Samantha and her boyfriend Pete have been involved in a road traffic accident and are rushed to Accident and Emergency at Northtown NHS Trust. Samantha is 23 years old and is pregnant with their first child, due in 4 weeks time. She is in a very serious condition and has lapsed into unconsciousness. The doctor, who is treating her, Dr Jones, considers that she needs a blood transfusion. However, he finds a card in her handbag which is entitled ‘Advance decision to refuse specified medical treatment’. It states: ‘I am one of Jehovah’s Witnesses with firm religious convictions. With full realization of the implications of this position I direct that no transfusions of blood or primary blood components be administered to me in any circumstances’. As a result of the accident Pete has sustained severe injuries to his leg. He is conscious but in great pain when Dr Smith tells him that he requires an urgent operation to his leg to stem the bleeding and to repair the damaged tissue. Pete agrees to this and signs a consent form which provides that ‘the patient has agreed to such other surgical or other procedures as are medically necessary’. Pete is given a general anaesthetic. During the operation Dr Smith notices that Pete’s appendix is very inflamed and removes it. The operation to repair his leg goes well. However, Pete should have been prescribed post-operative antibiotics to reduce the chance of an infection but unfortunately the nurse, who has only just completed her training, fails to do so. Some days after discharge a severe infection develops in his leg and he returns to the hospital. He is given an emergency course of very strong antibiotics but his condition deteriorates. It becomes apparent that his leg will need to be amputated in order to preserve his life. Pete refuses. He is a semi professional footballer and says that his ‘life would not be worth living’ if his mobility is compromised in this way. Discuss the legal issues arising?
Samantha and Pete have been involved in a car crash. Both patients are in critical conditions. Samantha a pregnant Jehovah’s Witness, believes any form of blood transfusion will go against her religious beliefs. As a Jehovah’s Witness she believes life saving treatments involving blood transfers prohibit, and cause a barrier to enter heaven in the after life.
Pete who is a semi professional football player requires an amputation to his leg. The cause is due to the negligence of a qualified trainee nurse whom, failed to deliver post operative antibiotics after a successful treatment. Both of the patients condition has deteriorated. The validity of their refusal of medical treatment which can be life sustaining is in question.
In this essay I will discuss their rights of refusal to treatment and in doing so I will assess their level of competence, mental capacity to make decisions and analyse whether or not, decisions made can be upheld or whether the doctor’s can actually treat the patients against their wishes. I will also distinguish whether or not the fact Samantha is due in 4 weeks can force a change in circumstances and whether this, legally, can allow the doctors to save both the babies and Samantha’s life. Alongside with these issues, I will also discuss the failure to act by the trainee nurse following Pete’s operation.
The Legal position at the moment states a competent adult patient may choose or refuse treatment for any reason, rational/irrational, or for no reason at all even if this results in his or her own death. Any competent individual over 18 years can give consent to or refuse medical treatment. In general, all adults should be assumed to be competent to consent to or refuse medical treatment unless shown otherwise. Possible reasons why a person may lack capacity to consent to or refuse medical treatment include physical illness such as being unconscious.
Consent can be expressed or implied. Expressed consent is communicated to you either verbally or in written form. The victim must be able to clearly communicate his or her wishes for expressed consent to count. Implied consent happens when you are unable to communicate with the victim. Most commonly, this is because the victim is unconscious.
English common law allows doctors to give emergency or life saving treatments to their patients if it is in their best interest and the necessary consent cannot be obtained practically in the time available for example if the patient is unconscious. However, this only applies to emergency treatments which are absolutely necessary.
It seems evidently clear that, yes Samantha has lapsed into unconsciousness and is temporarily incapable of making a competent decision. In practice the doctor should be allowed to proceed with the treatment but, we must consider the fact that he has found a card in her handbag stating ‘I am one of Jehovah’s Witnesses with firm religious convictions. With full realization of the implications of this position I direct that no transfusions of blood or primary blood components be administered to me in any circumstances’. This is known as an advanced directive or a living will.
