Excerpted from British Medical Journal - No 7135 Volume 316

March 21,1998

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The British Medical Journal

ETHICAL DEBATE

RESPECT FOR PRIVACY AND THE CASE OF MR K

Julian Savulescu, Rachel Marsden, Tony Hope

In Britain, the patient’s charter specifies standards of rights and dignity for patients. Little guidance is given about what this means in practice, other than the desirability of providing separate washing and toilet facilities for men and women in hospital. Respect for privacy, however, goes far beyond this. Here we consider the case of Mr K (box).

Mr K And The Cannabis Cake

Mr K, a former carpenter and artist, is 35 years old. He has multiple sclerosis, which was diagnosed 10 years ago. Mr K has lived with his mother since his wife left him seven years ago. He needs full assistance with activities of daily living, and this is provided by his mother. Respite care is arranged at a rehabilitation hospital.

Mr K’s mother asked if her son could smoke cannabis in the rehabilitation hospital. "He has smoked since he was a teenager. I was against it for a long time, but it’s one of the few things he can enjoy now. He gets very agitated if he doesn’t get his dope, and his spasms are much worse." After consultation with colleagues, the ward sister told Mr K’s mother that staff could not knowingly allow him to consume illegal substances on hospital premises.

Mr K was admitted to hospital. Every day his mother brought him a cake, which he ate with relish. One nurse suggested that the cake might contain cannabis. The staff were in a quandary; should they investigate further?

Privacy And The Use Of Illicit Drugs

Illegal behaviour raises further issues. Under section 8 of the Misuse of Drugs Act 1971, it is illegal for the occupier of a premises knowingly to permit the consumption of illicit drugs. The "occupier" refers to someone with the power to exclude people from the premises, and in a hospital this probably includes doctors and senior nurses. Health professionals may be in breach of the law if they knowingly allow the consumption of illegal drugs. However, an important difference exists between shutting one’s eyes to an obvious breach of the law and respecting privacy.

Privacy is vitally important. The possibility that a patient may be consuming illegal drugs in hospital should not, by itself, justify invading their privacy, just as the possibility that patients might be using illicit drugs at home does not warrant unlimited access to their private lives.

In the case of Mr K, it would be morally right to ensure that he and his mother are aware of the risks and benefits of using cannabis. But investigating whether the cake contains cannabis would be wrong unless staff believe that there is evidence of sufficient risk of harm to Mr K or to others that would justify intrusion into what is a private matter.

Conclusion

We expect privacy in our own homes and the right to behave in ways that others might disapprove of without interference. Healthcare professionals should provide such a level of privacy for patients who spend a long time or the end of their lives in hospital....

Oxford Radcliffe Hospital, Oxford OX3 9DU

Julian Savulescu, clinical ethicist Churchill Hospital, Oxford OX3 7LJ

Rachael Marsden, unit support nurse University of Oxford Medical School, John Radcliffe Hospital, Oxford 0X3 9DU

Tony Hope, reader in medicine, honorary consultant psychiatrist

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COMMENTARY: SILENCE MAY BE THE BEST ADVOCACY

Ruth Carlyle

Healthcare professionals and voluntary organisations supporting people with medical conditions act as advocates upholding the rights of their clients. In the case of Mr K, Savulescu et al suggest that the best advocacy can sometimes be to remain silent.

Cannabis And Multiple Sclerosis

The Multiple Sclerosis Society is often contacted by people who openly admit that they are breaking the law - people who are otherwise law abiding and would never have considered taking an illegal substance if they had not believed it might help them to cope with their symptoms, such as spasms, bladder control, or fatigue. Some people indicate that they have benefited from cannabis; some say that taking cannabis has had no impact on their lives with multiple sclerosis; and others report that it has made some of their symptoms, such as balance, worse. When we are contacted by people who volunteer the information that they are breaking the law, we respect their privacy as adults who have chosen to take cannabis for therapeutic benefit in their own homes.

Privacy In Hospital ... And At Home

While Mr K was living with his mother, it is unlikely that any outsider would have noticed that Mr K was eating or smoking cannabis if he chose to hide the fact. Nevertheless, Mr K’s privacy at home would be compromised by the closeness of his relationship with his mother and his need to be cared for by her. Privacy is not absolute at home or in hospital, but relationships operate at different levels according to context….

Caring for people has to involve concern for them as individuals with the right to make choices; it means not asking questions which breach their privacy. In this situation, ignorance may not be bliss, and it is certainly not an easy option, but it respects the privacy of the individual as a person rather than a patient.

Multiple Sclerosis Society of Great Britain and Northern Ireland, London SW6 1EE
Ruth Carlyle, manager, information and education

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COMMENTARY: PATIENTS SHOULD HAVE PRIVACY AS LONG AS THEY DO NOT HARM

THEMSELVES OR OTHERS

George J Annas

Medical care requires the invasion of privacy. Patients must expose their innermost thoughts, their bodies, and their sickrooms to strangers. But to protect human dignity, health providers should limit invasions to those necessary to accomplish the goals of their patients.

