Ethics and Legal Medicine

American Manual
of Examination
in Medicine
(2CK)

NOTA
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Author

Vianor Pablo Silvero Enrquez

Ethics and Legal Medicine

American Manual
of Examination
in Medicine
(2CK)

A m e r i c a n Manua l o f Ex am i na ti o n i n Me di c ine (2CK)

Index
01. Clinical Bioethics ..................................................................................... 1

04. The Right to Information and Confidentiality ...... 3

1.1. Clinical Bioethics .................................................................................................................... 1

02. Respect for the Patients Autonomy:

Informed Consent. Special Situations ............................ 1

03. Competence. Decision-making Capacity .................... 2

05. Ethical Decisions at the End of Life.............................. 3

06. Malpractice. Conflicts of Interest

in Doctor-patient Relationship..................................................... 4

Ethi c s and Le gal Me di cine

Clinical
Chapter 01

Bioethics

1.1. Clinical Bioethics

The principles of basic bioethics are general criteria that we use as a basis
for performance standards in the clinical area. Bioethics is a term that
arises in 1970, although it dates back to other historical landmarks such
as the Code of Hammurabi (1962 BC), the Hippocra c Oath (500 BC) or
the Nuremberg Code from 1947. It received a major boost to its development through the Belmont Report and the Principles of Biomedical Ethics
of Beauchamp and Childress in 1979. Four principles were established
as a way of safeguarding the fundamental rights of life (beneficence and
non-maleficence), freedom (autonomy) and equality (jus ce).
Autonomy. It is understood as the respect that every person deserves autonomous and for their of protec on when their decisionmaking capacity diminishes. Respect for the pa ents autonomy
means not only to appreciate the considera ons of an autonomous
person, but also to foster the expression of their views which should
be regarded once the pa ent is unable to exercise their capacity
for self-determina on. Autonomy implies pa ents have the right
to informa on and to be able to make decisions about themselves.
Some examples of this principle in Medicine are the Informed Consent and advance Direc ve, but we should not fall prey to bureaucracy, but real autonomy should be developed and promoted from
the doctor-pa ent rela onship. For example, an anesthesiologist
explains to the pa ent the risks and benefits of a par cular type of
anesthesia for the procedure before the pa ent gives his consent.
Beneficence. Physicians have an obliga on to act always seeking
the greatest good of the other. The doctor stands as a figure of trust
and responsibility for the pa ent, since the physician is supposed to
have knowledge and forma on the pa ent does not. It is a concept
that changes according to clinical prac ce, professional judgment
and the pa ents opinion. The respect for the pa ents autonomy
may interfere with the principle of beneficence. For example, an elderly man with poorly controlled diabe s refuses surgery to amputate one of his feet, which is in an advanced state of gangrene and
poses a substan al risk to his life. Ac ng on the pa ents best interest, the doctor tries to persuade him that he should agree to surgery.
Non-maleficence. It would be the modern version of primum
non noncere. Any medical procedure carries risks and benefits and,
therefore, physicians should avoid recommending high-risk procedures or treatment in which the benefits are negligible or unlikely,
and in those occasions where the risk is unavoidable, at least the
benefit must outweigh the risk or possible damage. A health professional cannot physically harm a pa ent even if the pa ent requests
so and that decision has been free and autonomous. For example,
an anesthesiologist refuses a high-risk pa ent to be operated due to
the high probability that he dies during the opera on.
Jusce. It translates in the impar ality in resource alloca on, defined as equity. Health is a crucial resource, and access to a quality
health care provides the individuals of society with the ability to
maintain a healthy and produc ve lifestyle. Fair sharing of this re-

source is the current challenge of health policies in the clinical field,

we have to promote the access to needed resources and unnecessary burdens need to be avoided.
In 1989, the European contribu on clarified the principles of bioethics,
establishing a hierarchy and s pula ng two levels. In a first level, we
would find the non-maleficence and jus ce, that are universal and common, and to which a health care professional can be forced to comply
with even against their will; and in a second level, the autonomy and
beneficence, which depend on the value system of a person.
Beneficence and non-maleficence are complementary principles that
are in conflict with the principle of autonomy through the competence
and authority of the healthcare professional. This conflict is due to the
asymmetry that occurs in the doctor-pa ent rela onship that derives
from the knowledge the doctor has and the need the pa ent has of the
exper se of the health professional.
However, we must not confuse Medical Deontology with Clinical Bioethics, see Table 1.

