Features of a Valid (Legal) Consent, and how it relates to an Advanced Care Directive

Answer

Introduction

            Consent to treatment is the principle that a patient must give permission before receiving any type of medical treatment or examination. It is required regardless of what the intervention is; which can be a physical examination or even an organ donation. At times, a healthcare professional may have to decline the wishes of a patient, with the aim of doing him more good and reducing risks. This is what is termed as paternalism. Through the use of various perspectives; a nurse, doctor, and surgeon, this essay will discuss the issue of consent to treatment, paternalism, and the role of a health care professional in advocating for the wishes of a patients.

Features of a Valid (Legal) Consent, and how it relates to an Advanced Care Directive

            For consent to be valid, three features must be considered. It should be voluntary, informed, and the patient must have the capacity to decide. First, being voluntary means that the decision to accept treatment or refuse it must be made by the person individually without being influenced by pressure from family, friends and medical staff. This means that the individual should be free to decide otherwise, no matter what others think may be the right choice (Tonti-Filipini, 2011). Second, for the consent to be informed, the patient must have been given all the required information, such as the benefits and risks of the treatment, whether there are other reasonable alternative treatments, and also what may happen if treatment is not performed (Berglund, 2012). Therefore, the patient will decide knowing what to expect, and knowing what he or she may miss. Lastly, the capacity to consent means that the patient must be capable of giving consent. This means that they understand the information given to them, and that they are in a position to make an informed decision using that information.

            Advance care directives are forms which allow a patient to appoint substitute decision-makers, or to clearly document his or her personal values, wishes, and instructions with respect to any future medical interventions that may be required. Here, specific interventions may be allowed, while others may be denied. If a person has been designated as the agent, he or she will be responsible for making the decision. All these wishes, or decisions made must be respected even if refusing treatment will lead to death. This is because the advance care directive constitutes a valid legal consent in that it is voluntary, informed, and the patient giving the advance care directive has capacity to make the decision. The latter is supported by the fact that the patient writes the consent before actually being sick, or clearly indicates who will make decisions in case he no longer has the capacity.

            Unfortunately, there are circumstances whereby the advance care directive might pose an ethical dilemma for a health care professional. For example, in a clinical area I worked on recently, a patient was admitted with severe symptoms of pneumonia. She had an advance care directive, indicating that she is not to receive any form of aggressive treatments, aside from pain killers. The reason for this was that “she was tired of treatments over and over again for the same condition”. An ethical dilemma arises here since the professional codes of ethics require all members to actively contribute to the good health and well-being of the patient, and there is also the obligation of preventing and avoiding harm of the patients (Banks & Gallagher, 2009). Therefore, if the advance care plan is followed and respected, the health professionals will be harming the patient as the results could mean death. Therefore, an advance care directive may pose an ethical dilemma for health care professionals if the wishes or decisions made, go against the professional codes of ethics.

            However, there are legal ramifications that a health care professional needs to consider despite the presence of an ethical dilemma. For instance, going against the advance care directive may have consequences as the healthcare professional will not have followed the wishes of a patient (Ozolins & Grainger, 2015). As a result, he may be sued and even lose the working license due to such ignorance. Therefore, when deciding which side to follow, a health care professional needs to consider the validity and legality of the advance care directive.

Respecting Patients’ Choices

            There are certain situations whereby healthcare professionals may feel like a patient is not making the right choice, with regards to their health status. This may lead the professional to question whether it is right to respect these decisions or not. It is, however, ethical that the healthcare professional respect’s the patient’s choices, due to various factors. First, respecting the patient’s choice means that the healthcare professional is taking into consideration his or her obligation (Speech Pathology Australia, 2000). According to the Nursing and Midwifery Council (2008) code, clause 14 indicates that “you must respect and support people’s rights to accept or decline treatment and care”, while clause 1 states “you must treat people as individuals and respect their dignity”. Therefore, a healthcare professional has an obligation, according to the law, to respect decisions patient’s make, and also to treat them respectfully. By going against the choices made, a patient will feel like his dignity is not being respected (OT Australia, 2001).

            Second, respecting the patient’s choice means respecting him or her as an individual. According to the first clause of the International Council of Nurses (2012) code, it has been stated that “in providing care, the nurse promotes an environment in which the human rights, values, customs and spiritual beliefs of the individual, family and community are respected”. Some factors such as spiritual beliefs may differ from one patient to the next. Therefore, a patient should not be forced to accept what he does not want.

            Third, another reason as to why it is ethical to respect patient’s choices relates to the principles of beneficence and non-maleficence. Beneficence refers to “a moral obligation to act for the benefit of others”, while non-maleficence affirms an obligation not to inflict harm on others (Beauchamp and Childress, 2009). By not following a patient’s choice, the health professional may be inflicting harm indirectly on a patient, by not understanding and respecting the reasons behind the choice.

