19.2 Medical Ethics, Informed Consent & Patient Rights
Key Takeaways
- The four principles of biomedical ethics are autonomy, beneficence, non-maleficence, and justice; questions are usually resolved by identifying which principle a described action violates.
- Valid informed consent requires capacity, adequate disclosure, comprehension, voluntariness, and a decision that is documented; a signature on a form without those elements is not consent.
- A competent adult may refuse treatment even where refusal is likely to cause death, and the clinician's duty is to confirm capacity, ensure understanding, document the refusal, and keep the door open.
- Article 43(2) of the Constitution of Kenya 2010 provides that a person shall not be denied emergency medical treatment, which overrides payment status, verification, and documentation.
- Confidentiality is not absolute: it yields to statutory notification of specified diseases, court orders, mandatory reporting of child abuse, and a serious identifiable risk to a third party — and disclosure is limited to the minimum necessary.
19.2 Medical Ethics, Informed Consent & Patient Rights
Quick Summary: Ethics items are among the most predictable on the paper because they turn on a small number of rules: the four principles, the five elements of valid consent, the constitutional guarantee of emergency treatment, and the closed list of lawful exceptions to confidentiality. Memorise those four lists and most ethics vignettes resolve themselves.
The Four Principles of Biomedical Ethics
| Principle | Meaning | Typical violation |
|---|---|---|
| Autonomy | Respect the patient's right to make their own informed decisions | Performing a procedure without consent; tubal ligation agreed with the husband but not the woman |
| Beneficence | Act in the patient's best interest | Withholding an indicated treatment out of inconvenience |
| Non-maleficence | Primum non nocere — first, do no harm | Attempting a procedure beyond competence where safe referral existed |
| Justice | Distribute care and burdens fairly | Treating by ability to pay; jumping a queue for a relative |
Autonomy is the principle most often tested because it is the one most often overridden in practice by well-meaning clinicians who believe they know best. Beneficence does not license acting against a competent patient's informed wishes.
When principles conflict — as they do in a refusal of life-saving treatment, where autonomy opposes beneficence — the settled position for a competent adult is that autonomy prevails.
Valid Informed Consent: Five Elements
Consent is a process, not a signature. All five elements must be present:
- Capacity — the patient can understand the information, retain it, weigh it, and communicate a decision. Capacity is decision-specific and presumed in adults until shown otherwise, and it is not removed by the fact that the decision seems unwise.
- Disclosure — the diagnosis, the proposed intervention, its material risks and benefits, the reasonable alternatives, and what happens if nothing is done.
- Comprehension — the information is given in a language the patient understands, in plain terms, with the opportunity to ask questions. Where an interpreter is used, that fact is recorded.
- Voluntariness — free from coercion, pressure from family or staff, and inducement. Consent obtained while a patient is on the trolley outside theatre, or already sedated, is suspect.
- Documentation — the decision is recorded, signed, dated, and timed, with the person who took consent identifiable.
The cardinal rule: a signed form is evidence of consent, not consent itself. A thumbprint on a form the patient could not read is a documentation artefact, not a decision.
Who May Consent
| Situation | Who consents |
|---|---|
| Competent adult | The patient personally — not the spouse, not the parent, not the relative who brought them |
| Adult lacking capacity | Decision made in the patient's best interests, consulting next of kin and documenting the reasoning |
| Child | Parent or legal guardian, with the child's views taken into account according to maturity |
| Emergency, patient unable to consent, no representative available | Emergency doctrine — proceed with treatment necessary to preserve life or prevent serious harm, and document fully |
Two traps to recognise immediately. First, a husband's consent is not required for a competent adult woman's treatment, including contraception, caesarean section, or tubal ligation — requiring it is a direct violation of autonomy. Second, an emergency justifies only the treatment necessary now; it does not authorise an unrelated elective procedure discovered along the way.
Refusal of Treatment
A competent adult may refuse any treatment, including treatment without which they will die, and may do so for reasons that seem irrational to the clinician. The duty when this happens:
- Confirm capacity for this specific decision.
- Establish understanding — many refusals rest on a fixable misconception about the procedure.
- Explore the reason — cost, fear, religious conviction, prior experience, or the need to consult family are all different problems with different responses.
- Offer alternatives, including a less invasive option or a second opinion.
- Document the refusal, the information given, and the capacity assessment, ideally with a witness.
- Keep the door open — a refusal is not a discharge from care, and the patient must be told they may return.
