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To provide you with the skills to identify a legal issue, including the possible outcomes and consider why an ethical conflict arises

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Legal, Ethical Issues

Legal, Ethical Issues

Adam and Eve are long-time married couples having a daughter known as Lilith. Eve suffers from chronic gastro-oesophageal reflux, recurrent urinary tract infections, and diabetes. To help manage her unstable diabetes, she is visited three times each week by the community nurse, RN Mary. Over the past few years, Eve has undertaken several cosmetic surgical procedures, including liposuction a facelift and rhinoplasty. Eve has always had the same surgeon, Dr, Abel, perform these procedures and has been very happy with the result on each occasion. During her routine visit, RN Mary notices that Eve appears pale, lethargic and slightly confused. Eve cannot recall Mary’s name or the reason for her visit. When observing Eve, Mary notes that Eve has elevated temperature, before assisting her to administer her regular dose of insulin. RN Mary suggests before leaving that Eve needs to see her usual GP and discusses the observed issues with Adam.

However, the scheduled Eve’s appointment was of DR. Abel and not her usual GP. Eve desires to have further cosmetic surgery and had booked an appointment to discuss the possibility of an abdominoplasty. Adam raises his concern regarding Eve’s forgetfulness and the elevated temperature to Dr. Abel. Dr. Abel assures Adam that Eve’s current symptoms are probably due to another tract infection and prescribes her a course of antibiotics. He then proceeds to arrange Eve’s admission to hospital for abdominoplasty. On the abdominoplasty’s day, the ward RN realizes that consent form in the medical record has not been signed. Noting that Eve is sleeping, Adam is asked to sign the form filled in by Dr. Abel where he accepts to sign it. Unfortunately at the end, Eve developed post-operative infection sepsis. Despite optimum care, her condition rapidly deteriorated and passed away. Adam and Eve become devastated. They believe that, given Eve’s confusion and possible urinary tract infection, Eve should not have been operated on and wish to sue Dr. Abel.

Legal Issues

The legal issue in this scenario relates to the capacity of an adult to consent as the Mental Capacity Act provides (Graham, Cowley & Cowley, 2015) In general, third-party adults are not allowed to offer consent for another adult, unless that individual has been considered as lacking capacity. In addition to this, the authority must have been bestowed by enduring attorney’s power. Competence, capacity and legally are exchangeable terms. The common law always assumes adults as competent, unless proof is made that they do not have competence (Snow & Fleming, 2014). The trial at common law for capability is handy. That means if they possess the capacity to make the resolution instead of basing it on reasonableness or criteria. In general, the law demands that the patient be capable of understanding and retaining the information, believing the information, evaluating the information and reaching a resolution, and communicating her or his decision.

Grounded on the approach of common law, four jurisdictions within Australia (Victoria, Queensland, South Wales and Tasmania) have ratified legislation that espouses a competence’s functional test. In Victoria, s 36(2) of the Guardianship and Administration Act, 1986 states: an individual is unable
to offer consent to the performing of a special process or dental or mental treatment when the individual is in two conditions (Snow & Fleming, 2014). First, if an individual is not capable of understanding the effect and general nature of the suggested treatment or procedure. Second, if the individual is not capable of demonstrating whether or not she/he does not consent or consents to execution of the suggested process or treatment. Thus, in this case, Adam and Lilith wish to sue Dr Abel on the premise that, first, Eve is unable to indicate whether she does not consent or consents to the execution of abdominoplasty.

Second, Eve is not capable of comprehending the effect and general nature of the proposed angioplasty. As such, some elements exist for proving that that the action of suing Dr Abel is successful. First, during RN Mary’s routine visit Eve appeared pale, lethargic and slightly confused. Eve could not even recall Mary’s name or the reason for her visit. Second, Eve possessed a slightly elevated temperature. Third, Adam had also noticed the forgetfulness with Eve. Fourth, Adam raised his concerns regarding Eve’s forgetfulness to Dr Abel who prescribed her a course of antibiotics. The other element is that, even during the planned admission’s day, Eve was still little confused and that was commented to Dr. Abel who ignored their plea. Additionally, before Dr. Abel leaves the room, Eve asked Lilith and Adam why she was in the hospital.

The other element is that the ward RN after noticing the medical record had not been signed and Eve was sound asleep, Adam was asked to sign it on Eve’s behalf. The other element is that Eve suffered from recurrent urinary tract infections, chronic gastro-oesophageal reflux, and diabetes. The standard of proof that would be required for the action to be successful is a neuropsychological assessment by a neuropsychologist (Pathy & Finucane, 2012). Dr. Abel could defend himself under the following conditions. First, he could defend himself that Eve consented voluntarily and without duress, coercion, fraud, manipulation, and misrepresentation. Second, he could defend himself that Eve possesses the capability of consenting since he asked her whether to continue with the treatment (Tingle & Cribb, 2014).