The English courts uphold the right to make anticipatory decisions. The English Court of Appeal in Re T (An Adult) (Consent to Medical Treatment)  held that doctors had no right to override anticipatory refusals when the refusal had been made by a competent person who intended it to cover the circumstances that had arisen. The case concerned the decision of a woman (whose mother was a Jehovah’s Witness) to refuse blood products after she was injured in a car accident. The court found that the woman’s mother had exerted undue pressure on the woman to make her refuse the treatment prior to her becoming incapacitated. The woman’s decision was therefore invalid and treatment could be provided by the doctors according to the patient’s best interests.
The test for the validity of advanced directives was said by Lord Donaldson MR to rely on the true scope and basis of the decision, ‘Where the present condition of the patient falls outside the anticipatory refusal the decision will not be held valid. Similarly, if the decision was made on a basis which has been falsified then the refusal should not be honoured. Finally, if the patient has been subject to undue influence the decision will be void and treatment may be provided. However, once a decision is found to be valid, any doctors who ignore it would ‘do so at their peril’.
A patient’s refusal to consent to treatment, for any reason religious or otherwise, should be noted in the medical record, and a release provides documented evidence of a patient’s refusal to consent to a recommended treatment. A release will help protect the organization and physicians from liability should a suit arise as a result of a failure to treat. The best possible care must be rendered to the patients at all times within the limits imposed by the patient’s refusal.
An advance refusal of treatment is binding if, the person making the directive was 18 or older when it was made, and had the necessary mental capacity. It specifies, in lay terms if necessary, the specific treatment to be refused and the particular circumstances in which the refusal is to apply. The person making the directive has not withdrawn the decision at a time when he or she had the capacity to do so the person making the directive has not appointed, after the directive was made, an attorney to make the specified decision. The person making the directive has not done anything clearly inconsistent with the directive remaining a fixed decision.
Although advance decisions can be oral or in writing, an advance refusal will only apply to life-sustaining treatment where it is in writing, signed and witnessed, and contains a statement that it is to apply even where life is at risk.
In an emergency or where there is doubt about the existence or validity of an advance directive, doctors can provide treatment that is immediately necessary to stabilise or to prevent a deterioration in the patient until the existence or applicability of the advance directive can be established. As mentioned it is important to establish that Samantha made the advanced decision when she was over 18 and when making her decision, she had the capacity to make it. The issue here will address whether her unconsciousness renders her incapable of having capacity to make a particular decision at the time in which a decision is needed to be made.
Decision-making capacity refers to the everyday ability that individuals possess to make decisions or to take actions that influence their life. In a legal context it refers to a person’s ability to do something, including making a decision, which may have legal consequences for the person themselves or for other people. Although the concept of capacity is inevitably complex, for the purpose of the mental capacity act a person lacks capacity if, at the time the decision needs to be made, he or she is unable to make or communicate the decision because of an ‘impairment of, or a disturbance in the functioning of, the mind or brain’. The Mental Capacity Act 2005 contains a two-stage test of capacity. Firstly, is there an impairment of or disturbance in the functioning of, the person’s mind or brain? If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?
The assessment of capacity is also ‘task-specific’, that is to say it focuses on specific decisions that need to be made at a specific time the decision is required. It does not matter therefore if the incapacity is temporary, or the person retains the capacity to make other decisions or if the person’s capacity fluctuates. The inability to make a decision, however, must be a result of the impairment or disturbance already mentioned. This could be the result of a variety of factors, including mental illness, learning disability, dementia, brain damage, or intoxication. The important point is that the impairment or disturbance renders the individual unable to make the decision in question.
Clearly, however, if the impairment is temporary and the decision can realistically be put off until such a time as he or she is likely to regain capacity, then it should be deferred. While it is clear that an unconscious patient will lack capacity, most other categories of patient will retain some decision-making capacity, however slight.
In June 1979, Georgette Malette, a Jehovah’s Witness, was seriously injured in an automobile accident and was rushed to the hospital. Dr. Shulman, the defendant, determined that Malette’s profuse bleeding mandated blood transfusions to preserve her life. He administered such treatment despite knowing, from a card she carried, that Malette had expressly requested that no blood transfusions be given to her under any circumstances. Malette sued, alleging that the blood transfusions constituted negligence, assault and battery, and religious discrimination. The trial court held that the Jehovah’s Witness card validly restricted Shulman’s right to treat Malette. The Supreme Court of Ontario affirmed the trial court’s judgment, concluding that Malette had informed the physician of her objection to blood transfusions in the only way she could. Absent some rationally founded doubt as to the card’s validity, Malette’s instructions stood.
