Ethical and Medicolegal Considerations




© Springer Science+Business Media New York 2015
Jerrold Lerman (ed.)Neonatal Anesthesia10.1007/978-1-4419-6041-2_17


17. Ethical and Medicolegal Considerations



Thomas J. Mancuso1, 2   and Jeffrey P. Burns2


(1)
Division of Critical Care, Boston Children’s Hospital, 300 Longwood Avenue, Bader, 6th Floor, Boston, MA 02115, USA

(2)
Division of Critical Care, Boston Children’s Hospital, Boston, MA, USA

 



 

Thomas J. Mancuso



Keywords
Ethical considerationsPreterm neonatesMedicolegal dilemmasEthical challengesPerioperative careMedicolegal concernsNeonatal care


Ethical and medicolegal dilemmas frequently arise in the perioperative care of term and preterm neonates. This requires that pediatric anesthesiologists have a working knowledge of these ethical concerns in order to provide comprehensive care. Here we provide a concise review of common ethical challenges in the perioperative care of term and preterm neonates utilizing a widely accepted decision-making framework and then examine fundamental medicolegal concerns in neonatal care.


Reasoning About Ethical Concerns



The Four Principles Approach to Ethical Reasoning


In their landmark text Principles of Biomedical Ethics, bioethicists Tom Beauchamp and James Childress advocate that ethical dilemmas in clinical practice are most comprehensively considered by utilizing a framework structured upon four principles: autonomy, non-maleficence, beneficence, and justice [1]. That is, when confronting a difficult ethical dilemma in clinical practice, the four principles framework advocates that the clinician determines how to proceed by assessing the net balance of the salient concerns from the perspective of each principle. Notably for pediatric practitioners, the conceptual foundation of this framework rests on the perspective of the autonomous adult patient, and thus the four principles framework does not entirely transfer to all pediatric contexts. Nevertheless, the four principles framework is widely utilized by adult and pediatric bioethicists when resolving difficult ethical issues in the care of patients. Accordingly, it behooves the practicing pediatric anesthesiologist to be familiar with these concepts.


Limitations to the Four Principles Framework


Autonomy, from its Greek roots, literally means self-rule and is in many respects the foundation of the four principles framework. In ethics, autonomy commonly refers to an individual’s freedom from control and their unconstrained ability to make profound life choices as they see fit. In the case of the neonate who has not developed the capacity to reason and make independent decisions about life choices, there can be no literal interpretation of this principle. Moreover, as mandated by legal regulations in nearly all US jurisdictions, and as supported by most pediatric ethicists, even loving parents are not free to autonomously make any and all medical decisions for their children, such as the refusal of blood component therapy in a life-threatening situation. Importantly, then, the foundational principle of autonomy/self-determination does not unequivocally reside even in parental decisions for their child. Parental autonomy is superseded, in part, by societal norms and standards to protect the minor as established by the supreme court of most countries.

Non-maleficence refers to the obligation of caregivers to avoid harm. While in some clinical situations, agreement on what constitutes a harm would engender little debate, for example, failing to provide any perioperative analgesia to an infant suffering from significant pain after an invasive procedure would be considered a great harm by nearly all in our society, in other cases, such as whether life-sustaining treatment is futile in a particular context, well-intended clinicians might reach opposite conclusions on whether such treatment is, or is not, a harm. The principle of beneficence is on a continuum with non-maleficence, but beneficence requires more of clinicians (and others) than not causing harm. The principle of beneficence requires clinicians to take active steps to ensure a positive benefit to the patient. Beneficence includes the obligation to rescue persons from harm or harmful situations. This principle is interpreted from a translation of Hippocrates from his Epidemics: “As to disease, make a habit of two things, to help but at least do no harm.” Yet, as with “harm,” well-intended clinicians might not always agree on what constitutes a “benefit” in a particular clinical context. Again, for example, some clinicians in a given context may strenuously advocate for continuing life-sustaining treatment because they conclude that the benefits outweigh the harms, whereas others may be equally certain, after assessing the same situation, and may conclude that the harms of further treatment outweigh any potential benefit. The fourth principle, justice, refers to the provision of fair, equitable, and appropriate treatments to persons in light of what is owed to persons. As with the other principles, the concept of what constitutes justice is not free from differing interpretation by thoughtful clinicians or parents. In sum, while the four principles approach to reasoning about ethical dilemmas provides a framework for clinicians to think comprehensively about all of the salient features, it cannot overcome variable interpretations of each of the principles that may prevent all parties to a given case from reaching similar conclusions on how to proceed.


Perioperative Applications of the Four Principles Framework



Autonomy


The biomedical principle of autonomy mandates informed consent to medical procedures for the adult with decision-making capacity. In the ideal process, the informed consent covers the risks and benefits of the proposed procedure, the risks and benefits to alternatives to the procedure, and the risks and benefits of doing nothing. In care of the neonate, parental permission necessarily replaces direct informed consent. True informed consent requires more than a signature on a closely typed form. The parents who give permission to caregivers must themselves understand the information and the care plan and give voluntary permission without persuasion or manipulation.

