The Impact Of Malette V. Shulman Case On Informed Consent Laws In Today's Society And Canada

Critically reflect on the case Malette v. shulman 1990. Focus on the question of how this case has impacted laws in todays society and canada, the importance of the regulation used in this case and how the law conflicts with religious views. 

Impact of the Case to Laws in the Contemporary Society

The topic of informed consent/patient autonomy has become very popular in the contemporary society. The topic has both legal and ethical orientations. Informed consent simply refers to the practice of informing the patients of the implications of a medical procedure/intervention and leaving them to decide on whether to have the treatment or not (American Medical Association, 2016). The health care professional is bound by law and code of ethics to respect the decision of the patient (Holland, Fistein and Walsh, 2018). The principle of informed consent has been attributed to the Malette v. Shulman case of 1980. The case involved a situation where a doctor carries out a blood transfusion despite having the knowledge that the patient is opposed to it. Although the patient was unconscious the doctor accessed a card in which she stated that under no circumstance should a blood transfusion be done. The decision of the patient was informed by her strong religious beliefs. The patient later sues the doctor for failing to honour her statement. The judge rule in favour of the plaintiff emphasizing the importance of respecting the decision that an individual has made concerning their health.

The case has greatly impacted the laws of the current society and those of Canada. This is particularly in the informed consent requirement. In the modern world, the issue of informed consent and patient assisted dying have become contemporary issues (Young, 2017). It is not only a matter of the but ethics. This section will look at the changes/impacts made because of the case. Informed consent simply refers to a situation where a health care provider can only carry out certain procedures or treatment to patients only if the patient/client consents to it. If the patient does not consent, then the health care provider is bound by both law and ethics not to carry out the procedure. This regulation stemmed from the case explained above and have become an important legal requirement in the practice of medicine in many countries including Canada. Before deciding about their health, the law requires that the patient be informed on the implications of consenting or failure to consent to their health (Herring, 2015). This means that the patient makes an informed decision. In the contemporary society, the legal significance of informed consent is to ensure that the patient/client is protected from the from assault and battery in the form of medical interventions that they do not want (Foster and Herring, 2018). The patient may understand that the health implications of a medical intervention are vital for their survival but still decline the intervention. In such cases, the medical team has no option but to respect the decision of the patient. Going against their wish is a breach of informed consent requirement and could be charged in a court of law.

As observed above, the determination of the case has greatly contributed to the formation of the current regulations concerning informed consent. Although this is the case, various jurisdictions have unique laws concerning the same. It is therefore necessary for health care professionals to be aware of the legal requirement in their jurisdictions and adapt appropriately. For instance, the Medical Protective Association of Canada provides details guidelines on how the health care professionals should act. The concept of informed consent has some ethical orientation. Ethics apply in terms of showing respect of the decision made by the patient. In other words, it is ethical to respect the decision that the patient make regarding their own health regardless of the implications of their decision. This seems to be a perfect enactment of the decision that the judge made on the Malette v. Shulman case. The judge concluded that the intentions of the doctor were good and were aimed at ensuring that the patient is protected from harm. He also added that the doctor followed the ethics of medicine. The only issue that he did wrong was to ignore the wish of the patient despite being aware of it.

The Importance of the Regulation Used in the Case

In addition to the concept of informed consent, the case seems to have influenced the formation of the four main principles of ethics. The first principle is that of informed consent. The other principle is of beneficence. This stipulates that a health care professional should ensure that all their actions are geared towards ensuring the most benefit to their patient/ clients (Downie, 2016). The third principle is that of non-maleficence. This principle stipulates that a health care professional should not do anything that will cause harm to the patient. It also requires the professional to do all they can to prevent or minimise any form of harm that may befall their patient. The final principle is that of justice. It burdens the health care profession to ensure that the benefits of medical care are equally distributed to all members of the society. These principles are integrated in to the professional code of ethics of most health care professionals around the world. This includes Canada. Extensive evidence has revealed that the above-mentioned case significantly contributed to development of these principles. Any professional who does not observe the principles risks having appropriate punitive measures taken against them.

