A husband and his wife came for medical attention into the Orthopaedic Outpatient Department. Following long term persistent degenerative disc changes to her spine, Amelia (pseudonym for confidentiality reasons, ((NMC) 2015) now needs urgent lumber back surgery. The couple are from Pakistan, wife speaks no English, and husband, Mr Adam Hunt, (pseudonym) has limited English proficiency (LEP). A professional interpreter was requested and in attendance but happened to be male as he was the only one available who is familiar with the dialect from the part of Pakistan the clients came from. Amelia looked uncomfortable, reluctant and intimidated therefore very reluctant to comply when asked to strip so surgeon could examine her. They are Muslim, hence the reasoning for her unwillingness to be seen by a male examiner or surgeon. Women prefer to be looked after by women and a female doctor would be appreciated wherever possible (Dixon 2009). Dignity is highly valued in providing quality care especially with aspects such as; respect, privacy, autonomy and self-worth (Baillie 2011). The dilemma is that there are no female spinal surgeons within the Trust employed at present. In addition to this there are possible cultural clashes between the male surgeon, male interpreter and the Muslim woman and her partner therefore making it difficult to gain informed consent. According to some Asian cultures, females are protected from outside influences, it is considered inappropriate to ask questions about another man’s wife or other female relatives if you are a man; the expectation is that the most senior person, by age or position makes decisions that are in the best interests of the group (Dixon 2009)

Introduction

The case concerns a Pakistani Muslim patient, Amelia (name changed), who needs urgent lumber back surgery as there are persistent and long term degenerative disc changes to her spine. This surgery therefore is essential at this point. Amelia does not speak English at all. Her husband, Adam Hunt (name changed) too has limited English proficiency (LEP). Therefore, they require the services of an interpreter who speaks their language. As there were no female interpreters available, they have to press services of a male interpreter. As both the husband and wife have difficulty in conversing with the doctors and nurses, the male interpreter is required to be present at all times of medical check-up.

As the Pakistani couple are Muslims, their culture and practices prohibit Amelia’s stripping in front of the male surgeon. Moreover, the questioning of another man’s wife is also prohibited in Islam. This poses difficulties for both the interpreter as well as the surgeon.

The legal, professional and ethical issues that were raised in the scenario are explained and analysed in this essay.

Ethical issues: Discussion

The ethical issues that are involved in this case are as follows. The first ethical issue involved in this case concerns Amelia’s reluctance and embarrassment in being examined by a male surgeon. As a Muslim woman, she prefers that she be examined by a lady surgeon. She is also required to strip for the examination, and the Islamic precepts of maintaining modesty in front of unrelated men is a real issue for Amelia and her husband, who are uncomfortable with this examination.

The second ethical issue that is involved in this case is the gaining of consent where the patient and her husband are uncomfortable in their settings and have language difficulties. This makes it necessary for an interpreter to be present when Amelia will be examined so that the doctor can ask relevant questions of Amelia. There was no female interpreter to be found and the Trust has managed to find a male interpreter who speaks Amelia’s dialect. Thus, not only will there be a male doctor, but also a male interpreter present during the examination.

These issues are discussed in this section.

Ethics in clinical care

An individual’s perception of health and illness is a result of the interaction between the individual’s personal experiences and cultural factors. These factors include religion, family values and community sensibilities (Helman 2013). These perceptions of ethics do have an impact in clinical care as well. For observant Muslims, illness and well being are deeply interconnected with their religious beliefs and this also shapes their interaction with doctors and healthcare professionals. It is essential that healthcare professionals are conversant with Muslim sensibilities in order to provide better healthcare to Muslim patients.

The term ‘ethics’ is used by many people in the personal or individual sense as mentioned above. Therefore, when people are generally asked to define ethics, a more personal approach is taken with respect to the definition. In the personal sense, ethics refer to the beliefs held by the person concerned and such beliefs generally stem from the informal moral education received from parents, community, teachers, media and even religious figures (Edwards 2009, p.3). While ethics in this sense may be defined from a personal point of view, it is also the case many times, that ethics are defined from the perspective of a group. A group, be it a professional group, such as the Nursing and Midwifery Council, or a religious group, such as the Muslim community, may prescribe formal standards of behaviour that the members of the group are supposed to act in accordance with (Edwards 2009, p.4).