The preanesthetic conversation, while often cursory, can and should be an opportunity for the pediatric anesthesiologist to inspire confidence and build rapport with the family as well as glean any important details about the infant before the procedure. Even for urgent or emergent cases, the parents have likely met and spent time with the surgeon. The pediatric anesthesiologist, however, often meets the family only immediately before the start of the procedure. This meeting may even take place in the holding area, not the ideal location or timing for an in-depth discussion of the risks, benefits, and options for anesthetic care.

The content of the informed permission conversation with the parents must be adapted to the context. In cases involving full-term neonates scheduled for relatively elective or urgent procedures such as pyloromyotomy, circumcision, or herniorrhaphy, it very well may be that the risk, small as it may be, from the provision of anesthesia is significantly greater that that posed by the surgical procedure itself. The parents may express their concern to the pediatric anesthesiologist in these situations with statements such as: “my baby is not likely to suffer from his hernia repair, I am very worried about the anesthesia.” Discussion of the possible deleterious effects of various anesthetic medications on the developing central nervous system is more fully developed elsewhere. In addition to a review of this issue and other relevant anesthetic concerns, the pediatric anesthesiologist should engage in a frank and understandable exchange with the parents, asking open-ended questions and providing them with time and space to weigh all of their concerns regarding the anesthetic.

Many surgical cases involving neonates are much more significant and emergent in nature, however. In these cases, often involving preterm neonates, the risks from the condition afflicting the neonate and from the surgery itself may be quite significant reducing the anesthetic care to a resuscitation more than the provision of analgesia, unconsciousness, and vital sign stability. The question of CPR may be parts of the preanesthetic discussion. In such cases, the pediatric anesthesiologist should have a discussion with both the surgeon and neonatologist in order to appreciate the gravity of the neonate’s condition and what can be expected in the operating room. It may be appropriate to have a preanesthetic discussion with the parents, the surgeon, and the NICU MDs and RNs in order to minimize the chances in this very stressful situation that the family becomes confused and unduly anxious as a result of hearing similar information but with different emphasis and language from different sources. Pinter recommends classifying surgical neonates into groups based on the chance for recovery and the quality of life the neonate will have if he/she recovers [2]. The details of the classification are not as important as ensuring that the parents are given an understanding, as much as possible, of the immediate as well as longer-term prognosis before signing the consent. For example, important differences between simple survival and direct benefits of surgery in the neonate have been highlighted [3]. In another review, the salient ethical considerations for managing preterm neonates at the extreme of viability indicated the primacy of the neonate’s best interest in these difficult choices [4]. Parents are considered by all of these commentators to be the persons best suited to determine and advocate for the best interests of their neonate, underscoring the importance of the preanesthetic discussions.


Non-maleficence


The principle of non-maleficence comes into importance especially in the care of neonates at the extremes of viability and/or with such serious surgical conditions that survival is in doubt and prognosis grim. Harm, as defined by Beauchamp and Childress, means an unjustifiable setback or defeat of a person’s interests [1]. They also limit their definition to physical harms. As mentioned, parents are generally, but not unequivocally, considered the prima facie authority to determine the best interests for the neonate. Yet, some have argued that the best interest standard is insufficient for severely impaired infants and advocates other viewpoints in evaluation of the care provided to these unfortunate neonates [5]. Proponents of this view argue that the suffering of infants is not given sufficient weight and propose that severely impaired infants have the right to a dignified death and supports palliative as opposed to intensive care for these unfortunate patients.

The Committee of the Fetus and Newborn (COFN) of the American Academy of Pediatrics (AAP) addressed the issue of determining an infant’s best interests. In a policy statement on high-risk neonates, the committee notes, “…intensive treatment of all severely ill infants may result in the prolongation of dying accompanied by significant discomfort for the infant or survival with unacceptable quality of life…nonintensive treatment may result in increased mortality and morbidity….either approach risks undesired and unpredictable results” [6]. The COFN also notes the importance of the parents’ role in decision making regarding the care of these critically ill neonates but also makes the point that the physician’s first responsibility is to the patient. The committee further states that a physician is not required to provide treatment that he/she considers inappropriate or to withhold beneficial treatments [7]. In cases of honest disagreement, the COFN recommends the involvement of the hospital bioethics committee. In practice, there may be insufficient time for this to occur and the pediatric anesthesiologist must decide for himself/herself if their personal morals allow participation in the care of a particular neonate. Last, the committee’s policy statement notes:
Sep 21, 2016 | Posted by in ANESTHESIA | Comments Off on Ethical and Medicolegal Considerations

Full access? Get Clinical Tree

Get Clinical Tree app for offline access