Running Head: WHEN PHYSICIAN AND FAMILY DISAGREE

When Physician and Family Disagree

Sharanjit K. Saini
Athabasca University

WHEN PHYSICIAN AND FAMILY DISAGREE

When Physician and Family Disagree

This paper is a response to case study 5.1 presented in Unit 5. I will analyze Mrs.
Franoiss case study to determine how the surgeon should respond to ethical dilemmas
presented. Mrs. Franois was back in the intensive care unit six days after her first surgery
including a hysterectomy and an oophorectomy. She was back to the hospital with fever,
hypotension, pain and respiratory distress. The surgeon declared that another surgery was
required to save Mrs. Franois life. Mrs. Franois adamantly refuses the second surgery. Her
husband and four children insisted on giving consent on her behalf. However, the surgeon told
them that this could not be done because Mrs. Franois was conscious and able to give consent.
My purposed solution is that the medical team should go back to Mrs. Franois to understand
why she has refused surgery, obtain informed consent from her and then support her family in
accepting her decision.
Other relevant facts about the case
Along with Mrs. Franois, her surgeon and her oldest son Jacques, are the primary moral
agents in this case. When Jacques arrived from a trip abroad, he immediately declared that Mrs.
Franois was behaving abnormally in refusing the surgery. He threatened medical personnel with
legal action if Mrs. Franois dies due to non-performance of the surgery. There are many
objections to Jacquess claim that Mrs. Franois is incompetent. First, why didnt Mrs. Franoiss
husband and other children, who were in the hospital with her all day, determine that she was
behaving abnormally? Secondly, although actions are more likely to be autonomous when they
are in character. According to Beauchamp and Childress, it is important to remember that
peoples decisions and choices can change over time (2009, p.110). Therefore, we cannot
conclude that Mrs. Franois is incompetent because her current decision to refuse second surgery

WHEN PHYSICIAN AND FAMILY DISAGREE

is not consistent with her previous decision to accept first surgery. Third, although physicians
often have de facto power to override patients decision about care, they cannot declare patients
incompetent as a matter of law (Beauchamp & Childress, 2009, p. 111).
If a psychological assessment (or a court order) asserted that Mrs. Franois was
incompetent to give consent, then patients closest family member (Beauchamp & Childress,
2009, p.188) becomes the first choice as a proxy decision maker. Jacques may qualify as the
proxy decision maker for Mrs. Franois because of the following reasons: he is a family member,
he has the social and familial information, and he seems able to understand the medical situation.
However, I feel that appointing Jacques as the surrogate decision maker could create another
dilemma for the surgeon. Jacques insists for the surgery, sharply conflicting with what Mrs.
Franois wants. As a clinician I would feel moral unease knowing that the proxy has chosen a
treatment that the patient had previously refused.
The proposed solution
Mrs. Franois remained competent to give informed consent: she remained alert, awake
and communicated her refusal of surgery by writing. A life-saving surgery should not be
performed without patients consent unless the patient is deemed incompetent due to reasons
such as severe mental illness. Mrs. Franois does not fit this description, therefore, she should be
deemed to have competence. For the purpose of this paper, I have argued that Mrs. Franoiss
has capacity to give consent, and I have recommended solutions to the ethical problems in her
case based on this understanding. I will start with a discussion of autonomy, which will lead to
understanding how informed consent was undermined in Mrs. Franoiss case. I will conclude by
explain why obtaining informed consent is the crucial first step in solving the ethical dilemmas
in this case study.

