Ethical and legal aspects of the therapeutic relationship in professional practice

Ethical and Legal Aspects of Therapeutic Relationships

MEDICAL HERBALIST

Daniel was a 19-year-old male suffering from mild depression. His family was well aware of the situation, and had obtained various opinions about what is needed to help him. Daniel did not react very well to medical anti-depressants. On the physical level, they made him nervous and restless. On the emotional level, he resisted the meds for fear of becoming dependent upon them. Despite his depression, Daniel had never felt the need to succumb to substance abuse, and indeed feared this, as he had considerable experience with a friend who nearly died as a result of substance abuse. The medical herbalist, Mr. Mudra, seemed to have the solution. After about a month of his treatments, Daniel's general mood and emotions appeared to improve somewhat. After about five months of the treatment, however, he began to fall into depression again. Despite the parents' attempt to find a psychotherapist who would see Daniel, the boy refused any such help and insisted that Mr. Mudra was helping him. After only one more month, Daniel had committed suicide. The parents now face the decision of whether to sue the doctor for negligence and unprofessional behaviour.

FOUR PRINCIPLES of MEDICAL ETHICS

According to R. Gillon (1994), the commonly accepted four principles of medical ethics are a culturally neutral way to think about and determine the ethical issues of a case. As such, the approach incorporates a basic moral analytical framework and moral language. The four principles include respect for autonomy, beneficence, non-maleficence, and justice. A fifth element, the scope of application for these principles, has been added more recently.

Gillon (1994) notes that the word autonomy refers to the ability to make one's own decisions, especially as these affect one's quality of life. Respect for autonomy then means that not only the other party is respected for his or her ability to make sound decisions, but also all parties involved: autonomy should be preserved as far as possible, while the autonomy of others should be taken into account as well. Common examples of this in healthcare include the requirement of obtaining permission from a person before performing certain procedures, and confidentiality of personal health data (Gillon, 1994).

Benificence and non-maleficence refer to the principle of "no harm" as well as working towards the optimal good of the patient. Benefit must always take preference over harm. Health care workers particularly risk harm in their attempt to help patients. The principle here is then to at least pretend to strike an optimal balance between non-maleficence and beneficence.

Beneficence and non-maleficence. An aspect of beneficence is empowerment: patients are guided towards not only physical health, but also towards understanding what actions they need to take to maintain such health.

The fourth principle is justice, and refers to the moral obligation of fairness when more than one party is at issue. In terms of healthcare, this refers to recognizing competing moral concerns when more than one person is involved, and particularly when opinions are diverse. Morally relevant criteria are used to determine at which level of equality a person should be treated when considering health issues. Some people, and particularly children, for example, do not have the capacity to make their own autonomous decisions, and should therefore be led in terms of their choices.

Scope determines the applicability of each of the four principles; as mentioned above, respect for autonomy cannot be upheld in the case of small children. In the same way, the particular relationship of a patient with his or her healthcare worker will determine the scope of each principle.

UTILITARIANISM and DEONTOLOGY

Utilitarianism was promoted by John Stuart Mill. It dictates actions by means of which most parties involved are optimally served. In other words, it is a system for ensuring the greatest happiness for the greatest amount of people.

Deontology refers to the value of an action as determined by its conformity to a rule. Rather than its consequences, this doctrine requires specific and complete obedience, regardless of how many reasons there are to break the rules.

APPLICATION

When applying the above-mentioned principles and frameworks to Daniel's case, it is possible to arrive at widely divergent results. Respect for autonomy in this case for example may conflict with the principle of non-maleficence. One can also examine the ethics and principles that apply to the medical herbalist profession to determine whether there was any wrongdoing.

One might argue that both parents and Mr. Mudra have acted correctly in terms of the first principle, which is respect for autonomy. This is also the case in terms of the Code of Ethics that apply to the National Institute of Medical Herbalists (NIMH, 2007). Consent to medical treatment can be given by any person over the age of 18. Daniel was 19 and therefore fell into the category of informed consent. It might also be argued the Mr. Mudra explained all the relevant issues to Daniel, and that he was happy to comply, specifically in the light of his experiences with other medical options.

In terms of informed consent and autonomy, it is possible that Daniel's condition might have slightly impaired his judgment as to which treatment would be in his best interest. However, his depression was only mild, and even his parents felt that the effects of more aggressive treatments did more harm than good to their son. Furthermore, he fully discussed his decision with them and with the doctor, and all parties involved were happy that he had made an informed decision and was at capacity to do so. They therefore respected his autonomy by allowing him to replace other medical choices with the herbal practitioner.

While this initially seems to have worked, it however violated the principle of non-maleficence, as grievous harm was caused. The boy committed suicide after 6 months of treatment. Despite misgivings by his parents, Daniel insisted upon continuing the herbal treatments. Mr. Mudra agreed with Daniel's decision and continued to respect his autonomy. This was a fatal mistake. The argument here could be that Daniel was no longer at capacity to make such decisions. His age and medical history however dictated that autonomy continue to play a role.

