Ethical Aspects of Anesthesia Care

Key Points

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Deontologic (“rules-based”) ethical theory and utilitarian (outcome-based) theory clash in clinical scenarios in which the interests of individual patients are pitted against the interests of larger populations.
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In the United States, the predominant medical ethical principle is that of respect for the patient’s autonomy, and its expression is in the informed consent of patients for medical therapy.
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Competent and autonomous individuals can make affirmative choices about their medical care and refuse any medical treatments, including lifesaving care. Competence is both functional and relative. Four elements of competent decision making are understanding, appreciation, reasoning, and evidence of a choice.
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Minor patients have varying degrees of decision-making capacity, and they may have legal rights to make certain decisions. Pediatric patients should be involved to the degree that they can be in medical decision making, particularly regarding elective therapy.
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Medical testing should follow the ethical principles of beneficence and nonmaleficence and should be based on clinically validated algorithms whenever possible. Medical tests with special social significance, such as pregnancy and human immunodeficiency virus testing, should be undertaken only with the patient’s informed consent and should not be undertaken without sound evidence that they are necessary and beneficial.
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In general, the rights of pregnant women are weighed against the rights of fetuses in a decremental fashion as the fetus approaches and surpasses viable age. Laboring women are able to give informed consent, and the validity of “Ulysses directives” at the time of labor is ethically arguable.
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Use of restraints is antithetical to promotion of autonomy, and anesthesiologists have both ethical and legal obligations to determine whether such extreme intervention is warranted. Coercing or using physical or chemical means to force competent patients to undergo treatment they are refusing is both unethical and illegal.
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Respect for patients’ autonomy requires that we disclose mistakes to release patients from misconceptions about their medical past and enhance their ability to share decision making about their medical care.
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An advance directive is a document executed by the patient before incapacity to provide the patient’s physicians with guidance in medical decision making when the patient cannot communicate for himself or herself: these directives include, but are not limited to, durable powers of attorney, living wills, transfusion decisions, do-not-attempt-resuscitation (DNAR) directives, and decisions regarding organ donation.
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Surrogate decision makers explicitly act in “substituted judgment” to provide what the patient would have wanted and are not being asked merely for their own preferences. Surrogate decision makers at best only approximate the patient’s decisions.
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Patients have moral and legal rights to refuse even life-sustaining therapy, including in the operating room. DNAR orders should not be automatically suspended for anesthesia and/or surgery, but rather require reconsideration of risks and benefits; the goals and decisions of competent patients should generally be honored.
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Terminal care requires special knowledge and experience on the part of the physician. It requires expertise in medically supportive therapy, management of problematic symptoms, knowledge about physiologic changes in the dying patient, support and counseling of patients and families, understanding and respect for the patient’s autonomy and religious and cultural practices and beliefs, the ability to work within complex healthcare teams, the ability to communicate well, and empathy.
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Several interventions have special ethical implications—fluid and nutritional management; the administration of sedatives and/or narcotics that have the potential to hasten death; the institution of deep continuous sedation; the administration of neuromuscular blocking agents; and deactivating pacemakers, ventricular assist devices, and implanted cardioverter-defibrillators.
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Physician-assisted suicide (PAS) is the provision of medication and/or prescriptions to patients at their request for the purpose of ending their life. Euthanasia is the administration of medication by someone other than the patient for the express purpose of causing death. PAS and euthanasia are legal only in specific parts of the world, but they are strongly supported by the public.
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Brain death is legally and medically defined as the point at which all cardiorespiratory function irreversibly ceases or all function of the whole brain irreversibly stops.
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In donation after cardiac death (DCD), withdrawal of life support occurs with provisions for immediate organ donation after cardiac arrest. Controversies around DCD include concerns about when cardiopulmonary death can be declared and whether medications that preserve organ function but may hasten the donor’s death can be administered.
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Research in human subjects must balance many conflicting interests such as the needs and rights of the research subject; the hypothetic interests of future patients; and the physician’s financial, professional, and personal goals. The ethical conduct of research in human subjects follows three principles: (1) respect for autonomy, and the obligation to protect subjects with limited autonomy; (2) beneficence, with obligations to minimize risks, maximize benefits, and ensure that the research design is scientifically sound; and (3) justice, the obligation to treat each person with regard to what is morally right and to ensure fair distribution of benefits and burdens.
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Advances in understanding animal cognition have led most biologists to believe that many, if not all, animals are capable of feeling pleasure, pain, anticipation, and fear, and thus they experience both enjoyment and suffering. Allowing animal suffering because of pain, fear, sickness, or poor standards of care is a moral harm that must be avoided, mitigated, and weighed heavily against the benefits it produces.
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U.S. professional organizations for physicians have consistently stated that participation in executions by physicians is unethical, and the American Board of Anesthesiologists states that participation in executions would constitute unprofessional behavior that would result in investigation and possible decertification of anesthesiologists.
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“Conscientious objection” by physician to providing legally allowable medical care that violates their personal moral values is possible, but is limited and counterbalanced by a physician’s professional obligations to put the patient’s interests first.