Privacy Of Personal Space

The case of Mr K centres on the privacy of personal space. The critical sentence in the case study of Savulescu et al begins "If hospital is home." The hospital is literally home if, as happens in many nursing homes in the United States, the patient is expected to live there until death. In these cases we should ensure that patients live their lives as they see fit, provided their actions do not seriously harm others. For example, sex with a consenting adult (with the door closed), reasonable amounts of alcohol, choices in food, ability to keep a locked drawer, freedom to take walks outside, guests of their own choice, telephone services, and the like remain important for many hospital patients.

Yet the hospital is not usually home, and very few people would like it to be. Moreover, the contemporary trend is to transform homes into hospitals, rather than hospitals into homes.

Should ethical questions be treated as legal problems?

Mr K is in an intermediate position. He has a home, but is admitted periodically to hospital for respite care. Should he be deprived of the cannabis that his mother supplies him with at home? The reasoning in this case illustrates a pervasive and fundamental problem in modern medical ethics - the tendency to treat all ethical questions as legal problems.(1) Thus, the nursing staff and the case presenters rely almost exclusively in their analysis on their personal (I take it, non-legal) interpretation of English law. We are told, for example, that it is against the law if the staff "knowingly allow the consumption of illegal substances on hospital premises," and that section 8 of the Misuse of Drugs Act 1971 forbids the "occupier of a premises knowingly to permit the consumption of illicit drugs."

A Pragmatic Approach To Privacy

Whether the law actually applies here requires an extensive legal analysis. While there is no explicit exception for medicinal use of "illicit substances," I would be very surprised if a prosecution has ever been attempted of a doctor or nurse who made a reasonable judgment that use of cannabis in circumstances such as these should be allowed. (And the "premises" in section 8 probably apply to the venues of parties and other social gatherings, not hospitals.) As in all decisions concerning medical ethics, the focus should be on the patient and his or her wellbeing. If allowing his mother to supply cannabis in cake helps medically, does not harm any other patient or staff member, and is what Mr K wants, it should be permitted.(2,3)

Finally, I would revise the three proposed limitations on patients’ privacy by deleting the third altogether (resource allocation is really a separate issue) and combining the first and second. Thus, patients should be free to pursue their own interests and activities so long as this pursuit does not harm others or cause serious harm to themselves.

Health Law Department, Boston University School of Public Health, Boston, MA 02118-2394, USA

George J Annas, professor of health law

References

1 Annas G J. Standard of law: the law of American bioethics. New York: Oxford University Press, 1993.

2 Kassirer J P. Federal foolishness and marijuana. N Engl J Med 1997;336:366-7.

3 Annas G J. Reefer madness: the federal response to California’s medical marijuana law. N Engl J Med 1997;337:435-9.

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COMMENTARY: NURSES SHOULD RECOGNISE PATIENTS’ RIGHTS TO AUTONOMY

Pippa Gough

Although the case of Mr K highlights the former, in this instance the desire to use illegal drugs, the issues raised are equally applicable to the second area concerning sex and sexuality. Ultimately, we are discussing the principles underpinning the patient’s right to autonomy and the nurse’s obligation to maintain and promote this.

Patients’ Autonomy Underpins Professional Practice

Nursing has struggled as much as any of the professions to shake off the practices of paternalism, the creation of dependency, and coercion, however subtly or benignly these are presented. We have probably been successful in raising the debate even if we have not influenced completely the way we deliver care….

Personal Privacy And Public Peril

The limitations to a nurse’s duty of care in this respect are tempered only by the balance between the protection of personal privacy and the threat of public peril. In other words, this duty of care extends beyond the individual to society, and nurses are accountable for their actions in terms of each. The dividing line between the two, however, is rarely clear and dilemmas abound. Moreover, the nurse’s own values may colour his or her interpretation of what might infringe the public interest, especially if this involves unlawful activity.

Reference

1 United Kingdom Central Council for Nursing, Midwifery and Health Visiting. Code of professional conduct. London: UKCC, 1992.

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COMMENTARY: HOSPITAL CAN NEVER BE HOME

Mr K’s Habit Might Distress Others

Cannabis is still illegal, although many people do smoke it. Whether it is a useful drug in multiple sclerosis is a matter for debate, but it is not prescribed officially. Although the ward staff may be sympathetic to Mr K’s predicament, they cannot allow him to smoke cannabis. Public servants are obliged to stay within the law and making exceptions could lead them down the "slippery slope" of acquiescing to all sorts of illegal practices. Apart from this, the environment of many rehabilitation units would mean that Mr K’s smoking of cannabis would impinge on the privacy of others, who might find his habit distressing.

Eating cake, however, seems harmless enough. The staff are certainly not detectives and if Mr K eats cannabis cake they should have no means of finding out. The relationship between Mr K and staff should be one of mutual trust, however, which places an obligation on Mr K and his mother not to deceive the unit once the matter has been discussed and permission refused.

Anandgiri, Thorpe Underwood, York YO5 9ST

Michael Saunders, consultant neurologist