New Zealand MedicalLaw and EthicsRefresher 2013Dr Chris CresswellEmergency Medicine PhysicianWhanganui
Disclaimer!! I am not an expert on Medical Law and Ethics! I complained about lack of clinicians and clinical cases at previous conferences ! So why me? – cos no one else is doing it! Keith! I do not represent my employer
Conversation! One clinician posing some curly cases ! Cases based on real cases or common ED challenges ! Some cases did not go so well
! Often grey areas without definite rules ! “This is a difficult area” ! Opinion ! Medical cultural agreement ! Medico-legal-ethical agreement ! Societal agreement! Respecting patients autonomy vs perceived risk/benefit of treatment or non treatment! Big picture vs the individual in front of us
Key issues for clinicians! Confidentiality! Duty of Care! Competence
Sedated Ambo! Sunday night of long weekend, provincial hospital in Australia! Moderately busy ED! 30M took a 8 sleeping tablets and then had low speed motorcycle crash. Hx of depression. An antidepressant and sleeping pills! BIB colleague by private vehicle! Sleepy, minor grazes! Denies suicidal ideation! Medically treated and cleared
! d/w psych: patient known to them. Low risk of suicide. Has follow up appointment with psych in a few days -> fit for discharge.! Patient due to work tomorrow! Sleeping pills will have worn off by then! Is he safe to work?
! On review it was considered that this was not serious and imminent enough risk to break patient confidentiality! Strong contrary opinions from several ED docs! Reframing ! Would the doctors have acted the same if he had been driving, out of work hours, under the influence of alcohol? ! Is it valid that we considered driving under the influence of sedatives different?
Confidentiality! We can break confidentiality if there is serious risk to the patient or the public ! It must be reported to someone who can directly address the risk ! eg police or psych services ! Not the media! ! Only divulge as much information as required for that agency to be able to address the risk! If in doubt talk to senior colleagues and to your employers privacy officer +/or your indemnity insurer
Duty of Care! An ethical and legal responsibility to act in patients’ best interests ! Even if it is against their will ! Even if it requires use of force or chemical sedation! Especially when they are not competent to decide for themselves! Means we can get away with a lot if we think it is in the patients best interests
Or, in terms of the Health and Disability Code:! RIGHT 4 Right to Services of an Appropriate Standard ! 4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.Or the Common Law Principle of Necessity
Competence! In practice ! Can the patient tell me what is happening and the implications of the decisions s/he is making ! + a clinician’s assessment of whether or not they are actually making the decision they would make if they were well / uninjured / sane ! Does she know enough? ! Does she understand enough? ! Is she free enough to make the best decisions for herself? ! Free from the coercive forces of ! Psychiatric illness ! Drugs ! But not necessarily free from coercive force of the threat of violence
Competence! Competent patients have the right to make “wrong” decisions.! Generally age 16 is the age of competence but age is less important than the patient’s ability to understand. ! If patient understands they may be able to make their own decisions ! Especially with contraception, termination of pregnancy! Competence assessment on all elderly admitted or hospital ! Because likely to come to a competence question
Paracetamol testing! 23F 25g (potentially dangerous) paracetamol taken with suicidal intent! Blood test required to determine whether she needs antidote! Patients refuses to allow a blood test to be taken! She says she understands the risk that she could die without treatment! What do we do?
! We assess that she is not competent to make this decision for herself because she is under the coercive force of a psychiatric illness.! We say if she was competent / well she would want to have testing and treatment
What we have done! Traditionally we have threatened patients with sectioning under the Mental Health Act and they usually give in and allow testing and treatment! In fact Mental Health Act does not allow medical investigation and treatment against the patients will! But we have a Duty of Care to test +/- treat
! So we have a duty of care to test +/- treat this patient even against her will, by force if necessary! In practice most patients agree to testing and treatment when they have had this explained to them
Confidentiality! 23M comes in after an assault. He has moderate injuries and is competent! You encourage him to report the assault to the police! He declines! You ask if you may report the assault to the police! He declines! Are there any situations in which you may report the assault to the police?
! We have a Duty of Care to report serious / life threatening injuries eg knife or firearm
Suspected DV! 25F multiple minor injuries, requiring ED treatment but not admission! You suspect domestic violence! She denies this and refuses your offer to inform the police! She is competent ! But is she free of the coercive force of the threat of violence?! What will you do?
! She is a competent adult and I can not break confidentiality unless ! You think it is likely there is a child at risk of harm -> CYF (who may inform the police) ! A knife or a gun was involved! But I can report your concerns to another colleague, eg a social worker, who may not have the same confidentiality relationship with the patient and so may be able / be required to report to the police
Police request for information! Police request information about a specific patient’s injuries! What will you do?
! If possible ask the patient if you can give the information to the police! Otherwise should go through your privacy officer! (Information is usually given but we need to ensure there is not irrelevant information, or information about other people given out).
