorphine, but medical workers administered it in an emergency without obtaining prior permission through the Court (Mourby et al., 2021). The ECtHR found that, in this case, ignoring the mother’s objections as her legal representative was inadmissible. The medical institution had the opportunity to obtain a prior court order (the emergency that had arisen was foreseeable) (Mourby et al., 2021). Of interest is the position of the ECtHR, which stated that, despite the prior consent to morphine, given by the mother allegedly under the influence of the doctors’ persuasion, the applicant’s subsequent unconditional withdrawal of her consent should necessarily have been taken into account.
Changes and Extensions to the Document
Attention should also be drawn to the European Court of Human Rights’ jurisprudence concerning consent to medical intervention for suspects and prisoners, particularly in relation to obtaining evidence of the commission of a crime. Among the main factors taken into account when considering such cases are the following:
- Humiliation and inhumanity of the measures applied. Treatment can be considered humiliating if it induces a feeling of fear or inferiority in the victim, is aimed at breaking their physical or moral resistance, or forces the victim to act against their will. The method applied to a suspect to extract evidence of a crime from his body must not exceed the minimum level of cruelty established by the ECtHR case law following Article 3 of the Convention (Mourby et al., 2021). Any necessary therapeutic measure regarding established medical principles cannot be regarded as inhuman or degrading.
- Reasonableness. The circumstances of the case must sufficiently substantiate any recourse to coercive medical intervention to discover evidence of a crime.
- Subordination. This refers to physicians’ prescriptions and the performance of medical procedures, all of which are conducted under the supervision of a medical professional.
- Impact on health. It must be ascertained whether the coercive intervention has led to a deterioration in health and whether it has had long-lasting consequences.
Although the decision in question concerned using coercive measures to remove the drug container from the suspect’s body, the criteria given may apply to the procedure for the coercive retrieval of biological samples. The topic of criminal responsibility for medical workers is one of the most contentious in the medical and legal spheres. The study of legal regulation of medical activity and the criminal responsibility of medical workers is closely connected to both medical and criminal law. Any movement is associated with errors and risks. A medical error or an unjustified risk can be fatal for a patient. A medical worker who makes a mistake or commits a socially dangerous act is subject to moral evaluation by society and legal liability, particularly criminal liability.
A medical worker, from the perspective of criminal law, is considered due to two components: as a general subject and as a special subject related to committing a criminal offense during their medical education, known as the so-called “professional crimes.” In general, the right to refuse specific procedures or treatment can harm the medical professional. A patient’s refusal of treatment or procedures can cause these consequences:
- failure to diagnose a disease promptly;
- improper application of treatment standards;
- violation of the rules of the use of medicinal substances;
- refusal to hospitalize a patient or provide them with emergency care;
- failure to provide the patient with the necessary medical supervision.
From this change in the document, populations involved in criminal activities may gain an advantage. Additionally, this possibility can positively impact patients who, for one reason or another, are ethically hesitant to receive treatment; however, if signs of a direct threat to the patient’s life and objective reasons cannot be obtained. In that case, the doctor must provide medical aid without the patient’s consent, provided that the patient is unable to provide consent due to the threat. Under other circumstances, the doctor may not perform diagnostic or therapeutic procedures and has the right to refuse medical care.
Possible Gaps
To fill in the gaps, I want to focus on how health information should be provided to patients, as this can influence their future decisions. First, the physician should ensure that the information is presented to the patient clearly and understandably. This means avoiding medical terminology unfamiliar or incomprehensible to patients.
Additionally, the patient’s cultural and intellectual development level should always be considered. After all, explaining the essence of medical manipulations to a person with higher education and a cashier with incomplete secondary education will result in very different perceptions of the exact phrases. Meanwhile, the law requires a medical professional to explain everything in a manner that is understandable to a specific patient, not to some abstract average person.
Such a requirement is also present in international acts. For example, according to point 2.4 of the Declaration on Patients’ Rights Policy in Europe, information should be communicated clearly and in a way that is understandable to the patient, minimizing the use of unfamiliar terms. If the patient does not speak the country’s everyday language, some translation should be provided. If the patient does not understand what the doctor is telling him, then it cannot be said that consent has been informed.
The European Court of Human Rights decision in the case of V.K. (V.C.) v. Slovakia is illustrative. In that case, the Court, after considering several factors, found that the patient had been improperly informed about the nature of the medical intervention because she did not know the meaning of the word “sterilization” (Glover-Thomas, 2020). Therefore, the doctor should remember that not all patients have graduated from medical school, so the terms familiar to health workers may be unfamiliar to them.
Additionally, the healthcare provider must inform the patient not only about the goals of the medical intervention and the actions they plan to take to achieve them, but also about the risks of various complications that may accompany these actions, including the potential failure to achieve the intended results. In international jurisprudence, the decision of the United Kingdom’s House of Lords, dated October 14, 2004, in the case of “Chester v. Afshar,” held that a doctor must, in any case, inform the patient of all risks associated with their actions (Austin, 2021). The failure to implement such a warning constitutes negligence on his part, even if there is a 1-2% risk of adverse effects from the operation (Austin, 2021). Thus, only after the physician has explained everything and answered the patient’s additional questions, ensuring that the patient has understood everything correctly, do they have the right to medical intervention.
References
Austin, L. (2021). Correia, Diamond and the Chester Exception: vindicating patient autonomy?Medical Law Review, 29(3), 547-561.
Glover-Thomas, N. (2020). Informed consent: the UK perspective. In Informed Consent and Health (pp. 74-100). Edward Elgar Publishing.
Luchian, M., & Florea, M. (2021). COMMUNICATION AND INFORMED CONSENT IN HEALTHCARE. International Journal of Communication Research, 11(3).
Mourby, M., Cathaoir, K. Ó., & Collin, C. B. (2021). Transparency of machine-learning in healthcare: The GDPR & European health law. Computer Law & Security Review, 43, 105611.