Religious Blood Transfusion
Medical law: (Area might concern, medical malpractice, consensual and non-consensual treatment and confidentiality, etc.)
After a serious train crash, in which a number of people were injured, the following events occurred at the Worsen NHS Trust Hospital. Thomas, the train driver, was admitted to the casualty department in a critical condition. Thomas, who was unconscious on arrival at the Hospital, needed immediate surgery for his injuries, which were life-threatening. Whilst being prepared for the operating theatre, the duty surgeon, Mrs Blewitt, found a card in Thomas's belongings which stated that, owing to his religious beliefs, Thomas would not accept any blood products. Ignoring this information, during the course of the operation, Mrs Blewitt administered a blood transfusion to Thomas. During the operation, Mrs Blewitt discovered that Thomas was suffering from a rare and serious heart disease, which made him unfit to drive trains.
Following the operation, Mrs Blewitt discussed Thomas's condition and long-term prognosis with Thomas's wife, Henrietta. Mrs Blewitt also advised Henrietta that Thomas should be persuaded to give up his job. Percy, the train conductor, who was also injured in the train crash, was admitted to the Hospital. Percy's right leg had been badly damaged in the accident and was completely paralysed as a result. Mrs Blewitt used an innovative method of surgery on Percy's leg in an attempt to restore the use of his leg. Since the operation, Percy has lost all sensation and mobility in both of his legs. Although there is no evidence that the operation itself was carried out negligently, the technique used by Mrs Blewitt in the operation is not widely practiced, but it does have the support of four highly respected surgeons working in a similar field of surgery in America. A few weeks after the train crash, Mrs Blewitt discovered that Thomas was still working as a train driver, so Mrs Blewitt informed Thomas's employers of his rare and serious medical condition. Since his operation, Percy has done some research on the internet and has found over thirty surgeons who disapprove of the method of surgery used on Percy by Mrs Blewitt. Identify and discuss the legal issues in the above scenarios and advise both Thomas and Percy of any legal rights and remedies they may have.
In relation to Percy, it was necessary for the hospital to treat him as one of his legs had been badly injured in the train crash. Mrs Blewitt used a new method of surgery on Percy in order to try and restore the use of his leg. However, as a result, Percy has since lost sensation and mobility in both of his legs. According to the facts, there is no evidence that the operation itself was performed negligently. In essence, for Percy to ascertain whether there is any course of legal redress it is necessary to establish whether he was aware of any risks inherent in the proposed surgery, whether such risks were explained to him and whether he would have gone ahead with the treatment anyway, even if he was fully aware of those risks. The issue is one of informed consent.
It is a well-established principle that in order for any treatment involving bodily contact, there must be a valid consent from the patient. In absence of such consent the doctor will be guilty of assault. Percy is neither unconscious, nor is there any evidence that he is unable to understand the proposed treatment, retain that information and weigh up the treatment in balance to arrive a decision. On the facts, it seems that Percy has consented to the treatment performed. Even if he was to argue that he would not have done so had he known of the risks inherent in the treatment, it is unlikely that Percy would succeed with an action in battery for trespass to the person. Thus, in Chatterton v Gerson it was established that as long as the patient consents to the treatment in 'broad terms' then there is a valid consent.
The issues surrounding the care of Percy are essentially, of an ethical nature. Montgomery opens his chapter on consent with reference to the Patient's Charterof 1991 stating that all citizens have an established National Health Service right 'to be given a clear explanation of any treatment proposed, including any risks and alternatives, before [they] decide whether [they] will agree to the treatment'. Unfortunately, the law is not so clear, nor so favourable to the patient in order to confer such rights. The leading case on the issue of informed consent is Sidaway v Bethlem RHG. The judgment is far from clear as the reasoning of their Lordships is not consistent. The doctrine of 'informed consent' originates from the American case of Canterbury v Spence making it clear that a patient should be told all the information that a 'prudent patient' would want to know, subject to the doctors defence of 'therapeutic privilege'. Yet, in Sidaway it was only Lord Scarman that was of the opinion that the test should be what a reasonable patient should want to know. What can be taken from the case is that it inevitably reinforces the principle that the 'doctor knows best'. Thus, the doctor is only obliged to inform the patient of the risks which a reasonable doctor would regard as significant. In terms of what is classed as a significant risk, it was stated that this should be around a 10 per cent risk.
For the majority of their Lordships, the Bolam test was an essential part of the clinician's judgment. Thus, so long as the doctor acts in accordance with a practice that is accepted as proper by a responsible body of medical opinion, then he is not guilty of negligence. Thus, once again, the judgment reinforces the opinion that the doctor knows best. The rule in Bolam effectively hands over the standard of care in negligence to the medical profession itself. So long as one doctor supports the view of the doctor accused of negligence, then his actions are held to be in accordance with accepted medical practice. For an action that normally associates reasonable practice with objective standards of care, this seems extremely controversial. In fact, the Bolam principle is subject to scathing academic opinion. In no other areas of negligence does the law effectively hand over the standard of care to the profession itself. Words such as 'reasonable' and 'responsible' are not normally equated with practices that are 'accepted'. Thus, negligence is concerned with what 'should' or 'ought' to be done, not what is actually done in similar circumstances.
