ETHICS AND LAW IN

SURGICAL PRACTICE
DR. CHANDRAMOHAN
ASSISTANT PROFESSOR
DEPARTMENT OF GENERAL SURGERY
• INTRODUCTION
• RESPECT FOR AUTONOMY
• DISCLOSURE PRIOR TO CONSENT
• DUTY OF CANDOUR
• PRACTICAL APPLICATIONS OF LAW IN SURGICAL PRACTICE
• INCAPACITY
• DOCTRINE OF DOUBLE EFFECT
• CONFIDENTIALITY
INTRODUCTION
• Surgery, ethics and law go hand in hand
• A criminal intentionally inflicts harm, whereas surgeon intention is
limited to treatment of illness
• Any harm that ensues is either unintentional or is necessary to
facilitate treatment
RESPECT FOR AUTONOMY
• Surgeons have duty of care towards patients that goes beyond
protecting life and health
• Surgeons additional duty is to respect autonomy of patients and their
ability to make choices about their treatments
• Such respect is important for surgeons because without it , trust
between patient and surgeon may be compromised
• Patients have right to exercise choice over their surgical care
• The surgeon, therefore, accepts the strict duty to respect the patient’s
choice, regardless of personal preferences
• patients have a right to make choices about proposed surgical
treatment, it then follows that they should be allowed to refuse
treatments that they do not want, even when surgeons think that they
are wrong
DISCLOSURE PRIOR TO
CONSENT
• In surgical practice, respect for autonomy translates into the clinical
duty to obtain informed consent before the commencement of
treatment
• To establish valid consent to treatment, patients need to be given
appropriate and accurate information
• In England and Wales, the Department of Health’s (DH) Reference
Guide to Consent for Examination or Treatment (second edition)
should be consulted, together with the General Medical Council’s
(GMC) most recent guidance Decision Making and Consent (GMC
2020).
• Information disclosed during a formal and tangible discussion, must include:

 The condition and the reasons why it warrants surgery;

 The type of surgery proposed and how it might correct the condition;

 The anticipated prognosis and expected side efects of the proposed surgery;

 The unexpected hazards of the proposed surgery;

 Any alternative and potentially successful treatments other than the proposed surgery;

 The consequences of no treatment at all.

• Good professional practice dictates that obtaining informed consent
should occur in circumstances that are designed to maximise the
chances of patients understanding what is said about their condition
and the proposed treatment, as well as giving them an opportunity to
ask questions and express anxieties.
• written material in the patient’s preferred language should be provided
to supplement verbal communication, together with diagrams where
appropriate
• patients should be given time and help to come to their own decision
• the person obtaining the consent should ideally be the surgeon who
will carry out the treatment
• Good communication skills go hand in hand with properly obtaining
informed consent for surgery
• Attention must be paid to:
whether or not the patient has understood what has been stated;
avoiding overly technical language in descriptions and explanations;
the provision of translators for patients whose frst language is not
English;
asking patients if they have further questions.

• Surgeons have a legal as well as a moral obligation to obtain consent for

treatment based on appropriate disclosure.
• Failure to do so could result in civil proceedings, assuming the absence
of criminal intent
DUTY OF CANDOUR
• Equal consideration should be given to disclosure of information that
was generated by the intervention, particularly where ‘something went
wrong’ that caused (or had the potential to cause) harm or distress

• Duty to disclose these matters is described as the duty of candour.

• Since all of these misadventures are plainly caught by the GMC’s

threshold of ‘something going wrong’, they would need to be reported
to the patient by the candid surgeon if they crystallise during surgery
PRACTICAL APPLICATIONS OF
LAW IN SURGICAL PRACTICE

• For consent to be valid, adult patients must:

