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Patients’ RightsPlease, prepare these cases in advance at home, using IHL&E 2018 ed.
Case 1 Informed consent
A 42-year-old man with two children (aged 12 and 7) is suffering from terminal
cardiovascular failure as a result of a viral infection. With his consent, he has
been on the list of patients entitled to a heart-lung transplant as a matter of
extreme urgency. On the actual day of the transplant, when he is still
conscious, he refuses to have the operation that is known to be capable of
saving his life. His family – his wife and children – ask the medical team to go
ahead with the operation regardless.
Should the patient’s wishes be taken into account or not?
Yes. According to ETS 164, Art. 5 (p.272): An intervention in the health
field may only be carried out after the person concerned has given free
and informed consent to it. This person shall beforehand be given
appropriate information as to the purpose and nature of the intervention as
well as on its consequences and risks. The person concerned may
freely withdraw consent at any time . Also, he is conscious and has
the capability to withdraw the treatment as he is not disabled. Also,
Art.5, par. 38 in Explanatory Report Freedom of consent implies that
consent may be withdrawn at any time and that the decision of the person
concerned shall be respected once he or she has been fully informed of
the consequences. However, this principle does not mean, for example,
that the withdrawal of a patient's consent during an operation should
always be followed. Professional standards and obligations as well as
rules of conduct which apply in such cases under Article 4 may oblige the
doctor to continue with the operation so as to avoid seriously endangering
the health of the patient. (Take a look at Art.8 but it does not apply to this
case)
Can the fact that the patient initially agreed to the transplant be taken into
consideration when the medical team takes its decision? Can the wishes
of the family be allowed to override those of the patient?
According to ETS 164, Art. 6 par. 3 (p. 272) Where, according to law, an
adult does not have the capacity to consent to an intervention because of
a mental disability, a disease or for similar reasons, the intervention may
only be carried out with the authorisation of his or her representative or an
authority or a person or body provided for by law. And Art. 9 The
previously expressed wishes relating to a medical intervention by a patient
who is not, at the time of the intervention, in a state to express his or her
wishes shall be taken into account. The patient is conscious on the actual
day of the procedure, so we should not take either his previously
expressed wish or his family will.
, Is it not contrary to respect for the patient to force him to undergo an
operation he does not want?
At Universal Declaration of Human Rights (p. 259) is stated in Art. 3 that
Everyone has the right to life, liberty and security of person and Art. 5 is
stated that No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. The patient could state that he is being
deprived of his liberty of choice and security of person. Also, the patient could
state that the treatment is degrading and he could also consider it as
punishment.
Case 2 Medical Confidentiality
Your 36-year-old patient has just tested positive for HIV. He asks that you as
treating physician not to inform his wife of the results and claims he is not
ready to tell her yet.
What is your role legally? What would you say to your patient?
p. 273: Art. 10 (Private life and right to information), par. 1: Everyone has
the right to respect for private life in relation to information about his or her
health. Also, according to Art. 26, par. 1: No restrictions shall be placed on
the exercise of the rights and protective provisions contained in this
Convention other than such as are prescribed by law and are necessary in
a democratic society in the interest of public safety, for the prevention of
crime, for the protection of public health or for the protection of the rights
and freedoms of others.
Also, Explanatory Report: Art.10, par.70 Furthermore, it may be of vital
importance for patients to know certain facts about their health, even
though they have expressed the wish not to know them. For example, the
knowledge that they have a predisposition to a disease might be the only
way to enable them to take potentially effective (preventive) measures. In
this case, a doctor's duty to provide care, as laid down in Article 4, might
conflict with the patient's right not to know. It could also be appropriate to
inform an individual that he or she has a particular condition when there is
a risk not only to that person but also to others. Here too it will be for
domestic law to indicate whether the doctor, in the light of the
circumstances of the particular case, may make an exception to the right
not to know. At the same time, certain facts concerning the health of a
person who has expressed a wish not to be told about them may be of
special interest to a third party, as in the case of a disease or a particular
condition transmissible to others, for example. In such a case, the
possibility for prevention of the risk to the third party might, on the basis of
Article 26, warrant his or her right taking precedence over the patient's
right to privacy, as laid down in paragraph 1, and as a result the right not
to know, as laid down in paragraph 2. In any case, the right not to know of
the person concerned may be opposed to the interest to be informed of
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