We must also address the matter of her unborn child. An incident where the religious objection of a patient to a certain procedure was overridden was in Re S . A 30 year old woman was in a life and death situation when she refused a Caesarean section on religious grounds. She was six days overdue to give birth, the baby’s elbow projecting through her cervix. There was a grave risk of a rupture of the uterus without the operation so her situation and that of her unborn baby was desperately serious. As the operation was necessary to save not only S’s life but also that of her unborn baby, the court granted a declaration authorising the operation. The situation here was different as the life of an unborn child was involved. The judgment emphasised the desperation of the situation – a matter of “minutes rather than hours”.
In contrast St Georges health care NHS Trust v S  the Appeal Court ruled that the pregnant woman’s right of autonomy prevailed over the rights of an unborn foetus; consequently the woman’s treatment decision, which could or would result in the death of the foetus was not to be ignored, provided she had the requisite capacity, etc to make that decision. As Judge LJ stated in that case ‘a foetuses need for medical assistance does not prevail over her (the mothers) right’. Ethically, this may seem a harsh decision given that the mother was putting her unborn child at risk and that she was indeed 36 weeks pregnant.’
We must also note in order for a caesarian to be performed there must be informed consent by the mother. Unfortunately in this case she has lapsed into unconsciousness and is unable to consent. In these situations the doctor must act in the patient’s best interest and clearly a caesarian is not in the best interest of Samantha as it will most definitely worsen her condition and most possibly result in her death. Competent adult patients are entitled to refuse treatment, even when it would clearly benefit their health. The only exception to this rule is where the treatment is for a mental disorder and the patient is detained under the Mental Health Act 1983. A competent pregnant woman may refuse any treatment, even if this would be detrimental to the fetus.
Ethically Dr Jones should follow the principles laid out by Beauchamp and Childress. The Four principles which govern the ethical practice of medicine are respect for the autonomy of the patient. Beneficence, to do what will benefit the patient. Non-maleficence, avoid harming the patient. The fourth principle is justice, to treat patients in similar situations in a similar manor. The doctor must follow these medical ethics and have respect for the patient’s autonomy even if he believes her decisions are wrong. As illustrated in the case of Re MB  where a patient was due to deliver a child. However, a delivery by caesarean section was necessary but the mother had a great fear of needles. Despite consenting to the operation, she refused the necessary consent to anaesthesia in any form. The court considered the requirements as to capacity for patients to refuse consent to treatment. It was held that a foetus in the uterus until birth has no independent legal rights or interests.
This case stresses the fact that patient autonomy must be respected regardless of ethical issues and so, Samantha’s unconsciousness will not render the fact, that performing the blood transfusion will not be in her best interest as her advanced decision clearly states ‘I direct that no transfusions of blood or primary blood components be administered to me in any circumstances’.
In the scenario Pete has also sustained severe injuries to his leg. He is conscious and Dr Smith advices him on an operation which is required to stem the bleeding and repair damaged tissue. Patients have a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients. “Consent” is a patient’s agreement for a health professional to provide care. The health professional carrying out the procedure is ultimately responsible for ensuring that the patient is genuinely consenting to what is being done: It is they who will be held responsible in law if this is challenged later. Adults are always assumed to be competent unless demonstrated otherwise. If you have doubts about their competence, the question to ask is: “can this patient understand and weigh up the information needed to make this decision?”
Pete agrees to the operation and signs a consent form which states ‘the patient has agreed to such other surgical or other procedures as are medically necessary’. Pete has expressed his consent by giving written consent. The written consent is usually given by way of a standard form recommended by the department of health. The form itself does not constitute consent but is evidence of the patients consent to the proposed treatment. The form will usually provide authority for any additional surgery which is necessary in order to save the life of the patient. ‘Such written consent is not compulsory and its relevance becomes insignificant if the patient proves that, despite having signed the form, he did not understand the implications of its terms’.
