MJM MedTalks
Let’s Talk LMCC (S01E03): Legal, Ethical and Organizational Aspects of Medicine - Consent, Truth Telling and Negligence

S01E03

Amanda Sears, Carolyn Ells, Lara Khoury, Sarah Grech, Esther SH Kang, Katherine Lan, Susan Joanne Wang for the McGill Journal of Medicine1
Published online: August 14, 2023

1McGill University
mjm.med@mcgill.ca

Abstract

Welcome to the McGill Journal of Medicine (MJM) Let’s Talk LMCC Review. This podcast series was created to aid medical students studying for the Canadian Medical Council (MCC)’s licensing exam. Each episode is created based on specific LMCC objectives and is divided into two sections. In Section 1 we provide an overview of the topic with the help of experts in the field, followed by Section 2 where we review LMCC styled questions to help consolidate knowledge. In this episode, we welcome our expert advisor, Dr. Carolyn Ells, a recently retired Associate Professor in the Department of Medicine at McGill, based at the Biomedical Ethics Unit, to speak on LMCC Objectives 121-1 Consent, 121-2 Truth Telling, and 121-3 Negligence. This episode was written by MJM Podcast Team members Amanda Sears and Esther Kang and Dr. Carolyn Ells. Please see our website www.mjmmed.com for more information, including a link to show notes.

     

Content overview

Glossary

Links and papers

Transcript

0:00 Esther Kang (EK): Welcome back to the MJM Let’s Talk LMCC. This podcast series was created to aid medical students studying for the Canadian medical licensing exam. Each episode is created based on specific LMCC objectives and is divided into two sections. In Section One we provide an overview of the topic with some help from experts in the field, followed by Section Two where we review LMCC styled questions to help consolidate knowledge. Here’s Part 1 of Medical Ethics & Law, where I had the opportunity to chat with our expert advisor, Dr. Carolyn Ells.

0:38 EK: Hello, my name is Esther Kang and I will be your host for this episode of the LMCC review. Today we will be going over some key bioethics concepts that you will encounter on the LMCC. This includes some principles of medical ethics, definitions of consent, capacity, substitute decision making, advance directives, truth telling, and maternal-fetal relationships. Here with us today is Dr. Ells, who is a recently retired associate professor in the Department of Medicine at McGill, based at the Biomedical Ethics unit with appointments as Associate Member of the Division of Experimental Medicine, the Departments of Family Medicine and Social Studies of Medicine, and as an Associate Researcher at the Lady Davis Institute for Medical Research. Dr. Ells, welcome to the podcast.

Dr. Carolyn Ells (CE): Thank you, Esther. I’m happy to talk about this topic with you.

EK: Before we begin, we would like to highlight that although we aim to provide accurate facts and definitions, please be mindful that not all of the concepts that we go over in this two-part series may be applicable to your province, as the practice of ethics and law may vary drastically depending on your location. This is especially true for our Quebec listeners. Many of the legal concepts that we review may not be in standing with the local legal processes. All to say, we hope this episode helps you get familiar with the key concepts, but for practical legal or ethical advice, please refer to your local experts.

1:58: Now let’s start with the basics, the four principles of bioethics: Autonomy, Non-maleficence, Beneficence, and Justice. Let’s start with a few brief definitions. Autonomy refers to the individual’s ability and legal right to decide and act for themselves A) according to their beliefs, values and plans, B) with understanding, and C) without controlling influences that determine their action. Respect for autonomy obligates health professionals and researchers to acknowledge the value and decision-making rights of autonomous persons, to disclose information, ensure understanding and voluntariness, and foster adequate decision-making. Dr. Ells, can you tell us a little bit about how autonomy is different from competence or decision-making capacity?

2:44 CE: Sure. Think about autonomy as the general ability and right that patients have to make decisions according to their own preferences and beliefs. It’s like an ability that humans have. In medicine, when we talk about competence, and by this I’m really thinking decision-making capacity, you know, now we’re referring to the ability to make a specific decision for patients themselves. If they’re to make an informed consent, that is the patient’s authorization, or we can say their choice, to have certain medical interventions. So you know, they’re closely related concepts but they’re different. And of course, some of the ethics and legal literature describe them a little bit differently in different places.

