"In the absence of patient's
rights, the health care setting can become a jungle" - Prof. George J
Annas
Doctors have always worked for the welfare of
their patients, and patients trust doctors to work towards their best interests
at all times. The Hippocratic injunction “primum
non nocere –first (or above all), do no harm” is the prevailing ethos of
the practice of medicine. Doctors are there for the benefit of their patients
and they must do them good to the best of their abilities and do nothing which they
know will cause them harm. This forms the basis for the patient’s willingness
to let doctors get near things she values and even harm them; the heart is
trustingly placed in the cardiac surgeon’s hands, the decision on whether a
loved one is dead or alive is left to the doctors, or a pill with dangerous
side-effects is swallowed without a second thought. In these instances, the
doctor is seen as a friend who takes care of you, with good will, fairness and
integrity. And because doctors belong to a profession that is regulated and will
therefore play by the rules, patients are willing to bare themselves naked,
both physically and emotionally.
Based on this trust, and the underlying assumption that the “doctor
knows best”, patients for the most part, are willing to submit to the vagaries
of uncomfortable and painful procedures and harmful medications. And up until a
few decades ago, medicine was unquestionably paternalistic with the doctor
acting and deciding for the patient’s benefit, but without the specific consent
of the patient being treated. Patients are seen as ‘cases’ that was done
something to, rather than something with. Few patients questioned the
authority of the doctor, while automatically presuming that doctors will work
for their benefit. To trust was to have blind faith in the competence and the
good will of the doctor. Furthermore, with the patient being not in a position
of having medical knowledge, there was little alternative for the patients but
to trust the doctor. Trust is required where there is ignorance.
The potential for medicine to benefit patients
is, however, no greater than the potential to harm patients, sometimes with
disastrous consequences such as death or lifelong disability. In the face of the
possibility for such outcomes, “Trust me, I am a doctor” is no longer
justifiable. And with the easy access to medical information, medical knowledge
is no more the sole preserve of the medical profession, and informed patients
are in a position to reduce that knowledge gap. The ignorance that necessitated
trust (faith) in the doctors is lesser. This is not to say that patients need
not trust their doctors any more, but that this trust should be based more on
confidence than on faith. The ultimate aim of medicine is to do what is good
for the patient, and patients need to be able to trust their doctors to do what
is good for them, not out of good will, but because it is what is expected of
them. Such trust is justified only when patients are empowered through the
awareness and protection of their rights.
One fundamental right is the right for patient
autonomy – patients must be respected as independent moral agents with the
right to make decisions on all aspects of their care, based on the information
that is provided to them. Doctors are now encouraged to view the
decision-making process as a partnership, while embracing a more equal sharing
of the medical knowledge. The patient has the right to be informed of the
nature of his/her condition, the treatment options, and any complications that
may arise as a result of treatment procedures. Based on this information, it is
the patient who has to decide and grant the doctor the authority to treat him
or her. This is the basis for the process of obtaining consent. The
Constitution ensures that each person has the right to life and security of the
person and touching a patient without consent is unlawful and violates his or
her bodily integrity and amounts to battery, and can also result in a negligent
action. The right to patient autonomy is strong enough to entitle patients to
refuse treatment, even if the refusal may result in his or her death.
One other fundamental right is that of privacy and
confidentiality. This is one set of rights that are ensured even in our
Constitution. Article 24 states that “everyone has the right to respect for his
private and family life, his home and his private communications”. Patients have the right to expect that private
information about them disclosed to the doctor will be held in confidence. Confidentiality is central to the trust
between doctors and patients because where this right is not protected, patients
will be reluctant to seek care in certain circumstances or fail to disclose key
information that may have direct impact on their care.
The right to a good standard of healthcare is another right that
is derived from our Constitution. It states that “a good standard of health
care, physical and mental” is necessary for the realization of all other rights
pursuant to the Constitution. The Constitution further states that citizens
must seek to achieve a “good standard
of health care”. Seeking this right therefore becomes an constitutional obligation
on the patient’s part and the state must ensure that citizens have access to
quality healthcare. In addition to these rights that can be directly derived
from our Constitution, patients have the right to be treated with dignity and respect,
the right to complain about the care provided, and the right to redress when
harm arises during their care.
One question that always follows from any
discussion on patient rights is on the rights of health care providers. The
question may seem relevant; but what list of rights can be produced? How would
such a list look like? Doctors can and
will continue to enjoy the unique power that is afforded to them through their
knowledge and skill in medicine. And doctors will continue to demand
exceptional amounts of respect, authority, power and income. There will always
remain a natural inequality in the doctor patient relationship. It is precisely
because of this inequality that the rights language needs to be used, even though
patients cannot be now expected to accept with resignation whatever doctors say
or do to them. But society still trusts them and has granted them professional
autonomy by allowing self-regulation. It is up to the medical profession to
determine the standards of the profession, to ensure competency of their
doctors and to discipline doctors when these standards are not met.
Thus, a contract is made between the public
and the medical profession for mutual benefit, where the patient is provided a
satisfactory treatment in exchange for very concrete and material professional
gain from the privileges granted by the society. Doctors and providers
therefore have duties and responsibilities rather than specific rights. And if
they are to maintain the trust that allows them these special privileges, they
have to act in a trustworthy manner. When Hippocrates formulated his infamous
oath, the traditional healers could refer to it to know how to act in a way
their patients would trust them. It was this that transformed the traditional
healers into professionals. Hippocrates recognized the potential for doctors to
harm and exploit their patients when he penned the oath that has governed the
relationship between the doctor and the patient for millennia. It was
acknowledged that doctors were in a position to exploit their patients and
prescribes the doctor to restrain himself; prescribe only for the benefit
instead of harm; not to disclose the patient’s private details obtained during
the consultations; act within one’s competencies; enter homes only for the good
of the patients, and to keep away from all intentional ill-doing and all
seduction, especially from the pleasures of love with women or with men. The clinical encounter was one that tempted
the doctor to “manipulate, control, or otherwise take advantage of the
ineluctably vulnerable person.”
It is thus, the duty and responsibility of healthcare
providers and the state to ensure that the rights of patients are protected and
respected. Patients come to their doctor in a state of anxiety and
vulnerability, with the outcome dependent on the nature of care provided. This
vulnerability and the potential for harm and abuse it permits require that the
patient be kept at the center of care. Treating a patients right becomes
treatment that protects the patient’s rights.
