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The
Language of Bioethics (Glossary)
Objectives
Goals
Required
Reading
Clinical
Vignettes
Informed
Consent
Confidentiality
Topical
Questions
Suggested
Readings/References
References
& Resources
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Informed
Consent and Confidentiality
Objectives
To explore the physician's ethical
and legal responsibilities for informed, voluntary consent and confidentiality
of patient information.
Goals
Each student will understand and
apply the following in discussion of cases:
- The purpose and essential elements of fully
informed and voluntary consent.
- Legal authority to give effective consent for
self or others.
- Basic clinical criteria for competence to
consent.
- Requirements for and limitations to
patient-physician confidentiality; and when it is acceptable to breach
confidentiality.
- The primary ethical, legal and professional
guidelines for these topics.
Required Reading
- Introduction to Clinical Ethics by
Fletcher, Miller, Lombardo and Marshall. Second Edition
"Respecting Privacy and Confidentiality," p. 41-53
"Determining Patients' Capacity to Share in Decision Making,"
p. 71-88
"The Process of Informed Consent," p. 89-105
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Meisel, A & Kuczewski M.
Legal and ethical myths about informed consent. Arch Intern Med; Vol
156, Dec 9/23, 1996: 2521-2526.
Note: This article can be found through Ovid and will require an ID and
password.
Clinical
Vignettes
Bobby Raines: Don't Tell My Mom
Bobby Raines is a 16 year old,
African American young man who is in his junior year at City Technical High
School. He has a history of risk taking behavior that many would say is
characteristic of his age group. He states (brags actually) that he became
sexually active at the age of 13, having had 8-10 partners in the last 3
years. He seldom uses condoms, stating that they are unnecessary, diminish his
pleasure and "performance", and that birth control is the woman's
responsibility. Last week he was informed that a woman with whom he had sexual
contact about a year ago has tested positive for HIV during a recent prenatal
visit, so he came in for a physical exam and an HIV test.
Results from the physical exam were
within normal limits. He appears to be in good general health. After appropriate
counseling, blood was drawn and sent to the lab. He was given the standard
packet of information on HIV, other SDS, and birth control.
The lab report is positive for HIV.
Bobby was contacted through his beeper, and is returning for the test results
this morning.
Script
Dr. Newman: Hello, Bobby. We
received the results of your HIV tests, and I'm terribly sorry to tell you that
it's not good news. The tests show conclusively that you are infected with the
HIV virus. We discussed last week what these results mean and the available
treatments. I know there is a lot for you to think about, and we can go over any
question you might have. I can help you connect to many forms of assistance when
you need them.
Bobby: Wow! I can't believe this!
Man, I never even believed for a minute that this could happen to me. I read all
that stuff you gave me last week. I don't want to die!
Dr. Newman: Now calm down a little,
Bobby. Get a grip. We might not have a cure right now, but good care...that
means you taking your prescriptions and changing your lifestyle...can
significantly prolong your life even after symptoms appear. And we don't know
how long it will be before the disease starts to cause you significant problems.
Sometimes it takes years. Research suggests that several promising new drugs are
being developed, so it is impossible to say exactly what your odds are.
Bobby: I'm not sure I know what to
do about treatment just yet. I hardly know what to think...I still can't believe
it. Let's deal with that stuff later.
Dr. Newman: Of course, but there are
some things we need to discuss even now. We will need to notify the women you've
had sexual contact with in the last year; we certainly don't want this to
spread. And if there is anyone important to you, like your parents, you should
consider telling them.
Bobby: I can try to give you the
names of the girls, uh, I mean women, that I've been with in the last year. But
I sure as heck don't want you, or anyone else to tell my parents, especially my
mom! Man, that would kill her. She doesn't know about, you know, my goin' out. I
don't even want to think about all this stuff. How can I ell anyone about this?!
You've been my doctor for over 10 years, I want you to take care of
me...hopefully for another 10. But promise me you won't tell my mom.