Medicine is a respected profession with codes of behavior and definite rules of conduct. Modern medical practitioners have tremendous power, recognized social import, and powerful financial interactions that touch nearly everyone’s lives. The American Society of Anesthesiologists (ASA) has established principles for the ethical management of patients. This chapter examines the ethical bases of the practices of medicine and the implications for anesthesiologists.

Ethical Theory

Virtue Ethics, Utilitarianism, and Duty-Driven Ethics

The classic “paternalism” of medical practice was derived from virtue-based ethics. In this view, the physician is a genuinely virtuous person with inherent qualities of competence, sincerity, confidentiality, and altruism, who naturally knows and does what is correct for the patient. The patient, uneducated about medicine, has to trust the physician to decide what is best. Western society and legal systems have changed substantially since paternalism flourished, giving way to practices based in the four “pillars” of medical ethics: respect for patient autonomy, beneficence, nonmaleficence, and justice. Many different ethical frameworks are applied in modern medicine, but two of the most prominent frameworks relevant to western medicine are utilitarian ethics and deontology.

In utilitarian ethics , actions are judged right or wrong on the balance of their good and bad consequences. A “right” action produces the most good, based on a perspective that gives equal weight to the interests of all affected parties. Utilitarian theory is compelling but falls short in defining which benefits are most important. Is it the “good” that all reasonable people want or the “good” defined by the individual patient? What if the only way to maximize good is to commit an entirely immoral act? For example, what if the only way to win a war is to systematically torture children? Outcomes of actions continue to accumulate over time—when on that continuum is it appropriate to determine that an action was right or wrong? The “good” act of saving an individual’s life today may be viewed through a completely different lens when, 20 years from now, that same individual is revealed as a mass murderer.

Utilitarian theory may be best when applied to analyzing broad-based policies, in decisions regarding rationing of resources, and when attempting to resolve conflicting ethical obligations between several equally interested parties.

The premise of Kantian-based ethics (also called deontologic—or duty-based —theory) is that features of actions other than their consequences make them right or wrong. Intention is more important than outcome. Furthermore, no person should use another exclusively as a means to an end, because each person is the end for which we should act. No person should be used to further the purposes of another person without that other person’s autonomous consent. Kantian philosophy would forbid killing one innocent person to save another innocent person, for example.

Individualism and autonomy are valued highly in Western society, and people tend to turn to Kantian philosophy when ethical questions arise that balance the authority of the physician against the goals and values of individual patients.