Third, he could have defended himself that consent was precise, and covered the treatment or procedure executed having sufficient information offered, especially within areas of pertinence to Eve. The other defence he could offer is that enough time and discussion chance was provided as in Chester v Afshar, 2004 (McLaen, 2013). The procedure for obtaining consent in the circumstances where an adult cannot provide it for themselves is that; the doctor should discuss with a guardian/son/daughter or any close person to the patient and obtain a written consent. The consent should be grounded on the treatment’s understanding, its execution, and associated risks. An individual lacks capacity in regards to a matter when at that material moment he/she is incapable of making his/her personal decision concerning the matter due to a destruction of, or, a disorder within the brains or mind’s functioning.

In this scenario, Abel could defend himself that Adam and Lilith established Eve’s capacity on an element of her behaviour (forgetfulness) thus, making the unfounded presumptions concerning capacity. If Adam
and Lilith succeed in their action, Abel might be required to pay them a certain amount of money or be sent to prison for a certain time-length or face both judgments.

Ethical Issues

Referring to the Universal Declaration on Bioethics and Human Rights, three principles are relevant to this scenario. The first principle is sovereignty and individual responsibility (Have, 2008). As such, the independence of individuals to make resolutions, whilst taking obligation for those resolutions and giving respect to other’s autonomy is to be given respect. Since Eve was incapable of making sound decisions; exceptional measures required being taken to guard her interests and rights. The other principle is consent. As such, whichever therapeutic, diagnostic and preventive medical intervention is mere to be performed with the former, free and well-versed assent of the concerned person, grounded on sufficient information. The consent was not expressive and Eve was supposed to withdraw it at whichever moment, and for whichever reason without prejudice or disadvantage.

The other principle is persons not having the capability to consent (Have, 2008). According to domestic law, special safeguard is to be offered to persons not having the ability consent in the following description. The authorization for medical practice and research ought to be attained according to person’s concerned best interests and according to domestic law. In this case, Eve was not engaged to the maximum possible magnitude of the process of decision-making, together with that of withdrawing assent. Unfortunately, that happened despite Adam having warned Dr. Abel of Eve’s present health condition

A conflict that might arise is when Dr. Abel fully respects the decision made by Eve. As such, Eve agrees the abdominopalsty be carried out as planned though she does not know what is happening in her world. Dr. Abel takes his expert responsibility of performing the abdominoplasty to Eve. The conflict arises since Eve’s brains are not functioning properly whereas, Dr. Abel el ignores or misunderstands that, withdrawal of the consent is vital at the moment. Eve is looking for recovery while Dr Abel is offering the best-perceived treatment according to him. This conflict can be addressed by involving all involved people in an inclusive effective communication before starting providing medication. As such, Dr. Abel should be an attentive listener since he is supposed to consider what Adam is saying. Through considering Adam’s pleas, Dr. Abel would most likely detect Eve’s forgetfulness and postpone the abdominoplasty therapy.


For the previous years, Eve had been undertaking several cosmetic surgical procedures, including liposuction a facelift and rhinoplasty. During, RN Mary normal medical visit to Eve she notices that Eve appears pale, lethargic and slightly confused. RN Mary suggests before leaving that Eve needs to see her usual GP and discusses the observed issues with Adam. However, after visiting Dr. Abel who used to undertake the cosmetic surgical procedures to Eve, Dr. Abel suggested the planned process continue. The three principles on universal declaration on bioethics and human rights take in the ethics that should be adhered to by the medical practitioners to the patients. Every party involved in the medical arena requires following the principles. The legal issue in this scenario relates to the capacity of an adult to assent during medication. As such, when a medical practitioner performs an action that causes harm to a patient, he/she possesses multiple chances of facing the law.


Graham, M., Cowley, J., & Cowley, J. (2015). A Practical Guide to the Mental Capacity Act 2005: Putting the Principles of the Act into Practice. London; Philadelphia, PA: Jessica Kingsley Publishers.

Have, H. T. (2008). The Universal Declaration on Bioethics and Human Rights and the UNESCO Work in Building Capacity for Ethical Review. Viewed 25 Apr. 16, from http://www.unicri.it/special_topics/clinical_research/round_table/presentations/1_HENK_TEN_HAVE.pdf

Lyons, D. (2013). The Confused Patient in the Acute Hospital: Legal and Ethical Challenges for Clinicians in Scotland. The Journal of Royal College Physicians Edinburg. 43(1), 61-67.

McLean, S. A. M. (2013). First Do No Harm: Law, Ethics and Healthcare. New York: Ashgate Publishing, Ltd.

Menendez, & Battard, J. (2013). Informed Consent: Essential Legal and Ethical Principles for Nurses. JONA’s Healthcare Law, Ethics and Regulation. 15(4), 140-144.

Pathy, M. S. J. & Finucane, P. (2012). Geriatric Medicine: Problems and Practice. London: Springer London.

Snow, H. A & Fleming, B. R. (2014). Consent, Capacity and the Right to Say No. The Medical Journal of Australia, 201(8), 486-488.

Tingle, J & Cribb, A. (2014). Nursing Law and Ethics. Chichester, West Sussex, UK: John Wiley & Sons Ltd.