Part 1
Objective: in this critical analysis, you are expected to demonstrate an understanding of public health ethics and legal issues. Also, you are required to actively engage with the subject and come up with a substantial perspective on it.
Introduction
This critical analysis will outline the main purpose of the public health ethics and legal issues for protecting and upholding public health. Public policies and social programs are some of the aspects that constitute a good public health. Also, some patients with distinct issues contribute to the wellbeing of the public health, especially in a situation of unethical event regarding health care physicians and patients. Public health acts as a movement committed to provide equitable health improvement and wellbeing of society. Therefore, integration of clinical ethics and law in the public health create a co-existent among patients, nurses, and care providers.
Thesis statement
This critical analysis will identify the contribution and role of ethics, law, and risk management in the public health. It will focus on the provider’s action and patient’s claim in the event of injuries on the health care system. Also, it will look at various aspects that determine the patient’s condition to make informed consent during treatment and non-treatment conditions.
Understanding relationships between clinical ethics, law & risk management
Sometime, patients are forced to seek medical assistance from medical ethicists, lawyers, and risk managers in the event of malpractice by a physician. Clinical ethics can be defined as a way through which the medical industry defines and formulates the policies that guide them in the way to deliver the services to the public. The law exists so that the patients can gain more and have some form of protection from the ethical rules in clinical treatments and practices. Risk management exists in the industry as a way of protecting the possibility of a malpractice that affects the patients in the long run.
A number of healthcare centres take a step in adopting trained enthusiasts who give assistance to health care practitioners, nurses, and patients in case of any challenge that may arise during treatment [2]. Some institutions in the medical field have incorporated the use of a constitution in the committees that are in charge of the activities taking place in their organization that highlight on the work ethics. The idea to have ethics in the constitution of a health care centre began in the early 1990s where an idea of the Medical Association stipulated that it should be a mandatory requirement of each hospital. Hence, it was no choice for the hospitals as they had to reflect it in their statements as well as reflect them in the notes governing their leadership. Professional practitioners claim that ethics start where the law ends. Development of legal rules for social disorder is as a result of moral conscience [12]. Therefore, the relationship that exists between the ethical issues related to medical care and the law ensures that they protect the social welfare of the community.
Many health care facilities require the input of the lawmakers and the risk mitigators who work together so that their ideas bring about an original concept for the management and welfare of the entity. It is common to find that some healthcare institutions have such an arrangement but they ensure they separate the tasks that each plays which are prevention of risks and matters of law [6]. The management of risk is a broad topic and narrows down to the reduction and prevention of risks that an entity faces and uses the legal parameters as guided by the lawyer. The hospital policy should work within the required parameters as stipulated and laid down by the representative of the law in the centre. Ethical guidelines take the central place in case there is a matter arising that relates to the mitigation of risks and the legal capacity. It also means that any issue that arises within the activities taking place in the clinic would have an issue related to the law or risk that may require their input.
Part 2
Legal cases and actions related to health care centres
Two major actions taken by the court related to the clinical matters include the ignorance in terms of violation and consent issues. Both relate to the main activities that take place within health institutions that necessitate the input of the patients and their rights to agree or disagree to a form of treatment. Each country has a specific medical treatment and malpractice laws. They include the following
Well informed agreement (educated consent)
It is important and a requirement of the law that each patient that seeks the services of a medical expert needs to execute their consent before treatment begins. In a situation that a patient is not in a position to make their own decision, then one individual recognized by law stands in the gap and makes the decisions on their behalf [11].
In most cases, it happens during emergency cases and there is an urgent need for the appointed person to sign so that the doctors can initiate treatment and in this case, the surrogate as appointed by law is unavailable. One of the assumptions is that the patient would accept the treatment if they were capable. The patient is in a position to understand the implications of their choice just in case anything went wrong during the treatment process. A patient must comprehend all information he or she consents and it should be a voluntary act. The caretaker who undertakes and initiate treatment without the consent of a patient is obligated to face the consequences depending on the country procedures and regulations and may be answerable to an injured patient.
