Legal Aspect of Healthcare


Identify legal issues surrounding consent

Consent can be defined as the mutual communication instrument that is used between patients and doctors along with authority or choice or permission expressions by the patient directing the doctor to perform in a specified manner or way. Ethically, the aspect of consent is as a result of the patient’s autonomy ethical principle and human rights which states that the patient is free to make a decision regarding what can and cannot happen on his or her body as well as the freedom of gathering information prior to undergoing any form of test, surgery or any procedure. With regards to the decision making of the patient, the doctor is only allowed to act as a facilitator, and nobody possesses the right of coercing the patient to act in a specific manner. Legally, nobody possesses the right of treating another person, doing so without obtaining permission is punishable (Francis, 2004). Therefore, getting consent is mandatory for all activities excluding routine physical examination.

Both workers and administrators of health care should keep in mind that it’s only the patient who has the right and freedom of giving a consent for treatment at all times except when conditions like sudden threat to life which calls for emergency, when the patient is not responding, or in a situation whereby there is legal declaration of the patient’s incompetence. However, in situations whereby a patient speaks other languages other than English, it is the institution’s obligation to ensure that a way of giving the information is provided to make sure that informed consent is provided regarding procedures to be conducted and potential outcomes. In such cases, it is not allowed to obtain consent from either the patient’s spouse or family.  On the other hand, parents are only allowed to give a treatment consent for minor children. However, there are moments when minors are allowed to provide their consent as well as be free from the involvement of their parents. Also, both competent patients and/or legal guardians have the right of  withholding consent even when by doing so has the risk of bringing harm to the patient (Francis, 2004).

Informed consent

Pozgar, 2007 defined informed consent as a legal concept which stipulates that it is the patient’s right to know all the potential risks, alternatives as well as the benefits any procedure to be undertaken before performing any treatment. According to an Iinformed consent, it is implied that the patient has an understanding of a particular treatment as well as the risks, alternatives, and benefits, that the patient has the ability to make a decision as well as be able to give consent (Francis, 2004) voluntarily.

For an informed consent to be valid, it must be preceded by disclosure of a sufficient information, it is a must for the patient to be competent, the patient must be given enough information that requires decision to be made, it is mandatory for the patient to understand the entire information and one must be able to make the decision voluntarily. All these requirements sound simple however they can be challenging when put under practice (Srinivas, 2007).

Any information disclosed with regards to informed consent should consist of the required follow-up, the outcome expected, why it is necessary for one to be tested further, non-treatment consequences, the availability of treatment options, possible benefits as well as the risks that are likely to come with treatment options, time duration as well as the estimated cost of the treatment, the patient’s condition or disorder or disease extra.

Discuss the legal issues present in emergency settings

Both physicians and the staff from the emergency department of the healthcare facility often face the need of coming up with a determination with regards to psychiatric assessment since emergency settings attend to patients suffering from such kinds of symptoms or complaints often. Given that legally mental illness definition is in most cases inexact especially when used in certain clinical situations as well as psychiatric detention which leads to caring involuntarily hence the reason why various states have developed laws providing specific principles for decision making which is based on the situation’s gravity.  Noteworthy, all states have the same principles with regards to involuntary admission and treatment, however there exists variance when it comes to defining how the danger can be observed or established in different states: (i) when the patient possess any danger to herself or himself, (ii) when the patients possess danger to those around him or her, or (iii) when the patient is greatly disabled and is not able to show concern for any necessities (Henry & Beyer, 1984).

With regards to healthcare emergency setting, both the law and the American society places great value on the aspect of personal autonomy.  The aspect of personal autonomy is legally accorded under the doctrine of the right of privacy which is a commonly known law right referred to as “the right to be let alone.”  According to Massachusetts Supreme Judicial Court, a personal constitutional right to privacy involves “the expression of the sanctity of individual free choice and self-determination as fundamental constituents of life (Henry & Beyer, 1984).” In healthcare setting the principles of autonomy and privacy are brought out in the informed consent doctrine which stipulates that until a physician has explained to the patient all the potential risks, as well as the benefits expected regarding the kind of treatment, proposed, the alternative course of action outlined and that he has received informed consent from a competent patient voluntarily, the physician should not give any treatment.

