Organ donation after cardiac death: legal and ethical justifications for antemortem interventions

Organ donation after cardiac death increases organ availability, but raises several legal and ethical issues, including consent. Medical interventions for people who are unconscious usually require guardian consent and must meet patients' best-interests standards. Antemortem procedures can improve the success of organ transplant after cardiac death, but do not serve the patient's medical interests, and it is contentious whether consent for antemortem interventions is legal under current Australian guardianship legislation. We argue that consent decisions should take patients' wishes as well as their medical interests into account. Antemortem interventions are ethically and legally justified if the interventions are not harmful and the person concerned wished to be an organ donor.     

Compulsory detention in hospital under the Mental Health Act 1983

Presented here are sections of England's and Wales' Mental Health Act 1983 that relate to the compulsory admission to a hospital of patients suffering from a mental disorder, together with a diagrammatic representation of how they should be used in decision making. These excerpts address the definition of mental disorder; the purpose and duration of detention; the grounds for admission; who may make the application; and which health professionals are required to make the medical recommendation. The Mental Health Act provides no authority for third party consent to treatment of patients without mental disorder who refuse treatment or for treatment of medical conditions unless the condition is causing mental disorder.     

The Mental Capacity Act 2005: a new framework for healthcare decision making

The Mental Capacity Act received Royal Assent on 7 April 2005, and it will be implemented in 2007. The Act defines when someone lacks capacity and it supports people with limited decision-making ability to make as many decisions as possible for themselves. The Act lays down rules for substitute decision making. Someone taking decisions on behalf of the person lacking capacity must act in the best interests of the person concerned and choose the options least restrictive of his or her rights and freedoms. Decision making will be allowed without any formal procedure unless specific provisions apply, such as a written advance decision, lasting powers of attorney or a decision by the court of protection.     

Consent

Gillon contends that consent to medical intervention is by definition informed consent because it requires action by an autonomous agent based on adequate information. Doctors often object that patients are unnecessarily alarmed by too much information about their illnesses or proposed treatments, but many patients are happier if they are told enough to be active in decision making about their care. In any case, the moral obligation to respect the autonomy of other persons requires that patients be given as much information as they want. Even English law, which heretofore left to the doctor the decision on how much information to disclose, has been changed considerably by the House of Lords' appeal judgement in Sidaway v. Bethlem Royal Hospital. The general moral presumption regarding consent should be that patient autonomy takes priority over medical beneficence. Exceptions to this presumption are to be discussed by the author in another article.     

Issues of consent and the primary-school medical

This article discusses what level of consent is needed from a child or parent before a primary-school medical can take place (i.e. where children are aged under 12). It also considers whether there are occasions when a doctor can see a child if the parents have failed to give consent or have explicitly refused consent. Primary-school children are considered incompetent to make decisions about their own medical treatment and so their consent does not need to be gained before a medical takes place, although it is highly desirable to obtain it. However, a doctor cannot justify a decision to see a child purely in terms of the benefit conferred on the child. Parents can be wronged if their wishes are ignored and usually those wishes should be considered overriding. Normally, general consent, which need not be fully informed, is needed before a school medical. However, if a child is considered to be in danger of being harmed significantly or suspected to have a major medical condition, a medical should go ahead regardless of the level of consent obtained from the parent, so that a reasonable standard of health is maintained for the child.     

