Friday 23 December 2016

Medical Ethics and The Law

By Victoria Tabut LLB

Medical Ethics and the Law

Introduction


Clinical Ethics is the field of activities that investigate what medical practitioners as professionals should do or how they should behave concerning a certain case, especially in the process of decision making[1].
The newborn period is defined as beginning at birth and lasting through the 28th day following birth[2].
A child is defined as any person who has not attained the age of eighteen (18)[3].

Background


The debate as to the meaning of medical futility and what physicians should do in such cases; in the course of Medical Practice, dates back to the time of the writings of Hippocrates and Plato where it was said, "To attempt futile treatment is to display an ignorance that is allied to madness".[4]
The claim that an intervention is futile is used to justify a shift in the ethical obligations owed to a patient[5]. This is the shift from the recognition of a patient’s negative rights (the right to refuse treatment) to the decision to withhold or withdraw treatment by a physician. In the English case of Airedale NHS Trust ν Bland[6],' Lord Goff of Chieveley said: Medical treatment is [not] appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any possible kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition[7].

Definition


There has been difficulty in construing the exact definition of medical futility. The earliest known attempt to define futility comes from the Hippocratic Corpus in what is currently recognized as the quantitative definition[8]. It is further explained as a situation when physicians conclude (either through personal experience, experiences shared with colleagues, or considerations of published empirical data) that in the last 100 cases a medical treatment has been useless, then that treatment is regarded as futile.  This argument is a purely quantitative account based on a probability established by the empirical methods of medicine as a science[9].
On the other hand, Plato had a qualitative perspective of futility which emphasized the inappropriateness of persisting with treatment which leaves the surviving patient with a "useless" life[10]. The qualitative approach to futility is based on an argument that physicians should not be required to provide treatments to achieve objectives that are inconsistent with legitimate medical goals[11].   Futility occurs when there is a goal, there is an action aimed at achieving the goal, and there is virtual certainty the action will fail.[12]

Controversial Agenda


The problems associated with defining futility have encompassed: Patient rights and speculations about the limits of patient autonomy, economic capacity, professional integrity and the role of the physician in the physician-patient relationship, as well as the lack of shared values as to what may be regarded as medically necessary in a particular case[13].
Drafting a concrete medical or legal definition of futility as well as setting parameters in regard to such would be instrumental in deciding when treatment should be withdrawn or withheld[14]. However, fashioning such terminology and scope would be in direct contravention of a patient’s constitutional rights, patient’s autonomy in respect of decision making, as well as inconsistency with cultural and religious aspects.
In what is regarded as the developing world, certain socio-cultural backgrounds as well as religious beliefs have adverse effects in the recognition of medical futility. As a result, there are limited legal provisions; that is statute and case law, in this field.
Despite this fact, the evolution of medicine to reliance on technological advancements to sustain life, together with a steady erosion of doctor decision-making authority, and societal pressure to contain health care costs[15] demand for a reform of laws to address these emerging issues[16].

Legal Provisions


The Constitution of Kenya, 2010, (“The Constitution”) recognizes the right to life, and that life begins at conception[17]. The Constitution guarantees every person the highest attainable standard of health inclusive of health care services, maternal and reproductive health care and the right to emergency medical treatment[18]. The Constitution ensures that the vulnerable groups, marginalized groups and minorities (including but not limited to the illiterate, the medically incapacitated, the uneducated and uninformed) should have reasonable access to health care services[19].
Article 2 (5) of the Constitution of Kenya, 2010, recognizes that the general rules of international law shall form part of the law of Kenya. The right to life is an inherent universal right that is protected by Law. As a qualified right, Article 2 of the European Convention on Human Rights only recognizes the limitation of execution upon a conviction or with use of reasonable force where necessary only[20]. Article 5 of the African Charter on the Rights and Welfare of the Child states that every child has a right to life. States are encouraged to ensure that all individuals enjoy the best attainable standard of health care[21] and this is also specified to children[22], this is because children are regarded as in need of special medical care and assistance[23].  Medical practitioners, and especially physicians, are held to high standards under International laws as evidenced in the Declaration of Geneva.  Physicians are required to maintain utmost respect for human life and that their patients’ health and welfare be their principal concern[24].
Many international instruments focus on defining human rights and fundamental freedoms. Usually, most of these rights are qualified (not absolute) and are therefore subject to certain exceptions. It is the mandate of each member states to define the scope of these rights and their limitations so as to prevent either violation or infringement of these rights. Article 4 of the Convention on the Rights of the Child encourages member states to adopt or enact all appropriate legislative, administrative, and other measures for the implementation of such rights.
Statutes in respect of medical practice are very procedural and mostly make provisions in relation to registration and licensing of medical practitioners. Therefore, there is little if no statutory authority in regard to medical futility.
The Kenya National Patient’s Rights Charter of 2013[25] (“The Charter”) makes various provisions in regard to the rights of patients, and is legally binding. The Charter emphasizes on the right to informed consent to treatment[26] and the right to seek a second medical opinion[27].
The draft of the Charter had explicitly recognized the Right to special treatment in a clause that stated that: In addition to the right of health care services, a provision of persons with special needs who require special treatment shall be provided and the special needs are in the cases of new born babies, children, maternal and reproductive health care, pregnant women, the mentally incapacitated and mentally handicapped, the vulnerable groups (e.g. the uneducated and ignorant), disabled, HIV and AIDS patients and terminally ill patients[28].  This clause was subsequently omitted from the final draft of the Charter.
Another clause that was omitted stated that patient’s have the responsibility to observe and comply with the prescribed treatment, rehabilitation and counseling process[29].
This is clear indication of the reluctance of medico-legal service providers to engage in the controversial matter of medical futility, whilst expressly admitting that this is an emerging grey area.

