Assignment submission checklist
Faculty of Health
DipHE Operating Department Practitioner
Legal and Ethical issues
in the Operating Department
In this assignment I will be discussing the legal and ethical issues raised in a scenario I have been given. The patient in the scenario is a young girl called Sophie who is 15 years old. Sophie is under the care of a multi-disciplinary theatre team who provide different levels of ethical responsibilities but are all bound to offer the same duty of care level. Legal and ethical issues in operating departments must never be ignored. (Ballance & Duxbury, 2000:13) Quote “In Britain the public are all presumed to know the law and ignorance of the law is no excuse for breaking it”. I feel this is of the utmost importance for all healthcare workers to be aware of the law and accountability for their individual actions. For the safety of all people concerned National Health Service (NHS) staff are governed by different governing bodies that regulate daily practice, all ODP’s are registered with the Health Professionals Council (HPC). It is extremely important for ODP’s to have an awareness of local policies and legislation to avoid any cases being brought against them. Ethical issues may seem more difficult to make judgement upon in some cases as ethics is still rather unclear and has a higher level of reasoning involved (Tschudin, 2009).
The first issue in the scenario, which I will discuss, is the age of Sophie and what the law states about minors consenting themselves for invasive surgery. Health Professions Council (2008:5) State ODP’s are to “Understand the importance of and be able to obtain informed consent”. Informed consent is simply explaining to the patient exactly what will happen to them in surgery whilst underlining the complications that can go wrong (McHale, 2002). When the patient can then regurgitate information regarding the operation and fully understand the complications this is what makes the consent form a legal document (McHale, 2002). In the scenario the ODP involved should have read and understood the standards of proficiency. This should guide the ODP in providing Sophie with optimal levels of support, ensuring she is treated fairly by everybody in contact with Sophie (Health Professions Council, 2008). (Carey, 2009:1366) suggests “Adolescents is a difficult time of life marked by physical, emotional, psychological and social change and development”. This statement is very true but (McHale, 2002) suggests that for a patients consent form to be a valid legal document the patient must be capable of making that treatment decision. In Britain the majority of people presume all adults hold the capacity to consent themselves or indeed to refuse treatment, this is not always the case (McHale, 2002). For mental health, learning difficulty and some child patients doctors may have to obtain consent via parent, legal guardian or carer (McHale, 2002). In Britain adolescents are assessed on their mental capacity and how they retain the information about the procedure they wish to receive (Hendrick, 1997). Consent is an extremely delicate process without patients consent no surgery should take place (Balance & Duxbury, 2000). To be successful in informing your patient of the consent process requires an optimum level of communication skills (Wicker & O’Neil, 2006).
All patients that hold capacity have an autonomous right (Beauchamp & Childress, 2001). (Beauchamp & Childress, 2001) explain “ To respect autonomous agents is to respect their right to hold views, to make choices and to take actions based on their personal values and beliefs”. In the scenario the ODP should act on the choice Sophie has given and not try and persuade her in any way. It does not matter what personal beliefs the ODP holds every patient has the right to exercise his or her autonomy in consenting or indeed refusing surgery (Beauchamp & Childress, 2001).
Only adults aged 18 or older have the right to refuse treatment (McHale, 2002). Young adults aged 16-17 have the right to consent but not refuse treatment (Carey, 2009). McHale (2002:104) Quotes “An action in battery may be brought if treatment is given in the face of an explicit refusal of consent”.
In Britain the law states adolescents can consent to treatment but cannot refuse (Carey, 2009). This is well known as the Gillick/Frasier competence. It has strict guidelines to assess whether or not a child is deemed mature enough to make up their own mind (NSPCC, 2009). All patients wishing or needing invasive surgery have a concept of choice (Balance & Duxbury, 2000).
The Operating Department Practitioners (ODP) role is to act as an advocate for Sophie (Ballance & Duxbury, 2000). Guido (2009:18) Quotes “Advocates are those who defend and speak for such a cause or issue”. The ODP has to ensure the rest of the team including her mother respects her wishes. There are three main types of advocacy recognised in a clinical practice setting the first one being the most popular (Guido, 2009). The rights protection model, practitioners advocate for the legal and ethical rights of the patient (Guido, 2009). Second is autonomy model which practitioners will assist patients in asserting their autonomy rights (Guido, 2009). Finally values-based decision model, this approach requires practitioners to assist the patient by discussing his/her needs and desires also helping the patient make important decisions that are consistent with that particular patients values and lifestyle (Guido, 2009). Whilst the surgeon and anaesthetist where outside with Sophie’s mother, Sophie took the chance to tell the ODP that she did not want the surgery and wanted to be left alone to die. ODP’s are not employed to make decisions for patient’s so therefore must put aside their own beliefs and act upon the patient’s requests (Guido, 2009). It is now the ODP’s job to act as an advocate for the patient and tell the surgeon and anaesthetist Sophie’s wishes (Griffith & Tengnah, 2008). This must be done in a professional manner making sure the patient is not coerced in any way by her mother or any other person present (CODP, 2007). (Carey, 2009) suggests the right to consent and the right to refuse are two separate issues in English law. After the Gillick/Frazier competence became apparent children’s rights in England and Wales seemed to start diminishing (Carey, 2009).