Objectives

Medical Deontology
Clinical Bioethics
Centered in the duties Centered in the rights and
of the doctors
needs of the patients
Charity
Autonomy

Fundamental
principle
Relation to
Self-regulated
other disciplines

Interdisciplinary

Table 1. Dierences between medical ethics and clinical bioethics

Respect for the

Chapter 02

Patients Autonomy:

Informed Consent. Special

Situations
It is defined as the free and voluntary acceptance of a medical intervenon made by the pa ent in his sound and sober senses, a er adequate
informa on from the doctor about the nature of the interven on, along
with its indica ons, risks, benefits and poten al alterna ves (including
what impact would have to reject the interven on or the treatment).
The consent must be verbal as a general rule, but must be wrien in
surgery cases, invasive diagnos c-therapeu c procedures and in general, in procedures that involve risks or no ceable disadvantages and
expected nega ve impact in the pa ents health.
The pa ent can revoke consent at any me, even a er signing. Physicians may waive obtaining consent in some situa ons:

A m e r i c a n Manua l o f Ex am i na ti o n i n Me di c ine (2CK)

If the pa ent requires emergency treatment. For example, an unconscious pa ent with a cerebral hemorrhage a er a car accident;
or a pa ent that enters in cardiorespiratory arrest and hasnt signed
a Do Not Resuscitate order.
When a pa ent is not able to make decisions, according to the judgment of the healthcare professional who is in charge of their care
process, or their physical and psychological status doesnt allow
them to take charge of their situa on. If the pa ent has no legal
representa ve, the consent shall be given by persons related to the
pa ent by blood or by common-law.
If a pa ent is legally incapacitated.
Other assump ons in which it is necessary to obtain the consent by representa on is when the pa ent is a minor, not considered intellectually or emoonally able to understand the scope of a given interven on. In that case,
the consent shall be granted by the legal representa ve a er hearing his
opinion (if the minor reached twelve years of age). Consent by representa on
is not needed in the event of cri cal emergencies where the parents legal
representa ves of the child cannot be contacted, or there is no me to do so,
obtaining consent can be ignored. In the case of minors who are not legally
incapacitated but emancipated (married, registered in the Armed Forces, or
financially independent of their parents) or minors who reached sixteen years
of age, consent by representa on is not neededim. However, in some states
in the United States of America (USA), in the event of risky procedures (access
to family planning services, contracep ve use and admission to rehabilita on
centers or alcohol addic on or substance abuse), according to the professional judgment of the professional responsible for the pa ent, parents will
be informed, and their opinion will be taken into account when making the
corresponding decision. Other states limit the disclosure of such informa on.
A parent or a legal representa ve has the right to refuse treatment
for their son or daughter provided that the decision does not pose a
serious threat to the welfare of the child (e.g., decline a vaccina on is
not considered a major threat). If the physician considers that parents
refusal of treatment is not for the benefit of the child, the physician
may proceed with treatment against parents will.

Remember
In general, it is ethical for a doctor to fulfill the wish of the mother of not
treating the fetus if that means a significant risk to the mother. Physicians
should not treat a patient injuring another.

Competence.
Chapter 03

Decision-making
Capacity

By competence, we understand the global and legal capacity for a person to make their decisions and account for the same before the law.

A court judges the competence and it is dierent from the decisionmaking capacity.
The decision-making capacity is a medical term that refers to a pa ent
who can understand relevant informa on, appreciate the gravity of a
par cular medical condi on and its possible consequences, to communicate a decision and -based on his/her values- ponder an issue, to
make a decision. This capacity can be assessed by the physician himself.
This capacity is more evident as more complex is the decision to be
made, for example, deciding between two an bio cs does not require
the same degree of capacity as deciding the amputa on of an arm a er
a car accident.
Incompetent pa ents (so found by a court) or temporarily incapable
for certain transi onal situa ons can agree or disagree about their treatment, although, in emergencies, the need to treat is more important than
the fact that an incompetent pa ent disagrees with such decision. For
example, a pa ent who has a empted suicide with a massive intake of
pills and goes to the ER with altered mental status, hypotensive and bradycardia needs to receive treatment, since his medical situa on is urgent.
If a pa ent can make decisions, he has the right to refuse any treatment
or to stop it if it has already started. For example, Jehovahs Witness can
refuse the transfusion of blood products. The refusal of a pa ent to be
treated can be canceled if it puts in risk the public health or the welfare
of others. A psychiatric pa ent can con nue to provide consent if the
decision-making capacity remains intact.

Clinical Case
A 51-year-old patient receives a diagnosis of colon cancer with liver
metastasis. The doctors inform him of the different possible lines of
treatment, but the patient refuses to undergo any medical procedures
or to start any treatment, and he requests voluntary discharge to
go home to die with his family and friends. What the next most
appropriate step is?
Respectfully ask patients about their reasons for refusing treatment.
Sometimes patients need to be explained the options or the adverse eects
of the treatment to be claried again. If a patient insists on his refusal, we must
comply and respect his decision.

