Law and Ethics

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Laws are a familiar concept, and provide a basic social framework of right and wrong to which the majority adhere. Ethical theories may also be applied to all issues of uncertainty, including those not covered by laws or professional guidelines. They create a mechanism within which issues of moral uncertainty may be questioned and resolved (Jones 1994). One such area of moral dilemma is that of informed consent.

In it’s simplest terms, consent may be defined as giving permission:

“… in current usage consent is defined as a voluntary compliance, or as a permission. ‘I consent’ means ‘I freely agree to your proposal’, which is an explicit statement that my consent to a certain course of action has been sought and granted without any element of coercion.” (Faulder 1985:32)

However, in recent years this definition of consent has been deemed inadequate. Consent may be regarded as invalid if the consenting individual does not know what they are consenting to. It is for this reason that the adjective ‘informed’ has been used to clarify it’s meaning (Tschudin 1989).

Faulder (1985) states that the medical profession is divided as to the exact meaning and purpose of informed consent. This is particularly true in the field of midwifery and obstetrics where this has recently become a key issue, despite the existence of a number of professional guidelines such as the Code of Professional Conduct (United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) 1992). This is in part due to the reluctance of many in the medical profession to adopt this new ideology. The age of informed consent brings with it enormous changes to the previously paternalistic health service. The Changing Childbirth Report (Department of Health 1993) with it’s ethos of woman centred care emphasises the need to empower clients by providing them with adequate information to make their own decisions. It is the right to know, and the right to say no. (Tschudin 1989)

“Informed consent is about the right to control our own destinies and to determine our own ends as far as humanly possible; it is about the right to make choices and the right to refuse consent; it is about the right of individuals to preserve their integrity and dignity whatever physical and mental deterioration they may suffer through ill health; it is about our duty always and in all circumstances to respect each other as fellow human beings and as persons.” (Faulder 1985:2)

This essay will examine the legal, professional and ethical issues that affect, and are affected by informed consent. The writer will explore the subject as it relates to midwifery, using examples from the field and with reference to pertinent laws and professional guidelines.

LAW

Consent has been an issue in English law since the middle ages, however the first legal action concerning consent was not raised until 1767 when a patient brought an action against his doctors alleging that he had not consented to a particular treatment (Faulder 1985). More recently at the beginning of the century, consent forms before surgical procedures became statutory (Faulder 1985). Informed consent however, was not raised as a legal issue until 1957 in the case Bolam v. Friern Hospital Management Committee (cited by Faulder 1985).The case centred round the hospitals alleged failure to disclose risk to the patient who subsequently suffered a fracture. Although the court found in favour of the hospital in this case, the need for more information was highlighted. The court found that the hospital had provided acceptable information based on current standards of practice, however at that time the current standard practice was not to provide fully informed choice, which is now thought to be best practice. From this case, the Bolam test was devised, which examines a consensus of current practice for comparison.

As the law currently stands, a healthcare professional “… can be sued for battery (unlawful...
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