This approach has been significantly modified by the case of Bolitho v City & Hackney Health Authority, in which Lord Browne-Wilkinson commented that a judge is entitled to reject a doctor's opinion if it is not capable of withstanding 'logical analysis'. Although his Lordship specifically stated that the principle only applied to cases of diagnosis and treatment, subsequent case law suggests otherwise (such as Pearce v United Bristol Healthcare NHS Trust which will be discussed below).
With regards to Percy's case, Mrs Blewitt has the support of 4 doctors in America for the treatment that she carried out on him. It will be necessary for the court to examine whether such treatment is actually in line with a responsible body of medical opinion. It will not be a matter of counting numbers, such as the 4 in support of the treatment, and over thirty who are of the opinion that it is not accepted medical practice. It will be for the judge to decide whether the approach of the American surgeons is capable of withstanding 'logical analysis'. It is debatable whether judges are in fact giving a wide interpretation of Bolitho and disregarding medical opinion. Thus, subsequent case law suggest somewhat of a restrictive approach on the modification of the Bolam principle in its new Bolitho interpretation. The fact that the American surgeons are described as 'highly respected' does seem that the practice followed may be regarded as reasonable. This however, could be examined on receipt of more detailed medical evidence.
Bolam principles aside, there is still the major hurdle of succeeding in a claim based on informed consent. In Pearce, Woolf MR interpreted the Sidaway judgment in somewhat imaginative way. He agreed with Lord Browne-Wilkinson's approach in Bolitho, that the courts are not thus confined to the conventional 'Bolam' approach. In his opinion, it is for the courts to set the standard of care, not the medical profession. Kennedy and Grubb comment that although such approach is welcomed, it is somewhat 'creative'. Thus, a composite view of the speeches in Sidaway is somewhat problematic. The reasoning in Pearce is similar to the Australian case of Rogers v Whittaker in which the Bolam principle was specifically rejected and the 'particular patient' test affirmed. Thus, according to Pearce, the reasonable doctor must tell the patient what the reasonable patient must want to know. Interestingly, the Australian High Court was expressly rejecting the Bolam approach, yet Pearce was applying the principle, albeit, in its post Bolitho form. However, the consequences of the both approaches are effectively indistinguishable in substance.
Pearce is now the authoritative interpretation of Sidaway and thus the medical profession are under a duty to inform the patient of risks that the doctor feels a reasonable patient would attach significance to. On the facts, we are not aware of the exact statistics in terms of risk of paralysis of both legs in the operation. However, the prospect of losing sensation and use of both legs as a risk of treatment is surely a risk that any reasonable patient would attach significance to! Even if Percy were to succeed in proving that Mrs Blewitt was in breach of her duty for failing to warn him of the risks inherent in the treatment, he still faces the hurdle of proving causation. Thus, that it was the failure of the doctor to warn of the risk that caused the damage complained of. Percy would need to prove that he would not have undergone treatment on that particular day if he had been warned of the risk. The problem with such is that there is always going to be a problem of proving that a different course of action would have been taken with the benefit of hindsight. Thus, for Percy, the law presents a huge hurdle in succeeding with a claim based on informed consent.
Thomas has been admitted to the Hospital casualty department in a critical condition. On arrival he is unconscious and needs life saving treatment. As already established, any treatment involving bodily contact requires consent if it is to be lawful. However, Thomas is not able to give consent because he has no capacity to do so whilst unconscious. Further, English law does not recognise proxy consent on behalf of an adult and thus, no one is able to consent on behalf of Thomas. In circumstances such as these, the law recognises that the patient may be in need of life saving treatment and the doctor, with lack of consent, is able to treat Thomas in his best interests.
The Re F judgment made specific distinctions between the patient who is admitted in emergency situations and those who lack capacity on a permanent basis. The former can be treated for the situation which presents an immediate threat to the patient's health but any further treatment that is not life threatening, should ideally be carried out only when it is possible to gain the patient's consent. When treating a patient in his best interests, this will inevitably involve a whole range of both medical and non medical considerations and although the family have no specific proxy authority, it is advisable that the doctor discusses treatment with the patient's close family and obtains information to ascertain what would be a course of treatment in the patient's best interests. 'Best interests' is justified in accordance with reasonable and responsible medical practice in line with the Bolam test.
The present dilemma is of course that Mrs Blewitt has found a card stating that Thomas does not wish to accept any blood products due to religious beliefs. It is a well established principle, that an adult of sound mental capacity is able to accept and refuse medical treatment whether his reasoning is due to religious beliefs, rational reasoning or even irrational reasoning.
