Border v Lewisham NHS Trust: A Case Study on Medical Law & Ethics

This case study delves into the Border v Lewisham and Greenwich NHS Trust case, a Court of Appeal decision highlighting the critical importance of informed consent in medical practice. The case revolves around a 64-year-old woman with a fractured humerus who received an IV line insertion in her left arm despite a recent mammectomy and risk of edema. The court found a breach of duty because the doctor failed to obtain informed consent before the procedure, even though the procedure itself was deemed acceptable. The essay discusses the ethical principles at stake, including beneficence, non-maleficence, autonomy, and justice, and examines the legal consequences of breaching medical laws related to patient consent. It further explores the ethical theories of utilitarianism, deontology, and virtue ethics in the context of this case, emphasizing the necessity of voluntary, informed consent in healthcare and the potential legal ramifications of failing to obtain it.

Running head: MEDICAL LAWS AND ETHICS
MEDICAL LAWS AND ETHICS
Name of the University
Author Note

MEDICAL LAWS AND ETHICS
Medical law and ethics
Brief overview of the case study
The essay spans around a case study based on the lawsuit that took place in relation to
the breaching of one of the health care ethics- “informed consent”. In this case, the claimant
was a 64 years old woman who had fractured her right humerus. She was admitted in to the
emergency department of the Queen Elizabeth Hospital in Woolwich where the patient had to
be given with IV line in to her arm. There was no emergency requirement for the procedure
although the staff had to be ready in case any emergency arises. Due to her injured right arm,
the normal practice is to use the left but the patient had undergone a recent left mammectomy
and axillary node clearance in the left arm and insertion of an IV line in the left arm might
increase the risk of edema. Hence, the option is either to use the left arm or to check whether
IV line has to be given at a later stage. As per the claimant, the doctor made some silent and
calculation and the inserted the IV line in to the left arm of the patient without taking proper
official consent from the patient. This caused a permanent edema in the left arm of the patient
causing a significant disability in the left arm. Ironically, when the lawsuit was conducted,
the judge accepted the decision to insert an IV line as the normal practice rather than to adopt
a “wait and see” approach, but the breach of the conduct had occurred on the ground that no
consent was obtained from the patient before the conducting the invasive procedure. The
court of appeal had agreed that allegations based on the consent were within the scope of the
pleaded case, although it has not been raised in the trial. However, after this a declaration has
been provided by the court of justice that the doctor was in breach of duty in inserting the
cannula without the consent of the patient.

MEDICAL LAWS AND ETHICS
Introduction
Healthcare ethics can be defined as a cluster of moral philosophies, values and beliefs
that directs the health care experts in making choices about treatment. It is the ethics that
forma the base ground of the values that differ from one culture to the other (Percival 2014).
Ethics in health care was being applied in health care since the time of the Egyptians.
Traditionally oaths were taken and codes were adopted even in the ancient times.
Advancement in medical science have brought in to new ethical and moral issues. These
ethics might involve any advancements in the genetic knowledge or it may related to the
preservation of the patient’s rights. In order to comprehend the moral issues, it is necessary to
understand the most important ethical principles and the values (Percival 2014). A doctor
always possesses some moral obligation towards his patient based on the therapeutic
relationship between the nurses. The ethical responsibility of a health care professional in a
given situation solely depends upon the nature of the decisions. However, this essay will
discuss about the codes of ethics- ‘informed consent”, which has been breached by the doctor
in this case scenario. While reflecting on medical laws and ethics, this paper will draw
attention towards the four main ethical principles in health care- Beneficence, non-
maleficence, autonomy and justice. This ethical principle forms the base of any health care
ethics displayed by the health care professionals (Kumar 2013). The patients being the health
care consumers are always at the vulnerable side to face situations like negligence,
malpractices and breaching of the basic health care rights of the patient. In relation to this,
this essay will also put forward the information about the legal issues and the consequences
that might arise due to the ethical issues.