EK: Thank you. We will soon go over competence and capacity in later sections.

3:48: Now to continue with the definitions. Non-maleficence. This refers to an ethical obligation to avoid causing harm to others. While harmful actions are not necessarily wrong, it does require justification in the sense that another ethical principle has priority in the circumstance. Next is Beneficence. This refers to an ethical obligation to act for the benefit of others. Now when we talk about patient-based “best interests”, we’re referring to a standard that combines doing good, avoiding harm, taking into account the patient’s values, beliefs and known preferences. Autonomy should be integrated here with the physician’s conception of a patient’s medically-defined best interests, with the goal of minimizing harmful outcomes and maximizing beneficial ones. This is paramount in situations where consent and choice are not possible or may not be appropriate. But sometimes, the principle of autonomy can override the principle of beneficence. Why is that Dr. Ells?

4:43 CE: Sometimes we try to abide by, you know, all the relevant ethics principles, you know, to the extent we’re able to. But then sometimes there are circumstances where one has priority over another. So for example, the law allows that a patient with decision-making capacity may use their autonomy to choose or refuse recommended care, even if what they choose seems to be less beneficial for them than what the physician would recommend. So the assumption here is that each of us is best positioned to look out for our own overall best interests, by retaining some control over the important decisions that affect our well-being. Respect for autonomy enables each of us to have a certain amount of freedom to live our lives according to our own plans.

5:38 EK: Great. Finally, we have Justice fair distribution of benefits and harms within a community, regardless of geography or privilege. This brings up the concept of fairness. We may ask the questions “Is the patient receiving their fair share of resources? Are they being treated the same as equally situated patients? And how does one treatment decision impact others?” When resources are scarce, the principle of justice has priority.

6:03: Now that we have covered some of the fundamental concepts, let’s go over some key topics related to medicine.

6:08: Starting with patient consent. Consent is when a patient autonomously agrees to a medical intervention. In general, there are four key criteria which must be met for consent to be valid. Dr. Ells, would you be able to tell us a bit more about these four criteria?

CE: Well consent must be specific to the procedure being proposed and to the provider carrying out that procedure. So for example, you know, the surgeon seeks the patient’s consent for the surgical procedures, while the anesthetist will speak with the patient and seek their consent for managing the patient’s consciousness, welfare, you know, pain, these kinds of aspects of the surgery process. So that’s consent being specific to the procedure being proposed and the provider who carries it.

The consent must also be informed. And this means that the patient must have sufficient understanding and time to make choices according to their wishes. This requires informing the patient about the nature of the treatment or the investigation and its expected effects, all the material risks, so those are risks that are contingent on how probable or how serious the risks for the patient, as well as (outside of Quebec) any special or unusual risks. Being informed also requires informing the patient of alternative treatments and their expected benefits and risks, and the consequences of declining treatment, and also answering the patient’s questions. The physician must provide all the information they have, that they have, you know, reason to believe that this patient would want to know. Outside of Quebec, the law requires to provide all information that would be needed by a reasonable person in the patient’s position. The physician must make reasonable efforts to ensure that the patient understands the information being provided and the physician must not withhold information about a legitimate therapeutic option based on the conscience.

So the third factor there, or the third element, is consent must be voluntary. That is, it’s free of coercion or pressure that forces a particular decision. The physician must deliberately not mislead the patient about the proposed treatment. And the fourth: the patient must be capable. In most common law provinces, they talk about capacity as the ability to understand and appreciate the nature and effect of the proposed treatment.

8:57 EK: Dr. Ells, are there any exceptions to informed consent?