Islamic teachings are generally considered by observant Muslims to be the norms that they have to follow in their lives. These norms are also applicable in the clinical context. Therefore, if the norm of modesty is an essential practice for observant Muslims, it is applicable in healthcare settings as well.

Ethical theories

In healthcare, ethical theories such as care ethics and utilitarianism also help provide answers to complex questions. So, care ethicists like Rachels (1999) view ethics from the perspective of virtue, where virtuous actions are ethical actions. Some of these virtues are: benevolence, compassion, conscientiousness and thoughtfulness (Rachels 1999, p.176). For a care ethicist, the welfare of those he is responsible for, will come first. In this particular situation, from a care ethicist perspective, the answer would be in the more virtuous conduct of the medical professional. This would require the doctor to be more open to understanding the reasons for the discomfort that Amelia and Adam do feel in this situation.

For an utilitarian an action is morally right if & only if it it maximises utility/happiness (maximises pleasure & minimises pain). In other words, the correctness of the action depends on its consequences. Utilitarianism answers dilemmas by reference to the principle of pain and pleasure. If the doctor were to look for a utilitarian solution to this problem, then he would have to focus more on the consequences of his actions. If Amelia is not given immediate medical intervention, including surgery, she will suffer serious health repercussions. However, if the doctor proceeds with the examination without Amelia’s consent, he faces serious legal consequences, including consequences in the criminal law.

Examination by a male surgeon - Ethical issue

It is a fact that observant Muslim patients have strong preferences about who may provide medical care to them. Muslim men would prefer male Muslim doctors and Muslim women would prefer Muslim female doctors (Lo 2012, p.335). In absence of doctors from their own faith, male and female Muslim patients will prefer doctors of their own gender even if they are from a different faith. The reason for prioritising same gender doctors, is due to the Islamic precepts of modesty, that have to be maintained at all times.

In Islam, preservation of modesty is a very important directive to be followed by all Muslims. The reluctance that Muslim patients show against examination of the opposite gender, springs from the Islamic prohibition on the free inter-mingling between non-related members of opposite genders. It is considered that situations where two non related persons of opposite genders are alone, should be avoided. This applies as far as possible, to medical examination scenarios as well. Therefore, it is important for healthcare professionals to understand Islamic precepts that have an impact on medical care of Muslim patients. The general rules can be summarised as follows- Muslim men and women should be examined by doctors of their own gender; where a sick Muslim woman needs to be uncovered for the purpose of medical examination, preference should be given to a qualified female Muslim doctor; if such doctor is not available then the order of preference would be a female doctor, a male Muslim doctor and lastly a male doctor (Rassool and Sange 2013, p.95). Where there is a situation of a necessity, these rules are made an exception to. Therefore, a male doctor may be allowed to examine a female Muslim patient, however, the patient’s husband or a close male relative should be present at such an examination (Rasool and Sanga 2013, p.95). It is important to understand the cultural context of this preference. In the Islamic culture, separation of genders is very important (Lo 2012, p.335). In such situations, Muslim patients, especially women patients have been also known to have refused treatment or have demonstrated a high degree of reluctance to allow necessary examination by male doctors. For example, there was a case in the United States, where the patient reluctantly allowed the examination of her spinal cord, following a bad fall. However, she refused rectal examination, despite a possible injury, and refused bad pan and bedside commode, despite a threat to her life due to non urination and defecation (Lo 2012, p.335). The present situation seen in Amelia’s case is not an exceptional situation. Many Muslim women and even Muslim men demonstrate an unwillingness to be examined or treated by a doctor of the opposite gender. This undoubtedly makes the task of the doctor, or nurse very complicated, as sometimes, medical intervention is required, but the patients are unwilling to get help, or determinedly refuse help, as is evident from the case from the United States mentioned above. In such situations, using open ended questions can help ease the situation for patients like Amelia. For example a question like: “I want to take the best care of your medical problems. Is there anything I need to know before we can give you the best care that we can?” (Lo 2012, p.335) can help assuage the hesitation and embarrassment of a patient, and may even help resolve the issue in a shorter period of time. Religious doctrine may actually be misinterpreted by the patients and there are Muslim doctors who have written about the allowances made in religious doctrine when it is a case of medical emergency. In this context, Rassool and Sange (2014, p.90) explain that Qu’ran (5:3, 6:145) provides that in emergency and life threatening situation, restrictions in medication, prevention, treatment and healthcare, etc., do not apply in the same way as in other situations. However, when a patient is agitated and in need of medical care, a bedside exposition of religious doctrine is not appropriate. Instead the doctor must focus on resolving the issue and giving the much needed medical care at the earliest.