MEDICAL LAWS AND ETHICS
The essay will aim to discuss this code of ethics in the light of the various ethical theories
like utilitarian, deontology and virtue ethics.
Informed consent of adults
Informed consent is an ethical idea that is an important part of the contemporary
medical ethics. Informed consent is the agreement of an individual to allow any medical
procedure based on the full disclosure of the benefits, risks, alternatives and the consequences
of the refusal (Berg 2012). Patients should be provided with all the information and will be
discussed with, regarding the risk factors of the clinical treatment and they should be given
the chance to choose what is right for them. According to Department of Health Victoria (2013),
informed consent for a medical treatment is reflected in the legal requirements and the
doctrines. Seeking informed consent from the patient and providing freedom to the patient to
make decisions within the clinical practice respect the moral integrity of a person. According
to Charter of Human Rights and Responsibilities Act 2006 (Vic), “A person might not be
subject to medical treatment without his or her full, free and informed consent” . informed
consent is an important aspect of the standard 1 of the National Safety and Quality Health
Service Standards.
Consent should be obtained verbally before the signing of any document. A verbal
discussion should be done before the consent form has to be signed. The signature on the
consent form is a proof that any conversation had taken place and the patient have understood
and has agreed (Berg 2012). The patient should be encouraged to ask questions and to
provide input in the in to the conversation. It is the duty of the clinician to make sure that the
patent understands everything fully and the implications of their decisions (Hall, Prochazka

MEDICAL LAWS AND ETHICS
and Fink 2012). A clinician should make sure that the patient’s understanding is not passive
and he/she has been agreeing to the terms and the conditions fully (Prasher et al. 2013). It is
evident from the case study that the claimant had contested with the defendant that the doctor
had not obtained any consent from the claimant before the insertion of the cannula in the left
arm. Hence, on that ground here had been a breach in the duty. It has to be mentioned
obtaining consent from the health care providers is a legal duty of the professionals and the
consent form constitutes of the legal framework. Hence, lawsuit might follow due to the
breaching of this important medical law (Berg 2012).
The case study reveals the fact that the doctor had inserted the cannula in the left arm
even after knowing that there is a risk of edema if IV is inserted in the left arm as the patient
recently had a left mamectomy and axillary node clearance in the left arm and hence cannot
be used. In such a case, the left had to be used even it has some chances of developing edema
in the left arm. In such cases, doctors are accountable to any kinds of avoidable harms arising
out of the treatment.
Consent should be given voluntarily. The health care professionals should advice to
the patients, as of what they believe to be the best possible option of care. A clinician should
not put any pressure or force the patient to take their advice. The patient always has the right
to choose between the available treatments options (Kumar 2013). Normally a patient always
have the right to withdraw their consent from the treatment. In this case, the claimant has
claimed that the doctor has done some silent calculations and performed the procedure ,
before the patient could actually realize anything. Consent should be taken before the
commencement of any procedures. Kumar (2013) have argued that there might be situations

MEDICAL LAWS AND ETHICS
where the patients are not competent enough to give consent , in that case the consent has to
be given by their chosen representatives.
It is necessary consider certain factors during obtaining consent from the patients, such
informing the purpose of the informed consent. This includes- explaining the rights of the
patient regarding the refusal or consent for the treatment, explaining the right to change their
mind, provision of relevant and comprehendible information, offering the information in
language that comprehendible to the patient. Communication is necessary in order to realize
the informed consent and physicians have to find ways for facilitating communication not
only in individual relation with the patient but also in the structured context of the medical
care institutions (Ploug and Holm 2015). Spatz et al. (2016) have stated that insufficiently
delivered information not only restricts the autonomous decision making of the patient. A
patient’s religious belied might deter him from getting any kind of treatment; in that case, the
clinician has the moral obligation to inform the patient about all the health care details
relevant to the current health care situation of the patient and guide him to a rational and
autonomous decision-making (Giampieri 2012). Important distinctions can be made between
various types of consent. According to Beauchamp and Childress there are differences
between the various types of consent. The expresses consent may be considered as the
paradigm for the health care and the clinical research (Beauchamp 2007). The tacit consent is
given by the failure to dissent from a predetermined course of action or that has been set
previously. Implicit consent refers to the decision and the action of the patient (Spatz et al.
2016). Presumed consent can be referred to as assumptions about the decision of a person that
he/she would have made, if she had the capability of consenting. Another importance is