WHEN PHYSICIAN AND FAMILY DISAGREE

The principle of autonomy meaning patients having the authority to make decisions about
their health care is the central value within all leading approaches to bioethics (Gedge &
Waluchow,2012, p. 14). As described by Beauchamp & Childress, the term informed consent
came to the forefront of biomedical ethics after Nuremberg trails exposed horrifying medical
experimentation in Nazi concentration camps (2009, p. 118). Autonomy has since been the force
behind shifting emphasis of informed consent from physicians obligation to patients rights
(2009, p. 118). Mrs. Franoiss surgeon did refuse to perform the surgery, upholding the basic
principle of patient autonomy. Kant stipulates that rational beings should be treated as ends in
themselves. Also, humans should be allowed to act freely for reasons that they judge for
themselves (Gedge & Waluchow, 2012, p.xxviii). For Kant, morality of actions is confirmed if
they are motivated by the maxim that could justifiably become a universal law (2012, p. xxvi).
Kant would declare that surgeons refusal to perform surgery is a justified moral action that
would qualify to become a universal maxim (i.e. Autonomy).
Siewiera et. al. offer support for Kants view from the legal standpoint by differentiating
between passive euthanasia and the non-performance of medical acts due to patients refusal.
When a physician shortens patients life by respecting their wish to refuse treatment, the
physician remains in accordance with the law for two reasons. First, it would be impossible to
undertake a therapeutic procedure without patients consent. Second, although the physicians
inaction leads to shortening of life, it was not his/her intention to do so (2014, p. 53). Since
performing surgery against patients wish would both violate autonomy and cause emotional
harm to the patient. Therefore, it is reasonable to conclude in Mrs. Franoiss case that surgeons
prima facie duty of non-maleficence is actually in line with the respect for autonomy. Patients

WHEN PHYSICIAN AND FAMILY DISAGREE

have a right to informed consent, and lack thereof undermines autonomy. Beauchamp &
Childress explain five criteria for informed consent: competence, disclosure, understanding,
voluntariness and consent (2009, p. 120). Following is a discussion of how these criteria were
violated in Mrs. Franoiss situation leading to undermining of her autonomy.
Firstly, standards of competence include capacities such as cognitive skills and
independence of judgment (Beauchamp & Childress, 2009, p. 114). Drane argues that in
situations where death is likely from treatment refusal, the most stringent standard for
competency applies (1984, p. 926). This highest standard would be required of Mrs. Franois
meaning that she needs that she must demonstrate a capacity to appreciate the nature and
consequences of the decisions made. Drane clarifies that patients need not conform
to rational decisions but they must be able to show that they have thought through the medical
problem and relate this information to their personal value system (Drane, 1984, p. 927). If the
medical team discusses Mrs., Franoiss value system with her family; it would become
somewhat easier for her family to come to terms with her refusal of the surgery.
The next criterion for informed consent is disclosure. It is unclear from the information
provided in the case study whether Mrs. Franoiss surgeon upheld this criterion. The most
widely accepted standard for providing information (disclosure) to patients is called objective
standard. It requires that the surgeon disclose what a reasonable person in a situation similar to
Mrs. Franois would want to know, about the nature, probability, and magnitude of risks and
benefits of available options. It is a possibility that Mrs. Franois opted out of second surgery
because she doesnt have all the information or has a belief based on incomplete understanding.
Understanding criterion of informed consent requires that the patient grasps central facts
and develops relevant beliefs about consequences of their actions (Beauchamp and Childress

WHEN PHYSICIAN AND FAMILY DISAGREE

2009, p. 127). The interpretive-deliberative hybrid model of physician-patient relationship

embodies shared decision-making, which underscores patient understanding. As described by
Beauchamp & Childress, respect for autonomy requires that patient understands relevant
information (2009, p. 118). Ho explains why it is important that physicians help their patients
explore their deeply held values when it comes to making decisions about serious medical
matters. Hos concept of epistemic humility holds that well-intended clinical expertise is only
part of the story when it comes to determining patients best interests (2009, p.500). Also,
feminists recommend that clinicians consider the social and political institutions, practices and
beliefs that shape the ethical issues faced within the unique context of each persons situation
(2012, p. xxxvii). Clinicians moral authority is limited in judging what is best for a particular
patient because the clinician often doesnt have access to patients social history, values and other
contextual factors (Ho, 2009, p. 500). There is no indication in Mrs. Franoiss case study to
indicate that the surgeon took the time to explore her feelings while providing information to her.
Thus both disclosure and understanding criteria for informed consent were violated.
I would further argue that informed consent was not obtained from Mrs. Franois, as
voluntariness criterion was also violated. Mrs. Franoiss surgeon used the paternalistic model by
simply declaring that a surgery was needed, without collaboratively determining with Mrs.
Franois whether this decision was the best one in her opinion. A voluntariness criterion for
informed consent requires that the patient wishes for a action without being under any influence
(Beauchamp & Childress, 2009, p. 132). Mrs. Franoiss wish was not considered at all, let alone
an analysis of whether the wish was free of influence. Furthermore, in reference to therapeutic
relationships, Gedge and Waluchow discuss that paternalistic behavior is ruled out by the third
formulation of Kants categorical imperative. Kant stipulates that rational beings autonomy to