Thomas has not himself expressly refused treatment. The refusal of blood products is found in the form of a card and therefore the issue turns around advanced directives. Advanced refusals of life sustaining treatment must be very specific. Thus, the Mental Incapacity Bill that will come into force states, with regard to advanced refusals, at section 24.5, 'It will not apply to life-sustaining treatment unless the directive specifically applies to such.' Munby J summarised the law as it stands in the decision of HE v A Hospital NHS Trust by saying that there were no formal requirements for a valid advance directive and it did not need to be in writing. Whether there is a continuing valid directive is a matter of fact, and the burden of proof 'is on those who seek to establish the existence and continuing validity and applicability of an advance directive.' However, 'where life is at stake, the evidence must be scrutinised with especial care. Clear and convincing proof is required. The continuing validity and applicability of an advance directive must be clearly established by convincing and inherently reliable evidence. If there is doubt, that doubt falls to be resolved in favour of the preservation of life.'
In the circumstances, it is not known whether the refusal card contains any further details, such as when the card was signed (ie, was it recently?). Thus, as Munby J stated, if there is doubt, then that doubt falls to the preservation of life. It can be strongly argued that the card is not evidence of convincing and inherently reliable evidence. Thomas' views may have significantly changed since the card was filled out, and therefore, Mrs Blewitt was right in administering the blood transfusion. The element of uncertainty leans in favour of preserving Thomas' life.
Finally, it is necessary to consider the circumstances of Mrs Blewitt informing both Thomas' wife and his employers of his condition making it a danger to drive trains. The relationship of doctor - patient is essentially one of trust and therefore, confidence. Although the exact sources of the duty of confidence are not specifically defined by the judiciary, it can be seen as a mix of contractual obligations, part of the duty of care in negligence, and a special equitable obligation. The ethical implications of the duty of the doctor to protect confidence are enshrined in the Hippocratic Oath. In Hunter v Mann it was stated that:
In common with other professional men the doctor is under a duty not to disclose [voluntarily] without the consent of his patient information which he, the doctor, has obtained in his professional capacity, save in very exceptional circumstances
The Human Rights Act 1998 specifically protects the right to a private life under Article 8. However, under Article 8(2), privacy can be outweighed by a legitimate countervailing interest provided that there is a legal framework for balancing the interests and that balance is such that the infringement of the right to privacy is 'necessary in a democratic society'. The Act specifically recognises a number of such legitimate interests, including 'public safety'. If overriding privacy is necessary, than the degree to which it is compromised is proportionate to the need to do so.
There have been a number of domestic cases involving the overriding of confidentiality in order to protect the public or others from harm. Further, the GMC 'professional conduct and Discipline: Fitness to Practise' (1993) introduces the concept of the competition between public interests:
Rarely, cases may arise in which disclosure in the public interest may be justified, for example, a situation in which the failure to disclose appropriate information would expose the patient, or someone else, to a risk of death or serious harm.
Although we are not aware of the exact dangers that Thomas' condition presents to the safety of his passengers, it can be strongly argued that Mrs Blewitt was justified in notifying his employers. There is serious risk of severe injury to patients travelling by rail. Further, how is it possible to distinguish whether it was in fact Thomas' condition that caused the initial crash in the first place? It is unlikely that the court would award a remedy to Thomas for breach of confidentiality in this situation because of the threat of harm to the safety of passengers outweighs the obligation of confidentiality. Further, Mrs Blewitt attempted to persuade Thomas' wife to persuade him to give up his job initially. Thus, the measures she took were proportionate to the threat of harm.
In conclusion, for Percy, the law presents a huge hurdle to claim any damages for failure to warn of the risks inherent in the treatment and even if he overcomes the hurdle of proving that Mrs Blewitt was in breach of her duty, he still has the huge problem of proving causation. As for Thomas, it seems unlikely in the circumstances that he would be able to claim any damages for either trespass to the person, or breach of confidentiality. Overall, even though there have been some extremely controversial issues raised, the law seems to be highly protective of the medical profession on all counts.
Bibliography:
Brazier, M. 'Medicine, Patients and the Law' (2003, 3rd edn) Penguin Books, London
Davies, M. 'Textbook on Medical Law' (2001, 2nd edn) Blackstone Press, London
Harpwood, V. 'Principles of Tort Law' (2000, 4th edn) Cavendish Publishing, London
Kennedy, I. & Grubb, A. 'Medical Law' (2000, 3rd edn) Butterworths, London
Mason, JK et al, 'Law and Medical Ethics' (2002, 6th edn) Butterworths, London
Montgomery, J. 'Health Care Law' (2003, 2nd edn) Oxford University Press, Oxford
Articles:
Irons, A., 'Living Wills-the dilemma', (2004), NLJ 154.7134(966)
Jones, M., Informed Consent and other Fairy Stories [1999] Med.L.R pp 103-134
Lord Woolf, 'Are the Courts Excessively Deferential to the Medical Profession?' [2001] Med.L.R. 9(1)
Montrose, A., Is Negligence an Ethical or a Sociological Concept? (1958) 21 MLR 259
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