CE: There are some exceptions. An important exception would be medical emergency. This would be a situation where the patient is experiencing severe suffering or where delaying treatment would lead to significant harm. So in a medical emergency, and when consent can’t be obtained from either the patient or a substitute decision-maker, the physician may proceed with treatment and document, you know, very carefully, the reasons why something, the particular treatment is necessary and important and, you know, proceed so the patient receives that. However, the emergency treatment should never violate what the physician or the healthcare team already know are the wishes of the patient. So I guess a different example, we could say, with regarding consent, is that patients can choose to waive their right to know truthful information, you know, about their medical situation at any time. So they’re sort of saying “I don’t want all those details.” So this might be, for example, to respect cultural norms, such as cultural communities where letting the family or loved ones manage the truth for them is in fact a norm and people prescribe to wanting to follow that norm. So sometimes it’s, you know, they wish others to make important decisions on their own behalf or have a really important role in that decision making on their own behalf. Crucially, even after waiving a right to receive some truthful information, the patient always retains the right to that information on their request. So they can always change their mind and say “I want to know those details that I said please just discuss with my spouse.”

We should also think about consequences for failing to obtain informed consent. In most of Canada, treatment without consent is a civil battery, even when it’s life-saving. In Quebec, claims of battery are not possible. But, we have in Quebec and in other parts of Canada, if someone fails to obtain informed consent and that results in a provable injury, it may constitute negligence and lead to liability.

11:31 EK: Alright, we mentioned that patients have decision-making capacity. This is the ability to understand information relevant to a treatment decision and appreciate the reasonably foreseeable consequences of a decision or lack thereof. As with consent, capacity is specific to each decision and may change overtime. Patients are presumed capable unless there is evidence to the contrary. And capable patients are entitled to make their own decisions, even if these decisions lead to serious harm or death. That leads to the question, how do we assess capacity? Again, this may vary per province. But there are generally four cognitive skills that a physician will seek in a capacity assessment.

The first is the ability of the patient to understand their condition, the nature of the proposed treatment and management, the alternatives to those options, and the risks and benefits and consequences of accepting or rejecting those options. The second is the ability to communicate a clear choice. So Dr. Ells, how would a physician determine whether or not a patient has this communicative capacity?

12:32 CE: Sometimes it’s obvious: they are awake, alert, stating clearly what their preferences are. Sometimes a translator or visual aids are needed to help a patient communicate their choice. Being able to reliably indicate ‘yes’ or ‘no’ is key to communicating a clear choice. A physician might also consider whether the choice is consistent with other beliefs or values the patient has expressed, previous decisions of the patient, and their cultural or religious beliefs if they’re known. Where choices seem inconsistent, they may ask a patient to explain ‘why’.

EK: Great. So to continue on, another thing that a physician will look for in a patient is their ability to appreciate the situation and the consequences that follow with it. This involves the patient demonstrating an ability to recognize how a problem or solution pertains to their own situation. So it’s important to recognize that there’s a difference between having the ability to understand and the ability to appreciate the situation. Those are two distinct things. And Dr. Ells, how can you distinguish the two and why do they differ?

13:47 CE: Well, sometimes patients can repeat back to a physician the important information that the physician gave them, so they may grasp that information and answer questions about it, say it’s about a disease condition or something. However, they may not really grasp that what they’re talking about applies to them. Sometimes a patient might deny having a medical condition that the physician thinks they have, or the patient may believe something could be resolved in a different way. I mean, this is kind of how I try to tease out the distinction and grasping that, one sometimes can understand information but not really see how it applies to themselves.

EK: I see. So, to finish off, the last thing that a physician will look for is the ability to reason. To determine this, a physician might want to see that the patient can weigh different treatment options, compare solutions and consequences, and execute a logical thought process to reach a decision and adhere to it. So, in summary, the four cognitive skills used to assess capacity are: the ability to understand, to communicate, to appreciate the situation, and to reason.

The patient has a right to challenge a determination of incapacity. They can do this by requesting assessment by a second physician. But we must remember that, with a determination of incapacity, this removes the patient’s ability to authorize or refuse specific treatments or investigations on their own behalf.

15:23: Now, Dr. Ells, what happens if we’re in a medical emergency and a patient is found incapable to consent for a specific decision?