Rights That Sit Above Clinical Discretion
- Article 43(1)(a) of the Constitution of Kenya 2010: every person has the right to the highest attainable standard of health, including reproductive health care.
- Article 43(2): a person shall not be denied emergency medical treatment. This is unqualified. It does not bend to unpaid bills, absent SHA verification, missing identity documents, immigration status, or the fact that a patient is a police case.
- The Health Act 2017 restates the emergency treatment duty and sets out patient rights and a complaints mechanism.
The patient rights charter in operation at Kenyan facilities covers: access to care; respect and dignity; privacy and confidentiality; information about diagnosis and treatment; participation in decisions; consent and refusal; a second opinion; and a route to complain without prejudice to future care. Alongside them sit patient responsibilities: providing accurate information, following the agreed plan, respecting staff and other patients, and keeping appointments.
The examinable emergency scenario: a patient arrives haemorrhaging and cannot pay, is unverified on the SHA portal, or has no identity document. Stabilise first. Every administrative question is answered after the patient is stable.
Confidentiality and Its Lawful Exceptions
The duty of confidentiality covers everything learned in the professional relationship and survives the patient's death. Health data is classified as sensitive personal data under the Data Protection Act 2019, and the Digital Health Act 2023 imposes further duties on health information handling.
Confidentiality is strong but not absolute. Recognised exceptions:
| Exception | Example |
|---|---|
| Patient consent | Patient authorises disclosure to an employer or insurer |
| Statutory notification | Notifiable diseases under the Public Health Act (Cap 242); notification of births and deaths |
| Court order or statutory compulsion | A subpoena; a lawfully required report |
| Serious risk to an identifiable third party | A credible, specific threat of serious harm |
| Mandatory reporting | Suspected child abuse or neglect, under child protection law |
| Clinical care | Sharing within the treating team on a need-to-know basis |
Two governing rules: disclose the minimum necessary for the purpose, and tell the patient that disclosure is being made and why, unless doing so would itself cause serious harm or defeat a statutory purpose.
HIV: Stricter Than the General Rule
Kenya's HIV and AIDS Prevention and Control Act imposes tighter obligations than general confidentiality: HIV testing requires informed consent with pre- and post-test counselling, results are released to the person tested, and disclosure of a person's HIV status is restricted to defined circumstances. Compulsory testing is prohibited save in narrowly defined situations.
The classic vignette: a patient newly diagnosed with HIV refuses to disclose to a regular sexual partner. The correct response is not to telephone the partner. It is intensive counselling and support for disclosure, an offer of assisted partner notification through the programme, documentation, and continued engagement — escalating only through the established programme pathway where a serious and identifiable risk persists.
Boundaries, Conflicts of Interest, and Gifts
- Do not treat close family or yourself for anything beyond the trivial. Objectivity fails, history-taking becomes incomplete, examination is skipped, and documentation is usually absent.
- Sexual or romantic relationships with current patients are prohibited. The power asymmetry makes genuine consent impossible.
- Declare conflicts of interest — ownership of a pharmacy or laboratory to which you refer, and inducements from pharmaceutical representatives. Referral must follow clinical need, not financial interest.
- Gifts of more than token value from patients should be declined or declared.
- Social media: never post identifiable patient information, including images, dates, or unusual clinical details that make a patient identifiable in a small community, even without a name.
A Workable Method for Ethics Vignettes
- Identify the decision-maker. Competent adult? Then the patient, not the relatives.
- Name the principles in tension, usually autonomy against beneficence.
- Check for an absolute rule — an emergency (Article 43(2)) or a statutory duty overrides ordinary balancing.
- Choose the least restrictive option that discharges the duty.
- Document, because an undocumented ethical decision is indistinguishable from a careless one.
A competent 34-year-old woman requests a bilateral tubal ligation after her fifth delivery. Her husband arrives and instructs staff not to proceed without his written agreement, and the facility refuses to schedule the procedure until he consents. Which ethical principle has been violated?
A man is brought to a sub-county hospital casualty with massive haemorrhage from a road traffic crash. He has no identity document, does not appear on the Social Health Authority portal, and his relatives state they cannot pay a deposit. What is the correct course of action?
A newly diagnosed HIV-positive patient tells the clinical officer that he will not disclose his status to his regular sexual partner, who also attends the same clinic. What is the appropriate initial response?
A patient signs a consent form for a surgical procedure. It later emerges that the form was in English, the patient speaks only Kiswahili, no interpreter was used, and the alternatives and the consequences of doing nothing were never discussed. Which statement is correct?