MEDICAL LAWS AND ETHICS
between specific and generic consent. Now the conditions under which consents are given
can be summarized as adequate information, competence and voluntariness.
Competence- It is both a legal and a medical issue. Its basic meaning is the ability to form
tasks, and here to make decisions about the health care of a person and participation in the
research (Beauchamp 2007). Competence normally varies from one task to the other. There
had been a lot of debate in understanding the appropriate criteria for judging a competent
person (Spatz et al. 2016). The criteria includes the ability to understand he information
related to the decision, to appreciate the significance for the life and situation of a person, to
reason using the relevant information and to choose and express the choice. Beauchamp
(2007) has argued on the fact as of who is to decide whether the patient is competent or not?
The legal answer for this question is complex. It can vary from one jurisdiction to the other.
In many cases, proxy consent is also applicable although in this case scenario, no such
information about the participation of the patient’s family have been observed (Beauchamp
2007). Now there had been debates still going over the matter as of what are the restrictions
of the surrogate decision making. Some of the authors have argued that only the therapeutic
researches should be allowed to make by a surrogate decision maker. Regarding the criteria,
on the basis of which decisions are made of behalf of the patient- a common hierarchy of
guidelines are generally followed. At first the patient’s advance directives are followed, if
not, a surrogate puts him in the shoes of the patients and when this also becomes impossible,
the best interest of the patient is finally considered. In this case scenario, it can be clearly
seen, that the patient was competent enough to give consent for her own treatment and is also
well aware of the consequences that might occur if situations turned adverse. In spite of this

MEDICAL LAWS AND ETHICS
the patient was not provided with any chance to be involved in the decision making process
of her own treatment.
Principles of ethics
Each health care professional is bound by the principled of professionalism and in
upholding the wellbeing and the interest of the patients. There are four main ethical principles
defining the ethical duties that the health care specialists owe to the patients. They are
autonomy, beneficence, Non-maleficence and justice. These four ethical principle helps a
clinician to provide a holistic care to the patient.
It is the concerns about patient autonomy that raises the concept of informed consent.
Informed consent is not only a moral but also serve as a legal safe guard for respecting the
autonomy patient. Furthermore, the informed consent has been designed for the promotion of
the welfare of the patient (right of the patient to beneficence), and to avoid any harm to the
patient (ensuring the right of the patient to maleficience) (Hall et al. 2012).
Beneficence- Beneficence can be defined as the act of charity, kindness or mercy with a
strong connotation of doing something good to the patient including the moral obligations
(Kinsinger 2010). Health care professionals always have the moral obligations of doing
something good to the patients. The responsibility of maintaining the highest professional
standards exclusively rests with the ones that holds the trust, power and the authority. The
client is always in a vulnerable and weak position entirely, because it is the client who has
unmet needs. That is why each jurisdiction has legislation and regulations for protecting the
members of the public, the patients.

MEDICAL LAWS AND ETHICS
Several authors have discussed about ethics and in the health care mileau, beneficence
embraces the concept of humanism. Each and every person; the patients have the right to be
nurtured, respected and facilitated (Kinsinger 2010). Reverence towards the patients or to his
suffering pays respect to the patient. According to Kinsinger (2010) practitioners would have
to act in a way that contributed to the health and the wellbeing of the patient and refrain from
doing anything that harms the patient. Beneficence strives for the best method of care and
embracing not doing anything harmful is being extrapolated in to a generous, supererogatory
category (Kinsinger 2010).
Autonomy- Patient autonomy is the important principle of the professional medical ethics.
The idea that patient have the freedom to make choices about their lives, including the
medical matters has become prominent in the current literature (Murgic et al. 2015). This was
not the case before, when the doctors used to have paternalistic attitudes in relation to
medical decisions. The concept of paternalism is just the opposite of autonomy (Murgic et al.
2013). Although the concept of paternalism might have the same good moral intention, but
again it does not keep the patient in the prime position of the decision making. Paternalism
has been identified as one of the traditional characteristics of the therapeutic relationship in
the medicine (Murgic et al. 2013). This implies that the doctor takes decisions based on
his/her own understanding based on what the doctor considers for the nest interest of the
patient. This can be related to the case scenario by the fact that the judge found that the
decision to insert a IV line was a not a breaching of law as an experienced doctor might feel it
confident to take the risk rather than adopting a “wait & see” approach. Hence, the claimant
failed at the trial. It has already been mentioned that the doctor has made some silent
calculation all by himself and had conducted the procedure without taking permission from

