Medical Law Paternal Sim in Disguise

8/3/2019 Medical Law Paternal Sim in Disguise

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KOOI WEI KIT

LGA110035

BEST INTEREST PRINCIPLE: PATERNALISM IN DISGUISE?

___________________________________________________________________________

1.0 INTRODUCTION

Medical practice has changed greatly in the past 40 years. Doctors used to have

parent-child relationship with their patients. Sometime in the 20 th century medicine and health

care evolved to a different doctor-patient relationship, an adult-to-adult relationship in which

the doctor shared expert knowledge and information with the patient and they co-operated to

decide on the best treatment plan. The principle of patient autonomy becomes paramount in

medico decision-making.

However, it is argued that paternalism can be in disguise in various forms.

Withholding information can be a type of paternalism. If we are looking at a bigger picture

on the authority and power in the patient-doctor relationship, the practice of patient autonomy

model in medical field can be paternalism in disguise.

2.0 PATERNALISM

Paternalism has been defined as interference with a persons liberty to action

justified by reasons referring exclusively to welfare, good, happiness, needs, interests or

values of the person being coerced.1 Medical paternalism is defined similarly as

interference by the physician with the patients freedom of action, justified on the grounds of

the patients best interest.2 This concept arises from the principle of beneficence3, which is

the central to the doctor-patient relationship. Due to doctors professional knowledge and his

1

Weiss, G.B, Paternalism Modernised (1985) 11 journal of Medical Ethics, at p.184

2 Ibid


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ethical obligation to do good, the view that Doctor knows what is best for the patient

prevails.

The doctors sometimes can influence the patients decision by response to the patient

in the following forms:

1. It is for your own good;

2. It would be irrational to do otherwise;

3. It would be immoral to do otherwise; or

4. It would hurt other people if you were allowed to choose so selfishly

There are various types of paternalism namely soft paternalism, strong paternalism,

direct paternalism and indirect paternalism. Gary B Weiss in his article Paternalism

modernized stated that: Modern paternalism continues to be guided by the principle that

the physician decides what is best for patient and pursues that course of action, taking into

account the values and interest of the patient. In the autonomy model of doctor-patient

relationship, patient values are decisive. In paternalistic model, they are but one among

several factors the physician must consider in making a medical decision.4 Hence,

considering the values, opinions, interests or decisions of the patient when doctors make

decision for the best interest of the patient is still considered as a form of paternalism.

3.0 AUTONOMY

Autonomy is synonymous to self-determination. Autonomy comes from the Greek

terms autos (self) and nomos (governance). Autonomy on has been defined as the capacity

3

To do good

4 Journal of Medical Ethics, 1985, 11, 184-187


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to think, to decide and act on the basis of such thought and decision freely and

independently5

The concept of autonomy arises from the philosophy theories of John Stuart Mill in

On Liberty6 where he stated: In the part which merely concerns himself (individual), his

independence is, of right, absolute. Over himself, over his own body and mind, the individual

is sovereign. He further stated that: individuals should be free to autonomously decide for

themselves whether or not they choose to end their own lives, provided that no one else is

harmed in that decision. Dr. Rollins Halon, former President of the American College of

Surgeon, justify the principle of patient autonomy in medical field: patients are the ultimate

rulers and they must decide whether to have a procedure when all the risks are laid out

In Chester v Afshar7, the claimant suffered paralysis following a spinal surgery; it

was held that a patients right to autonomy and dignity should today be accorded the highest

priority by English Law. Lord Steyn stated that: In modern law, paternalism no longer rules

and patient has a prima facie right to be informed by a surgeon Lord Goff in Airedale

National Health Service Trust v Bland8 stated that: it is established that the right to self-

determination requires that, respect must be givem to the wishes of the patient.

There is a significant shift from paternalism to autonomy. The shift in paradigm has

resulted in the increase in emphasis on the quest for self determination and autonomy

concepts of choice and consent at the forefront. The absolute autonomy principle allows

patients to make decision independently disregard of whether the decision is irrational,

immoral, unethical or selfish.

