Name______________
Patients’ Rights, Truth and Consent
Autonomy and Confidentiality
Rights :
Rights are Entitlements, Just Claims, Liberties
Features:
a. Permissive
b. Imply duty
c. Establish a sphere of decision making that is or ought to be
protected by society or secured by law to the individual and
respected by others
Rights and Duties
Correlative Terms Wherever there is a right it imposes correlative duties on all others.
Rights always entail duties (relative and conditional)
e.g., the right to life, the right to privacy, the right to information
Statements of rights are warnings against interference
Negative Rights - impose a duty on others to refrain from doing something
e.g., right to life, health, property, vote
Positive Rights - impose a duty on others to provide something
e.g., right to food, shelter, health care
RIGHTS
1. Claim Rights - based upon self asserted claims
2. Legal Rights - an act of the legislature
3. Moral Rights-- based upon ethical principles
Right is permission to do something that is protected by law
The only rights are legal rights
Real laws >>Real rights
Imaginary laws>> imaginary rights
Such claims of rights are assertions of values and goals
Legal Rights are not the only rights
But not all rights entail correlative duties
Some rights are moral ideals
Some rights are political ideals.
Cases:
Dax case- autonomy
Pedophile- confidentiality
Medical ID cards – confidentiality
Safety of the unborn child
confidentiality

Should MD report drug abuse of pregnant woman?

Fetal interest vs woman’s right
Christian Scientist Case – parents’ rights vs Child welfare
Cases:
1. State requires all behavior therapists to be licensed psychologists or
psychiatrists
2. Operation on a Jehovah Witness without consent
3. Doctors withhold information from parents
4. School psychologist informs on employee (janitor) working in school
5. Parents refuse treatment for child
6. Pregnant woman with spinal cord injury
AUTONOMY –
for the self determined, rational agent for Decision Making
For persons who are independent and capable of rational and
unconstrained decision making and acting accordingly
A. Rational 1. select the best means to a chosen end, i.e. to reason well and 2. to choose
the appropriate ends
Factors operating against rationality: emotions, laziness, pain, drugs, lack of intelligence
(temporary or permanent) and training
B. Unconstrained - without constraints , 1.) lack of necessary element 2.) coercive force
or use of threat
The RIGHT of SELF DETERMINATION
Includes the right to refuse treatment, the right to participate in research or
refuse it.
Requires INFORMED CONSENT
What of ? :

Comatose

Brain damaged

Psychotic

Mentally impaired
RESTRICTIONS:
Justified Constraints on AUTONOMY
1. Harm Principle - to stop harm to others
2. Paternalism Principle – to stop harm to self
3. Strong (Extreme) Paternalism – to provide for self benefit
4. Legal Moralism – to prevent harm or improve situations, e.g., law vs cloning
5. Welfare Principle (Social Benefit) - to provide benefit to others –
e.g., seat belts, helmets, inoculation, organ donation
PATERNALISM :

to act to advance or protect the interests of a person

to act as one thinks best for others regardless of their expressed wishes
A. State: laws and regulations:
Medical practice
Licensing
Drugs
Research
B. Personal:
In the doctor-patient relationship, the patient surrenders autonomy to the physician
Questions: How far? How much?
Paternalism involves;
1. Coercion more than the denial of freedom
2. Control of behavior
3. Interference with liberty
e.g., lying to a dying mother
Paternalism can deny freedom, deprive a person of opportunity and disable.
The essential feature of Paternalism is a violation of moral rules (rights).
Rules against:

deception

deprivation of freedom

disabling or harming or killing

causing pain
Justification for Paternalism:
For the utilitarians, one reason to violate a person's liberty is for self protection and
another reason would be to prevent harm to others. There would be no utilitarian
justification to interfere with a person's liberty for that person's own good. This would
not be sufficient reason or warrant to exercise compulsion by an individual or by society.
Acting to prevent harm is not Paternalism. Acting to promote the GOOD, even against
the person's wishes , is paternalism.
Paternalism is the use of coercion to achieve a good for a person who does not recognize
the good. Question: Is the individual the best judge of that individual's best interests?
Who is the judge of one's own welfare?
Paternalism would only be justified , according to John Stuart Mill, to preserve wider
freedom. e.g., there are laws prohibiting slavery and contracts for indentured servitude.
To choose is a GOOD that is separate from the good that is chosen.
What of people who may not be able to choose?
Children and adults with deficiencies who