Questioning a Muslim woman by a male surgeon, using the help of a male interpreter - Ethical issue

One of the important issues arising in this case is that apart from the male doctor, a male interpreter is also present at the examination as both Amelia and Adam have difficulty with the English language. Amelia does not understand the language at all and Adam has LEP.

As Amelia has reservations about being questioned in front of a male interpreter, one possible solution is that the male interpreter is first used to help explain Amelia’s condition to her husband, Adam. Once Adam understands the seriousness of Amelia’s condition, he may be able to convince her to be examined by the doctor. However, the interpreter has to be present at the examination, because Amelia’s condition has to be explained to her by the doctor personally. This cannot be done through her husband. As the patient, only she has the right to make the choices regarding the examination and treatment. However, for that she must have an understanding of her diagnosis and treatment options. One of the factors that can compromise the understanding of the patient is language difficulties and where a patient has difficulty in understanding English, the services of an interpreter must be used (Accott and Searby 2012, p.43).

Legal issues: Discussion

The legal issue that is involved in this case also relates to consent. A doctor cannot touch or carry out any medical examination, treatment or procedure on a patient without their consent. In law, there are certain elements of consent that are to be present for the consent to be valid. If the doctor carries on with the examination without the consent of the patient, then he can be sued for battery or negligence. One of the criterion to be met for valid consent is the disclosure and understanding of the medical condition and its treatment by the doctor to the patient. Such information is not just to be given by the doctor, it also has to be understood by the patient. As Amelia cannot understand English at all and Adam has LEP, it is imperative that the services of the interpreter are used. Consent can be defined as an agreement to a procedure expressed by the patient. Such agreement can only be given if it is based on a level of information that would be sufficient to satisfy the giver of that information if he were to be the recipient of that information (Seedhouse 2008, p.152). Informed consent may be said to be an individual’s autonomous authorisation for a medical intervention and here the individual must authorise something through an act of informed and voluntary consent (Beauchamp and Childress 2001, p.78). Consent is also seen in another sense and that is analysable in terms of social rules of consent in institutions that must get legally and institutionally valid consent from patients before the procedure (Beauchamp and Childress 2001, p.78). As such, consent has both information and consent components. The former includes disclosure and comprehension. Therefore, the patient should be given all relevant information and he should be able to comprehend the information given. This would mean that where language serves as a barrier to receiving and comprehending information, healthcare professionals would have to ensure that assistance in comprehending information is given, so that an informed consent can be taken before the procedure. It is pertinent that the Nursing and Midwifery Council (2015, p.7) also recommends that nurses should take reasonable steps to meet people’s language and communication needs, providing, wherever possible, assistance to those who need help to communicate their own or other people’s needs. Generally speaking, informed consent would include: (a) competence, that is capacity of a person to give consent; (b) disclosure, that is, imparting of information by the healthcare professional; (c) understanding, that is, comprehension of the information by the patient; (d) voluntariness of acceptance of the procedure or treatment; and (e) consent, that is, autonomous authorisation (Beauchamp and Childress, 2001, p.79). The right to consent or refuse medical treatment is covered by civil law of consent and assault. Medical treatment without obtaining consent is a trespass against the person. If a doctor or a health care professional touches a patient without the consent of that person, then they are committing an offence under the criminal law. At the same time, under the civil law, the patient has the right to sue the doctor for trespass to person. If the doctor or health care professional fails to obtain consent from the patient and proceeds with the treatment, the patient can sue for damages for battery. The other action that will be available to the patient is suit for tort of negligence. Here negligence is