MEDICAL LAWS AND ETHICS
the patient. In this case the concerned doctor had exhibited paternalism, keeping in mind the
current health status of the claimant, who required an IV insertion, if not immediately but
may be within a few days. It is necessary to remembers that the doctor might act in
accordance with the current practice but would certainly not do anything without obtaining
any consent from the patient. According to this principle, teaching someone who is not a
child paternalistically means treating him in an incorrect way. In the past the health care
professionals lacked respect for taking informed consent from the patient and taking consent
from the patient w\as considered to be an act of shame . Previously this was considered to be
perfectly normal just like the way it was considered to be normal not to provide antibiotics
for inflammation (since antibiotic were not in use then). However, it has to be noted that
today’s paternalistic methods are archaic and it is not only illegitimate but is also morally
wrong, if carried out with the perception of the past times. Paternalism implied two main
goals-Prevention of doing something wrong to the other person and usurping the rights of
decision making of the other person (Murgic et al. 2013). Hence, paternalism implies
interference with the other individual against their will by usurping the rights of the patients
to decide for themselves and fulfil their needs in order to qualify as human beings to be the
moral subjects. Although paternalism might be justified by the aspiration to protect another
person, practicing paternalism still refers to treating another person in an ethically wrong way
(Murgic et al. 2013). Beuchamp has pointed out the health care professionals having
utilitarian viewpoint makes efforts to show that they do not want to confuse the personal
intuitive attitudes with a justifiable moral position. Doing what is morally wrong is totally
unjustified and unacceptable.

MEDICAL LAWS AND ETHICS
It has been already stated that the concept of wellbeing totally differs from the
autonomous perspective of the patient. As per the views of some of the authors, the concept
of bioethics not only consisted of accepted and verified knowledge, but also is generally
perceived as a topic of disagreements and debates (Eyal 2014). In relation to this, doctors are
conditioned to see the world from the perspective of the instrumental knowledge from a
medical oriented perspective. Hence, the medical decision making procedure serves as
prohibitions on a course of action. In moral philosophy, the concept of personal autonomy
belonged to the field of self-control; the medically oriented approach becomes contradictory
with the needs, desires, beliefs and the values of the patient (Rodger and Blackshaw 2017).
Furthermore, there is a social perception that the clinicians or the healthcare professionals are
liable to take correct decisions. Hence, all the conflicting groups work together for
manifesting a collective behavior in providing paternalistic care to the patients. However the
power to carry out the decisions has to be derived from the principles that are good because
they ideal and not because their results were being understood from a medical perspective
(Murgic et al., 2015). If somehow the treatment is not tentative to the needs of the patient,
then the patient should be the authority in the decision making process. Things might change
in case of patients with mental disorders yet patient autonomy is still important to be
considered.
In order to reflect on the role of the society in the paternalistic issues, Alasdair
Macintyre had reasonably argued over the fact that the issue of medical ethics is entirely the
problem of the patients, and the physicians are not responsible for this (Lo 2012). Patients
belongs to the groups with acute care needs and if the services available to them rest on moral

MEDICAL LAWS AND ETHICS
values and reasons then they will become consistent with their authentic interests, which will
make things much easier both for the health care professionals as well as the patients.
Despite of the complementary features of the beneficence and autonomy, these two
principles contradicts each other. The autonomous preferences of the patient might contradict
with the best interest of the patient. For example, in this case scenario it is revealed that the
patient had developed an edema after the insertion of the IV line in to his left hand, which
ultimately lead to partial disability. From the case scenario it cannot be estimated as, what
would have happened, had there been no cannulation. If the doctor would have taken the
approach “wait and see”, that might have brought about adverse effects in the patient.
However, coercing a patient in to agreeing to the cannulation fail to respect the autonomous
preference of the patient. In relation to this it should be admitted that it is often unclear
whether the claimants possessed the conditions required for autonomy or give a consent in
written. Two conditions are extremely important for meeting the autonomy- Is the patients in
a state to understand the credibility of the situation and the give consent on their own? Is the
patient free from coercion in taking the decisions? These questions reflect the idea that
autonomy implies the freedom to decide ( Lo 2012).
Non-maleficence- Non maleficence is an ethical principle that can be traced back to “Oath of
`Hippocrates”, which states – “do not harm” or to refrain from engaging in any acts of
maleficence in the clinical context , any act that would harm the patient . An act of
maleficence can be intentional as well as un-intentional and a large percentage of the
unintentional act occurs die to indifference of negligence on part of the health care
professionals. . In the health care context, non-maleficence is personified in the principle of
primum non nocere and is also found in the Hippocratic Oath- “Physician-do no harm”. Due