Legal issues in emergency medicine


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legal issues in emergency medicine

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  • essential to all doctors, and ussualy avoided, overlooked
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  • Going to talk about a number of issues
    Why – it’s important to have a clear idea
    When we practice we don’t really think about it – most of the time we don’t have to
    Now and then we get a case where these issues do come into play and we do have to, or at least we should stop and think about it.
  • Common/courts/legislation
    Civil – one party takes another to court – business, financial, domestic land and environemt court
    Criminal – someone is charged with doing something that is unlawful – against the law.
  • I just want to briefly discuss medical ethics bfore we go on
    Hippocrates. Principles of medical ethics thomas percival
  • Really comes back to doing the best for our patients. Concepts like duty of care and medical ethics and even moral duty comes into it. The legal aspect becomes involved to do a couple of things 1. to determine whether care is appropriate or not 2. to provide guidance to the profession in cases where there has been uncertainty – why we should take an interest in this.
  • When in our careers do we get taught this topic
  • Good samaritan act, Cardiac arrest on ward, Medication prescribing, up to date with medical knowledge and treatments, consultant supervision
  • Lies at the heart of doctor patient interaction
    Any examination or investigation is voluntary and we need consent to perform them.
    Essentially everything requires consent.
    Legally a very complex issue
  • These are the features of valid informed consent
  • Also that the patient understands
    Appropriate for the doctor to give their opinion as to the best option.
    Often expected and desired by patients
    Would not be considered coercive unless given in a manipulative fashion
  • Facts: The respondent, Maree Whitaker, had been almost totally blind in her right eye for nearly 40 years since suffering a severe injury to the eye at the age of nine. Despite the injury she had lived a substantially normal life. She consulted the appellant, Christopher Rogers, an ophthalmic surgeon, who advised her that an operation on the injured eye would not only improve its appearance but would probably restore sight to it.
    Following the surgery, which was conducted with the required skill and care, the respondent developed a condition known as 'sympathetic ophthalmia' in her left eye. In the end she lost all sight in her left eye, and as there had been no restoration of sight in her right eye, she was almost totally blind.
    She sued the appellant alleging his failure to warn her of the risk of sympathetic ophthalmia was negligent. She had not specifically asked whether the operation to her right eye could affect her left eye but she had incessantly questioned the appellant as to possible complications. The appellant said in evidence, "sympathetic ophthalmia was not something that came to my mind to mention to her". Evidence given at the trial was that the risk of sympathetic ophthalmia was about one in 14,000 and even then not all cases lead to blindness in the affected eye.
    The appellant relied on the principle used in UK cases, (the "Bolan" principle), that a medical practitioner is not negligent if he acts in accordance with a practice accepted at the time as proper by his peers, even though other medical practitioners adopt a different practice. In other words, the standard of care owed to a patient in all things is determined by medical judgment.
    High Court Decision: The six High Court judges agreed that except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. The choice is meaningless unless it is made on the basis of relevant information and advise. "The Law should recognise that a medical practitioner has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the
    medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."
  • Child – to come
    Intellect – mild may be ok, more severe guardianship – predetermined
    Mental – does not automatically preclude – need to determine competence – if difficult get psychiatrist help
    Drugs and alcohol – not clear. Legal and medical opinion of the capacity of patient who is affected by alcohol or drugs often will not agree. Act in the best interests of the patient – you will be on solid ground
    Restraing patient – may be justified if leaving is judged to have adverse medical consequences and you determine the patient lacks the capacity intheir intoxicated state. – better to be sued for assault than for damage if allowed to leave
    Emergency- time and urgency may justify proceding in absence of consent if deemed to be in the best ibterests of the patient. Explain treatment as early as possible
  • Competence can vary over time
    A mental illness does not necessarily imply a lack of capacity to consent, if the above elements can still be satisfied
    Competence is specific and/or can vary with specific tasks — a patient may be competent to consent for a simple procedure but not a complex procedure
    The patient’s decision need not be one that others would regard as reasonable, but it must involve a process of reasoning
    improvements in the patient’s level of comfort may improve competence – giving them time to think, allowing the support of friends and relatives, treating any reversible symptoms, such as pain, that may be compromising their capacity, or putting them in a quiet room or somewhere with a non-threatening atmosphere
    comprehensive testing (e.g. neuropsychiatric testing) and extensive corroborative testing is advised if there is disagreement between health professionals, or between them and patients or guardians
    the more serious the decision that has to be made, the greater the care needed to ensure that competence can be presumed
  • The health department advised that contraception was at the doctors discretion and it could be provided without parental consent. Gillick set up litigation saying a doctor prescibing contracetion to her daughter would be unlawful and would be encouraging underage sex.
    Went through a few levels of court. The house of lords had to decide whethrer the minor could consent in principle. Consent to battery and assault in the absence of patient consent to treatment even is the doctor felt it was in the best interests of the patient
    The House of Lords focused on the issue of consent rather than a notion of 'parental rights' or parental powers.
    In fact, the court held that 'parental rights' did not exist, other than to safeguard the best interests of a minor.
    The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment. Provided the minor could consent if he or she fully understood the medical treatment that is proposed:
    "As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed." Lord Scarman
    The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. The authority of parents to make decisions for their minor children is not absolute, but diminishes with the child's evolving maturity; except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.
    Fraser guidelines – deal specifically with contraception in a minor
    ..a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria:

1) that the girl (although under the age of 16 years of age) will understand his advice;

2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;

3) that she is very likely to continue having sexual intercourse with or without contraceptive treatment;

4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent."
  • Hysterctomy vs appendicectomy
  • Dependant patients/ethical duty to prevent harm to others/ legal exceptions
  • Talk about Jehovah witnessess
  • Legal issues in emergency medicine

