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The administration of blood is considered to be a very sensitive medical procedure and one that must be handled with extreme care. It results from the exercise of professional medical judgment composed of carrying out a diagnosis in order to decide the need for blood and administer a therapy involving the actual administration of blood (Pozgar 85).
Ordinarily, the principle that is most likely to be jeopardized in cases that involve blood testing is that of respect for autonomy. Even though it is argued that a physician must get consent in order to carry out a blood test on a patient, research indicates that this may not be a major requirement in some situations.
According to Peckham and Hann, ethical dilemma regarding consent and blood testing have, over the years, been a major concern in the field of medicine and nursing (112). In past rulings of the Supreme Court in the United States, there have been indications that a patient’s blood can actually be tested with or without his or her consent. This is typically done in order to avoid dilution of evidence that may be used in court proceedings.
Where a person is to be tried for drunkenness, for example, the Supreme Court directed that samples should be taken soon enough. This paper will examine Breithaupt versus Abram, a New Mexico case on involuntary manslaughter to show that ethical considerations in blood testing are not, after all, compulsory. Other cases will also be discussed to strengthen the argument further.
Description of the Case
In the Breithaupt versus Abram case, the petitioner got involved in a serious road accident with an oncoming passenger car while driving in New Mexico. Although the petitioner survived with serious injuries, three occupants in the passenger car died instantly. The bottle of whiskey lying inside the petitioner’s truck left the onlookers wonders whether he was guilty of drunken driving.
When he finally got to hospital, one of the physicians sensed that he was smelling alcohol. Immediately, the police asked the physician to take a blood sample from the petitioner. Based on these instructions, the physician used a hypodermic needle to draw blood from the petitioner’s body. On analysis, the blood sample was found to contain about 0.17% of alcohol content. Consequently, the petitioner had to be charged for murder.
Discussion on the Case
In this case, the Court decided that a blood alcohol test requested by the police and administered by a physician under medically protective conditions on an unconscious suspected driver did not constitute an outrageous conduct, measured against the interests of other users of the highway.
The action of the police was, therefore, not seen as a violation of the due process under the Fourteenth Amendment. In this scenario, no issue was presented with regard to the further protections of the Fourth and Fifth Amendments involving search, seizure and self-incrimination.
The limited determination in Breithaupt’s case was occasioned by the fact that at the time the case was decided, the guarantees of the United States Constitution were not yet construed as having any application to the citizen’s rights against the state. The situation was, however, changed by a number of far-reaching Supreme Court decisions during the period between Breithaupt’s case and another case involving Schmerber.
It was held that the Fourteenth Amendment had the effect of extending to the citizen, the State and Federal authorities, the Bill of Rights protections relating to search and seizure, assistance of counsel, and self-incrimination. By reason of these decisions, there were contentions prior to Schmerber that Breithaupt had been sapped off all vitality and that the Supreme Court would later reverse its direction and declare compulsory blood alcohol tests to be a violation of rights under the Fourth or Fifth Amendment.
In Schmerber, these apprehensions found no support in the views of the Supreme Court majority. The Court regarded the asserted due process violation as disposed off by Breithaupt. Like in Breithaupt, it was argued that the blood extraction had been made by a physician in a simple, medically accepted manner in a hospital environment and no material distinction was found to indicate that the petitioner had consciously protested the extraction.
Recognizing that the main objection to be was based on the petitioner’s Fifth Amendment privilege against compulsory self-incrimination, the Court discussed the issue at length but rejected the contention of rights violation on the basis that privilege applies only to evidence of a testimonial or communicative nature, which does not include compulsory blood withdrawals.
In sustaining the conviction, the Court held that the Fourth Amendment right relating to searches and seizures did indeed apply, but justified the extraction on the ground that the search was a reasonable one, and that the police officer acted not unreasonably in ordering the extraction without obtaining a warrant in what appeared to him to be an emergency, where delay could lead to the destruction of the evidence. The right to counsel contention was dismissed somewhat summarily considering that erroneous legal advice could not avail to accord the petitioner a constitutional right which he did not have in the first place.
It is, however, important to think about what implications, if any, the decision had for the military establishment, with particular attention to the developments which ensued with regard to the admissibility of such tests administered involuntarily upon members of the United States Armed Forces overseas, at the command of foreign police or judicial authorities.