Case Law


There is no Kenyan case law in respect of medical futility. As a result, inference will be drawn from an American case and contextualized to this particular jurisdiction.



In re Baby K. (1994)


Facts


In October of 1992, a baby girl was born in Fairfax Hospital, Virginia, who unknowingly became a symbol of medical futility[30]. Baby K was anencephalic[31], and as a result should have died a few days after birth[32]. However, when she began having trouble breathing, physicians provided her with assistance through the use of a machine called a ventilator[33]. At the insistence of her mother, ventilator treatment was administered in subsequent episodes of difficult breathing and, remarkably, this cycle of medical care kept her from dying for over two years[34]. Her physicians believed the continued provision of this kind of treatment was futile because she had no chance for a conscious life[35]. Thus, they recommended that the hospital seek a court order allowing them to refuse ventilator treatment during a future episode of difficult breathing[36].
A federal judge ruled in July 1993 that the hospital has a duty to provide full medical care, including ventilator support to Baby K under the Federal Law[37]. No weight was given to the claim that further prolongation of Baby K’s dying process was futile and inhumane[38].

Issues for Determination


The question of whether Congress, in passing EMTALA[39], had provided an exception for anencephalic infants in respiratory distress[40].

Ruling


The court explicitly stated that federal law overrode any state legislation[41]. The Court found the language clear, and it was the discretion and mandate of Congress to construct Federal legislation to clarify congressional intent that EMTALA’s requirement for stabilization be “consistent with reasonable medical standards”[42]

 


Call for Legal Reform


Baby K died at the hospital due to cardiac arrest in April 1995 after being vigorously resuscitated[43]. She was two and a half (2 1/2) years old, and it was her sixth admission to the hospital[44].
It can be inferred from the term ‘medical futility’ that the treatment of such a patient will not confer any benefits to the patient physiologically or otherwise. Essentially, this leads to prolong suffering and especially so for newborns. More so, in a country of limited resources like Kenya, this would directly deprive another patient of the opportunity to be provided with treatment and any chances of cure or even worse survival. It is also an infliction of psychological and emotional suffering to the family of said patient.

Conclusion


It is clear that life-sustaining measures and techniques are in a progressive state. As a result, there should be a forum of interactive discussion about medical futility in a world of constant and consistent technological advancement. The objective of such is to ensure that certain standards of medical ethics are upheld, communication to patient’s guardians about medical futility and subsequent effects are well delivered, and most importantly legal reforms to reflect this position are enacted.

[3] The Age of Majority Act, 1974, Cap 33; Laws of Kenya.
[4] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.
[5] Ibid.
[6] [1993] AC 789.
[7] Ibid at 869
[8] LJ Schneiderman, N S Jecker and A R Jonsen, "Medical Futility: Its Meaning and Ethical Implications" (1990) 112, Annals of Internal Medicine 949.
[9] Ibid.
[10] Plato, The Republic (G. M Grube, trans, Hackett Publishing, Indianapolis, 1981), p 76
[11] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.
[12] Trotter, G. (1999). Mediating disputes about medical futility. Cambridge Quarterly of Healthcare Ethics, 8(4): 527-537.
[13] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.
[14] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9
[15] Soobramoney v Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC).
[16] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9
[17] Article 26, the Constitution of Kenya, 2010.
[18] Article 43 (1) (a) and (2) of the Constitution of Kenya, 2010.
[19] Article 21 as read together with Article 56 (e) of The Constitution of Kenya, 2010.
[20] Amended by Protocols Nos. 1 and supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13
[21] Article 16, African (Banjul) Charter on Human and Peoples' Rights.
[22] Article 14, the African Charter on the Rights and Welfare of the Child.
[23] Article 25, Universal Declaration of Human Rights.
[24] World Medical Association, Declaration of Geneva (1948), International Code of Medical Ethics (1949),
[25] 1st Edition, October 2013.
[26] 1.8 Of the Kenya National Patient’s Rights Charter of 2013.
[27] 1.11 Of the Kenya National Patient’s Rights Charter of 2013.
[28]Medico-Legal Practice Committee of the Law Society of Kenya, Draft Of The National Patients’ Right Charter, 2012.
[29] Ibid.
[30] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9.
[31] Anencephaly is a medical condition characterized by an incomplete brain; that is, the brain is "entirely or substantially absent."
[32] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9
[33] Ibid.
[34] See Marylou Tousignant & Bill Miller, Baby K's Mother Gives Her the Prayer That Many Deny She Has, WASH. POST, Oct. 7, 1994, at A01.
[35] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9
[36] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9
[37] Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Emergency Medical Treatment and Active Labor Act.
[39] “The use of a mechanical ventilator to assist breathing is not ‘futile’ or ‘inhumane’ in relieving the acute symptoms of respiratory difficulty which is the emergency medical treatment that must be treated under EMTALA. To hold otherwise would allow hospital to deny emergency treatment to numerous classes of patients, such as accident victims who have terminal cancer or AIDS, on the grounds that they eventually will die anyway from these diseases and that emergency care for them would therefore be futile.”
[40] http://web.stanford.edu/~mvr2j/sfsu09/extra/court%20cases%20futile%20treatment.pdf <accessed 03/30/2016>
[41] Ibid.
[42] Ibid.
[43] http://web.stanford.edu/~mvr2j/sfsu09/extra/court%20cases%20futile%20treatment.pdf <accessed 03/30/2016>
[44] Ibid.
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