5 Keown, J To treat or not to treat: Autonomy, Beneficence and the Sanctity of Life? (1995) 16

Singapore Law Review 360 at p. 362

6 First published in 1859

7

[2002] 3 All ER 552

8 [1993] 1 All ER 821


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4.0 PATERNALISM VS AUTONOMY

The conflict between medical paternalism and patient autonomy is predominant in the

area of consent to treatment.9

Ian Kennedy in his article Consent to Treatment: The Capable Person10 said:

.if the beliefs and values of the patient , though incomprehensible to others, are of

long standing and have formed the basis for all the patients decisions about his life, there is

a strong argument to suggest that the doctor should respect and give effect to a patients

decision based on them. That is to say the doctor should regard such a patient as capable of

consenting (or refusing). To argue otherwise, would effectively be to rob the patient of his

right to his personality, which may be far more serious and destructive than anything that

could follow from the patients decision as regards a particular proposed treatment

Autonomy can come into conflict with paternalism when patient disagree with

recommendations that health care professionals believe are in the patients best interest.

When there is conflict between patient autonomy and paternalism, a choice must be made to

prioritize one over another. Different societies settle the conflict in a wide range of different

manner.

5.0 DOCTRINE OF INFORMED CONSENT

Treatment without consent may constitute a battery. Failure to disclose or explain the

risks of proposed treatment or alternatives may deal with negligence.11

9

Puteri Nemie Jahn Kassim, Law and Ethics relating to Medical Profession, 2007, p. 19

10 1992, Oxford Blackwell Science, at p. 56


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The Doctrine of Informed Consent embodies the general principle that a person has a

right to determine whether or not to undergo any medical procedure. A doctor should give the

patient sufficient information for him to understand the nature of any proposed treatment, its

implication and risks and the consequences of not undergoing the treatment. In the light of

that information, it is the patient who decides what treatment, if any, he or she should

undertake. The rationale behind the development of the Doctrine of Informed Consent is

basically to promote individual autonomy. In other words, the decision to undergo treatment

is the patients not the doctors. The doctrine further encourages rational decision-making by

ensuring that the patient is given sufficient information to make good decision.

The Doctrine of Informed Consent was originated from the United States of America

in Schloendorff v Society of New York Hospital12. The Doctrine then was then evolved in the

case ofCanterbury v Spence13 where the Court held that the doctor must disclose all material

risks inherent in a proposed treatment. The question of material risk is to be determined by

the prudent patient test. The court also recognizes certain exception such as Therapeutic

Privilege. The exception allows the doctor to withhold information from his patientconcerning risks of proposed treatment if it can be established by means of medical evidence

that disclosure of this information would pose a serious threat of psychological harm to the

patient. In England, the principle of medical paternalism seems to have stronger hold

compared to the principle of patient autonomy. Nevertheless, the case of Chester v Afshar14

has loosened the grip for patients claiming lack of informed consent in medical treatment.

The legal doctrine of informed consent clearly rests upon ethical principles of

autonomy and self-determination. However there are a few points which suggested below

11 Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC

871; 1985 2 WLR 480

12 105 N.E. 92 (N.Y. 1914)

13

464 F. 2d 772 (D.C.Cir. 1972)

14 [2005] 1 AC 134


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arguing that the patient-centre or the autonomy model in practical is actually paternalism in

disguise

6.0 PATERNALISM IN DISGUISE

The arguments below are to show that even though theoretically our society is shifting

from paternalistic approach to autonomy approach in medical practice, the autonomy

approach is in fact paternalism in disguise. The autonomy model in medical practice looks

like autonomy, sounds like autonomy, operates like autonomy but it is not autonomy. In fact,

it is paternalism in disguise.

6.1 WITHHOLDING INFORMATION

As discussed, paternalism is usually characterized as interference with a persons

liberty of action, where the alleged justification of the interference is that it is for the good of

the person whose liberty to action is thus restricted.15 Paternalism is too narrowly construe if

we focus exclusively only on the interference with liberty of action.

