Would A Doctor Be Found Guilty Of Infamous Conduct, Where A Patient Refuses Medical Treatment Based On Constitutional Right To Religion And Private Life? By Kingsley Izimah, Esq

Introduction:

A code of ethics, no doubt, sets a standard of professional
conduct. An infraction of the code may amount to professional
misconduct, but not every infraction amounts to infamous conduct in
the sense in which that term has been used in Allinson v. General
Council of Medical Education and Regulation (1894) 1 QB 750.

In as much as professional ethics require doctors not to
infringe or violate the constitutional rights and religious beliefs
of their patients, what then happens in situations where the only
solution to save a patient’s life lies in the administration of
medical care that violate the fundamental rights and contravene the
religious tenets of the patient?

This article is necessitated by the conflict between
constitutional rights, religious belief and medical practice; since
it is a well known fact that constitutional rights and religious
beliefs impede medical treatment of some patients and as a result
pose serious health problems in the lives of many and in most cases
lead to their “preventable” death, it has become imperative to
espouse on its legal implications based on medical negligence and
infamous conduct of doctors as reported in the Supreme Court case
of M.D.P.D.T v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 221 SC.

What amounts to professional negligence and infamous
conduct in medical practice?

A registered practitioner who fails to exercise the skill or act
with the degree of care expected of his experience and status in
the process of attending to a patient is liable for professional
negligence. The following among others constitute professional
negligence:

1. Failure to attend promptly to a patient requiring urgent
   attention when the practitioner was in a position to do so.
2. Manifestation of incompetence in the assessment of a
   patient.
3. Making an incorrect diagnosis particularly when the clinical
   features were so glaring that no reasonable skilful practitioner
   could have failed to notice them.
4. Failure to advise, or proffering wrong advice to, a patient on
   the risk involved in a particular operation or course of treatment,
   especially if such an operation or course of treatment is likely to
   result in serious side effects like deformity or loss of
   organ.
5. Failure to obtain the consent of the patient (informed or
   otherwise) before proceeding on any surgical procedure or course of
   treatment, when such consent was necessary.
6. Making a mistake in treatment e.g. amputation of the wrong
   limb, inadvertent termination of a pregnancy, prescribing the wrong
   drug in error for a correctly diagnosed patient.
7. Failure to refer or transfer a patient in good time when such a
   referral or transfer was necessary.
8. Failure to do anything that ought reasonably to have been done
   under any circumstance for the good of the patient.
9. Failure to see a patient as often as his medical condition
   warrants or to make proper notes of the practitioner’s observations
   and prescribed treatment during such visits or to communicate with
   the patient or his relation as may be necessary with regards to any
   developments, progress or prognosis in the patient’s condition. See
   the cases of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173, Adebayo
   v. Chairman, M.D.P.I.P & Ors (2018) LPELR-CA/L/66/2008 and
   Akintade v. Chairman, M.D.P.D.T. (2005) 9 NWLR (Pt.930) 338 at
   357.

What should a doctor do if a patient refuses
treatment?

Under normal circumstances, no medical doctor can forcibly
proceed to apply treatment to a patient of full and sane faculty
without the patient’s consent, particularly if that treatment is of
a radical nature such as surgery or blood transfusion. So the
doctor must ensure that there is a valid consent and that he does
nothing that will amount to a trespass to the patient.

Secondly, the doctor must exercise a duty of care to advise and
inform the patient of the risks involved in the contemplated
treatment and the consequences of his refusal.

He could terminate the contract or continue to give the patient
refuge in his hospital and withdraw any form of treatment and do
the best he could to postpone of ameliorate the consequences of the
patient’s choice. To a large extent the doctor should be the judge
of the choice that may be better in the circumstances and such
choices becomes a question of persona attitude rather than one of
professional ethics, since ethical practice seems to recognize that
the dying are  more often in need of comfort than of
treatment. In all, the patient’s consent to the form of medical
treatment is paramount and overrides the doctor’s decision. See In
Re Osborne (1972, Dist Col App) 294 A2d 372.

