Law governing confidentiality and the treatment

"The Principle of respect for patient autonomy has attained too much importance in English medical law; the rights and interests of parties other than the patient should be better accounted for. " Discuss, with reference to the law governing confidentiality and the treatment of incompetent patients. The central issue of this essay appears to be the concept of consent and thus I must examine the different ways of giving your consent in differing situations. I will start by giving a brief outline on the conditions for competent adults to give consent to treatment and analyse the extent to which this group makes an autonomous decision.

I will then go on to analyse the law surrounding incompetent adults' means of consenting to treatment as this illustrates the approach taken by the courts when an individual is incapable of consenting. This will have covered giving consent with regards to treatment but then I must look at the area of patient information and how this information is released, is it a completely autonomous decision on behalf of the patient? I will conclude that in fact the interests of other parties other than the patient are accounted for in certain situations and that the law appears to be edging towards giving these groups more recognition.

The notion of consent represents the ethical principle that each person has a right to self-determination and is entitled to have their autonomy respected. As Justice Cardozo proclaimed in his classic statement: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. "1 A competent adult is generally entitled to reject some or all treatment even if this entails risks as serious as death.

The classic case where the patient refuses treatment and might then die due to this refusal is the case of Jehovah Witnesses. An illustration of this is the case of Malette v. Shuhman2 where a young woman was rushed into hospital unconscious carrying a card stating that she was a Jehovah Witness refusing blood transfusions. The doctor in casualty then despite this proceeded to give the woman a blood transfusion and was thus held to have committed a battery as the woman did not consent to the treatment.

This is a clear illustration of the idea that the patient's wishes must be adhered to and thus respect held for patient autonomy. This seems simple enough but the courts have not been too willing to find doctors guilty of battery so have introduced other measures to get round the idea of express consent. It has been established that there are four components of legally valid consent; voluntary, based on adequate information, given by a person with mental capacity to consent and not contrary to public policy. Two of these elements require more investigation, those of mental capacity and public policy.

The latter means that society chooses to set limits on respect for autonomy. Corbett v. Corbett3 was a case where trans-sexual surgery was tacitly approved due to the implementation of the Prohibition of Female Circumcision Act 1985, thus society was allowing the patient an autonomous decision. So far I have only considered consent for the competent adult, but how about the competent child? The law on children depends on the age of the child. The law is generally protective of children and historically leaves decisions on procedures up to proxies.

Under the current law there are generally three categories of children, sixteen to eighteen year olds, competent or 'mature' minor under the age of sixteen and the 'immature' minors under sixteen. None of the categories have the power to refuse treatment and neither do their proxies. Sixteen to eighteen year olds have the power to consent to treatment under the Family Law Reform Act 1969 section 8 as long as they meet the same competency criteria as adults as laid down in Re C (adult: refusal of treatment)4. 'Mature' minors under the age of sixteen have the power to consent to treatments under the conditions stated in Gillick v W.

Norfolk and Wisbech A. H. A. 5. Lord Scarman's test states that a child is competent when they have "sufficient understanding and intelligence to enable him or her to understand fully what is proposed. " If the child fails this test then they fall into the 'immature' minor category. 'Immature' minors under the age of sixteen have no powers to consent and only a person with parental responsibility or the courts can consent to any treatment on their behalf. This clearly shows how the courts have been increasingly in favour of children with understanding and the ability to make a rational decision to be able to make autonomous decisions.

Even though autonomous decisions are encouraged there is still the case where parents or the courts can consent on behalf of the child thus removing the child's autonomy. Consent by the mentally incapable raises many issues and problems for the law. The first paragraph of the 1971 United Nations Declaration on Rights of Mentally Retarded Persons reads: "The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings. " The law does not allow incompetent adults to consent to or withdraw from medical procedures, nor are any other people allowed to consent for the incompetent.

The courts issue a declaratory judgement as to whether the proposed treatment is lawful or not and the doctors must comply with this judgement. This is in essence the state taking a paternal approach to the incompetent adult. First it needs to be determined whether the patient is competent or not. The three stage test established in Re C (adult: refusal of treatment)6 is generally accepted as the legal approach and states that the patient; 1) comprehends and retains information, 2) believes it, and 3) weighs it in balance to arrive at a choice.

The legal approach to decision making for incompetent patients in medical law is generally based on the patient's autonomy, or protection of their welfare, or a combination of the two. Societal interests are also used to justify the participation of incompetents in procedures that are against the patient's best interests. The autonomy-based or protection of welfare legal approaches include advance decision-making and the substituted judgement test. Advance decision-making theory means that if the incompetent was previously competent their wishes from this time can be projected onto the patient once they have become incompetent.

Although the law currently allows the advance refusal of treatment even if the treatment is in the patient's best interests no case involving advance authorisation of a medical procedure that is against the interests of the incompetent has come before the English courts. There have been many arguments put forward in support of this approach, such as respect should be had for patient autonomy whatever the consequences. The Law Commission in its report on Mental Incapacity refused to accept any of the proposed argument in support of the legality of these advance directives, stating that:

"We have now recommended that reasonable treatment which is in a person's best interests will be lawful. Advance consent to other sorts of treatment would not, however, have the effect of rendering them lawful. "7 The substituted judgement test takes a different approach that the decisions made must conform with those that the incompetent individual would have made were they competent and is based on respect for the individual's autonomy interests. The courts in England and Wales have rejected this but the Law Commission has recommended that the incompetent's views, wishes and feelings should be taken into account when making decisions.

Both of the above theories or tests still place the patient's wishes or what is believed to be the patient's wish at the heart of the decision. This whole area shows again the law's willingness and eagerness to listen to the patient's wishes but also it maintains the view that what should be done is best for the patient if the patient is not completely sane. The best interests test on the other hand is the key example of decision-making based on the protection of the incompetent's welfare interests rather than on the patient's decision.

This theory does not utilise the principle of patient autonomy but by using the best interests test the courts are, as argued by some, still applying the patient's wishes (if they were competent) and not other people's such as relatives or the public as a whole. "'Best interests' is traditionally invoked as shorthand for treatment decision-making centred on protecting the incompetent patient's contemporaneous welfare". 8 It has been accepted that Re F (mental patient: sterilisation)9 states the best interests test as accepted by the courts: "(T)he common law provides …

that a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. "10 Thus procedures that are generally believed not to benefit the incompetent person's welfare are generally not considered to be in the patient's best interest and thus fails. The Law Commission reiterated this when it stated that non-therapeutic research with incompetent subjects fails the Re F test and may therefore constitute an unlawful battery11.

It has proved harder than it seems from this to get rid of the test in this area as it has been argued that the courts should also bare in mind the potential non-medical benefits to the incompetent. The case law has suggested that there are different types of interests to be considered including emotional in maintaining a close relationship and the psychological benefit obtained through altruistic action. In the American case of Strunk v. Strunk12 the court found that a kidney transplant from an incompetent was in his best interests as it was going to his brother and the sadness and guilt the incompetent would have felt had his brother died.

In Little v. Little13 the court stated that the prospective donor would benefit from a "heightened self-esteem, enhanced status in the family, renewed meaning in life. And other positive feelings including transcendental or peak experiences flowing from their gift of life to another. "14 Day J has also said: "(I)f the incompetent brother should happily recover from his mental illness, he would undoubtedly be happy to learn that the transplant of one of his kidneys to his sister saver her life. This at least would be a normal response and hence the transplant is not without benefit to him.