Now, what do you
do?
Continue to role play to complete this interaction. Remain in character and
improvise.
Refusing Consent for Lumbar
Puncture
Mrs. K is a 45 year old woman who is
seen in the Acute Care Clinic with a complaint of headache of recent onset. She
states that her only other episodes of headache were associated with eyestrain,
usually when she needed her glasses changed. The last time was about two years
ago. She reports that this is different, but she has difficulty describing any
of her symptoms, just that this one is "real bad and won't go away."
In general, she is a poor historian.
On physical examination, she is a
morbidly obese female in some distress. Her exam is unremarkable except for
moderate hypertension and pronounced bilateral papilledema. Neurology is
consulted, and she is admitted for observation and tests, including a lumbar
puncture.
Several attempts at the spinal tap
are unsuccessful because of Mrs. K's obesity. She was cooperative through the
ordeal of initial attempts, but when the resident approaches her later to try
again, she refuses the test. When asked for the reason for her refusal she
states that it was very painful the first time, and her sister has told her
about someone their cousin once heard of who had had a lumbar puncture and had
been paralyzed. The resident told her that her papilledema could be a sign of
"a serious, life-threatening problem" and that the tap was
"absolutely necessary to diagnose and treat" that problem. She further
states that "there is absolutely no danger of paralysis from the
procedure." During the next three days, the resident tries repeatedly to
convince Mrs. K to cooperate, but she continues to refuse. When the resident
informs her of her option to sign out "against medical advice," she
does so. She does not respond to multiple requests for her to return to be seen
in the clinic and is lost to follow-up.
Informed
Consent
I. An informed competent patient's
preference to accept or refuse medically indicated treatment. This requires
information to allow a reasonable person to make prudent choices in his/her
behalf.
II. Four basic elements:
- Disclosure
- Comprehension
- Competency
- Voluntary choice
Disclosure:
must be truthful and includes:
- Current medical status and likely course
if no treatment.
- Interventions that might improve
prognosis–risks, benefits, probabilities and uncertainties of these
interventions.
- Opinion of alternatives.
- Recommendation based on physician's best
clinical judgement.
- Details vary depending on emergency,
elective or in-between.
- Research
Comprehension
- Physician must make reasonable efforts to
assure comprehension.
- Requires dialogue between physician and
patient.
Competency
- Mental capacity to understand and make
choices.
- Ability to understand relevant information,
appreciate one's medical condition and its consequences, to communicate a
choice and to rationally be able to discuss one's own values in relation
to treatment options.
- Surrogate decision-makers (family members,
etc.).
- Determination of incompetence may require
legal determination.
Voluntary Choice
- Competent refusal of treatment must be
respected.
- Refusal on grounds of belief.
- Enigmatic refusal.
III. Significance
1. Ethical: Self-determination
A. Autonomy: moral right to choose and follow
one's own plan of life and actions
2. Legal
A. Each person has fundamental
right to control his own body and the right to be protected against unwanted
intrusions or unconsented touchings explicit consent offers this protection
B. Patient-physician
relationship is a fiduciary one, i.e., physician must promote best interests
of the patient.
3. Psychological: Self-worth
demand ability to express preferences and have other respect them.
IV. Issues Related to Informed
Consent
1. Therapeutic privilege
A. When to breach:
1. In an emergency when time required for
full disclosure might jeopardize patient's health
2. When patient would not want to know
certain particulars
3. When release of information is judged to
pose a threat to public health and welfare
B. Treatment refusal
1. Competency
2. Enigmatic
3. Special circumstances
(unusual beliefs)
C. Research ethical principles
stem from Nuremberg Trials after WW II.
