KOOI WEI KIT LGA110035 BEST INTEREST PRINCIPLE: PATERNALISM IN DISGUISE? ___________________________________________________________________________ 1.

0 INTRODUCTION

Medical practice has changed greatly in the past 40 years. Doctors used to have parent-child relationship with their patients. Sometime in the 20th century medicine and health care evolved to a different doctor-patient relationship, an adult-to-adult relationship in which the doctor shared expert knowledge and information with the patient and they co-operated to decide on the best treatment plan. The principle of patient autonomy becomes paramount in medico decision-making.

However, it is argued that paternalism can be in disguise in various forms. Withholding information can be a type of paternalism. If we are looking at a bigger picture on the authority and power in the patient-doctor relationship, the practice of patient autonomy model in medical field can be paternalism in disguise.

2.0 PATERNALISM

Paternalism has been defined as interference with a persons liberty to action justified by reasons referring exclusively to welfare, good, happiness, needs, interests or values of the person being coerced.1 Medical paternalism is defined similarly as interference by the physician with the patients freedom of action, justified on the grounds of the patients best interest.2 This concept arises from the principle of beneficence 3, which is the central to the doctor-patient relationship. Due to doctors professional knowledge and his
1

Weiss, G.B, Paternalism Modernised (1985) 11 journal of Medical Ethics, at p.184 Ibid

ethical obligation to do good, the view that Doctor knows what is best for the patient prevails.

The doctors sometimes can influence the patients decision by response to the patient in the following forms: 1. It is for your own good; 2. It would be irrational to do otherwise; 3. It would be immoral to do otherwise; or 4. It would hurt other people if you were allowed to choose so selfishly

There are various types of paternalism namely soft paternalism, strong paternalism, direct paternalism and indirect paternalism. Gary B Weiss in his article Paternalism modernized stated that: Modern paternalism continues to be guided by the principle that the physician decides what is best for patient and pursues that course of action, taking into account the values and interest of the patient. In the autonomy model of doctor-patient relationship, patient values are decisive. In paternalistic model, they are but one among several factors the physician must consider in making a medical decision.4 Hence, considering the values, opinions, interests or decisions of the patient when doctors make decision for the best interest of the patient is still considered as a form of paternalism.

3.0 AUTONOMY

Autonomy is synonymous to self-determination. Autonomy comes from the Greek terms autos (self) and nomos (governance). Autonomy on has been defined as the capacity

To do good Journal of Medical Ethics, 1985, 11, 184-187

to think, to decide and act on the basis of such thought and decision freely and independently5

The concept of autonomy arises from the philosophy theories of John Stuart Mill in On Liberty6 where he stated: In the part which merely concerns himself (individual), his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. He further stated that: individuals should be free to autonomously decide for themselves whether or not they choose to end their own lives, provided that no one else is harmed in that decision. Dr. Rollins Halon, former President of the American College of Surgeon, justify the principle of patient autonomy in medical field: patients are the ultimate rulers and they must decide whether to have a procedure when all the risks are laid out

In Chester v Afshar7, the claimant suffered paralysis following a spinal surgery; it was held that a patients right to autonomy and dignity should today be accorded the highest priority by English Law. Lord Steyn stated that: In modern law, paternalism no longer rules and patient has a prima facie right to be informed by a surgeon Lord Goff in Airedale National Health Service Trust v Bland8 stated that: it is established that the right to selfdetermination requires that, respect must be givem to the wishes of the patient.

There is a significant shift from paternalism to autonomy. The shift in paradigm has resulted in the increase in emphasis on the quest for self determination and autonomy concepts of choice and consent at the forefront. The absolute autonomy principle allows patients to make decision independently disregard of whether the decision is irrational, immoral, unethical or selfish.

