Introduction:
A code of ethics, no doubt, sets a standard of professional conduct. An infraction of the code may amount to professional misconduct, but not every infraction amounts to infamous conduct in the sense in which that term has been used in Allinson v. General Council of Medical Education and Regulation (1894) 1 QB 750.
In as much as professional ethics require doctors not to infringe or violate the constitutional rights and religious beliefs of their patients, what then happens in situations where the only solution to save a patient’s life lies in the administration of medical care that violates the fundamental rights and contravenes the religious tenets of the patient?
This article is necessitated by the conflict between constitutional rights, religious belief, and medical practice; since it is a well-known fact that constitutional rights and religious beliefs impede medical treatment of some patients and as a result pose serious health problems in the lives of many and in most cases lead to their “preventable” death, it has become imperative to espouse on its legal implications based on medical negligence and infamous conduct of doctors as reported in the Supreme Court case of M.D.P.D.T v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 221 SC.
What amounts to professional negligence and infamous conduct in medical practice?
A registered practitioner who fails to exercise the skill or act with the degree of care expected of his experience and status in the process of attending to a patient is liable for professional negligence. The following among others constitute professional negligence:
- Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
- Manifestation of incompetence in the assessment of a patient.
- Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them.
- Failure to advise, or proffering wrong advice to, a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result in serious side effects like deformity or loss of organ.
- Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such consent was necessary.
- Making a mistake in treatment e.g. amputation of the wrong limb, inadvertent termination of a pregnancy, prescribing the wrong drug in error for a correctly diagnosed patient.
- Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
- Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
- Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner’s observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regards to any developments, progress or prognosis in the patient’s condition. See the cases of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173, Adebayo v. Chairman, M.D.P.I.P & Ors (2018) LPELR-CA/L/66/2008 and Akintade v. Chairman, M.D.P.D.T. (2005) 9 NWLR (Pt.930) 338 at 357.
What should a doctor do if a patient refuses treatment?
Under normal circumstances, no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient’s consent, particularly if that treatment is of a radical nature such as surgery or blood transfusion. So the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient.
Secondly, the doctor must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal.
He could terminate the contract or continue to give the patient refuge in his hospital and withdraw any form of treatment and do the best he could to postpone of ameliorate the consequences of the patient’s choice. To a large extent the doctor should be the judge of the choice that may be better in the circumstances and such choices becomes a question of persona attitude rather than one of professional ethics, since ethical practice seems to recognize that the dying are more often in need of comfort than of treatment. In all, the patient’s consent to the form of medical treatment is paramount and overrides the doctor’s decision. See In Re Osborne (1972, Dist Col App) 294 A2d 372.
Thus, a charge of infamous conduct must be of a serious infraction of acceptable standard of behaviours or ethics of the profession. It connotes conduct so disreputable and morally reprehensible as to bring the profession into disrepute if cordoned or left unpenalized.
Where a tribunal alleges that a serious breach by a practitioner of a duty imposed by the rules of professional ethics amounts to serious misconduct or infamous conduct, it must be clearly shown that such duty exists under the rules in clear language. See the cases of Calhaem v. General Medical Council (2007) EWHC 2606, Krippendorf v. General Medical Council (2001) 1 WLR 1054.
Factors determining infamous conduct:
The proper approach in determining whether an act amounts to infamous conduct is:
(a). First, to ask: What facts have been alleged,
(b). Next step is to ascertain whether the facts have been proved;
(c). The next step is to determine whether the facts proved amounts to infamous conduct.
See the case of Ex-Parte Meehan, Medical Practitioner Act (1965) NSWR 30, Rita Pal v. GMC (2009) EWHC 1061, A County Council v. W (Disclosed) (1997) 1 FLR 574, Marten v. Royal College of Veterinary Surgeons Disciplinary Committee (19660 1 QB 1, Meadow v. GMC (2007) QB 462, Roylance v. GMC (No. 2) (2000) 1 A.C. 311 at 322.
Right of a patient to refuse medical treatment based on constitutional grounds:
A patient’s constitutional right to object to medical treatment or particularly, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1999 Constitution as follows:
(a). Right to private and family life – section 37,
(b). Right to freedom of thought, conscience and religion – section 38.
The constitutional right of privacy includes the right of a competent, mature adult to refuse treatment that may prolong one’s life even though that refusal may seem unwise, foolish, or ridiculous to others. See the case of In Re-Yetter (1973) 62 Pa. D &C2d 619.
Factors to consider where a patient objects to medical treatment involve a balancing of several interests, namely:
(a). The constitutionally protected right of the individual,
(b). State interest in public health,
(c). Safety and welfare of the society; and
(d). The interest of the medical profession in preserving the integrity of medical ethics and thereby, its own collective reputation.
See the case of Sideway v. Board of Governors Bethlehem Royal Hospital (1985) 1 All E.R at 645 where Lord Scarman stated:
“…the courts should not allow medical opinion of what is best for the patient to over-ride the patient’s right to decide for himself whether he will submit to the treatment offered him”.
And Lord Templeman at page 666 in support also stated:
“The patient is free to decide whether or not to submit to treatment recommended by the doctor….if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advise for reasons which are rational, irrational or for no reason”.
The above cited case is also reported in Sideway v. Board of Governors of Bethlehem Royal Hospital (1985) 1 A.C. 871.
Conclusion:
The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.
Since the patient’s relationship with a doctor is based on consensus, it follows that the choice of an adult patient with a sound mind to refuse informed consent to medical treatment, barring state intervention through judicial process, leaves the doctor helpless to impose a treatment on the patient and cannot be held liable for whatever happens to the patient afterwards. See the case of Superintendent of Belckerton State School v. Sackewicz 93 ALR 3d 75.
For further details on this article, please contact:
Kingsley Izimah, Esq.
(+234) 806-809-5282
[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]