Some of the toughest ethical questions in medical practice occur when the rights and desires of individual patients conflict with social policies. Clashes between deontologic and utilitarian principles are common in the intensive care unit (ICU), in managed care settings, in end-of-life care, in transplant medicine, in triage during civilian mass casualty events, and in the care of poor and older patients whose medical management is funded by the government. In each of these settings, the will of the individual patient may conflict with broader principles of minimizing expense, fairly allocating scarce resources, protecting the broader interests of many patients, and determining where and how society’s healthcare dollars are best spent.

The political tradition of the United States provides a clear underpinning to individual freedom, and at the beginning of the 20th century, the concept of the autonomy of patients began to emerge.

Clinical Ethics

Informed Consent and Informed Refusal

Legal and moral imperatives for informed consent are based on the ethical principle of respect for patient autonomy. Autonomy refers to the ability to choose without controlling interferences by others and without personal limitations that prevent meaningful choices, such as inadequate information or understanding. Individuals have the right to determine what happens to them to the degree to which they are capable. In the United States, this right is rooted in constitutional guarantees of privacy and noninterference. In 1914, the case of Schloendorff v Society of New York Hospital established that it was the right of “every human being of adult years and sound mind to determine what shall happen to his own body.” In 1957, the term informed consent was first used in the case of Salgo v Trustees of Leland Stanford Hospital , which established that it is not sufficient for physicians simply to secure consent; physicians have a duty to inform patients about the risks and alternatives to treatment, in addition to the procedures themselves and their consequences.

Respect for the patient’s autonomy requires physicians to respect decisions made by competent patients, but also to promote autonomy by removing barriers to competent participation in decisions. Such obstacles range from incomplete or inaccurate information to reversible medical conditions that impair a patient’s ability to understand the information given to him or her.

Competence and Capacity

Autonomy to make medical decisions cannot exist in the absence of competence. In the United States, competence is a legal determination, and capacity describes the necessary skills to participate in medical decisions. Most often, the terms are used interchangeably.

Impairments of capacity can be temporary or permanent. Examples include some mental illnesses, dementia, immaturity, anxiety, and pain. Medication effects can variously impede competence, or improve it, depending on their effects and the context in which they are given. Older patients, patients suffering from mental impairment, and children are particularly vulnerable to having their participation in medical decisions inappropriately curtailed or denied because their capacity to participate is frequently underestimated. Hearing loss, expressive aphasia, and other neurologic impairments can create the false impression that capacity is impaired. Many minors have the ability to make medical decisions but may be mistakenly excluded from the decision-making process solely because of their age. Language barriers can present significant challenges to communication.

Capacity is both relative and task specific. Patients may be able to understand and make decisions about medical issues while being unable to manage their financial affairs, for example.

Prejudice and paternalism permeate physician behavior in the informed consent process. Challenges to a patient’s competence frequently occur because the patient and the physician have a difference of opinion or values, and the majority of referred patients are found competent. Unwarranted challenges of a patient’s capacity may, intentionally or not, serve to allow the physician to dismiss, rather than solve, a dilemma regarding a difficult patient’s wishes, since with a finding of incapacity, the physician’s paternalism cannot then be trumped by patient autonomy. In a retrospective study, Katz and associates commented that referrals for urgent or serious treatment put pressure on a consulting psychiatrist to support the medical team’s wishes for intervention by simply declaring the patient incompetent. Treatment refusal may simply reflect a patient’s prioritization of other things (e.g., dignity, privacy, independence) other than medical outcomes, and not a problem with capacity—or it might reflect manageable emotions and values that disproportionately affect a patient’s choices, but do not necessarily rule out capacity.

Doctors are mistaken about patients’ preferences regarding life-extending therapies and underestimate older patients’ desires for life-extending therapies in 30% to 40% of cases. Moreover, surveys indicate that physicians and other healthcare workers are likely to act on their personal prejudices regarding handicapped or impaired patients.

Functional capacity for decision making must be judged separately from the perceived quality of the decision itself. Patients have the right to make “bad” decisions (i.e., decisions that the physician feels are less than optimal) if they are competent and have appropriate information. Otherwise, the physician would merely prevail whenever a disagreement occurred, and patient autonomy in medical decision making would be nonexistent.