in the doctor’s failure to obtain consent (Mason, Laurie and McCall Smith 2013, p.17). Battery will happen when the doctor touches the patient without the consent of the patient. The patient will have to prove wrongful touch in order the base a claim for battery. The patient will not have to prove any resultant harm or damage done by the touching. Thus, it is enough that the doctor touched the patient without obtaining consent from him. Where the patient wants to base the claim in tort of negligence, he or she will have to prove to the court that the negligence of the doctor in touching without consent, has resulted in some injury for which damages are sought from the doctor. In Chatterton v Gerson, [1981], the court held that consent given should be real. If it can be shown that consent was unreal, the patient will have a cause of action for trespass. In Re T [1992], Lord Donaldson observed that treating a person without consent amounts to trespass, unless the person is unable to give consent or is unconscious. In such cases, the doctors should treat the patient in his best interests and according to clinical judgement. In S v St George’s Healthcare NHS Trust, [1998], the court held that a person of sound mind is entitled to refuse treatment. Even where the decision of the patient may seem to be morally repugnant, it does not diminish her right to make that decision. Right to consent means right to make an informed choice and give consent to the treatment. By definition, such informed choice can only be made when every relevant fact and issue is communicated clearly to the patient or their guardian. Where the patient is having difficulty understanding the language of the doctor and nurses, there will be a compromise with informed consent. Patients need to know the nature of the treatment, the benefits and risks of the same, and the consequences likely to follow the treatment (Lo, p.20). Here patient understanding is very important. This cannot be subject to a narrow interpretation, which would imply that as soon as the information has been given by the doctor or health care professional, his job is done. In Williamson v East London and City Health Authority, (1997), where complete information about the procedure was not given to the patient, it was held that the doctor had not fulfilled his role in giving sufficient information. Consent in clinical examination and procedure is a legal dictum and it must be followed at all times. If the doctor fails to obtain this consent, he faces some very serious legal consequences.

Professional issues: Discussion

The professional issue that is raised in this essay is with respect to the responsibility of the healthcare professionals to cooperate with Amelia to the best of their ability. One of the ways that the health care professionals in this scenario can do so is first by understanding the values and beliefs of Amelia, as this will help them understand her behaviour (Baillee and Black 2014, p.3). Professional health care givers need to have a good understanding of the decisions they make in practice as individuals who are accountable for those decisions and usually this involves a fair and just attitude towards patient care (Jeng and Macartney 2012, p.150). Accountability is one of the most important demands of professionalism, therefore individual members, such as doctors and nurses, are expected to demonstrate a high degree of accountability (Hendrick and Wigens 2004, p.59). It is also important to remember that the relationship between the patient and healthcare professional is fiduciary, that is, a relationship of trust (Grace 2012, p.4). Those people who need health care need to place their trust in healthcare professionals. Nursing ethics and professional responsibility are equivalent concepts (Grace 2012, p.6). This is true for all health care professionals. The Code for Nurses and Midwives, which has been made effective since 2015, provides that nurses must “act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment” (The Code 2015, para 20.2). Therefore, the different beliefs and viewpoints of the patient must be taken into consideration and the utmost should be done to cooperate with the patient. An important professional issue is the responsibility to cooperate with patients and other healthcare professionals. In fact, Professional teamwork is essential in healthcare. This teamwork helps enable effective and accurate transfer of information which leads to good decision making and patient care and management (Jeng and Macartney 2012, p.148). In this case, cooperative work is required as between the surgeon and the interpreter, who together can help understand Amelia’s beliefs and concerns and share the diagnosis with her and convince her of the need for immediate medical attention.