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In some ways, the problem appears to be a more acute one abroad than in the United States for two important reasons. First, most foreign countries generally go further in providing for compulsory blood alcohol testing than do the various jurisdictions in the United States. Examples include Germany, France, Belgium, Denmark, Greece, Luxemburg, Norway, and Spain which provide for compulsory blood testing in one form or another.
Stalwart individual rights nations such as the United Kingdom and Scotland also allow the refusal to take such tests to be considered against the accused at trial. Secondly, the commanding officer of the Armed Forces of the United States in any country must bear in mind and observe the Senate Resolution of 1953, which requires him to request the authorities of the receiving state to waive jurisdiction in cases involving danger that the accused will not be protected because of the absence or denial of constitutional rights he would enjoy in the United States. If the requested waiver is refused, the commanding officer of the Armed Forces would be allowed to initiate further steps through the State Department and Executive Branch channels.
Before Schmerber, there was a strong current of feeling among service lawyers that foreign trials of American servicemen involving compulsory blood alcohol tests constituted violations of the accused’s normal constitutional rights against compulsory self-incrimination and thus came within the mandate of the Senate Resolution. The Executive Departments was the required to take appropriate action to deal with the situation (Rosen et al. 63).
After Schmerber, however, addressing this kind of problem was made to be without a consequence. If compulsory blood testing in the opinion of the Supreme Court was of no relevant constitutional right, the Senate Resolution by its own terms was expected to have no application.
According to Pozgar, everyone has a right to informed consent (447). A person must receive all the necessary information to make an informed decision before consenting to a proposed procedure or treatment. Generally, informed consent is accepted on the premise that it works effectively at different levels (Marshall 38).
Among other things, the practitioner must explain to the patient in simple terms, the repercussions of the intended procedure or treatment. The right to receive information from the physician or any other person as the case may be, includes information about illness, the suggested course of treatment, the prospects of recovery in terms that can be understood, risks of treatment, benefits of treatment, alternative care options, proof of consent, and blood testing.
In most cases, the patient may well consent to alcohol blood testing since refusal to consent to such a test would result in the patient’s license being suspended in all the 50 US states.
Ideally, if one was already drawing blood, it was reasonable to draw the specimen even if it did not serve a clinical goal, as it would minimize the number of needle sticks a patient had to undergo. However, it was not generally the physician’s responsibility to draw the specimen, and the task could be passed on to law enforcement officers.
If the patient was not conscious, one would rely on the fact that in all 50 states the law specified that by operating a motor vehicle, one had implicitly consented to undergoing alcohol testing. Although this implicit consent could be overridden by a conscious patient, it could be relied on by an unconscious patient. The collection of evidence would, however, be left to the law enforcement officers.
Although it is generally recommended that a physician must seek a patient’s consent in situations where blood is to be tested, there are exceptions depending on what is at stake. The alcohol blood testing to determine whether one is drunk while driving is one such exemption.
From the discussion presented in this paper, it is clear that waiting to get a patient’s consent in some situations is tantamount to obstruction of justice. In the case of Breithaupt, any delay would have led to loss of critical evidence and unfair treatment of the families of those who lost their loved ones in the accident.
Other cases where it may be acceptable to carry out a blood test without a patient’s consent include instances of emergency where a patient is in a critical condition and wasting any more time could result in the patient losing life. In certain situations, however, it may be helpful to make analyses on a case by case basis and make decisions based on the available evidence.
Marshall, Patricia. Ethical Challenges in Study Design and Informed Consent for Health Research in Resource-Poor Settings, Switzerland: World Health Organization, 2007. Print.
Peckham, Stephen & Hann, Alison. Public Health Ethics and Practice, Portland, OR: The Policy Press, 2010. Print.
Pozgar, George. Legal and Ethical Issues for Health Professionals, Burlington, MA: Jones & Bartlett Publishers, 2012. Print.
Rosen, Peter, Adams, James, Derse, Arthur, Grossman, Shamai & Wolfe, Richard. Ethical Problems in Emergency Medicine: A Discussion-based Review, Hoboken, NJ: John Wiley & Sons, 2012. Print.