How do we recognize competence? Competence is defined functionally , and it is task specific . It cannot be defined to be absent by the mere presence of specific diagnoses or medications. Furthermore, evidence of impairment is not sufficient to prove incompetency . With such high value placed in the United States on autonomy and self-determination, incompetency is, and should be, a difficult bar to leap over, requiring that only persons with impairments “that place them at the very bottom of the performance curve” should be declared incompetent. A “sliding scale” approach to competence determinations, rather than an all-or-none approach, is endorsed by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, and generally reflects how courts deal with competency cases.

Anesthesiologists frequently ask whether valid consent can be obtained after the patient has received premedication. Claims that premedications automatically invalidate consent demonstrate a lack of understanding of the concept of competence. If it were true that benzodiazepines and narcotics, for example, automatically invalidate consent, then we would have to consider the consent of almost all chronic pain patients invalid. In one study, 37.5% of geriatric patients presented for surgery having taken self-prescribed medications and over 25% of these were analgesics and benzodiazepines. If competence were automatically invalidated by the presence of specific medications, then we would be forced to carry out drug testing on all preoperative patients before obtaining consent. While it is true that sometimes premedication can interfere with a patient’s ability to give consent, in some circumstances, patients cannot give consent without premedication. A patient who is in severe pain, for example, is unlikely to be able to focus on detailed risks and alternatives of a proposed procedure without first receiving medication. In that case, treatment of severe pain may actually improve competence during the informed consent process.

How does the anesthesiologist determine if they are dealing with a competent patient? Multiple reviews by competency consultants agree that there are several functional elements to competence: (1) Understanding - Can the patient receive and understand treatment-related information? (2) Appreciation - Does the patient have insight about the disorder and its consequences and potential treatment options? Does the patient understand that treatment could be beneficial in some way? (3) Reasoning - Is the patient able to use logic to compare the risks and benefits of treatment alternatives? And, (4) Evidence of a choice - Can the patient communicate a choice?

In respecting and promoting patient autonomy in medical decision making, the anesthesiologist has an ethical duty to treat reversible conditions that interfere with medical decision making when doing so would not delay the medical treatment so much that it becomes irrelevant. Elective surgery may have to be postponed until expert consultation for a determination of mental capacity or treatment of reversible conditions can occur. When surgery in an impaired patient is urgent, the anesthesiologist may have to rely on a surrogate decision maker or proceed with the best determination of the patient’s interests in mind. It is important to note that the mere presence of an emergency does not invalidate a competent patient’s rights to consent to or to refuse treatment. Overriding a competent patient’s wishes is unethical, even in emergency situations.

Disclosure

The informed consent process requires honest disclosure of medical information to the patient. U.S. courts generally rely on two standards of disclosure, termed the reasonable person (or objective person) standard and the subjective standard. In the reasonable person standard , the physician must disclose any information that a theoretically reasonable person would want to know, and the risks or cluster of risks to which a reasonable person in the patient’s position would attach significance in deciding whether or not to forgo the proposed therapy. This standard does not require an exhaustive recitation of facts, and it acknowledges that not all information related to the procedure is integral to making a decision about whether to undergo that procedure. The subjective standard recognizes that some patients may have special needs for specific information, and when that need is obvious or has been brought to the attention of the physician, the information must be disclosed. A concert violinist may have a specific need to know about the potential for nerve damage from an axillary block, while an opera singer may need to know that intubation may adversely affect the voice. In obtaining informed consent, the anesthesiologist should always ask the patient if there are any special concerns regarding the anesthetic, or anything he or she would want the provider to know. In general, legal and ethical standards now require that the physician (1) accurately discuss the therapy and its potential alternative—including no therapy—and (2) disclose the common risks, because they are more likely to happen, and the serious risks, because the consequences are severe.

