Medico-Legal and Ethical Issues in Healthcare

This paper discusses the legal and ethical considerations in healthcare with reference to a case study of a patient presenting for care. It covers elements guiding validity of consent, legal consequences of not taking consent, refusal of treatment, consent in the event of lack of decision-making capacity, legal options to obtain consent, disagreement between substitute decision makers, factors to consider before deciding withdrawal of life-sustaining measures, ethical principles, values of stakeholders, and model for ethical problem-solving.

RUNNING HEAD: MEDICO-LAGAL AND ETHICAL ISSUES 1
MEDICO-LEGAL AND ETHICAL ISSUES IN HEALTHCARE
Student’s name
Institutional affiliation

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Introduction
The medical profession, being an interaction-based profession has both legal and ethical
components. In the treatment of patients, legal and ethical issues are bound to arise and it is the
obligation of every health practitioner to be aware of the legal hurdles and ethical considerations
so as to provide the best quality care, that is acceptable, equitable and sustainable. The present
paper will discuss these legal and ethical considerations. Both will be analyzed with reference to
a case study of a patient presenting for care. The legal issues discussed will include; elements
required for consent to be valid, legal consequences of health care without consent, legal hurdles
related to refusal of care by the patient, legal authority for consent in decision impaired
individuals, legal guidelines in case substitute decision makers disagree, and legal guidelines on
withdrawal of life-sustaining measures. The ethical issues presented will include; principles of
ethics and how they apply to the case, values held by stakeholders and how they conflict with the
principles and use of Kerridge et al, 2013 model to resolve the conflicts.
Legal issues
Elements guiding validity of consent
Consent is either a written or verbal permission that a patient provides to the health care
practitioner before any intervention is carried out on them (Johnstone, 2011). Ross first presented
to a local medical center for treatment of his severe headache. The elements that must be present
for consent to be valid is competence to give consent (Fleming & snow, 2014). The consent
should be given voluntarily and should cover the procedure to be done. An example is in case of
Marshall v Curry (1933) 3 DLR 260 whereby a testicle was removed when consent was for a
hernia reduction. The final element is information that qualifies the consent as informed consent.

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A person is deemed competent and with capacity, if they can understand what was said, retain
the information, believe the intervention and make a decision regarding the same (Appelbaum,
2007). This legal definition requires that competence be assessed otherwise the right to give
consent is moved to a substitute. The legislation in Australia from Guardianship and
Administration Act (1986, s36) states that an individual cannot give informed consent if they are
not able to understand the nature and effects of the procedure or treatment and if they choose not
to indicate if they consent or not. It is therefore paramount that Ross is legally competent and
clinically has the capacity to decide for his consent to treatment of the headache to be valid.
Legal consequences of not taking consent
Since informed consent is part of patient autonomy and has a provision in the law, failure
to abide by the guidelines regarding consent will lead to legal consequences. Queensland
Criminal Code s 245 provides for liability in the case of lack of consent and deems the case as an
assault. This is, therefore, a criminal act punishable by law.
Refusal of treatment
From the case study, Ross refused treatment at several turns and even refused to be
examined. The legal guidelines for the refusal of care in Australian also encompass consent. As
long as a competent adult refuses treatment, the paramedics have no legal basis to start treatment
even if the treatment is lifesaving (Dignam, 2014). The legal framework that gives the
paramedics a legal bearing to give treatment despite refusal is if there is an assessment of
competency and Ross is deemed incompetent (Fleming & snow, 2014). An example is the case
of a woman who refused lifesaving surgery for a goiter and appeared competent but later

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neuropsychiatrists found her incompetent and the surgery was carried out without her consent
(Fleming & snow, 2014).
Consent in the event of lack of decision- making capacity.
Ross had sustained considerable trauma with subarachnoid hemorrhage, rib fractures,
pneumothorax and facial fractures. These render him incapable of decision making and in
extension, the capacity to give consent (Howard, 2006). The healthcare team continued to offer
him lifesaving surgery for these traumatic injuries. Under the law, if the operation is lifesaving
and there is no authority to give consent then it is legally allowed to carry out the procedure. This
is provided under emergencies or necessities of treatment for example in mental health
(Guardianship and Administration Act 2000). The rationale is that is the procedure is not done
the patient will not survive hence the need to wait for consent becomes unresonable.
Legal options to obtain consent
Several statutes provide an avenue to obtain consent in the scenario of lack of decision-
making capacity. The Queensland Guardianship and Administration Act 2000 provides for
consent if the patient lacks decision-making capacity and there is adequate reason to deem the
treatment as urgent or emergency.
Another avenue is the provision of consent by a substitute decision maker (Howard,
2006). In Ross’s case, it could be his wife or his father. The Queensland Civil and
Administrative Tribunal (QCAT) can appoint a guardian to make decisions on behalf of the
patient (Queensland government, 2018). A binding power of attorney can also grant someone the
power to make consent decisions (Powers of Attorney Act, 1998). The third option is through an