Conclusion

The ethical questions that are involved in medical examination and treatment of Muslim patients differ vastly from the general ethical questions that heath care professionals face with respect to patients from other faiths. In an increasingly multi- cultural society, cultural contexts in healthcare cannot be ignored. Therefore, it is essential for doctors, nurses and healthcare professionals to have due regard for cultural norms. In this situation, Amelia needs medical intervention. However, the doctor in charge of her case cannot examine her unless he has her consent to examine her. As a Muslim woman, Amelia has deep reservations that make her uncomfortable in being questioned or examined by a male doctor, in the presence of a male interpreter. Moreover, she has reservations about the very presence of the male interpreter. However, unless the male interpreter is present, Amelia will not be able to receive the necessary information that will help her understand the importance of medical intervention. One possible solution may be to speak with her husband first and explain Amelia’s condition to him, so that he can then speak to Amelia and help her understand the importance of the examination by the surgeon. The professional issue that is involved in this scenario is the cooperation of healthcare professionals with the patient. Amelia is in pain and needs surgery. However, in order to make her understand the diagnosis and the required treatment, the surgeon will have to first understand Amelia’s beliefs and practices that make her reluctant to allow a male surgeon to give her the treatment. This understanding may help the surgeon come to some solution that will enable him to convince Amelia and Adam of the seriousness of her medical condition. As a doctor, the surgeon owes a fiduciary duty to Amelia and he has to impart this duty with professionalism. This would include the utmost effort on his part to create an environment of understanding as between himself and Amelia and Adam to the best of his ability. Finally, there is an important legal issue of consent that is involved in this case. If the surgeon is not able to obtain consent by Amelia, he cannot even examine her. To examine or treat her without her consent will amount to trespass and both criminal and civil action can be taken against him for such trespass. This may involve the payment of damages to Amelia. The scenario demonstrates some important ethical, professional and legal issues that may come in specific healthcare settings, especially those involving patients with strong religious beliefs. The duty of the healthcare professional is to provide the best health care to the patient. That involves the weighing of these issues and decision making, taking into consideration, the code of conduct that is required to be followed at all times.

• The covenant has to be negative. In Haywood v Brunswick Permanent Benefit Building Society 3 , it was held that negative or restrictive covenants were enforceable as against a successor in title. In this, the principle laid down in Tulk v Moxhay 4 , was followed where it also held that restrictive covenants run with the land.
• The covenant must benefit the dominant land. Where the covenants are in adjacent land, it is easier to derive the benefit value of the covenant. Where the dominant land is nowhere close to the servient land, it is difficult to see how one can benefit the other, as was held in Kelly v Barrett. 5 Thus the two plots must be sufficiently proximate with each other in order for one to benefit from the other.
• The covenantee must on the date of the covenant, have owned the land for the benefit of which the covenant was made. In London County Council v Allen, 7 it was held that where the covenantee did not have possession of or interest in the land which was intended to benefit.
• It must be the common intention of the parties that the burden of the covenant should run with the land of the covenantor. Under Law of Property Act 1925 (LPA 1925), s.79 this intention is presumed, unless it is specifically excluded. In Re Royal Victoria Pavilion 8 where the covenant was held to be personal in nature, the benefit and burden were not allowed to pass to the respective successors in title.

The benefit of covenant passes in equity to the successor in title by: annexation, assignment and scheme of development. 9 Annexation is the permanent attachment of the benefit of the covenant to the land and once attached, the benefit will pass to the successors. 10 Annexation basically nails the covenant to the land. 11 Of special significance is that the dominant land should be clearly recognised in the annexation. 12 Especially, where the words ‘to each and every part’ are used with respect to the covenantee’s land, this is an example of an express annexation.

Under the common law, the doctrine of privity of contract is applied. Under this doctrine, the successor in title does not get the burden as he did not originally enter into the covenant.

The rules with relation to the passing of benefit in common law are different from the passing of burden. In P A Swift Investments v Combined English Stores Group plc, 14 the House of Lords laid down the following conditions for transmission of benefit of covenant:

• the covenant must touch and concern the land of the covenantee;
• the covenantee must have some legal estate in the land;
• the transferee must also take a legal estate in the land benefitted;
• it must have been intended that the benefit should run with the land owned by the covenantee at the date of the covenant.