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act freely is what gives them their dignity and worth (2012, p.xxviii). Emotional harm may result
to the patient if a treatment is administered against their will. The implication of above
discussion, in Mrs. Franoiss case is that although surgery could save her life, the potential
emotional harm caused to her may outweigh its benefit. Thus, the medical team is left with but
one choice: to go back to Mrs. Franois for an informed consent and share the information
gained with her family.
Alternative solutions and why these wouldnt work
A utilitarian may pose the following objection to allowing Mrs. Franois to refuse lifesaving surgery: what about the suffering of the loved ones who will be left behind after Mrs.
Franoiss death? Beauchamp & Childress explain how utilitarianism is a beneficence-based
theory as it sees morality primarily in term of the goal of promoting welfare (2009, p. 343). A
hedonistic utilitarian may argue that violating the autonomy of one person (the patient) is
justified to prevent suffering to her six family members. Also, the surgeon should operate to
maximize utility, after all the primary goal of medicine is to save lives. Beauchamp and
Childress list three conditions when prima facie obligation to treat, required under the principle
of non-maleficence, can be over-ridden (2009, p.167). First, when treatment would be futile,
second when the burden of treatment outweighs its benefit and third when a valid refusal of
treatment occurs. The third condition would apply to Mrs. Franoiss case once valid refusal for
treatment is established. Whenever we use the phrase informed consent we also allow for the
possibility of informed refusal (2009, 121). A physicians nonintervention that leads to patients
death is morally justified when the physician is following patients instruction not to intervene
(Beauchamp & Childress, 2009, p.167). Thus, a purely utilitarian perspective, which would
require the surgeon to operate on the basis of beneficence, is trumpet by Mrs. Franoiss Kantian

WHEN PHYSICIAN AND FAMILY DISAGREE

right to autonomy.
Beauchamp & Childress explain that although the primary rationale of medicine
(beneficence) can sometimes directly conflict with autonomy, they are not necessarily two
contrasting paradigms. According to Gedge and Waluchow, one stream of feminist thought
purports that theories of Kant and Mill are often cited as illustrative of the insufficiency of
traditional ethical theory (2012, p. xxxvi). Feminists consider highly personal and contextspecific relationships that that people are emotionally invested in. These relationships cannot be
reduced to universal rules or maxims as proposed in Kants theory. Patients autonomy must be
respected to ensure net benefit driven from the principles of beneficence and non-maleficence
(Gillon, 1994). Beneficence could be construed to incorporate the patients autonomous choices
because each patients preferences help to determine what counts as a medical benefit for them
(2009, p. 207).
Conclusion
Gillon argues that respect for patients autonomy implies the prima facie obligation to
obtain informed consent before any help can be provided to them. (1994). The surgeon should
explain to Jacques that he/she cannot perform a surgery without Mrs. Franoiss informed
consent because this would be declared battery (Miller & Wertheimer, 2011, p.203) in a court of
law. I would argue that Mrs. Franoiss situation would be best addressed if the medical team
took the time to dig deeper into exploring the unique reasons for Mrs. Franoiss refusal of lifesaving surgery. This exploration will aid in obtaining genuine informed consent. The process of
obtaining informed consent has a built-in benefit of helping health care providers understand
patients perspective. Then, Mrs. Franoiss medical team has the added responsibility to assist
her family in accepting her autonomous choice of refusing surgery.

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References
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Medical Ethics, 35(8), 497-501. doi:10.1136/jme.2008.028555
Miller, F.G. & Wertheimer, A. (2011). The fair transaction model of informed consent: An
alternative to autonomous authorization. Kennedy Institute of Ethics Journal, 21(3), 201218.
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