Legal & ethical Essay
Legal & ethical
This essay is based on a case scenario and will critically analyse the ethical dilemmas that health and social care practitioner’s encounter with regards to: implications of consent, disclosure of personal information and maintaining patient confidentiality. The legal aspects of the scenario will be discussed in relation to the breaching of confidentiality and how the Data Protection Act (1998) can conflict with other legislation intended to protect patient’s rights. In addition it will identify the consequences of non-disclosure in comparison to disclosure without consent, whilst adhering to the General Medical Council (GMC) guidelines. Finally it will explain the scenario from a utilitarian viewpoint as well as deontological perspective.
Please refer to appendix for case study. In the case scenario, Dr Gomez’s patient Bob is diagnosed with Human Immunodeficiency Virus (HIV), and has been advised to inform his partner Sue of his condition. Sue is seven months pregnant with their first child. However, on a subsequent visit to the clinic, Bob has indicated he has not notified his partner or previous sexual partners of his HIV status. Dr Gomez once again tries to persuade Bob to divulge his condition, he emphasises the importance of Sue being tested for HIV, and just as importantly the necessity to assess whether the baby is at risk.
Meanwhile however, Bob is still adamant he will not notify Sue and says that if his HIV is disclosed to her without his consent he will discontinue his course of treatment, which he began on the previous visit. There are guidelines and legislation in place to assist the health and social care professional in making decisions. The law (GMC, 2001) states doctors are legally committed and duty bound to maintain their patient’s confidentiality. In this scenario the doctor is presented with both an ethical and legal dilemma. According to Sussex et al (2008) an ethical dilemma arises when there is no clear solution to a problem.
The ethical dilemmas that Dr Gomez is concerned with are the wellbeing of Bob, Sue, the unborn child and Bob’s previous sexual partners and finally the legal dilemma is the possible breaching of Bob’s confidentiality by informing Sue of her partners HIV status. Gallant (2008) describes HIV as a virus which attacks the immune system, thus weakening the ability to fight infections and disease, eventually the body becomes incapable of fighting off infection and this is when the Acquired Immune Deficiency Syndrome (AIDS) develops. Gallant goes on to say there is no cure for HIV however, if the condition is detected in the early stage, there is available treatment which help the infected person live a longer life than they would without intervention.
Kourtis and Bulterys (2010) declare HIV can be transmitted through unprotected sex and also from mother to unborn child. From that information it could be argued that if the doctor did not inform Bob’s partner of his condition then it could have serious health implications to her and the unborn child. Thorne & Newell (2005) suggest that if the mother was already infected the virus could be spread to the baby through several ways, such as; via the placenta, during a virginal birth or when breast feeding.
The GMC (2001) states that confidentiality is an important duty but not absolute, and they further outline the behaviour expected by medical professionals. In addition they state personal information can be disclosed without consent in exceptional circumstances such as, when disclosure is of interest to the public because they or the patient may be at serious risk. The National Health Service Act (2006), section 251 (Legislation 2006) mirrors the GMC by stating that confidentiality can be breached when a healthcare professional makes the decision to protect others, this is re-enacted in section 60 (1b) of the Health and Social Care Act (2001) (Legislation 2001).
In addition Aidsmap (2010) indicates the Health and Social Care Act (2008) made changes to the Public Health (Control of Disease) Act (1984) by adding Part 2A. The article goes on to say the updated Act introduced what is known as the ‘all hazards’ approach in relation to public health powers. This means instead of specifying in law a list of infections to which public health powers can be applied, any infection could be subject to public health powers if the infection ‘presents or could present significant harm to human health’ and if the infected person ‘might infect others’ [Part 2A section 45G].
This implies Dr Gomez has a duty to breach his patient’s confidentiality and inform Sue of Bob’s condition. However, these afore mentioned Acts infringe article 8 of the Human Rights Act (1998) (Legislation 1998) which states patients have the right to have ‘respect for private life and family life.’ Leading on from that; it is vital that health professionals are aware of their legal, ethical and professional position as Mason et al (2002) implies confidentiality is at the heart of the code of ethics for medicine. For these reasons it is imperative professionals working in this field are aware
that article 8 of the Human Rights Act (1998) can be cancelled out by both the Data Protection Act (1998) (Legislation 2012) and the Public Interest Disclosure Act (1998) (Legislation 1998).
Eckstein (2003) indicates that the Data Protection Act (1998) (Legislation 2012) gives guidance on the use and storage of confidential information and also states the circumstances when confidential information can be disclosed in order to protect others so long as the action of disclosure can be justified. The Medical Protection Society (2012) states a justifiable reason for breaching a patient’s confidentiality would be when a patient has a communicable disease and is in jeopardy of putting others at risk. Legislation is not the only factor which influences decision.