Relatives' knowledge of decision making in intensive care

BACKGROUND/AIM: The law on consent has changed in Scotland with the introduction of the Adults with Incapacity (Scotland) Act 2000. This Act introduces the concept of proxy consent in Scotland. Many patients in intensive care are unable to participate in the decision making process because of their illness and its treatment. It is normal practice to provide relatives with information on the patient's condition, treatment, and prognosis as a substitute for discussion directly with the patient. The relatives of intensive care patients appeared to believe that they already had the right to consent on behalf of an incapacitated adult. The authors' aim was to assess the level of knowledge among relatives of intensive care patients of both the old and new law using a structured questionnaire. METHODS: The next of kin of 100 consecutive patients completed a structured questionnaire. Each participant had the questions read to them and their answers recorded. Patients were not involved in the study. RESULTS: Few (10%) were aware of the changes. Most (88%) thought that they previously could give consent on behalf of an incapacitated adult. Only 13% have ever discussed the preferences for life sustaining treatment with the patient but 84% felt that they could accurately represent the patient's wishes. CONCLUSIONS: There appeared to be a lack of public awareness of the impending changes. The effectiveness of the Act at improving the care of the mentally incapacitated adult will depend largely on how successful it is at encouraging communication and decision making in advance of incapacity occurring.     

Consent, competency and ECT: a psychiatrist''s view

Dr Taylor, an English psychiatrist, considers the issue of the symposium in the context of the Mental Health (Amendment) Act 1982. This, she says, gives little guidance on how judgment of a patient's competency or capability to consent to treatment should be made, although it specifies that unless compulsorily detained patients competently consent to ECT a special second medical opinion is required. Although some guidelines from the Department of Health may be offered before implementation of the Act in September 1983 all those working with psychiatric patients will have to consider the issues. After discussing her criteria for informed consent, some practical approaches for obtaining it and problems arising from these, and problems of surrogate consent, Dr Taylor concludes that there is no single or simple solution to the dilemma. She ends by asking: `Can refusal of ECT for severe depression ever be a competent decision?'     

Paternalism and partial autonomy

A contrast is often drawn between standard adult capacities for autonomy, which allow informed consent to be given or withheld, and patients' reduced capacities, which demand paternalistic treatment. But patients may not be radically different from the rest of us, in that all human capacities for autonomous action are limited. An adequate account of paternalism and the role that consent and respect for persons can play in medical and other practice has to be developed within an ethical theory that does not impose an idealised picture of unlimited autonomy but allows for the variable and partial character of actual human autonomy.     

Treatment without consent: intervention by the court

The British Medical Journal's legal correspondent reviews two English court decisions concerning treatment or nontreatment of minors against the wishes of their parents. In the 1981 case In re P, the court sanctioned the abortion request of a 15-year-old ward of the court, whose parents objected to the procedure. In the 1976 decision In re D (A Minor), the court refused to authorize the sterilization of an 11-year-old retarded girl, despite her mother's request and a physician's recommendation. Physicians apprehensive about treating minors in sexual matters in light of the recent Gillick decision concerning contraception without parental consent are advised to contact the local juvenile authority, which can apply to the court for guidance and direction.     

Consent and the mentally handicapped

A 1987 legal case, In re T, has pointed up the lack in British law of a provision for third party consent to medical procedures on mentally handicapped adults. T, a severely retarded 19-year-old, was found to be 11 weeks pregnant. Application was made to a Family Division court to sanction an abortion and a sterilization. Britain's 1983 Mental Health Act allows for third party consent only to psychiatric treatment, so the judge relied on a court rule to authorize the procedures in the best health interests of the young woman. Physicians with mentally handicapped patients are uncertain where they stand legally in the wake of the decision, particularly where abortion or sterilization is concerned. Two major medical defense associations recommend that their members seek legal advice before performing these procedures on an adult patient unable to consent on his or her own.     

Consent and end of life decisions

This paper discusses the role of consent in decision making generally and its role in end of life decisions in particular. It outlines a conception of autonomy which explains and justifies the role of consent in decision making and criticises some misapplications of the idea of consent, particular the role of fictitious or "proxy" consents. Where the inevitable outcome of a decision must be that a human individual will die and where that individual is a person who can consent, then that decision is ethical if and only if the individual consents. In very rare and extreme cases such a decision will be ethical in the absence of consent where it would be massively cruel not to end life in order to prevent suffering which is in no other way preventable. Where, however, the human individual is not a person, as is the case with abortion, the death of infants like Mary (one of the conjoined twins in a case discussed in the paper), or in the very rare and extreme cases of those who have ceased to be persons like Tony Bland, such decisions are governed by the ethics of ending the lives of non-persons.     

