Margaret Stark - University of Sydney - Ethical Dilemmas in Clinical Forensic Medicine Case Histories


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Margaret Stark, Director Clinical Forensic Medicine Unit, Forensic Services Group, New South Wales Police Force; Adjunct Professor, The University of Sydney presented this at the 2nd Annual Forensic Nursing Conference.

This is the only national even of its kind promoting research and leadership for Australia's Forensic Nursing Community. The program addresses future training of forensic nursing examiners, forensic mental health consmers, homicide and its aftermath, ethical dilemmas in clinical forensic medicine, child sexual abuse, providing health care to indigenous patients in the forensic arena and more.

To find out more about this conference, please visit

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Margaret Stark - University of Sydney - Ethical Dilemmas in Clinical Forensic Medicine Case Histories

  2. 2. DEFINITION OF ETHICS The study of what we ought to do!
  3. 3. OUTLINE Role of forensic practitioners (FP) (nurses and doctors)  Guidance for practitioners  Key concepts in medical ethics  Model for ethical problem solving in clinical medicine  Case examples 
  4. 4. ROLE OF FORENSIC PRACTITIONERS (FP) Individuals detained in police custody have the same rights and expectations to medical care as any other patients  The right to privacy, dignity and confidentiality   FP have dual responsibilities: To provide forensic and therapeutic services  Duty of care to person being examined/treated  See Sarkar U., Stark MM. Wall I. The role of the Independent FP, 2014 & Randle J., Fewkes S., & Stark MM. The Role of the HCP, 2012
  5. 5. ROLE OF FP - 2 Ensure patient understands FP has dual obligations  Consent is important  Confidentiality is important - information should not normally be disclosed without the patient’s knowledge and consent  FP have a duty to monitor and speak out when services are inadequate, hazardous, or otherwise pose a potential threat to health  FFLM & BMA. Health care of detainees in police stations. Feb 2009
  6. 6. GUIDANCE FOR PRACTITIONERS EXISTS -1 International – UN, WMA  National – AMA, BMA  AMA Health and the Criminal Justice System, 2012   Regulator – AHPRA/MBA/NMB, GMC, NMC
  7. 7. GUIDANCE FOR PRACTITIONERS EXISTS -2 Professional bodies – IAFN, NAFN, UKAFN, FFLM, AAFP, ACLM, FAMSACA  Medical Guidelines from, e.g. National Institute for Health and Clinical Excellence (NICE), CMO, NSW Health, etc.  Medical and health care law  Statute law made by parliament  International laws  Common law precedents set by judges in previous cases 
  8. 8. INTERNATIONAL  UN Body of principles for the Protection of All Persons under Any Form of Detention or Imprisonment  Optional Protocol to the UN Convention against Torture   National Preventive Mechanisms (NPM) with involvement of HCPs (UK and NZ)
  9. 9. WMA Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprisonment, 1975  Declaration of Hamburg concerning Support for Medical Doctors refusing to participate in or to Condone, the use of Torture or Other Forms of Cruel, Inhuman or Degrading Treatment (1997, reaffirmed 2007) 
  10. 10. REGULATOR  AHPRA Australia  MBA Good medical practice: A Code of Conduct for Doctors in Australia  Nursing and Midwifery Board of Australia Code of Ethics and Code of Professional Conduct for Nurses & Midwives  Nursing & Midwifery Council NMC   The Code: Standards of conduct, performance and ethics for nurses and midwives, 2008 General Medical Council (GMC-UK)  Good Medical Practice, 2013
  11. 11. MEDICAL GUIDELINES  Suspected Internal Drug Traffickers (SIDTs)   Independent report of the CMO’s expert group on medical care of SIDTS. January 2013 Head Injury  Head injury. Triage, assessment, investigation and early management of head injury in children, young people and adults. January 2014. NICE clinical guideline 176
  12. 12. CRIMES ACT 1900 NSW Concealing serious indictable offence Penalty of two years imprisonment if there is no ‘reasonable excuse’ • Serious criminal offence one attracting a penalty of 5 years imprisonment or more •
  13. 13. MANDATORY REPORTING Required for Child Abuse - NSW Children and Young Person (Care & Protection) Act 1998  Blood samples required under Road Traffic legislation   DV NSW Health DV policy required reporting of DV to police
  14. 14. GMC – UK GUIDANCE FOR GUNSHOT & KNIFE WOUNDS    Inform police so they can perform a risk assessment You should make a professional judgement about whether disclosure of personal information about a patient, including their identity, is justified in the public interest. Disclosures in the public interest may be justified when: (a) failure to disclose information may put the patient, or someone else, at risk of death or serious harm, or  (b) disclosure is likely to help in the prevention, detection or prosecution of a serious crime.   No agreed definition of ‘serious crime’. DH gives some examples of serious crime murder, manslaughter, rape and child abuse, etc.
  15. 15. HUMAN RIGHTS LAW RELEVANT ARTICLES 2 the right to life  3 prohibition on torture, inhuman or degrading treatment  5 the right to liberty and security  6 the right to a fair hearing or fair trial  8 respect for private and family life  9 freedom of thought, conscience and religion  10 freedom of expression  12 the right to marry and found a family  14 the enjoyment of these rights to be secured without discrimination 