Pete is given a general anaesthetic. During the operation Dr Smith notices that Pete’s appendix is very inflamed and removes it. An inflamed appendix can be life threatening. As Pete has signed and agreed to other procedures as are medically necessary it is highly unlikely that he could sue in an action of battery. The removal of the inflamed appendix is in the best interest of the patient, ethically Dr Smith has done right by performing this operation. However, if it would be unreasonable to delay the procedure until the patient regains consciousness (for example because there is a threat to the patient’s life) it may be justified to perform the procedure on the grounds that it is in the patient’s best interests. However, the procedure should not be performed merely because it is convenient
If valid consent is given, there is no battery. However, if the nurse acts without the patients consent, a battery will have been committed. In battery the Pete only needs to show that he has undergone treatment which he did not consent to. ‘It is irrelevant that no harm or injury was actually suffered or that the treatment may actually have benefitted the patient. In the case of Devi v. West Midlands AHA, Mrs. Devi had agreed to a minor gyneacological operation. The surgeon, upon finding that she had a ruptured womb, sterilised her. Her action in battery had succeeded because she had not consented to the operation performed’.
The operation to repair his leg goes well. However, Pete should have been prescribed post-operative antibiotics. Unfortunately the nurse, who has only just completed her training, fails to do so. As a result some days after discharge a severe infection develops in his leg and Pete returns to the hospital. Unfortunately, medical negligence occurs every day in UK hospitals. The legal principles surrounding medical negligence are complex because of the nature of the subject. The causation of an injury is usually obvious for example a car accident. However, the correctness of the decision to treat a patient in a certain way is much less clear cut.
The authority body that have performed this operation will at first glance ultimately be held responsible. To determine the individual at fault will require Pete to go through a certain procedure. At first he will have to contact his local resolution, department ward or the individual for an explanation. This can be done formally by writing or informally by a verbal exchange of words. The NHS is legally obliged to write back within 10 days of a complaint being made. If Pete remains unsatisfied at this stage the action proceeds to the hospital trust who will investigate who was at fault. If a resolution has not yet been met nor satisfied then the health care commission get involved to continue further investigation. The final stage will be contacting the Health Ombudsmen an independent body who will get a final resolution.
If you are taking legal action or state that you intend to start legal action then you may not also use the NHS complaints procedure. One of the most important legal principles that will affect Pete’s medical negligence claims is the Bolam test.
The rule of the common law is that, ‘in order for negligence to be established, it must be established that a duty of care was owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities’.
In the English law of tort, the Bolam test is a rule that has been used to determine the issue of professional negligence. The defendants (trainee nurse) test would be that of a standard ordinary skilled trainee nurse exercising and professing to have that special skill. The trainee nurse need not possess the highest expert skill; it is well established in law that it is sufficient if she exercises the ordinary skill of an ordinary competent nurse exercising that particular art.
However, what must next be proven is whether the act or omission of the doctor or nurse breached the duty of care. This is a more complex point, which was examined in the case of Bolam v Friern Hospital Management Committee . It was decided in this medical negligence case that there is no breach of standard of care if a responsible body of similar professionals support the practice that caused the injury.
The decision in Bolitho v City and Hackney Health Authority (1997) created a modification to the ruling in Bolam. A Lord Browne-Wilkinson gave the following two statements, which somewhat restrict the boundaries of the Bolam test. Firstly, the court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis. Secondly, where there is a body of medical opinion which represents itself as ‘reasonable’, ‘responsible’ or ‘respectable’ it will be rare for the court to be able to hold such opinion to be other than represented.
The Bolitho ruling means that testimony for medical professional who are alleged to have carried out the medical negligence, can be found to be unreasonable, although this will only happen in a very small number of cases.
In negligence the trainee nurse will only be liable if the damage to Pete was foreseeable. The trainee nurse as a defendant is liable in battery for all damage which actually ensues from her action.
The evidence produced by the claimant (Pete) must satisfy the burden of proof, which in a civil case, is the balance of probabilities. The burden is satisfied and negligence is proved if there is greater than fifty- percent chance that the claim as argued is correct, meaning the duty was owed and that breach caused the injury.
The question in law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant’s chances of avoiding the current level of injury were anything less than fifty- percent; he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.