    1. 1. Legal Issues in Emergency Medicine
    2. 2. The Law • Commonwealth of Australia Constitution Act; 1900 • Australia Act; 1986 • Common Law • Civil Law • Criminal Law
    3. 3. Medical Ethics • • • • Beneficence Autonomy Non-Malificience Justice • Honesty • Respect
    4. 4. Why do we need to know this? • To avoid getting sued • To keep our employers happy • To pass fellowship exams • To provide the best possible care to our patients and avoid adverse outcomes
    5. 5. When do we you get taught about legal issues in medicine? • • • • At medical school? As a junior doctor? As a trainee? As a specialist?
    6. 6. Where do we get information on this topic? • • • • Textbooks/journals/online resources Medical defence organisations Hospital policies Legal precedents • Informal conversations with colleagues • Trial and error • Experience
    7. 7. Legal issues in emergency medicine • • • • • • • • • Consent Patient confidentiality Competence Documentation Medical error Open disclosure Medicolegal reports Mental health act Coronial police • • • • • • Duty of care Giving advice Transfer of responsibility Leaving against advice Leaving without being seen Refusing treatment
    8. 8. What will we discuss • • • • • • Duty of care Consent Competence/capacity Privacy/confidentiality DAMA/Refusal of treatment Negligence
    9. 9. Duty of care • Not just relating to mental health issues • Principle that doctors have a duty to provide care to patients which is – In the patients best interests – Is to the best of his/her ability – Is appropriate to the situation • Focussed on what is reasonable • Negligence requires a duty of care
    10. 10. Some examples in ED • • • • • Cardiac arrest End of shift Medication prescribing Clinical knowledge Consultant responsibility
    11. 11. Consent • Medical treatment requires patient consent • Consent may given – Implied – Verbally – Written • Involving the patient in decision making about their care
    12. 12. Valid Consent 1. Must be legally capable of giving consent – Competent, not a minor, under guardianship, mentally ill, disabled by drugs or alcohol 2. 3. 4. 5. Consent must be informed Consent must be specific Consent must be freely given Consent must cover that which is actually done
    13. 13. What does informed consent imply? • • • • Clear Accurate Relevent Material • Treatment options • Consequences of treatment • Consequences of no treatment
    14. 14. Rogers & Whittaker • Australian High Court decision • The case • The decision – All medical treatment is preceded by the patients choice – Duty to disclose all material risks to the patient • A reasonable person would attach significance to it • The outcome
    15. 15. Ability to consent in difficult situations • • • • • Children/adolescents Intellectually impaired Mentally ill Drug and alcohol affected Patient in the emergency department • What would a reasonable doctor do? – The “will I look like a dickhead” test
    16. 16. Capacity vs Competence • Capacity – – – – Decision making capacity Personal values Comprehension Understanding • Our role to determine • Competence – Whether a person is legally able to manage their affairs or not – Presumed for adults • Courts role to detemine
    17. 17. Determining capacity • Functional assessment • Ability to understand the information • Ability to appreciate the situation and consequences • Ability to rationally manipulate the information • Ability to communicate a choice • Understanding/Belief/Reasoning/Choice
    18. 18. How to determine capacity What do you believe is wrong with you? What treatment has been proposed? What will happen if you don’t have it? Why have I(has the doctor) recommended it? Can you tell me what your decision is? How did you reach your decision?
    19. 19. Consent/Competence in Children • Not usually a problem if parental consent available • In absence of parental consent – Not strictly determined by age – More about maturity • Adult >18 • Mature minor > 16 • Minor ~14 or less – Grey area in between • Gillick competence (test) – Understanding – Maturity “A minor is considered to be competent to consent to treatment when the person ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’”
    20. 20. Consent/Competence in Children • Advice for young players – Depends on understanding of child – Depends on complexity of treatment – Try to persuade child to involve parents – Involve colleague/second opinion – Document all discussion/actions taken – Exceptions include emergency/life-saving treatments
    21. 21. Privacy/Confidentiality • Information gained in doctor-patient relationship shall remain confidential • Grey areas exist • Exceptions • Conflicts – Duty to community – Notifiable diseases • Medical risk – Mandatory reporting • Serious crime – Impaired health practitioner
    22. 22. DAMA/Refusal of treatment • Patient has right to refuse treatment – – – – Competent Informed Meticulous documentation Responsibility to ensure safe discharge • Risks for DAMA – – – – Young, male Indigenous Alcohol/drug user Low socioeconomic status
    23. 23. Negligence • Requires a duty of care situation • Negligence – Medical duty of care – Breach of duty of care – Harm and causation • Court decision – Expert opinion – Guidelines – Bolam (UK law) – Bolitho • Reasonable care
    24. 24. Bolam and Bolitho • UK high court decision 1954 • The case • UK House of Lords 1993 • The case • Not negligent if actions in keeping with current practice of peers • Medical profession decides • Defence cannot be based on standard practice if that is not reasonable practice • Up to the court to decide
    25. 25. Take Home Message • Legal issues are complex – Focus on what a reasonable person would do • Always act in the best interests of the patient – Bearing in mind what they would want • • • • Know the features of valid consent Know how to assess capacity Documentation is important Our work environment makes it more difficult
    26. 26. Sources of information • • • • Cameron, Adult Textbook of Emergency Medicine, 3rd edition Tintinalli, Emergency Medicine 7th Edition Dunn, The Emergency Medicine Manual 5th Edition Life in the Fast Lane website – – – • Stewart C, et al. The Australian Medico-Legal Handbook (1st edition), Elsevier,2007 • Don’t forget the bubbles website –