            It is not always, that a healthcare professional will respect the wishes of a patient. Sometimes, it is best to ignore these wishes so as to promote better health for a patient (Fisher, 2011). For example, if the patient is incompetent, then the wishes may be ignored. Incompetent patients include underage individuals, adults who lack the capacity to understand information provided to them such as those who are mentally ill, and individuals who are temporarily unconscious or comatose (Townsend & Luck, 2013). Therefore, a nurse cannot respect the wishes of a young child, refusing to get a tetanus injection. Similarly, a surgeon cannot refuse to operate on an individual who has just had an accident and is unconscious. When a healthcare professional makes a decision in the best interest of someone else, it is called paternalism. Healthcare professionals have a moral obligation, as well as a duty, to intervene and make decisions for patients so as to prevent more harm on their health. According to Beauchamp and Childress (2009), it is justified to override the choices of a patient when the eventual goal of the action is to benefit or prevent more harm to the patient.

Paternalism

            Paternalism is behavior or an action by a person in authority, which limits another person’s autonomy, for their own good. Therefore, in healthcare, it is an action taken by the healthcare professional, to limit the patient’s autonomy, for his or her own good health. Paternalism may be used when the decision made by the patient or agent features more risk than benefit. There are certain healthcare situations whereby paternalism might be justified, including, when the rationality of the patient is impaired, when the patient will most likely be significantly harmed without intervention, and when it is anticipated that the patient will agree retrospectively with the intervention (Johnstone, 2009). For instance, when a patient has had an accident, and as the nurse making the house call I find him severely injured; I will be obligated to ignore his wish of not visiting the hospital and call an ambulance. This is because the patient may be disoriented due to the injuries sustained, and will be at risk without medical attention. Also, once he receives medication, he may agree with the decision to be taken to hospital. The doctor, on the other hand, will also treat the patient as lack of intervention may lead to excessive bleeding, and eventually death.

            There will be no difference if this patient had an advance care directive in place. This is because, despite the presence of the coercion notion for the formation of the ACD (Freegard, 2012), the intervention will still be required so as to avert danger. If the aim is to prevent further harm from the patient, as is required by the health care professional frameworks, then ignoring the advance care directive may also be justified.

Role of HCP in Informed Decision Making

            There are various professional and ethical frameworks that inform healthcare professionals in making ethical decision making. These include the professional codes of conduct and codes of ethics and ethical theories such as utilitarianism, deontology and virtue ethics. These frameworks help to inform the healthcare professional on what is right and wrong, as well as to guide them on how they are expected to behave. Therefore, when caught in a situation whereby they are supposed to make decisions, they must first consider these frameworks so as to ensure they act and respond appropriately.

            These professional and ethical frameworks, for instance, help to inform the healthcare professionals on how to advocate for the wishes of a patient, as indicated in an advance care directive. According to the professional code of conduct, “they are expected to support the health, wellbeing and informed decision-making of people requiring or receiving care” (Kerridge, Lowe & McPhee, 2009). Therefore, since a legal advance care directive is considered to have been prepared when the patient was already well informed, the healthcare professional will be expected to support these wishes and ensure that no one goes against them. By acting as an advocate for the wishes of a patient, the healthcare professional will be expected to respectfully explain to others the importance of not going against the wishes of the patient (Morrison, 2009). He or she will be expected to provide a copy of the advance care directive to support his view, and also to offer knowledgeable explanation as to why it should be applied. For example, a patient has an advance care directive indicating that after being on life support for two weeks, the system should be switched off to enable him rest in peace. Unfortunately, his children are against such an action since they cannot bear losing their father, and thus try to give alternative orders to the hospital staff after the two weeks expire. The healthcare professional should try all he can to respectfully get the family members to accept the wishes of their father. After showing them the end of life will written by their father, he should go ahead and explain why it is important to switch off the machine, so as to enable him to rest peacefully and relieve him of unnecessary pain.

Legal and Professional Frameworks that Guide a Health Care Professional’s Practice in Australia

            In Australia, there are various legal and professional frameworks that guide health care professionals in their practice. These include; professional codes of ethics, codes of conduct and position statements, theories and principles among many others. For instance, the Nursing and Midwifery Council (2008) code guides a practice by listing rules of how the professional is supposed to act. There are many clauses indicating how the professional should act generally, and also how he should act towards patients. Other examples include the Code of Professional Conduct for Nurses in Australia and Code of Ethics for Nurses in Australia (Catholic Health Australia, 2001).

Conclusion

            Considering the discussion above, it is clear that the issue of an informed consent does not mean that the patient’s wishes must always be carried out. Various situations have been discussed, such as the absence of an informed consent, or denying the freedom of choice through paternalism so as to promote more good than harm. It is clear that that the health care professional needs to be skilled and knowledgeable enough to decide when he should advocate for the wishes of a patient, or when he should use paternalism.