Hepworth et al (2011) indicates that it is important that professional healthcare workers understand they could intentionally or unintentionally be prejudiced by their own ‘personal’ values. The Oxford Dictionary (2001) defines ‘value’ as: the worth, desirability or utility of a thing, or the qualities on which these depend. Therefore before making a decision on what to do, Dr Gomez will have to ensure that his ‘personal’ values will not influence his decision or more importantly conflict with his patient’s values or legislation. Clarke (2000) cited in Holland (2004) suggests a doctor may feel responsible for his patient refusing treatment if he discloses without permission, as the patient is his first priority and must come first.
At the same time Dr Gomez could equally feel a conflict of responsibility towards Sue and her unborn child, firstly because if she is not told of the situation and then at a later date she and their child are diagnosed with HIV, it would mean that their HIV status may be more advanced with the prolonging of treatment. Secondly the child may well have not transmitted the condition if there had been an early prognosis. On the other hand if Bob discontinues with his treatment it could have devastating and irreversible effects. As reported by The AIDS Beacon (2011), consequences of interrupting or stopping treatments can have a detrimental effect.
They indicate those who interrupt treatment are more prone to opportunistic infections as well as HIV related illnesses such as shingles, Candida infections, and Non-Hodgkin’s Lymphoma, than those who had no treatment interruptions. Furthermore, they conclude patients with treatment interruptions have a slightly higher HIV-related death rate compared to those with no interruptions. According to the GMC (2001), Dr Gomez is duty
bound to respect Bob’s right to choice in refusing treatment. Jackson (2006) implies two of the most important core principles when working in medicine are obtaining consent and respecting the patient’s autonomy.
Whilst Beauchamp and Childress (2001) describe autonomy as being akin to self-governance, for example being able to understand, reason, deliberate and have the capability to independently choose. To apply their definition to this situation Dr Gomez should once again try to persuade Bob to confide in Sue, whilst informing him of and ensuring he understands the risks he imposes to her, the unborn child and himself if he discontinues treatment, thus empowering Bob to act autonomously through understanding, taking responsibility and control of his situation.
Beauchamp and Childress (2001) further argue that some people fail to self-govern in some situations because of restrictions caused by illness, depression or ignorance. If after giving all this information to Bob and he still refuses to confide in his partner, it could result in the forcing of the doctor to act in a paternalistic manner, meaning that he will have to make the decision for Bob.
This according to Jackson (2006) would infringe on Bob’s right to autonomy. Leading on from this, it is equally important the doctor should explore the reasons as to why Bob does not want to disclose to Sue. According to The Free Dictionary (2009) to give consent to something; means that the patient must agree to the medical professional sharing their medical history. Research conducted by Cameron et al (2005) suggests that a person with HIV, reasoning for withholding consent could be due to the fear of rejection by their partner, they go on to imply that a HIV impaired person is not withholding out of maleficence but rather that the patient may be trying to balance deontology with utilitarianism.
Bernat (2008) states, Kant was the founder of the modern school of deontology and he goes on to define deontology as an ethical theory that the morality of an action should be based on whether that action itself is right or wrong under a series of rules, rather than based on the consequences of the action. Kant believed that we should never tell a lie no matter what the consequences. According to Morrison (2009) critics of Kantianism argue that deontology is inflexible as it means that an action is either right or wrong, with no ambiguity whatsoever for example; lying is always wrong, even if the lie is to avoid hurting someone’s feelings.
Ross (1994) cited in Littleton and Engebretson (2002), argues that deontology is insufficient to guide all decision making in ethical situations. Mill (2009) believes that utilitarianism is when a morally right act has to bring about the greatest happiness for the majority of people. Though he did express that if an act was carried out for the purpose of good intent but later that act concluded with a negative impact then it would be deemed immoral. Both utilitarianism and deontology theories have strengths and weaknesses. Williams a critique of utilitarianism (Smart and Williams, 1998) argues that happiness is an emotion which cannot be quantified or measured and that utilitarianism means any action could be deemed moral in the pursuit of happiness such as genocide, torture and killing innocent people.
Holland (2004) states that when balancing the rights and wrongs of a situation it is known as performing a utilitarianism calculation. This process is achieved by considering both utilitarianism and deontological perspectives when making an ethical decision. Morrison (2009) states that Kant believed a moral person is one who would be honest and considerate and therefore he would argue that the doctor would also be acting immorally by wanting to disclose to Sue and thus breaking Bob’s rights to confidentiality. Whereas from and utilitarian perspective Mill (2009) would argue that Dr Gomez should breach Bob’s rights in order to protect Sue and their unborn child as it could be argued that Dr Gomez would be doing this for the greater good of many.
In addition if Dr Gomez did not inform Bob’s partner of his HIV condition then he would also be breaching the General Medical Councils guidance, as stated previously. This failure could then lead to Dr Gomez being disciplined, as he is duty bound as a doctor to protect others from serious communicable diseases, which is a justifiable reason for breaching the confidentiality of a patient (GMC 2001). At the same time it could be reasoned Bob does not want to disclose to Sue because of fear of discrimination. The Terence Higgins Trust website (2012) states that a 2010 survey revealed 66% of the public believed that there is still a stigma attached to HIV.
