| Abstract |
Through History, the requirements for informed consent, have emerged from the terrifying experience of World War II, during of which, human beings were used by Nazi physicians – scientists, as laboratory animals, in medical researches and tests, without their permission, in the name of scientific progress of humanity (e.g. Hypothermia experiments, deliberate infections etc). The revelation of other experiments during the 1960’s and 1970’s, taking palace in democratic states (e.g Tuskegee Syphilis Study or Willowbrock Study), consolidated the above requirements.
In the field of Moral Philosophy, consent is closely related to this crucial question: “Which is the best justification of Autonomy in Bioethics?”
A first conception of Autonomy, which relates individual autonomy, to the externalization of a patient’s preferences, tendencies or inclines, on the absence of any extrinsic restriction or intervention by others, can’t be regarded as the best one in Bioethics, owing to strong opposing arguments (e.g. this version of Autonomy justifies arrogant choices etc)
Neither can the conception of Autonomy, be regarded as the best one, which relates individual Autonomy to reflected – of a specific kind – preferences or beliefs, that generate benefits (or human wellbeing). This conception highlights patient’s individuality or his/her deeper individual nature (proportionally to John Stuart Mill’s conception). Nevertheless, there are a good many reasons against the above conception, which are analyzed in our assignment.
At last, we should give prominence to Immanuel Kant’s conception of Autonomy, as this is the best justification of Autonomy in Bioethics, because it relates Autonomy to Categorical Imperative, obligations and duties, which are owed both to ourselves and to others (perfect duties and imperfect duties), and finally generates trust among agents. The Practical Reason, which is a privilege of human beings, tries to bring out valid, universal and morally obligatory reasons of action (or principles) for everyone.
Furthermore, in the field of Greek Law and Greek legal theory, it seems to be prevalent that patient’s consent is an expression of his/her internal will, which can beregulated accordingly, by the articles of the Greek Civil Code, about Conventions. Of course, other legal theorists support different opinions (e.g. that patient’s consent is a real convention between the physician and the patient, or that consent is closely related to a patient’s mere legalizing action, which legalizes the physician’s intervention in patient’s personhood).
So a patient’s consent can be justified as an action that legalizes the illegal features of a physician’s intervention. As far as patient’s consent is concerned, specific legislation has been enacted, in Greek Law, such as the Acts No 3418/2005 (Code of Medical Deontology), No 2619/1998 (Oviedo’s Convention) etc.
Through the comparison of moral and legal answers to our assignment’s problems, but also through the conception of Autonomy and the interpretation of Greek Legislation, which we adopted, we conclude the following:
1) When a patient is going to be subjected to a serious surgery, physician’s lying or withholding of information (or even deception), can be assessed as both immoral and illegal. Exceptions can be accepted due to psychological reasons, when, for example, it is possible that truth would endanger a weak patient’s health and wellbeing, or when patient asks for non-disclosure intensively.
2) Physician’s duty to give care or aid to the patient (e.g. feeding him/her or providing water etc) and generally to relieve his/her pain, so as to secure his/her dignity, continues to exist even in the case of a competent patient, who expresses his/her outright denial being subjected to another medical intervention (e.g surgery)
3) When a guardian hasn’t been appointed and at the same time relatives disagree about the necessity of a medical action, on an incompetent patient, whereas there isn’t enough time, physician ought to appeal to the Court or to Prosecutor in charge. In emergencies, physician shouldn’t respect mere preferences and arbitrary declarations of relatives, but should intervene and benefit the patient. Another substantial matter is the advisory function of Bioethics Commission in Hospitals.
4) Beneficence should govern physician’s decisions and actions, when for instance, a mature 16-year-old minor patient, due to his/her religion, denies being subjected to a beneficial medical intervention e.g. blood transfusion, and at the same time his/her representatives have disappeared. Physicians should intervene in such cases.
5) Extraction of a dead person’s organs, in the name of his/her “presumed consent”, so as to save another compatible patient, who really needs these organs, through transplantation, providing that relatives strongly disagree to such a perspective, should be morally and legally excluded.
6) The interests of a clinical trial’s participant are always greater than other scientific or social interests. Dignity, physical and psychological integrity, health and wellbeing of the participant, should be secured in any case. It is completely necessary to measure risks against potential benefits and the first one shouldn’t be disproportionate to the last one. Otherwise such a participation should be excluded.
On the one hand, Law, and especially enacted Law, includes the following features: Normative, obligatory and coercive consequences, regulation of human behavior and Heteronomy. On the other hand, Ethics has also normative consequences, as it regulates human behavior. But ethical norms derive from every person’s free conscience, so they focus on Autonomy, not Heteronomy. The punishment for offending ethical norms is offender’s guiltiness and social scorn. Many theories have been supported, as far as the relationship between Law and Ethics is/are concerned. Nevertheless, the answer to the question “Is a legal regulation both a moral one?” should be positive, as far as a patient’s consent is concerned, taking for granted the above conclusions, which we adopted. As Professor Paul Sourlas mentions: “Both the enacting and the implementation of Law, implicate moral estimations and assessments. Thus we should look for these crucial limits and necessary borderlines, so as to avoid adopting an overly moral perception of Law”.
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