  16. 16. NSW CRIMES (FORENSIC PROCEDURES) ACT 200  Experts not obliged to carry out forensic procedures S108: “Nothing in this Act requires a medical practitioner, nurse or dentist, dentist prosthesist or appropriately qualified police officer or person to carry out a forensic procedure.”
  17. 17. KEY CONCEPTS IN MEDICAL ETHICS Self determination/autonomy  Mental capacity  Honesty & integrity  Confidentiality (note public interest disclosure that is for the public good)  Harm and benefit (example of blood from incapacitated drivers)  Fairness & equity  From: BMA Ethics Department. Everyday Medical Ethics and Law, Wiley-Blackwell, 2013
  18. 18. MODEL FOR ETHICAL PROBLEM SOLVING IN CLINICAL MEDICINE Identify the ethical problem  Get the facts (H,E,SI)  Consider core ethical principles  Consider how the problem would look from another perspective or using another theory  Identify ethical conflicts between principles, values or perspectives  Consider the law  Identify a way forward  From: Principle-based ethics. Chapter 7 pp.138-9 Kerridge I., Lowe M., & Stewart C. Ethics and law for the health professions, 4th edn, The Federation Press, 2013
  19. 19. CASE 1 You are called by the local police to take intimate samples from a murder suspect  He is 15 years old  His mother who is not at the police station has schizophrenia 
  20. 20. ISSUES TO CONSIDER Can the 15 year old consent to having the samples taken?  Who has parental responsibility for a child?  Can the mother, who is suffering from a significant mental health problem, give consent?  Can a parent lose parental responsibility? 
  21. 21. NSW CONSENT Therapeutic/Forensic  Child under 18 years ‘vulnerable’ under the Law Enforcement (Powers and Responsibilities) Regulation (NSW) need a support person present whilst in custody  Considered ‘incapable’ of consenting to a forensic procedure  Authorisation by order of a magistrate or authorised officer  Need an interview friend to be present for the procedure 
  22. 22. NSW CONSENT  Cf: Age of consent for treatment Minors (Property and Contracts) Act 1970 14 yrs  Gillick competence  Child not competent then parental power survives till child is 18 yrs  Best interests of the child  Both parents have PR for a child under 18 years unless court order to the contrary  Guardianship covers incompetent patients over 16 yrs 
  23. 23. CASE 2 You are called to see a suspect arrested for a serious assault.  He has some injuries to his hands and you ask how he got them. He replies “I punched him because he raped me”. 
  24. 24. ISSUES TO CONSIDER Does the management of the alleged sexual assault take priority over the assessment of a person of interest?  Would you lose evidence if you managed the suspect as a complainant first? 
  25. 25. DUTY OF CARE Suspect owed a duty of care  Assessment and treatment at the local sexual assault service would allow all samples to be taken with consent and as appropriate and treatment needs assessed 
  26. 26. CASE 3 You are called to see a suspect who has recently arrived from South America on an extradition warrant for a serious assault.  The police ask you to see the suspect to document his injuries and assess whether he is fit for interview (after the long journey).  The suspect through an interpreter advises that you can ask him some questions, look at his body, but he will not speak to you about any injuries and you cannot tell the police what you find in relation to the injuries. 
  27. 27. ISSUES TO CONSIDER Would you see a suspect who is giving only partial consent to an assessment?  How do you manage the lack of absolute confidentiality?  How confident would you be to assess any injuries you may find on examination without the history of causation? 
  28. 28. DUAL ROLE Need to explain dual role  Full consent maybe obtained later to release information  Long journey so an assessment as to his fitness for detention & interview is essential.  Need to exclude fatigue, hunger, current and past medical and psychiatric issues.   DUTY OF CARE If no assessment is performed the police cannot proceed – long journey for no outcome!  Injury documentation can be done/interpretation without a full history may have limitations   FORENSIC ROLE
  29. 29. CONCLUSIONS There are no absolutes and no easy answers  Cases need to be dealt with on an individual case by case basis  BUT remember:  1. 2. 3. 4. You are a healthcare professional first Get as much information as possible Seek advice from a senior colleague Seek medico-legal advice as appropriate – Ministry of Health/independent professional indemnity, e.g. AVANT
  30. 30. REFERENCES/FURTHER READING       BMA Ethics Department. Everyday Medical Ethics and Law, Wiley-Blackwell, 2013 BMA. Medical Ethics Today. The BMA’s Handbook of Ethics and Law, 3rd edn, Wiley-Blackwell, 2012 Stewart C., Kerridge I. & Parker M. The Australian Medico-Legal Handbook, Churchill Livingstone, 2008 Kerridge I., Lowe M., & Stewart C. Ethics and law for the health professions, 4th edn, The Federation Press, 2013 FFLM. Consent from patients who may have been seriously assaulted. 2011 BMA. Taking blood specimens from incapacitated drivers. Guidance for doctors from the BMA and FFLM. 2010