Apply legal principles surrounding reproduction to a case study

Reproduction rights refer to both freedoms and legal rights regarding both reproduction and reproductive health which varies from one country to country. The reproductive rights of women consists of the following: the rights with regards to safe and legal abortion; the birth control right; sterilization coercion freedom and contraception; the right of being able to access high quality reproductive healthcare; as well as the right of being able to get access and education for one to make reproductive choices which are both informed and free (UNESCO, 2006). In some countries, they also consist of the right of receiving education regarding sexually transmitted diseases as well as other sexuality aspects and protection of women from things like female genital mutilation. An example of a case study involving legal principles with regards to women reproduction is as follows:

A woman requesting for sterilization without informing her partner

Mrs. VW who is 35 years old has three sons with the younger one being just one year old. She is anemic, feels tired more often, and her husband and her together with their children live in a rural home, mainly supporting her family through small agricultural activities specifically farming food crops which she sells in the local market as the husband is currently unemployed and he is seeking for a job in the nearest town. Mrs. VW goes to local family planning clinic and requests Dr. GH to sterilize her stating that with her health condition coupled with the low income she is able to raise she feels she cannot manage with another pregnancy and raising a child. Mrs. VW says that she can cater for the procedure using her savings however she asks the doctor promise that the procedure will be kept between the clinic staffs, Dr. GH and her as she says her husband might be violent since her husband has always wanted to have a daughter someday. Locally, cultures require that a husband should be consulted when it comes to their wives medical care however legally it is not a requirement. Even though it is legal for a wife to undergo sterilization without consulting her husband, the biggest question that arises is that is it ethically right for the doctor to sterilize the wife? Is it legal for Dr. GH to be obligated to ask for Mr. VW’s authorization with regards to fulfilling the request of Mrs. VW? As it is not a legal requirement for a wife to get the husband authorization for one to undergo sterilization, therefore there is no need of the doctor feeling obligated to inform the husband (UNESCO, 2006).

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Discuss the mature minor doctrine

Mature minor doctrine is a term used in America to stand for statutory, regulation or policy of the common law which accepts that a minor patient who is unemancipated can possess the maturity of being able to choose or reject a certain health care treatment, at times without the parent’s agreement or knowledge and they are allowed to do so. This doctrine provides the minors to be able to give their consent regarding medical procedures only when they can show that they possess enough maturity when it comes to making their own decisions.

This legal concept has been enacted and adopted by various states in America. The states in which this law exists, the mature minor doctrine considers the minor’s age as well as their situation when determining the minor’s maturity coupled with other factors and those conduct which prove maturity (Hammaker, 2010). For instance, the statute of Arkansas states that any minor who is unemancipated of adequate intelligence with regards to understanding and appreciating the consequences accompanied with the proposed surgical procedures or medical treatment for the minor, he or she might be allowed to give consent. Mature minor doctrine is majorly applied in situations where the age of the minor is 16 years and above, the minor has an understanding of the procedure to be conducted, and when the procedure required is not a very serious one. Applying this doctrine in other situations is normally more questionable.

A case on mature minor doctrine

Mature minor doctrine however controversial sometimes, it has been applied successfully to adolescents as well as teenagers who were seeking to reject a medical treatment like chemotherapy due to some personal objection or some religious beliefs. An example of such a case is as follows:

A teenager named Starchild Abraham Cherrix aged 15 years who is a cancer patient fought the state to have a drawing in court in the year 2006 over chemotherapy, in this case, Cherrix was seeking to stop since he considered the disease’s treatment as well as its side effects to be worse than the real disease he was suffering from. Officials from Virginia agreed to allow Cherrix to look for other types of therapies only if Cherrix agreed to allow a certified cancer specialist to be the one to conduct the treatment. The case as well galvanized a lot of support for Cherrix which lead to Virginia passing the “Abraham’s Law” in the year 2007 which hence expanded minors rights as young as 14 years old to be able to refuse a medical treatment being administered to them (Hammaker, 2010). 

It is therefore clear that this specific case was a breakthrough for minors as lead to Abraham’s Law which further encourages the mature minor doctrine hence giving minor a voice to air their views about a treatment being administered to them without not necessarily depending on their parents and guardians.

Analyse a case study involving antitrust laws

In the United States, antitrust law constitutes the state government laws and the federal laws which regulate business corporations conduct and organization promoting fair competition for consumers benefits. Antitrust laws design is meant to maintain free and fair competition in the marketplace. Competition is a way of encouraging business corporations to have lower pricing as well great products and services to the consumers. When such laws do not exist, businesses can merge which ends up creating monopolies or even engaging in exclusivity contracts which could end up driving the market prices (Sagers, 2014).