Keown, J To treat or not to treat: Autonomy, Beneficence and the Sanctity of Life? (1995) 16 Singapore Law Review 360 at p. 362
5 6

First published in 1859 [2002] 3 All ER 552 [1993] 1 All ER 821

4.0 PATERNALISM VS AUTONOMY

The conflict between medical paternalism and patient autonomy is predominant in the area of consent to treatment.9

Ian Kennedy in his article Consent to Treatment: The Capable Person10 said:

.if the beliefs and values of the patient , though incomprehensible to others, are of long standing and have formed the basis for all the patients decisions about his life, there is a strong argument to suggest that the doctor should respect and give effect to a patients decision based on them. That is to say the doctor should regard such a patient as capable of consenting (or refusing). To argue otherwise, would effectively be to rob the patient of his right to his personality, which may be far more serious and destructive than anything that could follow from the patients decision as regards a particular proposed treatment

Autonomy can come into conflict with paternalism when patient disagree with recommendations that health care professionals believe are in the patients best interest. When there is conflict between patient autonomy and paternalism, a choice must be made to prioritize one over another. Different societies settle the conflict in a wide range of different manner.

5.0 DOCTRINE OF INFORMED CONSENT

Treatment without consent may constitute a battery. Failure to disclose or explain the risks of proposed treatment or alternatives may deal with negligence.11

Puteri Nemie Jahn Kassim, Law and Ethics relating to Medical Profession, 2007, p. 19 1992, Oxford Blackwell Science, at p. 56

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The Doctrine of Informed Consent embodies the general principle that a person has a right to determine whether or not to undergo any medical procedure. A doctor should give the patient sufficient information for him to understand the nature of any proposed treatment, its implication and risks and the consequences of not undergoing the treatment. In the light of that information, it is the patient who decides what treatment, if any, he or she should undertake. The rationale behind the development of the Doctrine of Informed Consent is basically to promote individual autonomy. In other words, the decision to undergo treatment is the patients not the doctors. The doctrine further encourages rational decision-making by ensuring that the patient is given sufficient information to make good decision.

The Doctrine of Informed Consent was originated from the United States of America in Schloendorff v Society of New York Hospital12. The Doctrine then was then evolved in the case of Canterbury v Spence13 where the Court held that the doctor must disclose all material risks inherent in a proposed treatment. The question of material risk is to be determined by the prudent patient test. The court also recognizes certain exception such as Therapeutic Privilege. The exception allows the doctor to withhold information from his patient concerning risks of proposed treatment if it can be established by means of medical evidence that disclosure of this information would pose a serious threat of psychological harm to the patient. In England, the principle of medical paternalism seems to have stronger hold compared to the principle of patient autonomy. Nevertheless, the case of Chester v Afshar14 has loosened the grip for patients claiming lack of informed consent in medical treatment.

The legal doctrine of informed consent clearly rests upon ethical principles of autonomy and self-determination. However there are a few points which suggested below

Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871; 1985 2 WLR 480
11 12

105 N.E. 92 (N.Y. 1914) 464 F. 2d 772 (D.C.Cir. 1972) [2005] 1 AC 134

13

14

arguing that the patient-centre or the autonomy model in practical is actually paternalism in disguise

6.0 PATERNALISM IN DISGUISE

The arguments below are to show that even though theoretically our society is shifting from paternalistic approach to autonomy approach in medical practice, the autonomy approach is in fact paternalism in disguise. The autonomy model in medical practice looks like autonomy, sounds like autonomy, operates like autonomy but it is not autonomy. In fact, it is paternalism in disguise.

6.1 WITHHOLDING INFORMATION

As discussed, paternalism is usually characterized as interference with a persons liberty of action, where the alleged justification of the interference is that it is for the good of the person whose liberty to action is thus restricted. 15 Paternalism is too narrowly construe if we focus exclusively only on the interference with liberty of action.

