Specific Topic(s): consent to treatment and confidentiality.

Key references:

‘Ethical principles of health care in times of armed conflict and other emergencies’

• Health-care personnel act in the best interest of their patients and whenever possible with their explicit consent. If, in performing their professional duties, they have conflicting loyalties, their primary obligation, in terms of their ethical principles, is to their patients.

• Health-care personnel respect patients’ right to confidentiality. It is ethical for health-care personnel to disclose confidential information only with the patient’s consent or when there is a real and imminent threat of harm to the patient or to others.

Geneva Conventions: not applicable

Ethical principles:

WMA INTERNATIONAL CODE OF MEDICAL ETHICS: https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/ - A PHYSICIAN SHALL …. act in the patient’s best interest when providing medical care… respect the rights and preferences of patients, colleagues, and other health professionals.… respect a patient’s right to confidentiality. It is ethical to disclose confidential information when the patient consents to it or when there is a real and imminent threat of harm to the patient or to others and this threat can be only removed by a breach of confidentiality.

WMA DECLARATION OF LISBON ON THE RIGHTS OF THE PATIENT: https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/#:~:text=Every%20person%20is%20entitled%20without,with%20his%2Fher%20best%20interests. ... The patient shall always be treated in accordance with his/her best interests. The treatment applied shall be in accordance with generally approved medical principles…. The patient has the right to self-determination, to make free decisions regarding himself/herself. The physician will inform the patient of the consequences of his/her decisions….. If the patient is unconscious or otherwise unable to express his/her will, informed consent must be obtained whenever possible, from a legally entitled representative….. If a patient is a minor or otherwise legally incompetent, the consent of a legally entitled representative is required in some jurisdictions. Nevertheless the patient must be involved in the decision-making to the fullest extent allowed by his/her capacity…… If the patient’s legally entitled representative, or a person authorized by the patient, forbids treatment which is, in the opinion of the physician, in the patient’s best interest, the physician should challenge this decision in the relevant legal or other institution.

Discussion:

Review of the question: this question examines the challenge of providing medical care for a patient who is not competent to give informed consent and whose next of kin cannot act as competent advocates on the patient’s behalf.

Interpretation of the principles/policy from the references:

• Healthcare workers have a duty to act in the best interests of their patients.

• Patients have the right to self-determination.

• Healthcare workers must only provide treatment on the basis of informed consent from their patients.

• If a patient is not able to provide informed consent on the basis of ‘incompetence’ – age, unconsciousness, mental incapacity – then this function is undertaken by a legally entitled representative (usually the next of kin).

• Patients have a right to confidentiality, which includes restricting the passage of information about the patient beyond those directly involved in their care.

Framework for answering the scenario/question:

• What are your professional duties to the patient, to the next of kin?

• How might you determine the ‘legally entitled representative’?

• How might you provide information to the next-of-kin – should anything be ‘confidential’ and withheld?

• How might the next-of-kin be encouraged to share decision-making in regard to the patient?

• If the next of kin cannot agree on a method of shared decision-making what might you do next? – escalation inside the hospital’s decision-making system, referral to legal system, method for enduring decision-making?

Further issues for consideration:

• What if this was a child with some decision-making capacity (e.g. a teenager)? – see Jack Spades

• What if this occurred in a field situation outside the legal jurisdiction of your organisation? – see Queen Spades, 3 Clubs, 4 Clubs.

• What if the patient was an important candidate for a research trial?

UK General Medical Council. Consent: patients and doctors making decisions together. At: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/consent

Gross ML. Military medical research in Britain and the USA: the challenge of informed consent. BMJ Military Health 2019;165:298-302. http://dx.doi.org/10.1136/jramc-2018-001023

Goodwin, M. (2016). Vulnerable Subjects: Why Does Informed Consent Matter? The Journal of Law, Medicine & Ethics, 44(3), 371–380. https://doi.org/10.1177/1073110516667935

Danielle Hahn Chaet. AMA Code of Medical Ethics’ Opinions on Patient Decision-Making Capacity and Competence and Surrogate Decision Making. AMA J Ethics. 2016;18(6):601-603. doi: 10.1001/journalofethics.2016.18.6.coet1-1606.