In terms of the parent's decision to sue or not; when they consider both their own and Mr. Mudra's concern for their son's autonomy, they cannot accuse the practitioner of any maleficence greater than their own. The parents know their son much better than the practitioner does. If they believed him incompetent to make his own treatment choices, they should have intervened and opted for alternative treatment.

In terms of beneficence, the initial actions would have been the same. Daniel initially did very well with the herbal medicine, with no physical ill effects and concomitantly with many beneficial mental effects. The herbal anti-depressants seemed to be working well during the first four months. However, the principle of beneficence dictates that the patient's well-being be at the primary position of care. In Daniel's case, this directive contradicts the respect for autonomy.

During the fifth month, as soon as Mr. Mudra began to see that the treatments were no longer working, he should have acted according to this principle and recommended alternative actions. As a professional, it is his job to determine the suitability and effect of treatments upon his patients. Had he correctly assessed the situation to begin with, Daniel's life could have been saved.

In terms of the suit, Daniel's parents are arguing that Mr. Mudra did not accurately assess the state of their son. In allowing him to continue treatment, Mudra indirectly and inadvertently caused his death. According to the parents, this should be subject to a law suit. According to the NIMH (2007) ethical principles, there is a course of action that the parents can follow to investigate Mr. Mudra's actions. According to the Code, all complaints are investigated by the Ethics Committee. The procedure involves putting the complaint in writing and submitting it to the Council. Mr. Mudra is then informed of the complaint in writing. Mr. Mudra is then required to explain his side of the matter, and to submit any documentation in support of his position. If it is found that Mr. Mudra operated within the Ethical Code at all times, the complaint can be pursued through Civil Action.

In terms of non-maleficence, Mr. Mudra could have sought help for his problems with Daniel. Once he realized that the boy was no longer in a position to make sound decisions regarding his condition or its treatment, he could have approached the Secretary of the Institute (NIMH, 2007), who would then refer him to an appropriate person to help him with the case.

It can then be argued that Mr. Mudra acted within the principle of beneficence during the first four months of treatment, but that a different outcome might very well have resulted had this principle taken precedence over respect of autonomy after this time. Maleficence is very closely related to beneficence, and it might be argued, similarly, that Mr. Mudra did not act according to this principle when he ignored the warning signs of Daniel's condition.

The best course of action would therefore have been a focus on beneficence/non-maleficence rather than upon respect for autonomy. Daniel's age is also an important factor. Concomitantly with his condition, Daniel's immaturity and a desire to "prove" his independence to his parents, could have contributed to his death. When treating such young persons, it is perhaps advisable to place emphasis upon non-maleficence rather than respect for autonomy. In terms of these two principles, it would be acceptable for the parents to complain.

In terms of scope, the final principle, justice, is not as applicable to Daniel's case itself as it is to his parents. The parents feel aggrieved by the practitioner's lack of in-depth knowledge and action regarding Daniel's condition. They are seeking justice for themselves, but it is too late for such justice to extend to their son. While Daniel was alive, there was little dispute regarding this principle, as all involved were in consent to respect Daniel's autonomy. This principle is therefore not as applicable as the others where Daniel himself is concerned.

The utilitarianism framework requires the most happiness for the most amount of people involved. Although Daniel's parents did not approve of his treatment later during the six-month cycle at the end of his life, they allowed him to continue as he insisted that doing so made him happy. Clearly this was not the case, and the outcome is that all remaining parties are unhappy.

The utilitarian approach would have required that changes be made from the fifth month of Daniel's treatment. Although Daniel would not have been happy about terminating his treatment, his relative misery is outweighed by the ultimate joy of everyone to know that he was still alive.

The deontological framework requires an almost slavish obedience to a set of rules. In this case, the Ethical Code of the Institute of Medical Herbalists were followed. The medical practitioner upheld the respect for autonomy, and remained silent about any warning signs that might have appeared. The respect for autonomy and the view of Daniel as a grownup were maintained. This was done despite the fact that, in many ways, Daniel was not able to make his own decisions. The result was disaster. Deontology therefore had disastrous consequences for Daniel, but could be beneficial for the parents. In the NIMH ethical codes, specific rules are prescribed for cases against personnel. The parents can used either this or formal legal services to determine if this was indeed a case of wrongful and preventable death. While utilitarianism is no longer possible, as Daniel's death has already impacted his family, deontology can at least be used to create some form of satisfaction.

In terms of the legal framework, there are several services that can be used to enforce a relatively satisfactory outcome for Daniel's parents. On the other hand, the existing laws relating to complementary medicine and healing are inadequate to handle the many difficult ethical issues people face today. Complementary Medicine and the Law by Julie Stone and Joan Matthews for example calls for greater regulation where complementary medicine is concerned. The herbalist's charter for example dates back as far as 1542. Surely times have changed since then, as women who practice medicine are no longer burned as witches.