If a government withhold information for certain policy, and if the alleged justification of its policy is that it benefits the public itself, the policy may properly be called paternalistic.16 Same applies to medical field, if the doctors purposely withhold information when obtaining informed consent and the alleged justification of withholding information is that it benefits the patient, the action may properly be called paternalistic. Therapeutic Privilege17 is a form of paternalism where it allows the doctors to decide on the patients best interest. In court the doctors was asked You didnt inform her or any dangers or risks
G. Dowrkin Paternalism in S. Gorovitz et al, Moral Problems in Medicine (Englewood Cliffs, NJ; Prentice-Hall, 1976, p.186
15

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Canterbury v Spence 464 F. 2d 772 (D.C.Cir. 1972)

involved? Is that right? Over his attorneys objection, the doctor responded, Not specifically I feel that were I to point out all the complications or even half the complications many people would refuse to have anything done, and therefore would be much worse off

An example of the situation where doctors take paternalistic approach is in the case of life and death for defective newborns. The doctors undertake the responsibility to make decision in order to relieve parents of the trauma and guilt of making a decision. It was stated in Shaws Journal18 that: At the end it is usually the doctor who has to decide the issue, It is cruel to ask the parents whether they want their child to live or die The best interest principles often justify the paternalism approach.

There may be a direct or indirect connection between withholding information and actual interference with the patients freedom to decide or to act. Withholding information may preclude an informed consent, and it may with attempts to reach an informed decision, without thereby interfering with a persons freedom to decide and to act on his own decision. Even if the patient are deprived of information which he or she must have if he or she is to make an informed decision, he may still free to decide and to act. Hence, even though the societies see it as an autonomy model, it is in fact paternalism in disguise.

6.2 TRUTH-TELLING

One of the virtues of a good doctor is honesty. While everyone may agree that honesty is the best policy, the principle of truth- telling is an absolute. However, it is often difficult to fulfill. What of the fragile patient when truth-telling would potentially cause mental or physical harm? Whereas we are bound to truth-telling, we are also bound to nonmaleficence. Primum non nocere, Latin word for first, do no harm is the principle which seems to be most often in conflict with the absolute requirement of veracity or honesty. And
Shaw, Dilemmas of Informed Consent in Children, The New England Journal of Medicine 289, no 17 (1973): 886
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yet, while there may be conflict, it is clear that the special relationship between the practitioner and the patient is such that the patient has a right to expect a higher level of truthfulness from doctors than other with whom they deal.

Even if a doctors lies to his or her patient for the patients best interest, the patient still can make decision on his or her own. The doctors may misinform or lie to the patient in order to restrict its freedom to act or to direct or lead the patient in giving a preferable decision. Hence, paternalism is not only is the interference with a patients freedom to decide, it also covers the deliberate, dissemination of misinformation.

6.3 COMMUNICATIONS

There are basically two major submissions that support the argument that the way of communication between doctors and patients in the Doctrine of Informed Consent may be paternalism in disguise. First, it is argued that the doctor, even in the autonomy model, can easily make use of the wording when he advice, in order to direct or lead the patient to decide on the doctors preference choice. Secondly, it is argued that the problems of quality of communication and the patient comprehensive leave a space for paternalism to fill in.

The issue of fair informed consent should be taken into account. The way that the doctor presents the option can influence the patients decision. For example, With treatment Y, 50% of the patients will survive does not sound the same as Without treatment Y, 50% of the patient will die in a horrible death. The patient might not fully understand the implications, and the doctor can always influence the decision-making of the patient in some way.

In Tan Ah Kau v Government of Malaysia19, the plaintiff, a lorry driver, was paralysed from the waist down after the defendants carried out a surgical operation. The main issue
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[1997] 2 AMR 1382

before the Court was whether at the time when the plaintiff signed the consent forms, the plaintiff understood the nature and consequences of the consent and whether he knew the subject matter that was central to his consent. In his evidence, the plaintiff claimed that he had not given real and informed consent to the treatment as no adequate information was given to him to enable him to comprehend the nature and consequences of the consent. The plaintiff maintained that he signed two blank forms at the same time but was not given any explanation before the operation. He was only told that if in the future and if he was operated, he would find relief from the pain within two weeks of the operation. These were the reason he signed the forms. The plaintiff was not given the opportunity to opt for or to opt out the operation. It was not fully explained to him the fact that what he was experiencing was a slow, growing tumour and that, in the absence of an operation, it would take at least 20 years to lead to paralysis. Further, it was not explained to him that if operated immediately, there was a strong possibility that he would immediately become paralysed. There was no doubt that the plaintiffs signature was on the forms but did he understand what was he signing? Thus, on the issue, the Court held that no consent was actually given by the plaintiff.