The findings go on to say that a huge majority of discrimination is found within the National Health Service, encountered from the likes of healthcare workers, dentists, general practitioners and hospital staff. It continues by saying HIV prejudice can compromise personal relationships and that fear and isolation can lead the infected person to mental health issues such as depression. The website goes on to express that these findings are supported by a 2012 study which highlighted one in four HIV infected people had a current depressive disorder.
The article further goes on to suggest that legislation such as the Equality Act (2010) (Legislation 2010) gives people living with HIV protection against discrimination but also argues that it does not always stop injustices, and when discrimination occurs it can be expensive to take legal action, especially with the current government cutting back on the legal aid budget. When it comes to making a difficult decision it could be argued that health and social care workers need the support of colleagues.
Doctor Gomez may which to seek advice to help guide him in the situation, and the medical practitioner under the GMC (2001) guidelines is within his rights to discuss the situation with a colleague so long as this is done anonymously when consent is not given.
This means that in accordance with the Data Protection Act (1998) the name, date of birth, gender, address and contact detail should remain confidential. However, Dr Gomez still needs to protect his patient’s wishes to confidentiality even when consulting with another medical professional for example, Bob’s General Practitioner (GP). Although HIV is infectious it would not be deemed as putting the GP at unnecessary risk by not disclosing, as universal precautions, such as protective gloves, are in place to protect individuals from infection, this indicates that if the GP follows these precautions they will be safe from contracting the infection (GMC, 2001).
As previously mentioned HIV can be spread from mother to unborn child, this is another important reason why either the doctor or Bob need to inform Sue, for both her and the child’s health and safety. Porter et al, 2003, cited in Thorne and Newell (2005) convey the findings of a 2003 study, which indicated that two million women became newly infected with HIV mainly through heterosexual transmission and that 630,000 children acquired the infection mostly through mother-to-child transmission in the same year.
The article continues by stating that without antiretroviral therapy the median time between primary infection and the development of AIDS is approximately ten years, and AIDS to death around two years. Thorne and Newell (2005) further states and highlights that the use of antiretroviral therapy substantially delays the progression of HIV and are highly effective in reducing the transmission from mother-to-baby.
In addition it also recommends the baby be delivered via an elective caesarean section, before the onset of labour and membrane rupture, furthermore it advocates the use of formula feed rather than breast feeding. Finally, Thorne and Newell (2005) reveal that since 1999 all pregnant women are offered the option of being tested for HIV as part of their antenatal care, again this emphasises the need for Sue to be aware of her partners condition so as she can make an informed decision as to whether or not she should be tested.
If Sue has not contracted HIV yet, she is still at great risk of doing so as HIV is spread through infected semen (NHS Choices, 2012), she and Bob may well be having unprotected intercourse due to her already being pregnant; as it is not necessary for them to use contraception to prevent an unplanned pregnancy. All this suggest Dr Gomez would be advised to take the utilitarian perspective in the case scenario, as there would be too many consequences for him if he took the deontological approach.
He could not legally or morally justify non-disclosure. Finally, according to Rowe et al (2001), who carried out a study, on behalf of the World Health Organisation, in order to identify any inequalities within the treatment of patients, suggest it would be advisable for the local authorities to perform a Health Needs Assessment (HNA) of the local community. They explain the stages as a process which describes the health of the population, highlights major risk factors and causes of ill health and identifies the actions which are needed to address these issues. Rowe et al go on to recognise Bradshaw’s taxonomy of needs (Bradshaw 1972, cited in McLachlan 1972) they convey these needs as ‘normative’, for example the medical definition of HIV.
The ‘felt need’, such as the need to have advice on having safe sex, the ‘expressed need’ for instance seeking advice about safe sex and finally the ‘comparative need’, offering a service that gives guidance on safe sex, only to those of a legal age. Rowe et al go on to argue that HNA is an important way of identifying inequalities within the local community.
This essay has critically analysed the ethical aspects of a case scenario which was based on the breaching of patients confidentiality. It reflects on the importance of consent and disclosure of confidential information and in addition it presents a balanced argument for potential harm of non-disclosure to all parties involved. Furthermore it has discussed and critically analysed the principles of legislation such as the Data Protection Act 1998 and the conflicts that arise through other Acts, in particular the Human Rights Act 1998 and the Equality Act 2010.
Penultimately this essay discusses how the use of the utilitarian and deontological perspectives can help an individual to formulate a legal resolution. Finally the case scenario emphasises the necessity for codes of conduct and legislation in a health and social care setting. These are in place to guide the professional to act in an appropriate legal and ethical manner.