Generally speaking, for the passing of benefit to the successor (Coriander), she must prove that the covenantee held a legal estate in the land (the freehold), she also holds a legal estate in the land 16 , the covenant must touch and concern the land 17 and there must have been an intention that the covenant should run at the date of the covenant. This is usually presumed under Law of Property Act 1925 (LPA 1925), s. 78. Unless specifically excluded, it is presumed that there was an intention that the covenant should run.

Apart from LPA 1925, s.78(1), a newer legislation, that is, the Contracts (Rights of Third Parties) Act 1999 (CRTPA 1999), also provides that a person who is not ‘in his own right’ a party to the contract, may still enforce a term in the contract that expressly allows him to take such an action or confers some benefit on such a person. 19 It is important to note that the CRTPA 1999 applies to all covenants made after May 2000. In this case, the covenant was made in 2010. Therefore, instead of applying the doctrine of privity of contract to exclude Coriander’s right ti take legal remedy, CRTPA 1999, s.1 can be used to allow her to take a remedy.

In the present situation, the transfer clause makes clear that the covenant is for the benefit of No.25. As the registered freehold owner of No.25, Rosemary had legal estate in the land. Coriander has taken the legal estate in No.25 as the inheritor of the estate after Rosemary’s death. Finally, the last condition is clearly satisfied by the last clause of the transfer, which states that “The burden of this covenant is intended to bind and binds each and every part of the property into whosoever’s hands it may come.” This is clearly an annexation. Thus, all the conditions for the passing of the benefit are satisfied in Coriander’s case.

Effect of Registered Disposition

Under the Land Registration Act 2002 (LRA 2002), s.29(1), a covenant will take effect as an interest requiring protection on the Register and must be entered by way of notice against the title of the covenantor’s land. The notice has to be entered in the Charges Register for the burdened land and on the Property Register for the benefitted land. 20 If the holder of the right fails to register the covenant, then the fact of its knowledge or notice to the purchaser of the property, is irrelevant.

Remedies available to Coriander

Restrictive covenant being an equitable right, the remedies are also available in equity. The remedy that is the most appropriate for Coriander in this situation is injunction. As the breach has not occurred at this time and Didier and Dominique have yet to apply for the planning commission, the appropriate injunction remedy in this case is a quia timet injunction. 21 In cases where the breach is in an anticipatory stage, as in this situation, a quia timet injunction prevents the breach from taking place by restraining the action. It is important to note the following points that are relevant for equitable remedy of injunction. A restrictive covenant is enforceable against the successor in title to the covenantor if the burden has passed to him in equity. The successor in title to the covenantee can enforce the covenant as against the other party under LPA 1925, s. 56 or CROTPA 1999.

In addition, being an equitable remedy, the maxims of equity are also applicable to the enforcement of the covenant. Therefore, the successor in title to the covenantee must show that he has ‘clean hands’, that is, he has not done anything that would compromise the legality of his situation. The the doctrine of laches is applicable to ensure that the applicant does not delay action beyond reasonable period of time. There must be no indication or agreement between the parties that applicant that will accept monetary compensation for the breach of covenant.

When these conditions are satisfied, the successor in title to the covenantee can petition for an injunction. In this case, the benefit had passed to Coriander under equity. Moreover, she satisfies the requirements of equity for the purpose of having the injunction granted to her. She has not delayed the action, or entered into any agreement for monetary compensation. At this stage the breach is at the anticipatory stage. Coriander can rightfully take action for an injunction to prevent the breach.

Conclusion

The covenant being a negative covenant, runs with the land under equity. The covenant is also expressly annexed in the transfer document. Therefore, it binds future successors in title to the covenantor. In the present case, both the benefits and burdens of the covenant have passed under equity. This means that the covenant is enforceable in equity. Accordingly, the equitable remedy of injunction for anticipatory breach of covenant is available to Coriander as against Didier and Dominique.

Bibliography