Puteri Nemie Jahn Kassim in her book Law and Ethics relating to Medical Profession20 commented that: Tan Ah Kaus case reveals a breakdown in the doctor-patient relationship, which occurs when there is little or no communication between the parties. The doctors medical education has prepared him to treat the disease but not necessarily the whole person while day-today demands on him may getting to know patient and his concerns impossible or unimportant Furthermore, the patient may not know what to ask and if he overcomes his reluctance to ask he may not persist until he gets an answer he can understand. In reality, the mode and quality of information disclosed have often done little to enhance the patients understanding of the situation. If the primary purpose of developing the Doctrine of Informed Consent is to promote individual autonomy and encourage rational decision-making then it is clear that the courts have left an important aspect of the doctrine unexplored, namely, concept of communication and patient comprehension

The culture of our society is that we are putting too much focus on black and white the consent form. We are putting the paper beyond everything such as awareness,
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2010, p.38

communications and understanding. It was assumed that once the patient signed the consent form, he or she agrees to undergo the treatment even though he or she does not understand the nature and consequence of the treatment.

6.4 BEST INTEREST PRINCIPLE PRINCIPLISM

Acting in the patients best interest is the most important prerequisites of all medical practice. From the Hippocratic Oath onwards one can read in various professional codes for physicians and nurses echoes of the line of the Oath: Whatever houses I may visit, I will come for the benefit of the sick.

The best interest principle is guided by the four ethical principles approach (principlism21). The four principles are the prima facie moral obligation of: Respect for autonomy, Beneficence (promote overall benefit), Non-malaficence (avoid causing harm) and Justice.

Where there is conflict between the principles than a choice must be made to prioritize one over another. Different societies will take different approach. The focus in this paper should be on the conflict between Respect for Autonomy and the other three principles. If it is an absolute autonomy model, then the principle of respect for autonomy prevails.

In medical practice, the option to treatment offered by the doctor to the patient is framed under principlism. Hence, the choices which the patient alleged freely made are in fact guided by the principlism. The opinion that when a patient voice an opinion, every effort should be made to respect that decision, unless it is contrary to their best interest is a kind of paternalism. The To Do Good principle and Do No Harm principle also in some cases indirectly influence the patient choice. For example, in abortion case, the doctor, guided
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Beauchamp and Childress are American who coined the four principles approach

by the principle of Beneficence and Non-Malaficence and for the best interest for the baby and the woman, will refuse to acknowledge the right of the woman to choose what shall happen to her body. Therefore it is another form of paternalism.

6.4 BEST INTEREST PRINCIPLE AUTHORITY

The benefit of the sick is sometimes ambiguous matter indeed, and this is where problems are. There are few cases which it is not entirely clear where patients best interest lies or whether appeals to it could be used to justify decisions.

In certain cases, where there is a conflict between the patients, or the patients family with the doctors clinical judgment, the doctor or the institution might file a suit to the court to seek for a declaration. The role of legal professional and judges will come into play to decide on the patients best interest.

From here we can see that the authority in paternalism approach is still slowly moving from the hand of the doctor to the institutions, then to the lawyers, and finally to the judges. The government and the law are also relative if we look into a bigger picture. The law and policy for the best interest of the public will be executed by the government and it influences the policy of the institution. The policy of the institutions will be followed by the doctors, and the doctors are directly related to the patients. Besides, granting the patient autonomy to decide by the relevant authority for the patient best interest is also another forms of paternalism. Instead of letting the doctor decides for the best interest of the patients, the medical practices now shift to let the patient decide for his or her own best interest. The doctors therefore are excluded from taking responsibility because it is the decision of the patients.

7.0 CONCLUSION

The evidence for medical paternalism is both direct and indirect. Even though the practices of medicine and law are shifted to the autonomy model or the patient-centre healthcare, it is clear that in certain cases, the autonomy given to the patient is actually paternalism in disguise. The awareness and education of the society is very important in order to address this issue. It is useless to determine on the better way of medical practice if the members of the society especially professional do not know and aware what is the meaning behind the approach.