have capacity to give it – be able to understand, remember and
deliberate over the information disclosed to them about treatment
choices, and to communicate those choices
not be coerced into decisions that reflect the preferences of others
rather than themselves;
have been given sufficient information for these choices to be based
on an accurate understanding of reasons for and against proceeding
with specific treatments
• Some patients will not be able to give consent because of temporary
incapacity. This may result from their presenting illness or intoxication
• The doctrine of medical necessity enables the surgeon, in an
emergency, to save life and prevent permanent disability, operating
without consent
• However, if the patient has made a legally valid advance decision
refusing treatment of the specifc kind required, their decision must be
honoured, providing it is applicable to the current clinical situation
• Wherever possible, surgery on patients who are temporarily
incapacitated should be postponed until their capacity is restored and
they are able to give informed consent or refusal for themselves
INCAPACITY
• Absence of capacity in adults does not vitiate the requirement, where
possible, to take into account the patient’s sentiments during clinical
decision making
• The associated Code of Practice guides the surgeon in matters of
capacity and disclosure, and in dealing with those who have taken steps
to infuence their treatment, anticipating the time that they will have lost
their capacity
• It is not possible for relatives of incapacitated adult patients to sign
consent forms for surgery on their behalf unless the relative or friend
has, very unusually, been appointed as a deputy by the Court of
Protection
INCAPACITY IN AN EMERGENCY
• Doctrine of necessity:- If an adult lacks capacity, and you are treating
in their best interests, the Act authorizes necessary and proportionate
steps to save life and to prevent serious and permanent injury
• Presently incapacitated patient may yet regain his or her capacity, so if
an intervention can safely be deferred to await cognitive recovery it
should be, provided that deferral is in your patient’s best interests.
• those who lack capacity to make decisions relating to their treatment,
clinicians have become accustomed to acting in the patient’s best
interests
• The general principle standing behind ‘best interests’ the
incapacitated patient’s welfare must be viewed in its widest
terms, not simply in the sense of medical but also social and
psychological interests
DOCTRINE OF DOUBLE EFFECT
• Surgeons could find themselves involved in the palliative care of
patients whose pain is increasingly difficult to control.
• There may come a point in the management of such pain when
effective palliation is possible only at the risk of shortening a patient’s
life because of the respiratory effects of the palliative drugs.
• In such circumstances, surgeons can, with legal justification,
administer a dose that might be dangerous.
• Such action refers to its ‘double effect’: that both the relief of pain and
death might follow from such an action.
• Intentional killing (active euthanasia) is rejected as criminal
malpractice throughout most of the world

• A foreseeably lethal analgesic dose is thus regarded as lawful only

when it is solely motivated by palliative intent, and this motivation
has been documented
CONFIDENTIALITY
• Respect for autonomy does not entail only the right of capacitous
patients to consent to treatment.
• Their autonomous right extends to control over their confdential
information, and surgeons must respect their patients’ privacy, not
communicating information revealed in the course of treatment to
anyone else without consent.
• surgeons must not discuss clinical matters with relatives, friends,
employers and other state actors unless the patient explicitly agrees
• Breaches of confidentiality are not only abuses of human dignity; they
undermine the trust between surgeon and patient on which successful
surgery and the professional reputations of surgeons

• Patients cannot expect strict adherence to the principle of

confidentiality if it poses a serious threat to the health and safety of
others.

• There will be some circumstances in which confidentiality either must

or may be breached in the public interest.
• For example, it must be breached as a result of court orders or in
relation to the requirements of public health legislation.
• It is not uncommon to receive a request from the police for patient
data.
• doctors should consider disclosure if, among other considerations, the
alleged offence is grave and the prevention or detection of crime
would be prejudiced or delayed but for prompt disclosure
• Clinicians must disclose to the police any information identifying a
driver alleged of committing a traffic offence; and even in the absence
of a police request, their suspicions of a person’s involvement in
terrorist activities
• doctors must disclose to the police the admission of a person wounded
by knife or gun, so that at least the constabulary is made aware of an
armed assailant in the neighborhood
RESEARCH
• As part of their duty to protect life and health to an acceptable
professional standard, surgeons have a subsidiary responsibility to
strive to improve operative techniques through research to assure
themselves and their patients that the care proposed is the best that is
currently possible
• Surgeons accept that their research must be externally regulated to
ensure that patients give their informed consent, that any known risks
to patients are far outweighed by the potential benefits and that other
forms of protection for the patient are in place in case they are
unexpectedly harmed
• The administration of such regulation is through research ethics
committees, and surgeons should not participate in research that has
not been approved by such bodies.

• If a proposed innovation passes the criteria for research, it should be

approved by a research ethics committee.

• Such surgical research should also be subject to a clinical trial

designed to ensure that findings about outcomes are systematically
compared with the best available treatment and that favourable results
are not the result of arbitrary factors
STANDARDS OF EXCELLENCE
• To optimise success in protecting life and health to an acceptable
standard, surgeons must only offer specialized treatment in which they
have been properly trained
• While training, surgery should be practiced only under appropriate
supervision by someone who has appropriate levels of skill
• Surgical teams and the institutions in which they function should have
clear protocols for exposing unacceptable professional performance
and helping colleagues to understand the danger to which they may
expose patients
• If necessary, offending surgeons must be stopped from practising until
they can undergo further appropriate training and counselling.

• Surgeons have combined duties to their patients: to protect life and

health and to respect autonomy, both to an acceptable professional
standard

• Specific duties of surgeons are shown to follow from these: reasonable

practice concerning informed consent; confidentiality; decisions not to
provide, or to omit, life-sustaining care; surgical research; and the
maintenance of good professional standards
THANK YOU