The doctrine of therapeutic privilege is sometimes cited to avoid discussing risks, the reasoning being that discussing risks can psychologically or physically harm the patient by increasing stress. Studies of patients’ stress during the informed consent process do not support this concept. These studies show that patient stress is generally reduced after risk discussions and omission of such conversations is contrary to U.S. law. Although it is ethical to forgo or curtail risk discussions at the patient’s request, it is not ethical for the physician to decide to do so unilaterally.

The physician-patient relationship is inherently unequal because of the physician’s knowledge and authority and the patient’s dependence on the physician for care. Physicians have ethical obligations to avoid exploiting their influence for the purpose of accomplishing their own ends. Although offering a rational basis for a medical choice is acceptable, it is always unethical to coerce or manipulate competent patients into decisions by presenting real or implied threats or by omitting or misrepresenting key information. In fact, such intentional manipulations are morally equivalent to lying to the patient, and thus invalidate the concept of informed consent entirely.

Legal Implications of Informed Consent

The informed consent process does not prevent legal liability when adverse events occur. Flawed informed consent processes have been cited, however, as evidence of a lack of quality of care by the physician, and are associated with poorer litigation outcomes for the physician. The ASA closed-claims database reveals that informed consent is cited in approximately 1% of cases, and cases with inadequate informed consent documentation are associated with larger monetary awards. Studies show that the risk of a malpractice claim is directly related to the patient’s perception of his or her relationship with the physician. The informed consent process provides one of the few opportunities anesthesiologists have to establish that relationship, however brief, and the medicolegal importance of that process should not be underestimated.

Informed Refusal

The concept of informed consent is moot if the informed patient cannot refuse medical therapy, because every informed consent process would then have to end with the physician getting his or her way. Examples of informed refusals in anesthesiology include requests to withdraw or withhold life-supporting care in the ICU; do-not-attempt-resuscitation (DNAR) orders in the operating room; refusals of blood transfusions; and cases in which a patient refuses preoperative testing, such as human immunodeficiency virus (HIV) or pregnancy testing.

Informed refusal has concerns and requirements similar to those of informed consent. When patients refuse medical care or insist on what the physician believes to be suboptimal care, disclosure of the risks and benefits becomes even more important because these decisions may veer from options that are already widely accepted and for which the risks are believed to be lowest. It is easier to justify agreeing to the unusual preferences of a well-informed patient than to justify subjecting a poorly informed patient to unorthodox care.

Despite full information, patients may sometimes request or demand care that is unreasonable, either because it will adversely affect the performance of a surgical procedure or because it would be associated with unreasonably high risks. When a patient demands a technique that is inappropriate or outside of the realm of reasonable practice, the anesthesiologist is under no ethical obligation to provide that care. No physician can be compelled by a patient to practice negligently.

Special Issues in Informed Consent and Informed Refusal

The Jehovah ’ s Witness Patient

The classic example of a patient who refuses therapy in anesthesia practice is that of Jehovah’s Witnesses, many of whom believe that accepting a blood transfusion violates a Biblical injunction. The Jehovah’s Witness doctrine has been subject to change over time, with resulting inconsistencies in religious practice regarding which, if any, blood components may be acceptable. Individuals interpret religious doctrines in light of their own spiritual contexts, and not all believers hold to the same tenets with identical fervor. Church doctrines, like medical practices, evolve over time, and practices that are acceptable at one time may not be years later. Anesthesiologists and surgeons have cited individual and doctrinal inconsistencies as justification for ignoring the wishes of Jehovah’s Witness patients, but to do so is no more logical than assuming that every hypertensive patient needs or will respond well to identical treatment or that optimal treatments will not evolve over time. Moreover, any patient has the right to refuse blood transfusion therapy, regardless of whether this desire is founded in religious preference. Such refusals have become more common in patients who are not Jehovah’s Witnesses, as blood transfusion therapy has been connected to infection risk and other complications.