Informing and educating the patient briefly on the procedures and actions is a small but important task and need to carry the weight it requires from a clinical ethics perspective. The aspect and idea of the consent from the patient signify that a patient understands and that their mental stability reflects they understand every decision made and gives them the chance to make a choice based on the information they have. The use of forms is a documented evidence of the consent that the patients given to the healthcare practitioners as they start the treatment procedure. It is also proof that there was a communication between the patient and the medics in relation to the procedure of treatment involved. In a court of law, it acts as a form of protection for the healthcare facilities as they produce the copies and evidence of action taken before treatment began. Some countries support the use of such actions at the county and country levels so that they can ease the decision making model for the benefit of the patient.
Lack of following the expected procedures
In some cases, a patient may face an accidental injury during treatment and may present a case against a health care provider if he or provides substantial evidence that they got the injury due to the lack of the health facilitator in following the expected in treating [9]. A medic has the ultimate responsibility to use reasonably expected judgment and knowledge to treat the patient. He or she should make sure they use the available resources in the health care so that they can facilitate the treatment for the patient. They can make use of the networking in the medical field, use the journals by other medics and past data on treatment so that they can advance the care to the patients who require it.
Many countries use a national and accepted form of care services so that they can measure the extent to which the actions of the health care provider surpass the expected treatment options. There is, however a limitation on the practice of the practitioners and the tools they use so that they can give the services to the public [5]. Also, the country may make use of more than one standard depending on the number of specialists in the country and a number of general practitioners as well. It is therefore the responsibility of the medic to ensure they deliver the services with utmost care and attention to avoid such cases.
iii. The litigation process
The litigation process has three essential distinct phases. They include the start which is the initiation first step, the next is the activities that take place before the trial (pre), and the other is the actual trial and the actions that take place after the trial (post). The settlement is a term that describes the possibility that the parties in the case solve the case before taking any legal action which must take place during the trial phase of before they initiate the case. What it means is that the most of the initiated claims fail to go through the three phases [11]. Comprehending litigation process is critical because it makes one to understand that there exists a relationship between the mitigation of risks, the ethical issues related to clinical activities as well as the law.
The Initiation step
When the alleged patient with an ethical complaint reaches out to the court for intervention, a lawsuit process starts. The care provider should be notified by the plaintiff concerning the issue. In most cases, a malpractice lawsuit involves more than one defendant, provider, institution, and medical equipment manufacturer. The plaintiff should present facts based on the case at hand against the complaint. The court then needs to get a typed message which acts as a response from a defendant. The plaintiff should get the same written message from the defendant which should take place after a specific amount of time.
Pre-trial phase
Both sides gather information by a method known as discovery after filing a lawsuit and before trial. Some of the discovery methods used to gather information include interrogatories. This method use questioners to gather information from the opposite side and should be done under oath [4]. Each party needs to come up with the supporting documents to the other side as a request for production. The opposing side should lay down the facts before the trial takes place as requests for admissions. The witnesses are supposed to answer questions in person under oath and should provide documents to the deposition. Both parties are prepared with the information collected during discovery which in most cases provides a base through which the settlement takes place. A number of the court cases with a bias on the activities and decisions against practitioners may end up at settlement. Therefore, in some instances, they may need the input of the judgment as a summary of the decision they arrive. Hence, the court has the power to rule in favor of either party from the data they have collected during the process of discovery. A number of countries may request all the parties in the case to surrender and use the mediation process to solve the case as a way to encourage the wrangling parties to get a long lasting solution to the health issue before getting in the trial.
Trial and post-trial phase
In this phase, the jury decides the cases involving injuries in health care. The following order is observed during a trial before a jury: the selection of the jury; a statement that acts as a key start to the parties; a testimony from the plaintiff; a testimony from the defendant; the arguments used in the closing scenario, the instructions for the jury, their deliberation as well as a verdict [1]. Some motions may also exist that may trigger the alterations of the case and its outcome even after a jury verdict.
Law is dynamic
In health care, the law is ever-changing and evolving. New laws were created to enable the system to accommodate the upcoming medical cases as well as interpret already established laws. The legal researchers are caveated due to the changing nature of the law [8]. Most materials obtained through general legal searches are not always current; therefore, a practicing lawyer should confirm them before they are used.
3 cases/articles used in the research
Schrodinger’s fetus article
The search technique used here is the medical ethics. This article provides a concise argument with respect to ultrasound tests done on pregnant women [13]. According to the Browne, ultrasound test needs to be prohibited in order to make the fetus’ sex indeterminate. This article is helpful because it touches on medical ethics, which is under discussion in this paper.
