Nicholas Mann - Slater & Gordon Lawyers - Medico Legal Issues for Hospital in the Home


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Nicholas Mann delivered the presentation at 2014 Hospital in the Home Conference.

The 2014 Hospital in the Home Conference included practical presentations such as Medico Legal Issues, Public Private Partnership Driving HITH Growth, HITH implementation, Clinical Redesign and Impact on Clinical Governance & Performance, Advanced Care Planning and more.

For more information about the event, please visit:

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Nicholas Mann - Slater & Gordon Lawyers - Medico Legal Issues for Hospital in the Home

  1. 1. Medicolegal Issues in Hospital in the Home Nicholas Mann Senior Associate Medical Law, Melbourne 25 May 2014
  2. 2. ©Slater&GordonLimited2014 2 1. Our position regarding HITH; 2. Overview of medical law in Victoria; 3. Strengths and weaknesses of HITH from a legal perspective; 4. HITH Case Study; 5. Questions. Introduction
  3. 3. ©Slater&GordonLimited2014 3 Our position regarding HITH ►HITH associated with reductions in mortality, readmission rates and cost, and increases in patient and carer satisfaction. ►Increases in patient and carer satisfaction = reduction in complaints and claims.
  4. 4. ©Slater&GordonLimited2014 4 Our position regarding HITH ►We strongly support HITH from a patient safety perspective. ►Likely to create different risks which need to be considered in order to maximise patient safety and satisfaction.
  5. 5. ©Slater&GordonLimited2014 5 Duty of Care < Standard of Care Causation Damage Medical Law Overview
  6. 6. ©Slater&GordonLimited2014 6 Medical Law Overview - Duty of Care ►A duty of care uncontestably exists in direct doctor – patient relationship. ►This duty extends to patients being treated through HITH. ►The scope of the duty continues throughout the HITH admission.
  7. 7. ©Slater&GordonLimited2012 7 Duty of Care Standard of Care < Causation Damage
  8. 8. ©Slater&GordonLimited2014 8 Standard of Care A Medical Practitioner must act accordance with a practice accepted as proper by a responsible body
  9. 9. ©Slater&GordonLimited2012 9 Standard of Care Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: – A case regarding a mental health institution patient suffered injury undergoing electro-convulsive therapy. Decision: - A practitioner must act in accordance with the standard of a reasonable body of medical opinion. – - McNair J. stated that a practitioner “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
  10. 10. ©Slater&GordonLimited2014 10 Standard of Care ►What is the standard expected of Hospital in the Home? • HITH holds itself out as providing the service of a Hospital, but in a different environment. • For this reason, the same standard applies. • A person or medical facility that holds themselves out as having a specialist skill will be judged by the objective standards of a reasonably competent person (or facility) exercising that skill. Shakoor v Situ (t/a Eternal Health Co) [2000] 4 All ER 181
  11. 11. ©Slater&GordonLimited2014 11 Standard of Care ►Is there a lower standard because it is within a patient’s home rather than in a Hospital setting • No. ►Can the Hospital transfer its legal duties by relying on family members to provide required care? • No
  12. 12. ©Slater&GordonLimited2012 12 Duty of Care Standard of Care Causation < Damage
  13. 13. ©Slater&GordonLimited2014 13 Causation The negligence must have caused or significantly contributed to the injury.
  14. 14. ©Slater&GordonLimited2014 14 Causation ►South Australia Asset Management Corp v York Montague Ltd [1996] UKHL 10: ► “A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a Doctor who negligently makes a superficial exam and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the Doctor had told him the true state of his knee.” ► If the mountaineer is then injured in an avalanche, “the doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct.”
  15. 15. ©Slater&GordonLimited2014 15 Causation Tabet v Gett [2010] HCA 12 In a unanimous decision, the Court held that damages are not available for the loss of a chance of a better medical outcome. The plaintiff must prove, on the balance of probabilities, that they would have had a better outcome had the defendant not been negligent.
  16. 16. ©Slater&GordonLimited2014 16 Duty of Care Standard of Care Causation Damage <
  17. 17. ©Slater&GordonLimited2014 17 Damage ►If a Plaintiff successfully establishes that their injury was caused by medical negligence, they have an entitlement to seek ‘‘damages’‘ for the losses they have suffered as a result. ►No damages in the case of a near miss, and very limited damages where the injury is not permanent or ongoing. ►Damages are made up of ‘‘economic loss” and ‘‘non-economic loss” (pain and suffering).
  18. 18. ©Slater&GordonLimited2014 18 Potential Advantages of HITH ►Quicker recovery; ►Lower cost; ►Less exposure to risks such as infection; ►Frees up resources for other patient tx; ►Happier, healthier patients;
  19. 19. ©Slater&GordonLimited2014 19 Key areas of risk in HITH ►Breakdowns in communication and education ►Failure to refer back to Hospital ►Administration failure ►Unsuitable candidate/carer/environment
  20. 20. ©Slater&GordonLimited2014 20 Case Study ►17 year old boy admitted with abdo injury. Pancreatic surgery. ►Discharged into HITH. ►Two days post-discharge developed bleeding and discharge. ►Patient worsened. ►Several complaints, not fully communicated. ►Father called nurse and advised Pt having difficulty breathing. Nurse called Ambulance. ►Pt collapsed and died in Hospital from intra-abdo haemorrhage from pancreatic rupture.
  21. 21. ©Slater&GordonLimited2014 21 Case Study: Some Issues Raised ►Is the Pt an appropriate candidate? • In this scenario, the Coroner found the Pt was an appropriate candidate, but this is important to consider. • Does Pt have capacity to give consent (if necessary) and understand instructions? • Does Pt have suitable carer(s) and accommodation?
  22. 22. ©Slater&GordonLimited2014 22 Case Study: Some Issues Raised ►Are staff, Pt and carers properly educated? • Ensure staff are aware of the risks to the patient, and of the contingency plan, should issues develop. • Ensure carers are aware of symptoms or issues to flag, and of appropriate responses. • What are the thresholds for referring Pt back to Hospital? • Who should review Pt if issues develop? • Should Pt go to GP, ED, ward or have home review?
  23. 23. ©Slater&GordonLimited2014 23 ►Administration • Do the Carers have the correct contact details? • Pt’s mother had been given the contact details for his old ward, not for HITH, while father contacted HITH. • Confusion about the appropriate point of contact, and whose care Pt was in. • Is there a written contingency on hand for treating practitioners and carers? Case Study: Some Issues Raised
  24. 24. ©Slater&GordonLimited2014 24 Case Study: Some Issues Raised ►Administration • Locating and updating documentation: • Failure to communicate crucial details • Where is the patient’s documentation? • How detailed are the medical records/progress notes? • How/when are they being updated? • Is there a clearly identified chain of custody of documentation?
  25. 25. ©Slater&GordonLimited2014 25 Other things to consider ►Refusal of treatment ►Unsuitability of environment/carers ►Additional risks including co-morbidities eg Type II diabetes ►Safety of staff
  26. 26. ©Slater&GordonLimited2014 26 Disclaimer The information provided by Slater & Gordon in this presentation is general in nature and should not be relied upon as legal advice. Legal advice should be sought for specific matters.
  27. 27. ©Slater&GordonLimited2014 27 Questions or comments?