The major theme for health care law seems to be the consent of treatment. The principle of consent for treatment is the giving of permission before receiving any treatment. Consent can be of two types; implied or express consent. Express consent is either in oral or written form. Implied consent is the action the patient shows that passively allow treatment (CPSO, 2006). For example, when a patient holds out her arm to show they are okay with having a blood test.
Consent must be informed, voluntary, and issued by a person with the capacity to do so. Voluntary means that the patient makes the decision themselves without any pressure from the medical staff or other people. A patient makes an informed decision when they receive all the information about the treatment. The information disclosed should include the benefits and risks of the treatment, if there are alternative treatments and what would happen if they did not receive the treatment. The capacity of the patient giving consent must enable them to understand the information and use it to make an informed decision.
Treatment can happen without the consent in the case of an emergency and incapacitated patient. Treatment can also proceed without consent if any delays may result putting the patient at risk and also if there is no reason to believe the person would not want the treatment. For example, during the procedure a patient requires an additional procedure that if not done can cause permanent damage or death then the surgeon can proceed without consent (CPSO, 2006). When patients are deemed incapable of giving consent someone else must give consent instead. In such a case, the guardian, sibling, spouse, parent, attorney, child or any other relative may step in to give or refuse consent.
Lessons
Even though a health administrator wants to treat a patient, and they understand how important it is, the administrator should let the patient make the decision themselves. The best an administrator can do is make their patients understand by giving them all the information necessary to make an informed decision. The decision made by the patient should get respected no matter what.
As a health administrator, I would make an effort to let my patient understand the circumstances when making any decisions about their treatment. I would also ensure that my patients receive the best care by giving them the best treatment options and guidance when required to do so.
Cobbs vs. Grant
In the case of Cobbs vs. Grant, the patient claimed that the surgeon did not give the required information for the patient to make an informed decision. According to Edwin (2008), the patient has no knowledge on medical sciences, and they depend on the information given by their doctor to make a decision. That makes the relationship between the doctor and the patient a fiduciary one meaning the patient must receive the duty of good faith, confidence and trust from the doctor.
In my opinion, the doctor in this case that was said to be negligent was only doing what was best for their patient. He did the best as any other doctor would have in a similar position even without having the permission of his patient. The case also presents an important point on informing a patient of all they require to decide on their treatment course and how the doctor should respect that decision. Even though the doctor has the knowledge of medicine, they should still leave the decision of treatment with the patient.
Medical negligence is the failure to treat a patient with the same knowledge, skill and care that would be possessed and done by any other physicians under the same situation (Blumberg, n.d.). Medical battery is the performance of a different treatment from the one that consent got obtained. The legal principle referenced in this case is that it is the physician’s duty to explain to a patient in lay terms the potential dangers of the proposed form of medical treatment. There is also the duty of ‘informed refusal’ where the physician is required to explain the risk of refusing to undergo a medical procedure. The physician does not have to disclose minor risks that are similar in all common procedures like loss of blood. However, the physician can withhold information if he reasonably believes that the information would upset the patient and hinder them from making reasonable decisions.
References
Blumberg, J. P. (n.d.). Informed Consent: The duty to Disclose Medical Risks. Retrieved from http://www.blumberglaw.com/pdfs/Article-Informed-Consent.pdf
Edwin, A. K. (2008). Don’t Lie but Don’t Tell the Whole Truth: The Therapeutic Privilege – Is it Ever Justified? Ghana Medical Journal, 42(4), 156-161. Retrieved from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2673833/pdf/GMJ4204-0156.pdf