Brief report on the experience of using proxy consent for incapacitated adults

The Medicines for Human Use (Clinical Trials) Regulations 2004, which came into force in the UK in May 2004, cover the conduct of clinical trials on medicinal products. They allow a legal representative (a person not connected with the conduct of the trial) to consent to the participation of incompetent adults in medical research. Currently, very little is known about how such representatives will make their decisions.We have experience with proxy consent for older adults in a large, national trial. From 2445 potentially eligible but incapacitated patients, proxy, relative assent resulted in trial participation of only 87 (3.6%) patients. The reasons for this were that a large number of incapacitated patients had no relative available for assent (2286), but also a high proportion of relatives approached refused to provide assent (72/159, 45.3%). In comparison, 17.7% of patients declined participation in the trial.Proxy consent allowed only a small increase in trial recruitment of incapacitated patients. The fact that a greater proportion of relatives than patients refused to provide assent implies that they were more cautious than the patients themselves, or perhaps used different criteria, when making their decision.In future research involving incapacitated older patients there is likely to be heavy reliance on proxy consent provision by legal representatives. Our findings imply that consent decisions of legal representatives will not necessarily reflect those of patients themselves.     

Is respect for autonomy defensible?

Three main claims are made in this paper. First, it is argued that Onora O'Neill has uncovered a serious problem in the way medical ethicists have thought about both respect for autonomy and informed consent. Medical ethicists have tended to think that autonomous choices are intrinsically worthy of respect, and that informed consent procedures are the best way to respect the autonomous choices of individuals. However, O'Neill convincingly argues that we should abandon both these thoughts. Second, it is argued that O'Neill's proposed solution to this problem is inadequate. O'Neill's approach requires that a more modest view of the purpose of informed consent procedures be adopted. In her view, the purpose of informed consent procedures is simply to avoid deception and coercion, and the ethical justification for informed consent derives from a different ethical principle, which she calls principled autonomy. It is argued that contrary to what O'Neill claims, the wrongness of coercion cannot be derived from principled autonomy, and so its credentials as a justification for informed consent procedures is weak. Third, it is argued that we do better to rethink autonomy and informed consent in terms of respecting persons as ends in themselves, and a characteristically liberal commitment to allowing individuals to make certain categories of decisions for themselves.     

Disability matters in medical law

The British Parliament stated that health services would be covered by the Disability Discrimination Act 1995 (the act). However, when people with disabilities are at their most vulnerable, for example when in hospital or subject to medical procedures, the antidiscrimination law fails them. A review of cases indicates that when people with disabilities are subject to medical treatment, the legislative protections are allowed to vanish. Instead, medical decisions are justified on obscure notions such as "best interests", often with irreversible or even terminal results. This article examines the relevant provisions and limitations of the act, the features of notable non-treatment decisions, and the act's potential to guide future decision making. It argues that antidiscrimination legislation should be assertively applied to protect vulnerable people.     

Resurrecting autonomy during resuscitation--the concept of professional substituted judgment.

The urgency of the resuscitation and the impaired ability of the patient to make a reasonable autonomous decision both conspire against adequate consideration of the principles of medical ethics. Informed consent is usually not possible for these reasons and this leads many to consider that consent is not required for resuscitation, because resuscitation brings benefit and prevents harm and because the patient is not in a position to give or withhold consent. However, consent for resuscitation is required and the common models employed for this purpose are presumed consent or consent from a patient proxy. However, if we are to honour the principles of respect for patient autonomy, as well as beneficence and non-maleficence, when starting and continuing resuscitation we must try and achieve the best balance between benefit and harm from the patient''s perspective. The concept of professional substituted judgment involves the resuscitators gathering as much information about the patient as they possibly can, including any previously expressed attitudes towards such a situation, and combining this with their acquired professional knowledge of the likely benefits and harms of the resuscitation endeavour and then exercising their moral imagination, imagining themselves as the patient, and asking "would I want this treatment?" By employing professional substituted judgment resuscitators should recognise when the balance of benefit and harm becomes unfavourable from the patient''s perspective and at this point they have a moral obligation to withdraw resuscitation as they can no longer presume the patient''s consent. In this way the principles of beneficence, non-maleficence and respect for patient autonomy are more favourably balanced than under other resuscitation decision making processes.     