Confidentiality
I. Basic Elements
- Respect for patient's privacy and autonomy
- Prevention of harm to patients
- Fiduciary relationship between patient and
physician
- Service to the common good (i.e.,
confidentiality is good for society in general)
II. Obligations to Respect
Confidentiality
- Professional ethical guidelines
- Legal standards
- Important exceptions
- Comparison of confidentiality in Codes of
Medical Ethics
A. World Medical Association.
A doctor owes to his patient absolute secrecy on all which has been confided
to him or which he knows because of the confidence entrusted to him.
B. Declaration of Geneva.
I will hold in confidence all that my patient confides in me.
C. Hippocratic Oath:
Whatever, in connection with my professional practice, or not in connection
with it, I see or hear, in the life of men, which ought not to be spoken
abroad, I will not divulge, as reckoning that all such should be kept
secret.
D. British Medical
Association. It is a practitioner's obligation to observe the rule of
professional secrecy by refraining from disclosing...(save with statutory
sanction) to any third party information which has learnt in his
professional relationship with the patient...On certain occasions it may be
necessary to acquiesce in some modification. Always, however, the overriding
consideration must be adoption of a line of conduct that will benefit the
patient, or protect his interest.
E. American Medical
Association Principles of Medical Ethics. A physician may not reveal the
confidences entrusted to him in the course of medical attendance, or the
deficiencies he may observe in the character of his patients, unless he is
required to do so by law or unless it becomes necessary in order to protect
the welfare of the individual or of the society.
But what if the best interest of
the patient is illegal or prevents justice? What counts, and when is it
sufficient to breach confidentiality? Either one of two approaches is usually
taken.
5. Generally accepted exceptions
to confidentiality
A. When the law requires it
(e.g., gunshot wounds, infectious diseases, suspected child abuse, dog
bites)
B. When it is in the best
interest of the patient (e.g., to prevent suicide)
C. When it is in the best
interest of society (e.g., Typhoid Mary-type cases or the patient is
planning a homicide)
D. What if the best interest of
the patient is illegal or prevents justice and is not required to be
reported by law? If there are to be exceptions, under what conditions do you
breach confidentiality?
6. Conditions for breach of
confidentiality
The principle of confidentiality
should not be breached unless all the following conditions are met
simultaneously:
A. Its maintenance would clearly
result in damage that outweighs the damage done by the breach.
B. There is no other way that
does not involve a breach of confidentiality to avoid the damage.
C. The breach is the least
possible that will prevent the damage or is the one with the least harmful
consequences to the patient.
D. The patient is informed,
preferably before the breach.
Topical
Questions
- What should patients be told about treatment
procedures proposed to them? How much detail and how should it be
communicated?
- What if a patient is not very sophisticated?
What if he is likely to be frightened or refuse treatment that is in his
best interest?
- Should an adult ever be treated without or
against his consent? If not, why? If so, when?
Suggested
Readings/References
- Code of Medical Ethics, American
Medical Association
"Principles of Medical Ethics," p xiv-xxxviii
"Fundamental Elements of the Patient-Physician Relationship," p
xxxix-xliii
"Informed Consent," 8.08
"Confidential Care for Minors," 5.055
- Ethics
Manual, Fourth Edition, American College of Physicians
"Physician and Patient"
"The Physician and Society"
"Conflicts of Interest"
"Consent"
"Confidentiality"
"Decisions about Reproduction"
- The Doctor's Dilemma
"Bowsher Case"
"Harper Case"
"King Case"
- Introduction to Clinical Ethics by
Fletcher, Miller, Lombardo and Marshall. Second Edition.
"Communication, Truthtelling, and Disclosure." p 55-70.
- The Hippocratic Oath (Located within Doctor's
Dilemma)
- Official Code of Georgia
31-9-1 through 31-9-6.1
and 24-9-40.
- Martin,
RM. Some Ethical Issues in the Disclosure of Progressive Diseases of the
Nervous System. Southern Medical Journal. July 1978; Vol 71(7):
792-794.
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Medical
College of Georgia Hospitals and Clinics, Request and Informed Consent
to Surgical and/or Diagnostic Procedure.
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