An unconscious patient! 60F with severe MS, BIBA unresponsive.! Examination and investigations including bloods, ECG, CT brain do not reveal a cause.! D/W GP: could be drug overdose with suicidal intent
! GP suggests that the patient be allowed to die ! Terrible quality of life ! No family! Treatment options are keep patient comfortable vs put patient on a ventilator and see if drugs wear off.! What would you do?
! The doctor discussed with another senior doctor! Patient was allowed to die
Hypothetical case from Prof Skegg 2012! 50 year old with terminal lung cancer! BIBA with suicide note stating he had taken a drug overdose! Prof Skegg says we could allow this man to die! This horrified several psychiatrists and ED docs in my institution
! Drunk guy, minor head injury, but ? KOd, belligerent, wants to leave ED! What are you going to do?
! No easy answer – Is he belligerent because he is bleeding into his brain?! Depends on severity of injury! Is he competent – can he tell you that he’s had a head injury, that there is a small chance he will deteriorate, and that he is prepared to take the risk! Is the belligerence out of character?! Are there friends or family who can reason with him! Has he got a responsible adult to go with?
! If in doubt, don’t let him out! If not KOd he’d probably be OK to go! Can usually encourage patient to stay to be observed (or CT and discharge).! Occasionally I’ll sedate a patient like this so I can scan or observe him and keep an eye on him.! Small dose of sedative still allows accurate neuro obs to be done.
Drunk driver! 50M BIBA post car crash.! Drunk. Minor injuries! Treated and discharged.! You think he is OK to walk, but not to drive.! You believe he is going to drive home! What are you going to do?
! Call police! While there is an imminent and serious risk to himself and public we don’t hold a patient like this against his will! Why not? Will this change?
Drunk walker! 50M, bar fight, minor injuries! Treated and discharged. Says he is going to walk home but probably too drunk to walk safely home! You encourage him to stay! He declines! What are you going to do?
! We allow him to walk – this is probably his standard Friday night behaviour! Relatively minor risk to himself and others! Right or wrong?
Agitated dying patient! 70M terminal cancer, in hospice! Agitated +++! Refusing medications! Palliative care specialist requests psych to section patient so he can by sedated! Psych resists, long delay for assessment! What would you do?
! The palliative care specialist has a Duty of Care to treat the patients agitation! Psych not needed! What do you think?
Stroppy patient with liver failure! 50M in HDU with liver failure! Agitated and wanting to self discharge! What are you going to do?
! Depends if he is competent ! Can he tell you what is going on, is he orientated and the potential implications of him leaving?! Is there a good reason for him going or is he just agitated?! What would you do?
! Low threshold for saying there is a high risk his agitation is from hepatic encephalopathy or some other complication of his disease and not allowing him to go.! This patient was allowed to leave and was found dead in a neighbour’s garden the next day
23F Serial Self Harmer! Normally attempted suicide patients are seen by psych before discharge! Patient has been stapled back together! Patient wants to leave and go to a friend’s home rather than waiting to see psych! Would need to be held against her will! You believe she is at low risk of doing serious harm to herself! What do you do?
! Respect her autonomy! Decrease the drama! Patient allowed to go! Management plan drawn up with psych to formalise this approach
The great EPOA/NFR/ withholding treatment debate! 90F, severely demented, doubly incontinent rest home resident BIBA with pneumonia! EPOA wants active treatment – IV antibiotics, IV fluids! What are you going to do?
! EPOA can not make decisions for an incompetent patient about with holding medical treatment (including NFR)! EPOA can not demand futile medical treatment! The previous Health and Disability Commissioner likes this – removed the burden of making these decisions from the family / EPOA
! We need to be aware of medical culture / nihilism vs the EPOA / family’s readiness to let go.
! Conversation ! Your mother is very sick and without treatment she will probably die ! What is your mother’s life like now? ! Antibiotics might prolong your mother’s life. ! With or without antibiotics we can keep her very comfortable ! If she was aware of how she is now do you think she would want antibiotics for this pneumonia or would she want to die of natural causes?
! Sometimes it is appropriate to treat the patient if family want treatment, ! But plant the seed to help them let go when the patient next becomes unwell. ! Advanced Care Plans ! Treatment Escalation Plans
Conclusion! Often difficult to balance patients’ autonomy with what we think is best for them! Competence ! Assessed and documented ! Are they free enough to make good decisions? ! Do they understand what is happening and the implications of their decisions?! Duty of Care / Patient’s right to treatment that minimises harm / optimises quality of life ! We are responsible to do what is best for the patient ! Sometimes against their will! Confidentiality ! Can be broken for serious and risk ! Can share health information with colleagues if in patient’s best interest! If in doubt ask a senior colleague +/- indemnity insurer