Provide an explanation of the “gray area” of your choosing, including any relevant legal cases discussed, and how this is handled under the law.

In the SLP assignment, we reviewed informed consent in the case of competent adults. There are many “gray” areas of consent in cases of incompetent adults and children; however the law has sought to provide clear guidance for health care providers and legal guardians. Review pages 390-411 in the Showalter text book and choose at least one of the subtopics in this section regarding consent. Provide an explanation of the “gray area” of your choosing, including any relevant legal cases discussed, and how this is handled under the law.

Showalter, J. S. (2017) Consent. In The Law of Healthcare Administration. (pp. 390-411). Chicago: Health Administration Press. Retrieved from Trident Online Library.

Also must respond to 3 classmates after completion. Will attach their responses.

1. Assisted suicide

Andrew Williams

 

The topic that I chose to discuss is “Assisted Death” Statutes Showalter, J. S. (2017) . For more than a century there has been debate about whether to allow physicians to assist terminally ill persons in ending their lives.  The debate is complicated by various moral and ethical considerations, by the fact that physicians have surreptitiously assisted with euthanasia on occasion over the years. some States have ban assisted suicide, but other States such as Montana have made it legal Statutes Showalter, J. S. (2017). As a resident of Detroit Michigan I am very familiar with assisted suicide, Dr. Jack  Kevorkian was a huge story throughout the mid 90’s.Michigan determined that he was guilty of murder. Assisted Suicide has reached the Supreme court on many different occasions.  The supreme court has ruled that the decision is ultimately up to the States.Assisted suicide is illegal in 45/50 States Statutes Showalter, J. S. (2017). The gray area is that the federal government can not stop doctors from issuing prescribed drugs that assist in suicide. Doctors can help suffering patients purse their death. The problem is nobody can talk about it directly.This can lead to bizarre, conversations between medical professionals and overwhelmed families. Doctors and nurses want to help but also want to avoid prosecution, so they speak carefully, parsing their words.

In my personal opinion I think that it should be legal, in the right conditions. I believe a person that will suffer in pain until their death should have the right to end there life. I think its difficult for other people to make that judgement that aren’t in the same pain as other people. I think free will is something that we should respect for every person and if they wish to end there live it is something that we should respect.

Showalter, J. S. (2017). The Law of Healthcare Administration (Vol. Eighth edition). Chicago, Illinois: Health Administration Press.

2. Consent for “non-competent” parties

Gloribel Torres

to Showalter (2017), Incompetence is a legal status, not a medical diagnosis, but this determination is best made based on a doctor’s qualified judgment. The test is whether patients can understand their condition, the medical advice they have been given, and the significances of declining to consent. Every patient has the right to select or to decline treatment. This right is not unfettered, and the only reason why the state can override the patient’s freedom to decide is for the preservation of life, protect innocent third parties, prevention of suicide, protection of the ethical integrity of the medical profession.  According to Showalter (2017) in Consent issues for Incompetent Adults, he describes legal issues that come up when a patient is not able to consent due to his/her incapacity causing a delay in care and developing severe medical consequences in the relation of refusing medical care. As describe by Showalter (2017) in one case, where a 72-year-old man with severe gangrene in both legs was facing death within three weeks unless he agreed to have them amputated; with surgery, his chances of recovery were good. The patient decided against surgery, leading the medical facility to petition the court for a determination of incompetence, the appointment of a legal guardian or power of attorney, and permission to amputate and give other necessary treatment. Although the hospital argued that the man’s refusal was “a deviation from normal behavior,” that his decision was irrational, and the refusal amounted to suicide, they decided the man was competent. The extensive surgery was unacceptable to him, and his right to privacy outweighed the state’s interest in preserving his life.”  Another example worth mention is when a patient is refusing to receive blood transfusing base on Religious Faith. This decision although they seem irrational to the medical team does not set the patient as being incompetent. Whether the patients agree or refuse any medical treatment is based on common law, the patients’ right of self-government on which the doctrine of informed consent is established. In another hand, we have patients’ unable to grant consent due to incompetence or other disability where an appointed legal guardian or healthcare surrogate can give valid consent based on the patient’s known wishes. This concept is relatively simple, but its application becomes complicated when the individual has never been competent to express his intent.

Showalter, J. S. (2017). The Law of Healthcare Administration (Vol. Eighth edition). Chicago, Illinois: Health Administration Press

3. Discussion #2

Bryan Cerritos

The Merriam-Webster Dictionary (n.d) defines consent as: “to give assent or approval.” In layman’s terms, to give someone or a group of people consent is to express, either written or verbally, explicit agreement and/or approval. The idea of consent is something that our nation believes is an extension, and practical application, of our inherent rights. As was similarly stated by Justice Cardozo in Schloendorff v. Society of New York Hospital, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” (Showalter, 2017, p.380). As a result, the country’s legal system has gone to great lengths to define and provide guidance in regards to consent. This has been especially the case within the healthcare industry.

The nature of the healthcare industry is one where the physical and psychological welfare of individuals are continuously at stake. As a result, consent must be effective, that is to say, informed by way of information that is reasonably complete, comprehensible, as well as understandable by the individual that is granting it (Showalter, 2017). Additionally, this information must be provided by the individual asking for consent (Showalter, 2017). As much as circumstances permit, the patient must also be given adequate opportunity to reflect upon the information and ask questions (Showalter, 2017). Even though the law has gone to great lengths to define every facet of consent, including legalizing express and implied consent, there are still some “grey areas” where the issue of consent is not as clear as one would hope.

The preservation of life and prevention of permanent impairment are foundational values our society holds dear (Showalter, 2017). As a result, emergency situations often do not require express or implicit consent (Showalter, 2017). In these cases, the law presumes, as well as common knowledge, that consent would be given anyways. The “gray area” arises when a competent adult refuses to consent to a medical treatment that would preserve life and/or prevent permanent impairment (Showalter, 2017). In this case, an individual’s decision to not give express or implied consent must be honored (Showalter, 2017). This is the case even if the refusal to consent to medical care will likely result in death. It must be noted that this refusal to care must be honored even if the patient becomes incompetent later on.

Perhaps the greatest exemplification of the common-law principle of self-determination, a competent patient’s right to accept or refuse medical treatment is something that a medical authority must honor in lieu of civil and possibly criminal prosecution (Leo, 1999; Showalter, 2017). This Bill of Rights protected mandate seeks to protect individuals from infringement on their basic freedoms, and in this case includes the extension of self-determination related to the right to exercise control over one’s body (Leo, 1999). Of course, issues arise when a patient’s mental ability and cognitive capability, or in other words,“competence,” comes into question. If deemed incompetent by a court, then the individual will be referred to as de jure incompetent (Leo, 1999). Here, the individual loses autonomy, and is assigned a guardian that will make decisions on their behalf.

References

Leo R. J. (1999). Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians. Primary care companion to the Journal of clinical psychiatry, 1(5), 131-141.

Merriam-Webster. (n.d.). Consent. Retrieved from 

Showalter, J. S. (2017). The Law of Healthcare Administration (Vol. Eighth edition). Chicago, Illinois: Health Administration Press. Retrieved from