The Obligation of the Health Care Provider to Compensate for Damages in Case of Wrongful Conception: a Model to Suit Estonian Law article
The search technique employed was medical ethics and law. This article tackles the argument on the family planning [14]. The aspect of the family planning has been controversial for many years. This article is helpful since it tackles ethics with respect to family planning.
Fossil relics: ethics committees under the European Clinical Trials Regulation article
The search technique employed was medical ethics and law. This article tackle European clinical trials regulations with respect to recruitment of clinical trials [15]. This article is helpful because it touches on clinical trials regulation, which is part of medical ethics.
Trends in clinical industry
Communication between a patient and a medical attendant
The legal as well as the risk management issues are implicated by a number of common ethical issues. The choice a patient takes in relation to the kind of treatment they receive and the type of procedure in treating followed treatment should be followed if the patient has the capability of making informed consent. With this, the patient will be complying with the established and enforceable legal standards. Also, the act will be in line according to the principles used with respect to the patient’s autonomy.
Surrogate decision-making
Treating health care provider determines whether the patient has the capacity to provide informed decision based on the professional judgment [7]. The health care providers should base on a specific decision to make a permanent or a temporary determination of capacity or incapacity. A judicial determination of decision-making capacity is well described by legal term competency or incompetency. The court order in most cases authorizes one surrogate in charge of the decision making process.
A practitioner should access consent from the appointed surrogate by the court after it comes to a conclusion that the patient is incompetent. For instance, a medical facility may seek the opinion of the surrogate as long as the court steps in and provides a personal decision [10].
The surrogate charged by the court to make decisions on behalf of the patients is capable of providing consent representing the patient if the physician has determined that the patient is incapacity to provide informed consent. Some countries have specific laws that define the priority of people making a surrogate decision for incapacity patients. Laws are different and may adopt the idea that relatives by law are better placed in making the decisions than the legally appointed ones. In the case where the patient had previously used a specific person to make informed consent while capable of making the consent, then that designated person may act to provide informed consent.
Parents representing their underage children
Parents have no power to give consent so that their children can or cannot receive treatment for their child or children under certain situation where the decision may result in death if the child fails to get treatment [8]. The best example is where parent’s or parents’’ social or religious view denies them right to make informed consent. However, there is the best interest standard that deals with such issues. A substituted judgment standard fails to work in this situation because the minor’s informed choices cannot be determined. Factors like their maturity, age, and the depth of treatment may act as a definition of their power in directing their own care and therefore, they can make informed consent to specific types of treatment.
Advance directives
It is the documents related to a patient and their usage so that they can competently to record future wishes if he she lacks decision-making capacity. The country law defines the choice and specific advance directive terminology. In simple term, a person expresses his or her desires regarding medical treatment in a situation of incapacity to make informed consent. In the event of incapacity, there are options of using a decision maker who is the surrogate or making use of the services of the power of the attorney. A combined function of the attorney may give a direction for the activities in the health care actions and provide them in one document used by the country.
Therefore, an action for the advance directives play a key role when choosing appropriate treatment upon individual expressed wishes. However, the advance directive’s veracity may be questioned under certain situations. For example, a legal authorized surrogate claims that the advance directive fails to address specific care decision at hand.
Provider-patient communications
Disclosing medical error
It is imperative for care provider to provide an honest communication to patients. Most conflicts and misunderstanding are eliminated by excellent communication. Also, impacts the patient’s likelihood of suing [9]. In the context of communication, contentious issues have arisen whether care providers need to reveal any error in the treatment to the patients. Also, in the care provider has to do so then how and when. Potential conflict may arise among clinical ethics, law, and risk management if the care provide will have to disclose medical errors. Practitioners worry about the court cases on the basis of the not revealing in spite of the oath in being honest and maintaining an open communication with the patients. The provider specifically fears for the statements since they may stimulate malpractice claims against him or her. The practitioner may provide past evidence as having no complaint from the patients as it may have a negative effect due to an increase in malpractice claims [2, 3].
Conclusion
There is a need for the law and ethics to protect the care provider and patients in the health care system to create a rapport between the patients and health care providers. Health care institutions should bear in mind the challenges faced by the care providers in their workplace and how they are affected in delivery of services. Also, the management should consider the problems the patients go through in the hands of unethical care providers. Therefore, the law, ethics, and risk management should be integrated so that both care providers and patients are well covered in an event of injuries to the patient.
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