A three-year-old child with hydrocephalus by a brain tumor

needs a new intervention to check his ventricular-peritoneal
shunt, due to increased intracranial pressure in the last
days. There are no other treatment options that can relieve
his symptoms. His mom agrees to the sugery, but his father
refuses, arguing that his son has already undergone too many
surgeries in his short life. What would you do to handle the
situation?
Check the shunt. The consent of one parent is enough to treat a child,
especially when it is unequivocally in his benet.

A 39-year-old woman is brought to the ER by ambulance

after being hit by a truck at a zebra crossing. She does not
respond to stimuli, and her situation is critical, and needs to
be operated immediately. The hospital admission desk cannot
get in touch with any member of her family. What should the
next step be?
Operate the patient. A doctor can treat a patient requiring critical
care in the absence of informed consent when treatment is
necessary to prevent serious sequelae or to prevent the patient
from dying.

Ethi c s and Le gal Me di cine

The Right to
Chapter 04

Information and
Confidentiality

Pa ents have the right to know all available informa on regarding their
health, (their diagnosis, prognosis and op ons of treatment) in an understandable way and adequate to their needs, and by law they must
receive a copy of their medical report if requested. The holder of the
right to informaon is the paent himself, who is en tled not to be informed if so he desires. The pa ent assigns a representa ve -a rela ve,
a common-law partner or a friend- who will also be informed. However,
the family of a pa ent cannot force the doctor to hold back any informa on or to provide certain data of the pa ents clinical state without
his knowledge and consent. The only case in which the physician may
hold back informa on is if the physician deems, in his professional judgment, that providing informa on will result in immediate and serious
harm to the pa ent.
Any health care professional that, in exercising his profession, requires
access to clinical record of a pa ent must commit to observing secrecy:
the informa on provided by a pa ent to his doctor and data rela ng to
the clinical state of the pa ent are confidenal and may not be released
to anyone who is not directly related to the pa ents health care without the express consent of the pa ent, with some excep ons described
below.
A pa ent may waive the right to confiden ality of his clinical record
(for example, to provide access to data to insurance companies), preferably giving their wri en consent. It is legal and ethically necessary
to breach confidenality regarding the pa ent data in the following
situa ons:
Pa ents planning to commit a violent crime: physicians have an obliga on to protect poten al future vic ms through reasonable measures (to no fy them, no fy the authori es).
Pa ents with high-risk of suicide.
Signs of suspected abuse or negligence in child care: Injuries not
consistent with the story told by the family, subdural hematomas,
re nal hemorrhage, spiral fractures, in bucket handle or ribs fractures, bruises in dierent stages of resolu on, suspicious behavior
by minors or caregivers (agita on, nervousness, haste).
Signs of suspected elder abuse: bruising, pressure sores, burns, fractures of unexplained origin, malnutri on, dehydra on, anogenital
injuries or repeated urinary infec ons.
No fiable infec ous diseases (obliga on to no fy health authori es
and individuals at poten al risk of having developed it). Usually, it
is recommended that pa ents themselves inform their loved ones
and close contacts who are at risk of being infected.
Gunshot and stab wounds (obliga on to no fy the police).
Incapable car drivers: currently, only six states have laws requiring a
physician to inform. For example, a pa ent begins to drive a week after being hospitalized for seizures, although the Trac Department of
the state requires a minimum of three months without crisis to get
back to driving.

When should confidenality be breached? 1. A third idenfiable person

at possible risk. 2. The risk is important and likely to happen. 3. Report
it will help prevent and reduce the risk. 4. Other measures such as to
convince the paent that it is him who should report to a third party,
have failed.
Healthcare professionals are obliged to inform pa ents of the diagnosc or therapeu c errors occurring in the care process. If the specific
cause of the error is unknown, the prac oner must inform the family
as soon as possible and maintain regular contact to inform them as the
inves ga on reveals what happened.
Physicians are required to inform pa ents who are considering joining
a clinical trial about its purpose, its design (control groups, use of placebo, washout periods), possible risks, benefits and alterna ves; given
that the pa ent par cipa on in the trial may have an impact on his
health. The pa ent must sign an informed consent approved by the
Health Care Ethics Commiee of the hospital, which shall state in writing the informa on listed above.

Remember
Healthcare professionals cannot report cases of domestic violence without
the consent of the victim, but they can and must document in detail the
encounter.