CE: Ideally, a substitute decision-maker, usually a family member or someone close to the patient, will be available to authorize or consent to care on the patient’s behalf. If no one is present, and it’s impossible to contact them in due time, the physician proceeds with treatment that addresses that immediate serious harm. The emergency treatment shouldn’t violate the known wishes of the patient and the physician, you know, must document the reasons for incapacity, why the situation is to be considered an emergency, and that no one was available to serve as the patient’s surrogate decision-maker.

EK: Does this change at all if the decision involves detaining the patient against their will for treatment or for safety of themselves or others?

CE: Well, an incapable patient can only be detained against their will to receive treatment if they meet the criteria for certification under the Mental Health Act. That will vary depending on location. The physician must document in their assessment, in the chart, obtained consent from a surrogate decision-maker (if one is available) and notify the patient using the appropriate mental health form. In provinces and territories outside Quebec, they also notify a particular Rights Office.

17:01 EK: And what if it’s a non-emergency? Let’s say that the patient is in the emergency room and requires investigations and treatments but it’s nothing that is life-threatening. What do we do then?

CE: For sure, this is a very common kind of situation, a patient found incapable to consent but it’s not an emergency. Well we sometimes consider ‘can the decision wait until the patient regains capacity’. If so, that would be the right thing to do. To treat an incapable patient in a non-emergency, we would need to obtain informed consent from a surrogate decision-maker.

17:39 EK: Alright, so then let’s jump back to the emergency situation. If the patient is found incapable of providing consent, we mentioned that we look for a substitute or surrogate decision-maker. This person may be a spouse, a partner, or family member of the patient. What’s important is that when making a decision on behalf of the patient, we must act in accordance with the wishes that were previously expressed by the patient. And if the wishes are unknown, they must act in the patient’s best interest. That means taking consideration to the patient’s values and beliefs from when they were capable, the likelihood of improvement of the patient’s well-being, with the treatment versus without the treatment, the whole risk and reward balance, and deciding which treatment among similarly beneficial ones is the least invasive. A physician should always challenge decisions made by substitute decision-makers if they appear to not abide by the above principles.

18:35: Now, in some provinces, there are also powers of attorney. In Quebec, this is called a ‘mandatary’ under the protection mandate. Dr. Ells, can you explain to us how the power of attorney or mandatary differs from a substitute decision-maker?

CE: Yes. A Power of Attorney for Personal Care, the document that kind of means the same thing in different areas, this is a legal document that grants someone authority to make personal care decisions on behalf of a patient, should they become incapable. So you know, this is, the law at a particular process has made this document take effect at a time that the person is incapable. There’s other categories where the court or that process has named other specific people to be, you know, in the role of a decision-maker in some cases.

19:37 EK: Similar to Power of Attorney, there’s another role called the Guardian of the Person. These people are appointed by the Court to make decisions on behalf of an incapable person for some or all areas of personal care in the absence of a Power of Attorney for Personal Care. Another role is the Public Guardian or Trustee. This person acts as a substitute decision-maker for an incapable person in the absence of a designated substitute decision-maker.

Now, from what I understand, there’s also something called advanced directives, which are used to determine care for patients who are no longer capable. Can you tell us a little bit about what these are and how they work?

20:16 CE: Advance directives are documents that are made by the person with capacity, and they set out their decisions about future healthcare, including the interventions they would want and who can make treatment decisions on their behalf and instructions about treatment or the care plan decisions, such as what kind of interventions they would want want or not want. So an advanced directive such as this allows patients to have control over their care when they’re no longer able to by setting out their instructions and wishes in advance. Therefore, advance care directives take effect once the patient is incapable with respect to the particular, specific treatment decisions needed. The patient should be encouraged to review these documents with their family or surrogate decision-makers, and even their physicians from time to time, and re-evaluate them and revise them as necessary.

21:20 EK: Alright, so let’s take a step back and talk about some personal duties of physicians on a more broad scheme. Obviously, negligence from malpractice would be an important topic to discuss here. So negligence or malpractice is a form of failure on the part of the physician to fulfill their legal duty providing appropriate care, and this may lead to harming the patient. What are some of the legal implications here, Dr. Ells?