If a government withhold information for certain policy, and if the alleged

justification of its policy is that it benefits the public itself, the policy may properly be called

paternalistic.16

Same applies to medical field, if the doctors purposely withhold information

when obtaining informed consent and the alleged justification of withholding information is

that it benefits the patient, the action may properly be called paternalistic. Therapeutic

Privilege17 is a form of paternalism where it allows the doctors to decide on the patients

best interest. In court the doctors was asked You didnt inform her or any dangers or risks

15 G. Dowrkin Paternalism in S. Gorovitz et al, Moral Problems in Medicine (Englewood Cliffs, NJ;

Prentice-Hall, 1976, p.186

16

17Canterbury v Spence 464 F. 2d 772 (D.C.Cir. 1972)


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involved? Is that right? Over his attorneys objection, the doctor responded, Not

specifically I feel that were I to point out all the complications or even half the

complications many people would refuse to have anything done, and therefore would be

much worse off

An example of the situation where doctors take paternalistic approach is in the case of

life and death for defective newborns. The doctors undertake the responsibility to make

decision in order to relieve parents of the trauma and guilt of making a decision. It was stated

in Shaws Journal18 that: At the end it is usually the doctor who has to decide the issue, It is

cruel to ask the parents whether they want their child to live or die The best interest

principles often justify the paternalism approach.

There may be a direct or indirect connection between withholding information and

actual interference with the patients freedom to decide or to act. Withholding information

may preclude an informed consent, and it may with attempts to reach an informed decision,

without thereby interfering with a persons freedom to decide and to act on his own decision.

Even if the patient are deprived of information which he or she must have if he or she is to

make an informed decision, he may still free to decide and to act. Hence, even though the

societies see it as an autonomy model, it is in fact paternalism in disguise.

6.2 TRUTH-TELLING

One of the virtues of a good doctor is honesty. While everyone may agree that

honesty is the best policy, the principle of truth- telling is an absolute. However, it is often

difficult to fulfill. What of the fragile patient when truth-telling would potentially cause

mental or physical harm? Whereas we are bound to truth-telling, we are also bound to non-

maleficence. Primum non nocere, Latin word for first, do no harm is the principle which

seems to be most often in conflict with the absolute requirement of veracity or honesty. And

18 Shaw, Dilemmas of Informed Consent in Children, The New England Journal of Medicine 289,

no 17 (1973): 886


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yet, while there may be conflict, it is clear that the special relationship between the

practitioner and the patient is such that the patient has a right to expect a higher level of

truthfulness from doctors than other with whom they deal.

Even if a doctors lies to his or her patient for the patients best interest, the patient still

can make decision on his or her own. The doctors may misinform or lie to the patient in order

to restrict its freedom to act or to direct or lead the patient in giving a preferable decision.

Hence, paternalism is not only is the interference with a patients freedom to decide, it also

covers the deliberate, dissemination of misinformation.

6.3 COMMUNICATIONS

There are basically two major submissions that support the argument that the way of

communication between doctors and patients in the Doctrine of Informed Consent may be

paternalism in disguise. First, it is argued that the doctor, even in the autonomy model, can

easily make use of the wording when he advice, in order to direct or lead the patient to decide

on the doctors preference choice. Secondly, it is argued that the problems of quality of

communication and the patient comprehensive leave a space for paternalism to fill in.

The issue of fair informed consent should be taken into account. The way that the

doctor presents the option can influence the patients decision. For example, With treatment

Y, 50% of the patients will survive does not sound the same as Without treatment Y, 50%

of the patient will die in a horrible death. The patient might not fully understand the

implications, and the doctor can always influence the decision-making of the patient in some

way.

In Tan Ah Kau v Government of Malaysia19,the plaintiff, a lorry driver, was paralysed

from the waist down after the defendants carried out a surgical operation. The main issue19 [1997] 2 AMR 1382


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before the Court was whether at the time when the plaintiff signed the consent forms, the

plaintiff understood the nature and consequences of the consent and whether he knew the

subject matter that was central to his consent. In his evidence, the plaintiff claimed that he

had not given real and informed consent to the treatment as no adequate information was

given to him to enable him to comprehend the nature and consequences of the consent. The

plaintiff maintained that he signed two blank forms at the same time but was not given any

explanation before the operation. He was only told that if in the future and if he was operated,

he would find relief from the pain within two weeks of the operation. These were the reason

he signed the forms. The plaintiff was not given the opportunity to opt for or to opt out the

operation. It was not fully explained to him the fact that what he was experiencing was a

slow, growing tumour and that, in the absence of an operation, it would take at least 20 years

to lead to paralysis. Further, it was not explained to him that if operated immediately, there

was a strong possibility that he would immediately become paralysed. There was no doubt

that the plaintiffs signature was on the forms but did he understand what was he signing?