Clinical Case
A 41-year-old patient visits a primary care doctor. She reports injuring
her wrist when falling in the shower. Physical examination reveals
circumferential bruising in wrists, neck and arms, with different colors
depending on the evolutionary state of resolution. The patient admits
that her husband has caused the injury. What should the next step be?
Oer emotional, psychological and medical support and recognize the value
of acknowledging her situation. Assess the patients safety and possible
children involvement. Explain the concept of an emergency plan, and
encourage them to use community resources (Oce on Womens Health).

Ethical Decisions
Chapter 05

at the End of Life

The advance direcve documents are an expression of autonomy and

freedom of choice of available therapeu c means, and must be respected by the medical team in charge of the pa ents care. The request of
euthanasia cannot be included here since it is illegal and contrary to
good medical prac ce. There are two types of advance direc ves, living
wills and surrogate wills.
The living will or Advance direcves include the pa ents desire to
maintain, not start or remove excep onal measures to be kept alive in
case of illness in the terminal stage or permanent vegeta ve state. DNR

A m e r i c a n Manua l o f Ex am i na ti o n i n Me di c ine (2CK)

(Do not resuscitate) and DNI (Do not intubate) orders, instead, only
express the will of the pa ent about star ng CPR or to be intubated,
and they dont go beyond these measures; but at any rate they involve
not to treat, the pa ent must be accompanied and mi ga on measures should be provided at all mes.
The Healt Care Proxy allows pa ents to legally designate a representave who can make health care decisions if the pa ent is unable to. It
is a more flexible op on than a living will. Representa ves must make
decisions based on the wishes the pa ent stated.

lar lethal agent so that he would self-administer the dose and end his
life. This prac ce is illegal, except in the states of Oregon, Washington
and Montana.
Healthcare professionals are not ethically obligated to treat and may
deny a request from a pa ents rela ve to begin a treatment if they
do not have evidence or pathophysiological livelihood to support it, if
all treatment applied to the maximum available dose or to its highest
level do not work, if that measure was applied before and did not give
any results, or if the applica on of that treatment does not seek the
targets.

If there is no living will or Health Care Proxy, decisions must be made by

those related to the pa ent by blood, common-law or friendship, in the
following order: wife/husband, adult children, parents, adult siblings,
and finally, friends.
Pa ents and their representa ves have the right to waive or remove
disproporonate measures to extend the life unnecessarily. Distanasia,
or therapeu c cruelty, is therapeu c obs nacy leading to measures not
indicated in advanced and terminal stages in pa ents with a clear clinical situa on of agony (such as parenteral nutri on, forced hydra on).
However, health workers should try to understand the pa ents who
refuse treatment that can be beneficial for them and their reasons for
doing so. In prac ce, there is no ethical dis nc on between wai ng to
start a procedure or stopping it because the pa ent may refuse it before
or a er the procedure started. The refusal may include measures of
ven la on (invasive or non-invasive), fluids, transfusions, nutri on, and
drugs. If our purpose is to alleviate suering and the drugs are suitable
for this purpose, it is ethical to provide pallia ve care to reduce pain
even if they accelerate the pa ents death. For example, con nuous
intravenous opioid infusion may be prescribed in a pa ent who is assumed to die in a few days, although we know that the medica on can
act in the respiratory center and may accelerate their death.
Euthanasia (etymologically, good death) consists in the act or omission, directly or inten onally designed to cause the death of a person
with an advanced disease or terminal at the specific and repeated request of that person. It is against the Code of Medical Ethics of the AMA
(American Medical Associa on), and it is illegal in all states in the USA.
Pa ents reques ng such prac ce should be evaluated to ensure they
are ge ng the right medica on to control their pain or the correct
dose, or to check if they are developing a depression associated with
the process.
The physician-assisted suicide consists in the par cipa on in free and
voluntary suicide of another individual by providing him with a par cu-

Malpractice.
Chapter 06

Conflicts of Interest

in Doctor-patient
Relationship
A conflict of interest from the point of view of health occurs when a
professional develops personal interests in a medical situa on that affect their obliga ons and their decision making. For example, a doctor
may have shares in a par cular laboratory that produces a drug he frequently prescribes (without exceeding other of the same therapeu c
family) for the economic profit. Healthcare professionals should disclose if there are such situa ons to interested par es (pa ents, readers
of research ar cles, medical ins tu ons).
When a civil claim for malprac ce occurs, the following criteria are often met:
The clinician has a DUTY to the pa ent.
There is NEGLECT of such duty.
DAMAGE is caused to the pa ent.
Negligence is the DIRECT cause of the damage.
Unlike criminal complaints, in which the burden of proof is based on the
lack of reasonable doubt; in malprac ce lawsuits, the burden of proof is
based in the strength of the evidence.