In this scenario her failure to provide the post-operative antibiotics can arguably be deemed as being medically negligent as it is foreseeable that there is a high chance of an infection as antibiotics are prescribed for reasons none other than to reduce the chances of an infection.
The fact that she is merely a trainee nurse is irrelevant. It is very doubtful that she could even argue lack of knowledge, stating she did not know she had to give post-operative antibiotics to the patient. The mere fact that she has undertaken a task for which she may lack insufficient training, this in itself may constitute negligence. Quite simply, if a nurse even takes on a doctor’s role she will be judged by the standards of a reasonable doctor.
Pete is given an emergency course of very strong antibiotics but his condition deteriorates. It becomes apparent that his leg will need to be amputated in order to preserve his life. Pete is a semi professional footballer says his ‘life would not be worth living if his mobility is compromised in this way’ and refuses treatment.
Adult patients who are conscious and mentally competent have the right to refuse medical care to the extent permitted by law even when the best medical opinion deems it essential to life. ‘Such a refusal must be honoured whether it is grounded in religious belief or mere whim. Every person has the legal right to refuse to permit a touching of their body. Failure to respect this right can result in a legal action for assault and battery’.
If Pete refuses consent every effort should be made to explain the importance of the procedure.
Once again, re T (Adult: Refusal of Treatment)  illustrates that ‘the patient’s interest consists of his right to self-determination. His right to live his own life, how he wishes. Even if it will damage his health or lead to his premature death.’ Lord Donaldson of Lymington M.R. stated ‘this situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives. However, what mattered was that the doctors should consider whether at the relevant time the patient had a capacity which was commensurate with the gravity of the decision which he purported to make’. Was the decision made by pete out of shock?
The more serious the decision, the greater the capacity required. Furthermore, an adult patient may be deprived of his capacity to decide either by long term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs. Doctors faced with a refusal of consent have to give very careful and detailed consideration to what was the patient’s capacity to decide at the time when the decision was made. It may be a case of reduced capacity. What matters is whether at that time the patient’s capacity was reduced below the level needed in the case of a refusal of that importance.
In Airedale NHS Trust v Bland, two members of the House of Lords echoed the findings in Re T. The House of Lords was being asked to determine the legality of the withdrawal of life support from a patient in a persistent vegetative state. Lord Keith and Lord Goff both recognised the validity of clear instructions given by people of sound mind, in anticipation of their incapacity, to consent to or refuse types of treatment. Lord Keith said that ‘the principle of self-determination extends to the situation where the person, in anticipation of his, through one cause or another, entering into a condition such as persistent vegetative state, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive’.
The circumstances may be dissimilar to our scenario however the point made was as long as the patient has capacity to make a decision, that decision must be upheld providing that the patient had capacity to make decisions albeit rational or irrational.
The case of Ms B v an NHS Hospital Trust  established that if there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. If we apply this to the scenario it is clear that even if Pete is being irrational, the doctors must not confuse his irrationality with lack of mental capacity, yes it may seem irrational but the patients autonomy must be respected.
Comparatively the case of Re C (Adult: Refusal of Medical Treatment)  can illustrate what may be the outcome of our scenario. Similarly, in both the case and the scenario, it involves a male patient with the requirement of an amputated leg to preserve his life. In Re C  the 68 year old patient developed gangrene in his foot; the diagnosis was that he was likely to die immediately if the leg was not amputated below the knee. C refused the amputation. The court held that C was in fact capable of making his own decision, and that decision had to be respected.
In conclusion, ‘if mental capacity is not an issue and the patients having been given the relevant information and offered the available options, choose to refuse the treatment that decision has to be respected by the doctors’. Concerns about the best interests of the patient, indicates that the decision should be to consent to treatment.
‘A patient’s right of choice is not limited to decisions which others might regard as sensible. It exits notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non existent’. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. It is well established however that in the ultimate, the right of the individual is paramount.
Sadly, although due in 4 weeks, the foetus will unfortunately have no human rights, no right to life, as it still remains unborn. Hence, both patients can legally refuse treatment, regardless of moral or ethical issues. The doctor must always respect each patient’s wishes even if it results in bereavement.
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