The issue of informed consent has become so important that most governments have intervened to ensure that it is observed (Percival, 2014). This is through putting some measures and mechanisms that ensures the process of informed consent is being carried out. For instance, a patient is required to fill a consent form before entering the operating theatre for an operation. The signed document serves as evidence that the patient consented or did not (Rai and Porter, 2014). As observed in the discussion above, the patient must be educated on the implication of procedure before consenting. By failing to consent therefore, the patient agrees that they are knowledgeable about the consequences but still do not want the medical intervention (Diesfeld, 2018).

One might argue that the judges were unfair for punishing the doctor. After all, the doctor was doing his work and trying his best to save a life. In fact, the judge acknowledges that the life of the plaintiff could not be were it not for the intervention. However, the regulation set by the case presents a very important issue. This is the issue of patient autonomy. Every human being on earth has a right to make decisions concerning their health (Carter and Rodgerson, 2017). People are different in many ways. People may value religion, culture, education or some other aspect. What one-person values may be completely different from what another values. For this reason, it is important for each person to respect others and their values (Hope and Dunn, 2018).

The regulation used in this case illustrate very well the importance of respecting the decisions that a person has made. The plaintiff had clearly indicated her wish concerning blood transfusion. She has said that she wouldn’t want a blood transfusion to be done under any circumstance. Although the doctor’s move aimed at protecting her life and alleviating harm, he failed to respect her values. She valued her religion to the extent that she was ready to die rather than have a blood transfusion. This is evidenced by her move to sue the doctor. The move illustrates that her religious values are very important to her and the doctor disregarded them. In a nutshell, the regulations have helped the medical profession, both in Canada and other places to understand the importance of ensuring patient autonomy.

In most jurisdictions the freedom of religion is provided for. However, the government has rules and regulations that must be followed by all citizens despite their religious beliefs/views (Sullivan, 2018). For instance, some jurisdictions allow for marriage between same sex marriages. Most religions are usually against this, but they have no option but to respect the law. Another law that is applied in most jurisdictions is allowing the use of alcohol and some other drugs such as tobacco. Most religions prohibit the use of the drugs. Despite the prohibition, the law must be followed. Another instance where the law conflicts with religion, is the promotion of family planning practices. Most governments are aiming at controlling the populations using family planning. Some religions such as Christianity are opposed to such a move. These examples represent just but a few of the conflicts between laws and religion.

Conclusion.

The Malette v. Shulman case brought a revolution in the practice of medicine. The case involved a doctor who carried out a blood transfusion on a patient despite knowing that the patient was objected to it. Although the patient was unconscious, she had indicated the information on a card which the doctor saw. The judge charged the doctor of battery since he knowingly carried out a medical intervention that the patient was opposed to. The case has greatly contributed to the development of the legal and ethical requirement of informed consent/patient autonomy in the contemporary society.

References

American Medical Association. (2016). AMA code of medical ethics. American Medical Association.

Carter, R. M., & Rodgerson, B. (2017). Medical Assistance in Dying: Journey to Medical Self-Determination. Routledge.

Diesfeld, K. (2018). Involuntary detention and therapeutic jurisprudence: International perspectives on civil commitment. Routledge.

Downie, J. (2016). And miles to go before I sleep: The future of end-of-life law and policy in Canada. Routledge.

Foster, C., & Herring, J. (2018). What Does the Law Say About Human Thriving? In Human Thriving and the Law (pp. 1-22). Springer, Cham.

Herring, J. (2015). Q&A Medical Law. Routledge.

Holland, A., Fistein, E., & Walsh, C. (2018). Mental Health Law. A Medic's Guide to Essential Legal Matters. Routledge.

Hope, T., & Dunn, M. (2018). Medical ethics. Oxford University Press, USA.

Percival, T. (2014). Medical ethics. Cambridge University Press.

Rai, G. S., & Porter, K. K. (2014). Principles of medical ethics: Medical Ethics and the Elderly. CRC Press.

Sullivan, W. F. (2018). The Impossibility of Religious Freedom. Princeton University Press.

Young, R. (2017). Euthanasia and Assisted Suicide: Global Views on Choosing to End Life. Routledge.