CE: Well, physicians are liable to their patients for causing harm through a failure to meet the relevant standards of care. The standard of care that’s relevant is going to be that which would be expected under similar circumstances of an ordinary, prudent, reasonable physician, you know, at the same level of training, expertise, specialization and standing.

22:12 EK: So another important topic in a similar realm of things would be the importance of truth telling, especially relevant to cases of medical errors. So why is truth-telling so important and why is it a skill that physicians must have?

CE: Well first let me say that “medical error”, as a kind of term, is typically discussed now, in terms of medical incidents and accidents. And either of which, may or may not result in harm to the patient. There are several factors that can contribute to this occurrence. And physicians are expected to disclose the truth of those accidents or, you know, medical incidents and accidents, should they occur. Key here is to understand how what has happened has an impact on the patient. So definitely when the patient has been impacted by a medical incident or accident, you know, the patient or their family, if that’s relevant, should learn about this in order to preserve trust in the system that will share that information with them, to preserve trust in their relationship with the health professionals involved, but also to ensure that the patient can receive appropriate corrective therapy is that’s necessary. Remember, if the patient’s impacted, they may need to act in a way that reduces the risk or, you know, ensures that help is available rather promptly. So we shouldn’t think of medical error as equivalent to negligence, particularly cause a system or a cluster of issues are usually related to the cause of that. So we should be careful to not attribute cause or blame to a single person and recognize that it’s kind of a larger, something has happened, you know, within the system that has led to this error or accident, error or incident as we might say.

24:35 EK: Thank you, Dr. Ells. Now just to wrap up this section. So we talked about a lot of different topics: we talked about consent, decision-making capacity, and all of these topics really, we were discussing it in the point of the patient making a decision for themselves. But there’s a specific moment or context in medicine where a patient makes a decision for themselves as well as another patient, specifically in the context of pregnancy. So I’d like to just wrap up this section of our podcast by briefly talking about the maternal-fetal relationships and the ethics involved around it.

The principle of reproductive freedom is invoked when a pregnant person’s interests conflict with the developing human inside them. This principle maintains that pregnant patients have a right to make their own reproductive choices, and coercing a pregnant patient to promote fetal well-being is considered an unacceptable infringement of their personal autonomy. So Dr. Ells, what happens if a pregnant patient refuses medical advice?

CE: If a pregnant patient refuses medical advice, their decision must be respected. That is, it should not be overruled, regardless of the consequences to the fetus. The fetus doesn’t have any legal rights until it is born alive and completely delivered from the body of the woman. I know that’s a challenge for some people, thinking about their personal sense of ethics, but we should be very clear that the legal context of the professional-patient relationship defers to the patient who is alive and separated from a woman’s body. So it would be the pregnant woman who has priority of decision-making.

EK: I see. Well, thank you Dr. Ells. That brings us to the end of Part 1 and the beginning of Part 2.

26:36: So now that we have gone over some key concepts and definitions, we have a few example LMCC-style questions that were provided by the courtesy of Dr. Ells. So we will start going over.

26:48: Question #1: A patient believes he is Napoleon, the date is 1812, and that he is in France. The patient requires a leg amputation but is a very high-risk surgical candidate. He asks: “Will I survive the surgery?” “Will my pain go away?” Given no guarantee of surviving the surgery, and a high risk of phantom limb pain, he decides he prefers to receive palliative care. Which of the following is true:

A. The patient’s delusion is influencing his ability to understand and appreciate the current decision. Strong reasons exist to support decision-making incapacity.

B. Since the patient is able to understand and appreciate the risks and benefits of the amputation as well as the consequences of refusal, he has decision-making capacity.

Which would be the answer here, Dr. Ells?

CE: I’m glad this question is here. We should choose Answer B. Since the patient is able to understand and appreciate the risks and benefits of the amputation, as well as the consequences of refusal, this patient has decision-making capacity. Of course, we’re accepting that, you know, this was fully, properly determined, but note that it’s a- he can appreciate the situation and the effects on himself prior to, you know, distinct from his feelings that he’s Napoleon.