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advance health directive also termed a living will that can grant powers of decision making and
other health decisions (Queensland government, 2018).
Disagreement between substitute decision makers
Ross’s care was being overseen by Rachel, his wife, and Joey, his father. They both have
the power to give consent in matters of his care but they disagreed. The disagreement can be
settled if the patient has an advance health directive that specifies the directives to be take in
such a scenario (Queensland government, 2018). The other option is via power of attorney
(Powers of Attorney Act, 1998). The individual with power of attorney has the power to make
decisions on behalf of the patient as long as they are in accordance with legal principles. If the
disagreements persist the government under the office of the public guardian (OPG) can help
resolve the disagreement in accordance with the law (Queensland government, 2018).
Factors to consider before deciding withdrawal of life-sustaining measures
The decision to withdraw an intervention is based on the principle of clinical futility
where the intervention is deemed futile and won't impact the management or survival of the
patient (Lawrence, 2012). The factors to be considered include prospects of recovery or quality
of life post recovery and available avenues of treatment (White et al, 2016). In Ross’s case, his
prospect of survival was low and he was not functional or responsive for several months. The
other factor is the family preparedness, as guilt, remorse and disagreements concerning futility
may arise (Downar, Delaney, Hawryluck, & Kenny, 2016).
Ethical issues
Ethical principles

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According to the bioethics and human rights declaration, medical ethics include
autonomy, beneficence, justice, and non-maleficence (Judkins-Cohn, Kielwasser-Withrow,
Owen, & Ward, 2013). The two principles that fit Ross’s scenario are autonomy and
beneficence. Autonomy is the principle that defines a patient having the right to dictate how his
care should be and encompasses informed consent before any procedure (Page, 2012).
Beneficence refers to the care that has the patient’s interests in mind and always acting to the
patient's benefit (Page, 2012).
Autonomy applies to Ross’s scenario in several ways. When he presented to a medical
center in Rockhampton, he chose to seek care for his severe headache and was discharged with
medication. However, three days later he refused to be reviewed and examined by paramedics
who were taking him to hospital. At the hospital, he continued being uncooperative and refused
observations. Due to lack of consent, the paramedics and nursing staff respected his decision and
did not go against his wishes. He had the right to control his care and was competent to choose
that decision. However, the principle of autonomy becomes difficult once Ross reached the point
of lack of decision-making capability due to his traumatic injuries. His decisions will have to be
taken for him including withdrawal of lifesaving care via substituted consent. This basically
undermines his autonomy.
The medical practitioners tried to act in Ross’s benefit despite his refusal of treatment.
This is shown by the offered medical assistance he was given for the treatment of his headache.
This principle applies even when Ross lost his capacity for decision making. The healthcare team
wheeled him into surgery for lifesaving evacuation of hematoma and to fix fractures. This was
for his benefit as impending mortality would have followed. With substituted consent, this

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principle will be tested as the benefit of the patient lies in the hands of those with the power to
affect his care.
Values of stakeholders
The two important stakeholders, in this case, are Rachel, his wife, and Joey, his father.
Rachel believes that the care should be stopped as he is not improving and had previously voiced
his concerns about such a situation. Ross had told her that in such a case whereby he cannot
provide for his family, is a nuisance or cannot care for himself, the decision should be made to
discontinue care. Joey knows about this wish too but does not wish for the care to be
discontinued. He sees hope and thinks that Ross might recover or even gain functionality. There
is a conflict with the ethical principles that should entail his care. Joey feels that Ross should
remain on support despite medical evidence that it is not beneficial or good for him violating the
principle of beneficence. Ross’s principle of autonomy has been taken away by both stakeholders
who choose for him his care options.
Model for ethical problem-solving.
According to Kerridge’s model for ethical problem solving, a correct path to solve the
conflict should be followed (Hitchcock, 2013). The first step is to state the problem which seems
to be a reluctance by the family to choose the best possible care plan that will benefit the patient.
The next step involves outlining the facts. In this case, Ross has extensive brain damage with
very poor prognosis. He has not been able to move from the ventilator, achieve spontaneous
movement or react to voice for months. The next step involves consideration of ethical principles
which in this case is Ross’s right to beneficence. This is followed by considering the problem
from a different perspective. The health professional perspective could be employed here as they

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are of the view that continued ventilation is not beneficial for Ross and recovery is not likely.
The law is then considered in this regard. According to the law, if such a disagreement of
substituted consent arises, there are legal channels that assign consent to the right party. The final
step is making an ethical decision to settle the conflict. After following the mentioned steps, the
stakeholders can make a decision that does not violate Ross’s ethical rights.
Conclusion
The present paper tackled legal and ethical issues relating to the care of Ross. The legal
elements validating consent include competence, voluntary choice, consent relating to the case
and information. Failure to take consent is a punishable assault on patient rights and has a
provision in Australian law. A health practitioner has legal ground to go against patients wishes
in the event of refusal of treatment only if the patient is deemed incompetent, otherwise,
treatment should not be given. Treatment can also be given without consent in emergency cases
where waiting for consent is not beneficial to the patient. Avenues that consent can be obtained
in the case of lack of decision-making capacity is through substituted consent. In the case of
disagreements of substitute decision-makers, the power of attorney or an advanced health
directive should be used. If not available the office of the public guardian should be involved to
settle the matter. Factors that should be considered before the withdrawal of care include quality
of life of the patient, prognosis, likelihood of recovery and psychological profile of the decision
makers.
The ethical issues in the care of Ross were autonomy and beneficence. This principles
conflict with values of the stakeholders and the Kerridge model for ethical problem solving can
be applied to solve the conflict.

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