Thus, on the issue, the Court held that no consent was actually given by the plaintiff.

Puteri Nemie Jahn Kassim in her book Law and Ethics relating to Medical

Profession20 commented that: Tan Ah Kaus case reveals a breakdown in the doctor-patient

relationship, which occurs when there is little or no communication between the parties. The

doctors medical education has prepared him to treat the disease but not necessarily the

whole person while day-today demands on him may getting to know patient and his concerns

impossible or unimportant Furthermore, the patient may not know what to ask and if he

overcomes his reluctance to ask he may not persist until he gets an answer he can

understand. In reality, the mode and quality of information disclosed have often done little to

enhance the patients understanding of the situation. If the primary purpose of developing the

Doctrine of Informed Consent is to promote individual autonomy and encourage rational

decision-making then it is clear that the courts have left an important aspect of the doctrine

unexplored, namely, concept of communication and patient comprehension

The culture of our society is that we are putting too much focus on black and white

the consent form. We are putting the paper beyond everything such as awareness,20 2010, p.38


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communications and understanding. It was assumed that once the patient signed the consent

form, he or she agrees to undergo the treatment even though he or she does not understand

the nature and consequence of the treatment.

6.4 BEST INTEREST PRINCIPLE PRINCIPLISM

Acting in the patients best interest is the most important prerequisites of all medical

practice. From the Hippocratic Oath onwards one can read in various professional codes for

physicians and nurses echoes of the line of the Oath: Whatever houses I may visit, I will

come for the benefit of the sick.

The best interest principle is guided by the four ethical principles approach

(principlism21). The four principles are the prima facie moral obligation of: Respect for

autonomy, Beneficence (promote overall benefit), Non-malaficence (avoid causing harm) and

Justice.

Where there is conflict between the principles than a choice must be made to

prioritize one over another. Different societies will take different approach. The focus in this

paper should be on the conflict between Respect for Autonomy and the other three

principles. If it is an absolute autonomy model, then the principle of respect for autonomy

prevails.

In medical practice, the option to treatment offered by the doctor to the patient is

framed under principlism. Hence, the choices which the patient alleged freely made are in

fact guided by the principlism. The opinion that when a patient voice an opinion, every

effort should be made to respect that decision, unless it is contrary to their best interest is a

kind of paternalism. The To Do Good principle and Do No Harm principle also in some

cases indirectly influence the patient choice. For example, in abortion case, the doctor, guided21 Beauchamp and Childress are American who coined the four principles approach


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by the principle of Beneficence and Non-Malaficence and for the best interest for the baby

and the woman, will refuse to acknowledge the right of the woman to choose what shall

happen to her body. Therefore it is another form of paternalism.

6.4 BEST INTEREST PRINCIPLE AUTHORITY

The benefit of the sick is sometimes ambiguous matter indeed, and this is where

problems are. There are few cases which it is not entirely clear where patients best interest

lies or whether appeals to it could be used to justify decisions.

In certain cases, where there is a conflict between the patients, or the patients family

with the doctors clinical judgment, the doctor or the institution might file a suit to the court

to seek for a declaration. The role of legal professional and judges will come into play to

decide on the patients best interest.

From here we can see that the authority in paternalism approach is still slowly moving

from the hand of the doctor to the institutions, then to the lawyers, and finally to the judges.

The government and the law are also relative if we look into a bigger picture. The law and

policy for the best interest of the public will be executed by the government and it influences

the policy of the institution. The policy of the institutions will be followed by the doctors, and

the doctors are directly related to the patients.

Besides, granting the patient autonomy to decide by the relevant authority for the

patient best interest is also another forms of paternalism. Instead of letting the doctor decides

for the best interest of the patients, the medical practices now shift to let the patient decide for

his or her own best interest. The doctors therefore are excluded from taking responsibility

because it is the decision of the patients.

7.0 CONCLUSION


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The evidence for medical paternalism is both direct and indirect. Even though the

practices of medicine and law are shifted to the autonomy model or the patient-centre

healthcare, it is clear that in certain cases, the autonomy given to the patient is actually

paternalism in disguise. The awareness and education of the society is very important in order

to address this issue. It is useless to determine on the better way of medical practice if the

members of the society especially professional do not know and aware what is the meaning

behind the approach.

Documents

Medical Law Paternal Sim in Disguise