lack knowledge

lack capacity to reason

lack ability to carry out decisions
Can such people be interfered with and decisions made for them in order to bring about
what they would choose if they were fully rational and functional?
How do we decide what a rational person would or should do? A particularly difficult
task when there are conflicting goods or alternatives.
People are most likely to agree with Paternalism when it preserves and enhances for the
individuals , their abilities to rationally consider and carry out decisions. They also
accept it when it protects them from harm as in government regulation.
A Limited Defense of Paternalism Based Upon Utility
Someone acts paternalistically in order to protect autonomy where it might be destroyed
if that person acts in a non-paternalistic manner. This is based upon a consideration of
the consequences.
In all cases of attempting to justify Paternalism there are two principles;
1. Burden of proof for going forward, or persuasion is with the authorities to demonstrate
the consequences and potential harm or benefit to be achieved and the probabilities of
each result.
2. Selection of the least restrictive alternative after all other alternatives (considering
costs, inconveniences and time) are tried first
Against Paternalism
The Kantian Categorical Imperative would NOT justify Paternalism. For Kant you can
not treat a person as a means to an end even to their own ends. No one knows what the
future consequences will be.
Could a person consent to have others force him to do something? e.g., Odysseus
INFORMED CONSENT
Functions:
1. Promotes Individual Autonomy
2. Protect a person's status as a human being - Canon of Loyalty
3. Avoid fraud and duress
A Health Care Provider must reveal to the recipient of care what is in that person's best
interests to know. The recipient has a right to self decision and this shapes the Health
Care Provider's duty to reveal the information. This might not be the customary practice
for many HCP's.
The HCP must provide all material risks.
It is a material risk if a reasonable person in the recipient's condition would likely attach
significance to the risk. Terms as declared by Spotswood W. Robinson in Canterbury vs
Spence.
Two (2) exceptions:
1. The recipient is unconscious and then there is no need for consent, particularly in an
emergency situation
2. Disclosure is contra indicated from a medical point of view because the recipient
would become so ill or emotionally distraught as to:
a. foreclose rational decision making
b. complicate or hinder treatment
c. cause psychological damage
HOWEVER, the HCP must respond to sound medical judgment. The privilege to
withhold information is carefully circumscribed . The privilege is limited and does not
permit paternalism.
Competent
Relevant Information
Freedom to make the Decision
Consider Cases:
Parents and Children
Parents are expected to make the decisions in the best interest of the children
Parents must not be: psychotic, incompetent, depressed or negligent
STATE protects the interest of the children (citizens) from harm, even from parents
Pregnancy and Autonomy
Relationship of the pregnant woman to the fetus?
a. the fetus is not a person therefore there is no conflict
b. the fetus will develop into a person ( potential) and there is a conflict
Actions have consequences and the pregnant woman accepts those consequences.
How far can a state go in prescribing the behavior of a pregnant woman? Should we
establish a basic minimum or an obtainable ideal as the limit?
TRUTH TELLING
Truth promotes respect for individuals and supports their autonomy.
Traditional Arguments against truth telling - - - Sissela Bok
1. the patient would not understand
2. the patient would not want the truth, they do not want to know
3. the truth may harm the person, they may lose all hope if they know the truth
vs 1. It is not always true, it might depend on how the information is presented.
vs 2. Facts don't support this claim. Studies indicate that people do want to know
the truth
vs 3. a number of points

a. harm resulting may be and often is much less than the HCP estimates

b. the harm resulting may be justified and acceptable to the recipient but
simply not accepted by the HCP

c. benefits from disclosure of the truth are more substantial than most HCP
believe

d. lies violate autonomy and self

e. ignorance often leads to hopelessness

f. lies harm collegial relationships, family relationships

g. lies harm the HCP-recipient relationship, TRUST is needed for therapy!!
Argument for HONESTY:

1. Honesty provides mental ease.

2. Honesty provides an emotional handle in the struggle to accept reality, even
death.

3. Honesty assists a person to maintain control.
Physicians must act in the best interest of those they serve.
Should the physician lie or withhold information in the best interests of the patient?
Who is to decide? Based upon what reasons?
Placebos reasons against their use
1. encourages belief in drugs
2. deprives patient of a chance to make a decision
ISSUES involved are : DIGNITY and CONSENT
CONFIDENTIALITY
The physician needs information form the patient
The patient must be able to trust the Physician.
The Right to PRIVACY :
Types of Privacy:

Psychic – inner sphere- thoughts , feelings, ideals

Physical – secrecy, seclusion from view

Social – to function in all social roles in a social identity
The physician has other obligations, e.g., to SOCIETY, colleagues, family
The physician has CONFLICTS in obligations.
Obligation of Confidentiality to the patient
Obligation of protection to SOCIETY, e.g., transmitted diseases, gunshots
Obligation to employer of the patient who may be contracting for the medical care.
Obligation to the medical insurance companies
Privileged Communication is a legislative gift in only 34 states.
This privilege is to insure the privacy of the recipient of care. However, it often
permits dishonesty and injustice. The privilege often puts the HCP in a dilemma.
Duty to PROTECT community vs Confidentiality
Individual Interest vs Public Interest
The privilege is supposed to allow a health care recipient to go to HCP's without
fear of embarrassment concerning , e.g., abortion, mental illness, drugs, sexually
transmitted diseases..
However the state makes facts concerning such conditions available and requires
disclosure from HCP's to gather the information.
What happens when there is a conflict in the interests?
The medical societies allow for breaches in confidentiality but do not require it.
Law courts have made decisions which require it under certain circumstances. How
are those circumstances to be evaluated/
APPLICATIONS:
Applying the Ethical Principles of the basic traditions to these issues and cases
UTILITARIAN –
State paternalism
Personal Paternalism
any
The principle of utility supports only a theory of values and goals and not of
absolute right or privilege
John Stuart MILL- choice is to be restricted only by the HARM PRINCIPLE
Confidentiality can be breached to promote the GENERAL WELFARE
KANT- Autonomous rational moral agents are not to be treated as means
Right to the truth and confidentiality and opposed to lies and placebos
Right of Confidentiality as a PROMISE
Kant supports a theory of moral rights
ROSS
There does exist the right to be treated as an autonomous moral agent
Ross is opposed to paternalism
RAWLS- favors state paternalism of the restricted kind- e.g., licensing
NATURAL LAW- favors paternalism to promote a natural good
The physician must act in the best interests of the patient and protect and promote
life.
DECISION SCENARIOS:
1. People who don’t want treatment –AUTONOMY
2. Person with a heart condition –INFORMED CONSENT
3. Laws concerning Chiropractors - PATERNALISM
4. Court ordered Surgery –AUTONOMY
5. Pregnant woman’s consent to drug testing – AUTONOMY
6. Prostate cancer- INFORMED CONSENT, Truth TELLING
7. MS – TRUTH TELLING
8. Drugstore’s client list – marketing – CONFIDENTIALITY
9. Testicular Cancer – Privacy –CONFIDENTIALITY
10. Psychiatric Care – information for employer –CONFIDENTIALITY
11. JFK – CONFIDENTIALITY
12. Psychiatrist- Duty to protect the public from harm- CONFIDENTIALITY
13. Fifteen year old boy refusing treatment – AUTONOMY
Advocacy – summoning to one’s assistance and defending
a. Informing persons of their rights
b. Supporting persons in the exercise of their rights
This advocacy goes against the culture of all bureaucratic systems, e.g., the hospital
system.