 An example of an antitrust laws case study is the Rockefeller’s Standard Oil. In this case, Standard Oil lowered their prices by more than half the prevailing price which was followed by buying several of its competitors. As its market share continues to grow, Standard Oil was able to lower its costs of production as well as its prices even lower while at the same time increasing its profits. Then, they went on to buy out various refineries which were not able to successfully compete. However, during the trial period, Standard Oil were owners of only 64% of the market share, and at the time there were only one hundred and forty-seven other local competitors in that market (Sagers, 2014).

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Discuss fraud in healthcare

Fraud in health care consists of health insurance fraud, the medical fraud as well as the drug fraud. Regarding fraud, in health insurance, it occurs when an institution or a person defrauds a healthcare program from the government or an insurer. The way that fraud is conducted varies, and people are engaging in fraud activities are always looking for new ways that they can circumvent the law. Most of the fraud committed in healthcare is normally committed by the minority of health care providers who are dishonest. Unfortunately, when it comes to fraud-doers trade, the stock is normally to take advantage of the confidence entrusted to them enabling them to conduct ongoing fraud very broadly (Busch, 2012). Some of the fraud committed by those providers who are dishonest consists one accepting kickbacks with regards to referrals of patient; unbundling which involves billing every step of a certain procedure and making it to seem like a different procedure; falsification of the diagnosis of patients as a way of justifying the tests or surgeries which are not  necessary medically; misrepresentation of treatments which are not covered as being necessary medically covered treatments with the aim of getting insurance payments majorly seen in schemes dealing with cosmetic surgery; one billing for medical services which were never administered which could be done using patient information which is genuine which might be gotten using identity theft fabricating the entire claims extra.

Case on fraud in healthcare setting

An example of a case on health care fraud is the healthcare provider fraud. In this case which was in 2014, an owner of a company that deals in durable medical equipment known as Susanna Artsruni had been convicted of both laundering money and committing fraud in health care. In the fraud scheme of Artsruni, she had been submitting for various years, an estimate of twenty-five million in Medicare bills for services as well as supplies which were not necessary medically, and in most cases, they were not provided for. Artsruni had been helped by three assistant physicians who were working in various Los Angeles medical clinics who signed those orders for diagnostic tests as well as the durable medical equipment which they billed to Medicare later on (Busch, 2012).

The reason as to why Artsruni was convicted of laundering money was because she had tried hiding her trials by writing over thirty-five thousand dollars in checks to three varying business corporations providing no link to the medical industry. In this case, Artsruni was sentenced to a seventy-six-month imprisonment in California and was as well ordered to make a payment of approximately ten million dollars in restitution (Busch, 2012).

My view is the court was fair enough since the convict had committed some immense fraud which if not imprisoned could have ended up affected more people especially patients who would end up blaming healthcare facilities unknowingly.

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  1. Busch, Rebecca, Saltiel,(2012). Healthcare Fraud: Auditing and Detection Guide. UK, London: Wiley Publishers. 
  2. Francis, CM. (2004). Autonomy and Informed Consent. Medical Ethics, 2nd ed. New Delhi: Jaypee Brothers; 2004, pp. 54-65.
  3. Hammaker, Donna, K.(2010). Healthcare Management and the Law: Principles and Applications. USA, Boston: Cengage Learning Publishers.
  4. Henderson, James, W.(2014).  Health Economics and Policy, 6th ed.. USA, New York: South Western College Publishers. 
  5. Henry, A. & Beyer, J.D.(1984). Legal Issues in a Psychiatric Emergency Setting. USA, Massachusetts: Boston University School of Law.
  6. Sagers, Christopher, L.(2014). Examples and Explanations: Antitrust, 2nd ed.. New York: Wolters Kluwer Law & Business Publishers.
  7. Srinivas, P.(2007). Consumer Protection Act and Dermatological Practice, a Dermatologists’ Perspective of Medical Ethics and Consumer Protection Act. An IADVL Book. 1st ed. 2007, pp.7-21.
  8. UNESCO(2006). UNESCO Chairs in Bioethics: Reproductive Health: Case Studies with Ethical Commentary.
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