Thus, a charge of infamous conduct must be of a serious
infraction of acceptable standard of behaviours or ethics of the
profession. It connotes conduct so disreputable and morally
reprehensible as to bring the profession into disrepute if cordoned
or left unpenalized.

Where a tribunal alleges that a serious breach by a practitioner
of a duty imposed by the rules of professional ethics amounts to
serious misconduct or infamous conduct, it must be clearly shown
that such duty exists under the rules in clear language. See the
cases of Calhaem v. General Medical Council (2007) EWHC 2606,
Krippendorf v. General Medical Council (2001) 1 WLR 1054.

Factors determining infamous conduct:

The proper approach in determining whether an act amounts to
infamous conduct is:

(a). First, to ask: What facts have been alleged,

(b). Next step is to ascertain whether the facts have been
proved;

(c). The next step is to determine whether the facts proved
amounts to infamous conduct.

See the case of Ex-Parte Meehan, Medical Practitioner Act (1965)
NSWR 30, Rita Pal v. GMC (2009) EWHC 1061, A County Council v. W
(Disclosed) (1997) 1 FLR 574, Marten v. Royal College of Veterinary
Surgeons Disciplinary Committee (19660 1 QB 1, Meadow v. GMC (2007)
QB 462, Roylance v. GMC (No. 2) (2000) 1 A.C. 311 at 322.

Right of a patient to refuse medical treatment based on
constitutional grounds:

A patient’s constitutional right to object to medical treatment
or particularly, to blood transfusion on religious grounds is
founded on fundamental rights protected by the 1999 Constitution as
follows:

(a). Right to private and family life – section 37,

(b). Right to freedom of thought, conscience and religion –
section 38.

The constitutional right of privacy includes the right of a
competent, mature adult to refuse treatment that may prolong one’s
life even though that refusal may seem unwise, foolish, or
ridiculous to others. See the case of In Re-Yetter (1973) 62 Pa. D
&C2d 619.

Factors to consider where a patient objects to medical
treatment involve a balancing of several interests,
namely:

(a). The constitutionally protected right of the individual,

(b). State interest in public health,

(c). Safety and welfare of the society; and

(d). The interest of the medical profession in preserving the
integrity of medical ethics and thereby, its own collective
reputation.

See the case of Sideway v. Board of Governors Bethlehem Royal
Hospital (1985) 1 All E.R at 645 where Lord Scarman stated:

“…the courts should not allow medical opinion of what is
best for the patient to over-ride the patient’s right to decide for
himself whether he will submit to the treatment offered
him”.

And Lord Templeman at page 666 in support also stated:

“The patient is free to decide whether or not to submit to
treatment recommended by the doctor….if the doctor making a
balanced judgment advises the patient to submit to the operation,
the patient is entitled to reject the advise for reasons which are
rational, irrational or for no reason”.

The above cited case is also reported in Sideway v. Board of
Governors of Bethlehem Royal Hospital (1985) 1 A.C. 871.

Conclusion:

The sum total of the rights of privacy and of freedom of
thought, conscience or religion which an individual has, put in a
nutshell, is that an individual should be left alone to choose a
course for his life, unless a clear and compelling overriding state
interest justifies the contrary.

Since the patient’s relationship with a doctor is based on
consensus, it follows that the choice of an adult patient with a
sound mind to refuse informed consent to medical treatment, barring
state intervention through judicial process, leaves the doctor
helpless to impose a treatment on the patient and cannot be held
liable for whatever happens to the patient afterwards.  See
the case of Superintendent of Belckerton State School v. Sackewicz
93 ALR 3d 75.

For further details on this article, please contact:

 Kingsley Izimah,
Esq.,(+234) 806-809-5282 ,[email protected]^[1]

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