Because of the differing beliefs of Jehovah’s Witness patients, the anesthesiologist must have a thorough and detailed preoperative discussion of possible therapies with the patient, and the conclusions should be documented in the patient’s chart. A physician who cannot comply with a competent adult patient’s desire to forgo transfusion has an ethical obligation to find an alternative caregiver whenever possible.

The courts strongly support the rights of most adult patients to refuse blood products for themselves but have been inconsistent and have interfered in cases of some pregnant patients. Transfusion of pediatric Jehovah’s Witness patients by court order is common. However, this may become ethically and legally less acceptable as alternative bloodless therapies to maintain oxygen-carrying capacity evolve, as the Jehovah’s Witness church further defines its doctrines with regard to children, and as the capacity of children to consent to or refuse therapy is better understood.

The Pediatric Patient and Other Patients With Impaired Competence

The ethical practice of medicine weighs heavily toward adherence to the respect for autonomy of competent patients or advance directives of patients who were previously competent. Medical care of individuals who have never been autonomous relies on principles such as respect for human dignity, beneficence, avoidance of harm, and adherence to the principle of justice.

Children are examples of persons who may or may not yet be autonomous. Laws in each state define the age at which children become legally competent to make medical decisions (usually 18 years), but many younger children have the mental and emotional capacity to make medical decisions. Forcing such individuals to undergo treatments they do not want is unethical and could be illegal as well.

Decision-making capacity in children is variable. Most 2-year-old children are clearly not able to make medical decisions. However, the range of capability in children as young as 7 or 8 years old is wide. In one study, children 6 through 9 years of age who were invited to participate in influenza vaccine research asked pertinent questions about individual risks and benefits and whether their community and other children would benefit. Studies suggest that the average 12-year-old adolescent has capabilities that are required in medical decision-making, but differing influences of the brain’s well-developed reward system coupled with underdevelopment of the brain’s control systems suggest that decision-making capacity may in fact be diminished in specific contexts in this age group.

Most states recognize “emancipated minor” status, in which a court determines that a minor can legally make medical decisions for himself or herself. Legal exceptions to the age of consent are recognized in most states when treatment is believed to be in the minor’s best interest and when a requirement for parental consent would interfere with the child’s ability to receive medical help. The law recognizes that, tragically, some conditions for which a minor seeks therapy may even be the result of parental abuse and seeking parental permission for treatment may actually further endanger the minor. One quarter of pregnant teens are at risk for physical or sexual assault, and the most common perpetrator is a member of their family. Thus, minors are allowed in many states to consent for treatment for substance abuse, sexually transmitted disease, mental illness, and medical care affecting pregnancy, including abortion, without seeking parental consent. When a minor has decision-making capacity but is not “emancipated,” a judge may declare the child to be a “mature minor” with decision-making rights.

Ideally, individuals of any age should be involved in medical decisions to the degree that their capacity allows. Children ages 7 to 17 have been shown to desire comprehensive perioperative information, including details of the procedure and anesthesia, risks, and complications. A minor with capacity to make decisions should not be coerced or restrained under most circumstances. Determining whether a minor has such capacity may require formal consultation and assessment. The American Academy of Pediatrics has stated that physicians who care for children “should give serious consideration to each patient’s developing capacities for participating in decision making, including rationality and autonomy.” The term assent rather than consent is used to refer to agreement to treatment from children who do not fall into legal categories, such as age, that award adult rights. Recently, authors have suggested that informed consent rather than assent for medical research participation should be applied to children ages 12 and up.

When children dissent from medical care, persistent refusals may be ethically binding, particularly in the case of participation in research. Medical personnel should respect the wishes of a patient who withholds assent and should try to gain a better understanding of the patient’s situation or deal with his or her fears. “A patient’s reluctance or refusal to assent should also carry considerable weight when the proposed intervention is not essential to his or her welfare and/or can be deferred without substantial risk.”

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