Another point I will analyse is the word beneficence and what it means. Beneficence means in the medical context ‘taking actions in the best interest of patients’ (Cribb, 2002). The doctors in this scenario are trying to act in a way to help Sophie without coercing her. There is a very fine line between beneficence and coercion in a health care setting and healthcare professionals of all levels have to know their own limits (Cribb, 2002). Sending the patient back to the ward to think about her decision by not forcing the decision on her was the correct way to deal with Sophie. Non-maleficence means firstly do no harm before doing good to your patient (Cribb, 2002). This relates to enthusiastic practitioners who are too hasty to using treatments they believe will do good before evaluating if they can cause any harm to the patient (Cribb, 2002).
The healthcare professionals also have to take into consideration if Sophie has had and any pre operative medication (Diamond, 2008). If she has this will cloud her judgement and may make her act more theatrically than usual (Carey, 2009). Cohersion is another important point to look at, to be coerced means to be pressurised into something your not happy with (Cribb, 2002). In the scenario you get the impression Sophie’s mother has been putting a lot of pressure on Sophie to have all these operations, not because she wants her to suffer but because she wants the best for Sophie.
Confidentiality and communication are important skills that all ODP’s must hold (Health Professions Council, 2008). This is highlighted in the scenario when the surgeon Mr Jones asks to speak to the anaesthetist and Sophie’s mother outside. (Hendrick, 1997) Suggests if a child below the age of 16 is Gillick/Frasier competent they should be treated as an adult therefore a duty of confidence is owed to them. It can be assumed that Sophie has agreed to this before hand but if she hasn’t the healthcare professionals have failed Sophie in treating her as an individual adult.
Although Mr Jones and Dr Thomas are letting Sophie exercise her autonomous right this may now lead to a parents intervention as she is refusing treatment (Department of Health, 2001). Being Gillick/Fraser competent does not give under 18’s the automatic right to refuse treatment, this now gives parents and healthcare professionals the right to decide what is in the best interest for Sophie (Department of Health, 2001). If after this nothing was decided Mr Jones the surgeon could resort to the courts system (Department of Health, 2001). This would be the last resort for any surgeon as it can cause stress to the patient (Hendrick, 1997). Mr Jones would have to apply to the courts to overrule Sophie’s decision to refuse treatment and therefore have a valid consent to treat Sophie (Department of Health, 2001). This is a very complex issue in modern ethical issues today. This is because a multi disciplinary team has to get together and weigh up the benefits to Sophie’s health by the same time treating the patient with the respect they deserve (GMC, 2010).
ODP’s must have a rigorous knowledge of UK legislation to avoid any legal implications being brought against them (Health professions council, 2008). In the national health service (NHS) today all staff must be accountable for their individual actions (Royal college of nursing, 2004).
Relevant and up to date documentation is essential in circumstances like this because of the complaints procedure and also the relevance of Sophie’s care plan. The theatre manager will now require statements off all the healthcare professionals involved with Sophie’s case. This is extremely important to gather clear, accurate and precise evidence to avoid any legal action being brought against the trust (Royal college of nursing, 2004). Health Professions Council (2008:13) State “Making and keeping records is an essential part of care and you must keep records for everyone you treat”. When Sophie gets sent back to the ward her mother is extremely angry and submits a formal complaint to the theatre manager. Without the correct documentation the ODP may be held accountable for not being able to produce evidence of what exactly happened in the anaesthetic room (Balance & Duxbury, 2000).
ODP’s have the responsibility of duty of care to all patients. This is now well known as the bolam test (Balance and Duxbury, 2000). The duty of care requires all healthcare workers regardless of experience or rank to provide the same high level of care to all patients (Balance & Duxbury, 2000). Medical and non-medical staff are asked to seek advice or help if they are required to undertake a task beyond their scope of practice (Balance & Duxbury, 2000).
To conclude the scenario had quite a number of legal and ethical issues buried inside. It painted a vast picture of the problems incurred by staff in most NHS trusts across the UK. I also realised that a patient’s choice does not just effect themselves it effects healthcare professionals caring for that patient and indeed the patient’s own family members. When I started this assignment I had no idea of the concept of autonomy for patients or how the governing bodies that register all healthcare professionals’ police legal and ethical issues. I realise out of all the legal and ethical principles brought up in the scenario the most important aspect is always the patient. The patient must be at the forefront of any decisions made about their own care. In Sophie’s case the doctors acted beneficently towards Sophie to ensure her autonomous right remained with her. Also acting in a way to do Sophie no harm and act in her best interest as a young depressed minor. The assignment has given me a big insight to problems I may come across in the future as a registered ODP. Assessing the needs of all my patients on an individual basis, giving them autonomy but also staying between the law and ethical boundaries of acceptable practice.
Bibliography
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Michael Parry Dip 15 20604696