EK: Thanks for that explanation, Dr. Ells.

28:20: Now Question #2: An unconscious patient is admitted to your service from the emergency room. The patient’s file has no recorded substitute decision-maker and no listed emergency contact or telephone number. You check the family room and ask around, you call down to the emergency and no family came in with the patient, and no one is here now. The patient is currently stable, but treatment decisions need to be made soon.

A. You have done your due diligence looking for a substitute decision-maker. Clearly, this patient does not have one. So you proceed to provide the treatment that you determine to be medically indicated and document your decisions in the patient's medical record.

B. Having followed the hierarchy of substitute decision makers and finding no evidence of a spouse, or a close relative or person with a special interest in the patient, you proceed by contacting the emergency medical Public Curator.

Which of these answers are true?

CE: In this case, I would also choose B. Here we have someone who has looked for the people who are typically the surrogate decision-makers. The details of that will depend on what province you’re on, but it’s usually a spouse or close relative or person interested in the patient. And you don’t find any, so you want to locate an emergency medical Public Curator if important decisions are soon needed. You don’t necessarily have to make any decisions until they really are needed, just in hopes that someone will appear, but you should prepare to have a surrogate decision-maker if you’ll need one.

EK: Great, thank you.

29:55: Now our last question. It’s a little bit long, but I will try my best to read through it well. An 89 year old gentleman with end-stage kyphoscoliosis and irreversible respiratory disease is being admitted to the ICU. He has had several previous admissions during which he has been requiring frequent emergency BiPap for stabilization. If BiPap is not successful, further resuscitative measures are not indicated due to the patient's physiology, as neither chest compressions nor intubation will work for good resuscitation. The patient is not capable of participating in medical decision making due to a low level of consciousness. The attending explains this situation to the patient’s wife and recommends: either Level of Intervention C, which prioritizes comfort, medical interventions without ICU admission or CPR, or Level of Intervention D, which maximizes comfort only. The patient’s wife strongly believes that the patient would want to live despite the burden of another ICU admission and refuses to consent to anything but maximum resuscitation. After the meeting, the attending updates the patient’s Level of Intervention to A, which prolongs life with all necessary interventions, including maximum resuscitative measures. And in quotations he writes: “as per conversation with patient's wife, to provide maximum resuscitation”. Which of the following are true?

A. The attending acted appropriately in ordering Level of Intervention A since patients and families have a right to choose specific treatments.

B. The attending acted inappropriately in providing Level of Intervention A since the patient and family cannot consent to a treatment that has not been offered.

C. The attending undermined the principle of non-maleficence since full resuscitation will harm the patient without an expectation of meaningful recovery.

D. If the attending does not offer resuscitation, the attending can unilaterally change the Level of Intervention to C or D even if the family refuses to consent to the new treatment plan.

CE: In this case, we have two of these statements that are true, and those are B and C. The attending physician acted inappropriately in providing a Level of Care A, and that’s because the patient and family can’t consent to something they weren’t offered. So they haven’t consented to A, so it would be inappropriate for the physician to act in a way that they did consent to A. The second way to think about it is, the physician undermined the principles of non-maleficence since full resuscitation that is implied with Level of Care A will harm the patient without expected meaningful recovery. That was stated in the case. So we know that Level of Care A will harm the patient. Yes, the family strongly asked for that, but was not offered a Level of Care A. So it was inappropriate for the physician to offer it.

EK: I see. Well that brings us to the end of the first episode of the biomedical ethics section of the LMCC review. I hope this was useful for all our listeners. And thank you again for joining us on this episode, Dr. Ells. It was really nice to have you.

CE: You’re welcome, thank you.

33:29 EK: We hope you enjoyed this episode. For details about the LMCC Objectives, resources, and information about our expert advisor, Dr. Ells, please check out the episode descriptions below. As this is a podcast made in the spirit of learning, we would love to hear your feedback. Let us know what you think about this episode by sending us an email at mcgilljmed.podcast@gmail.com. And stay tuned for Part Two of Medical Law and Ethics with Dr. Lara Khoury.



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