Competence – an individual’s ability to perform a particular task; competence to make medical
decisions requires the rational, mentally mature decision-maker to be free from any internal or
external constraints that might impede his ability to understand the medical situation, prognosis
and treatment options and risks of treatment. To be able to make a decision that reflects his
long term, settled values.
Substitute judgement – a decision made by a surrogate decision maker or HCP for a non-
competent patient based on what the patient would want if he were able to decide for himself.
Proxy directive – a legal document in which the competent patient designs a person to make
medical decisions for her when she is no longer competent to speak for herself.
Advance (instructional) directives – written statements made while the patient is competent
for use at a time when she is no longer competent stating what medical treatment would (not)
be acceptable to her.
Ethical relativism – the claim that there is no universal moral obligations binding on all people in
all places at all times that morality is created by individuals or cultures/ societies so each is
morally right and none is morally wrong.
Who decides for the patient? (Buchanan and Brock)
Minimal standard of competence:
An example of a minimal standard of competence is that the patient merely be able to express a
preference; disregards whether defects or mistakes are present in the reasoning process leading
to the choice whether the choice is in accord with the patient’s own conception of his or her
good and whether the choice would be harmful to the patient.
Outcome standard of competence:
Looks solely to the content or outcome of the decision – for example the standard that the
choice be a reasonable one or be what other reasonable or rational persons would choose. It
maximally protects patient well-being although only according to the standards’ conception of
well-being but fails adequately to respect patient self-determination.
The standard may ignore the patient’s own distinctive conception of the good and may
constitute enforcement of unjustified ideals or unjustifiably substitute another’s conception of
what is best for the patient.
A process standard of decision making competence:
Adequate standard of competence will focus not on the content of the patient’s decision but on
the process of the reasoning that leads up to that decision.
How well must the patient understand and reason to be competent?
How much can understanding be limited or reasoning be defective and still be compatible with
competence? No single standard of competence – no single answer to the questions above – can be adequate for all
1) The degree of expected harm from choices made at a given level of understanding and
reasoning can vary from none to the most serious (death/ disability)
2) The importance or value to the patient of self-determination can vary depending on the choice
When the patient’s aims and values are not known, the risk/benefit assessment will balance the
expected effects of a particular treatment option in achieving the general goals of health care in
Ethical relativism in a multicultural society – Macklin
Multiculturalism is defined as ‘a social-intellectual movement that promotes the value of
diversity as a core principle and insists that all cultural groups be treated with respect and as
To ask patients how much they wish to be involved in decision-making does show respect for
Intolerance and over-tolerance:
Intolerance of another’s religious or traditional practices that pose no threat of harm is at least,
discourteous and at worst a prejudicial attitude.
The patient self-determination act does not mandate patients to actually make an advance
directive, it requires only that health care institutions provide information to patients and give
them the opportunity to make a living will or appoint a health care agent.
What about the family – Hardwig:
To what extent can the patient’s family legitimately be asked or required to sacrifice their interests so
that the patient can have the treatment he or she wants?
There is no way to detach the lives of patients from the lives of those who are close to them.
What is best for all concerned sounds utilitarian, my position does not imply that the right
course of action results simply from a calculation of what is best for all.
Fidelity to the interests of the patient has been a cornerstone of both traditional codes and
contemporary theories of medical ethics. The two competing paradigms of medical ethics – the
benevolence model and the ‘patient autonomy’ model – are simply different ways of construing
such fidelity. Both must be rejected or radically modified.
Come patients, motivated by a deep and abiding concern for the well-being of their families, will
undoubtedly consider the interests of other family members. Hardwig’s discussion of autonomy provides a useful starting point for exploring the ways in
which incorrect thinking about autonomy can lead to mistaken conclusions about physicians’
obligations vis-à-vis family interests.
He discussed 2 conceptions of autonomy:
1) Autonomy is the patient’s freedom or right to choose the treatment he believes is best for
himself. Having identified this as the ‘accepted meaning’ of patient autonomy in biomedical
ethics, Hardwig rejects it and calls for a basic conceptual shift in which autonomy is ‘the
responsible use of freedom.’
2) To use freedom responsibly is to make choices that are consistent with one’s moral
responsibilities; autonomy is ‘diminished whenever one ignores, evades or slights one’s
Patient choices, family interests and physician obligations – Mappes and Zambaty:
When family interests in treatment decisions have been recognized, they have sometimes been
regarded merely as ‘threats’ to patient autonomy. However, it is a mistake to conceptualize family
interests as forces that necessarily compromise patient autonomy and it is a mistake to think that family
interests are systematically irrelevant in treatment decisions.
Confidentiality is the obligation of HCPs to maintain the privacy of their patients by keeping the
information patients disclose confidential.
Informed consent is voluntary consent to a treatment made by a competent patient or
surrogate/representative who is adequately informed of all relevant information pertaining to
the treatment and its alternatives.
Prima facie right is a moral right that must be honoured unless it comes into conflict with the
moral right of another; a prima facie right is limited non absolute. Privacy: human rights, public policy and law – Canadian HIV/AIDS legal network:
Why report on privacy and the confidentiality of health information?
Fear of stigma continues to surround HIV/AIDS much of the discrimination suffered by people living with
HIV/AIDS is a result of the unauthorized disclosure of their HIV status.
Important ethical and policy reasons exist for ensuring that the medical information of persons
with HIV/AIDS remains private and confidential and is not disclosed without consent.
It is in the interests of both the public and private sectors that the privacy of health information
of people living with HIV/AIDS be safeguarded to the greatest extent possible.
In the 1980 Royal Commission Report on Confidentiality of health information, justice Horace
Krever documented hundreds of cases of unauthorized access to health files maintained by
hospitals and the Ontario health insurance plan.
84% of respondents expressed concern that there are insufficient protections to endure that health
information is not disclosed without their consent.
76% of Canadians believe that their privacy is not adequately protected.
The relationship between the right to privacy, the duty of confidentiality and the rule of privilege:
Health professionals who provide services to people living with HIV/AIDS owe a duty to keep
their health information confidential.
In the legal sense, privacy is a right, the right to privacy not only requires governments to
abstain from interfering with the privacy of individuals but also imposes a duty on governments
to take measures to protect this right.
In Canada, the ethical duty of confidentiality has been recognized as a legal duty for health care
The person in possession of confidential information cannot be forced to testify in a court case
about that information nor can that person be forced to disclose written communications for
use as evidence in court.
The right to privacy is subject to reasonable limits that can be legal