Competence and consent

To perform a medical procedure on a competent patient who is refusing it may constitute battery; but to fail to perform a medical procedure on an incompetent patient who is refusing it may constitute negligence. Competence involves being able to understand the consequences of receiving medical treatment, and not receiving it, and being able to make a decision on the basis of that understanding. Competent people can sometimes make imprudent or irrational decisions. Cognitive impairment and mental illness do not necessarily render a person incompetent to consent to investigation and treatment. The suspicion of cognitive impairment or mental illness should prompt a thorough evaluation of competence and mental state. Treatment of incompetent people should be dictated by their best interests, advance directives or substituted judgement.     

Bioethics for clinicians: 1. Consent.

Patients are entitled to make decisions about their medical care and to be given relevant information on which to base such decisions. The physicians obligation to obtain the patient's consent to treatment is grounded in the ethical principles of patient autonomy and respect for persons and is affirmed by Canadian law and professional policy. A large body of research supports the view that the process of obtaining consent can improve patient satisfaction and compliance and, ultimately, health outcomes. An exception to the requirement to obtain consent is the emergency treatment of incapable persons, provided there is no reason to believe that the treatment would be contrary to the person's wishes if he or she were capable.     

Formal and effective autonomy in healthcare

This essay lays the groundwork for a novel conception of autonomy that may be called "effective autonomy"-a conception designed to be genuinely action guiding in bioethics. As empirical psychology research on the heuristics and biases approach shows, decision making commonly fails to correspond to people's desires because of the biases arising from bounded cognition. People who are classified as autonomous on contemporary philosophical accounts may fail to be effectively autonomous because their decisions are uncoupled from their autonomous desires. Accordingly, continuing attempts to value patient autonomy must go beyond existing philosophical conceptions of autonomy to consider the background conditions of human decision making.     

From the patient's point of view: medical ethics and the moral imagination.

This paper concerns the difficulties of imagining the subjective point of view of another human being, and the relevance of these difficulties to medical decisions. It explores especially the difficulties of imagining the experience of the mentally impaired, and examines several standards for decision-making: the 'prior expressed wishes standard', the 'substituted judgement standard', and the 'best interests standard'.     

Do-not-resuscitate decision: the attitudes of medical and non-medical students

OBJECTIVES: To study the attitudes of both medical and non-medical students towards the do-not-resuscitate (DNR) decision in a university in Hong Kong, and the factors affecting their attitudes. METHODS: A questionnaire-based survey conducted in the campus of a university in Hong Kong. Preferences and priorities of participants on cardiopulmonary resuscitation in various situations and case scenarios, experience of death and dying, prior knowledge of DNR and basic demographic data were evaluated. RESULTS: A total of 766 students participated in the study. There were statistically significant differences in their DNR decisions in various situations between medical and non-medical students, clinical and preclinical students, and between students who had previously experienced death and dying and those who had not. A prior knowledge of DNR significantly affected DNR decision, although 66.4% of non-medical students and 18.7% of medical students had never heard of DNR. 74% of participants from both medical and non-medical fields considered the patient's own wish as the most important factor that the healthcare team should consider when making DNR decisions. Family wishes might not be decisive on the choice of DNR. CONCLUSIONS: Students in medical and non-medical fields held different views on DNR. A majority of participants considered the patient's own wish as most important in DNR decisions. Family wishes were considered less important than the patient's own wishes.