This document discusses several key legal issues in emergency medicine, including duty of care, consent, competence and capacity, privacy and confidentiality, refusal of treatment, and negligence. It emphasizes the importance of acting in the patient's best interests, obtaining valid consent, properly assessing decision-making capacity, and thorough documentation. Legal concepts are complex, so the focus should be on doing what a reasonable practitioner would do in any given situation.
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. When do we you get taught about
legal issues in medicine?
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At medical school?
As a junior doctor?
As a trainee?
As a specialist?
6. Where do we get information on
this topic?
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Textbooks/journals/online resources
Medical defence organisations
Hospital policies
Legal precedents
⢠Informal conversations with colleagues
⢠Trial and error
⢠Experience
7. Legal issues in emergency
medicine
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Consent
Patient confidentiality
Competence
Documentation
Medical error
Open disclosure
Medicolegal reports
Mental health act
Coronial police
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Duty of care
Giving advice
Transfer of responsibility
Leaving against advice
Leaving without being seen
Refusing treatment
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9. What will we discuss
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Duty of care
Consent
Competence/capacity
Privacy/confidentiality
DAMA/Refusal of treatment
Negligence
10. Duty of care
⢠Not just relating to mental health issues
⢠Principle that doctors have a duty to
provide care to patients which is
â In the patients best interests
â Is to the best of his/her ability
â Is appropriate to the situation
⢠Focussed on what is reasonable
⢠Negligence requires a duty of care
11. Some examples in ED
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Cardiac arrest
End of shift
Medication prescribing
Clinical knowledge
Consultant responsibility
12. Consent
⢠Medical treatment requires patient
consent
⢠Consent may given
â Implied
â Verbally
â Written
⢠Involving the patient in decision making
about their care
13. Valid Consent
1. Must be legally capable of giving consent
â Competent, not a minor, under guardianship,
mentally ill, disabled by drugs or alcohol
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4.
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Consent must be informed
Consent must be specific
Consent must be freely given
Consent must cover that which is
actually done
14. What does informed consent imply?
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Clear
Accurate
Relevent
Material
⢠Treatment options
⢠Consequences of treatment
⢠Consequences of no treatment
15. Rogers & Whittaker
⢠Australian High Court decision
⢠The case
⢠The decision
â All medical treatment is preceded by the
patients choice
â Duty to disclose all material risks to the patient
⢠A reasonable person would attach significance to it
⢠The outcome
16. Ability to consent in difficult situations
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Children/adolescents
Intellectually impaired
Mentally ill
Drug and alcohol affected
Patient in the emergency department
⢠What would a reasonable doctor do?
â The âwill I look like a dickheadâ test
17. Capacity vs Competence
⢠Capacity
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Decision making capacity
Personal values
Comprehension
Understanding
⢠Our role to determine
⢠Competence
â Whether a person is
legally able to manage
their affairs or not
â Presumed for adults
⢠Courts role to
detemine
18. 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
19. How to determine capacity
What do you believe is wrong with you?
What treatment has been proposed?
What will happen if you donât have it?
Why have I(has the doctor) recommended it?
Can you tell me what your decision is?
How did you reach your decision?
20. Consent/Competence in Children
⢠Not usually a problem if parental consent available
⢠In absence of parental consent
â Not strictly determined by age
â More about maturity
⢠Adult >18
⢠Mature minor > 16
⢠Minor ~14 or less
â Grey area in between
⢠Gillick competence (test)
â Understanding
â Maturity
âA minor is considered to be competent to consent to treatment when
the person âachieves a sufficient understanding and intelligence to
enable him or her to understand fully what is proposedââ
21. Consent/Competence in Children
⢠Advice for young players
â Depends on understanding of child
â Depends on complexity of treatment
â Try to persuade child to involve parents
â Involve colleague/second opinion
â Document all discussion/actions taken
â Exceptions include emergency/life-saving
treatments
22. Privacy/Confidentiality
⢠Information gained in doctor-patient relationship
shall remain confidential
⢠Grey areas exist
⢠Exceptions
⢠Conflicts
â Duty to community
â Notifiable diseases
⢠Medical risk
â Mandatory reporting
⢠Serious crime
â Impaired health practitioner
23. DAMA/Refusal of treatment
⢠Patient has right to refuse treatment
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Competent
Informed
Meticulous documentation
Responsibility to ensure safe discharge
⢠Risks for DAMA
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Young, male
Indigenous
Alcohol/drug user
Low socioeconomic status
24. Negligence
⢠Requires a duty of
care situation
⢠Negligence
â Medical duty of care
â Breach of duty of care
â Harm and causation
⢠Court decision
â Expert opinion
â Guidelines
â Bolam (UK law)
â Bolitho
⢠Reasonable care
25. 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
26. Take Home Message
⢠Legal issues are complex
â Focus on what a reasonable person would do
⢠Always act in the best interests of the patient
â Bearing in mind what they would want
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Know the features of valid consent
Know how to assess capacity
Documentation is important
Our work environment makes it more difficult
27. Sources of information
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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
â http://lifeinthefastlane.com/education/ccc/consent/
â http://lifeinthefastlane.com/education/ccc/consent-and-competence-inchildren/
â http://lifeinthefastlane.com/education/ccc/capacity-and-competence/
⢠Stewart C, et al. The Australian Medico-Legal Handbook (1st edition),
Elsevier,2007
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Donât forget the bubbles website
â http://dontforgetthebubbles.com/gillick-competence-crash-course/
Editor's Notes
Going to talk about a number of issues
Why â itâs important to have a clear idea
When we practice we donât really think about it â most of the time we donât 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 â one party takes another to court â business, financial, domestic land and environemt court
Criminal â someone is charged with doing something that is unlawful â 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 â 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 â to come
Intellect â mild may be ok, more severe guardianship â predetermined
Mental â does not automatically preclude â need to determine competence â if difficult get psychiatrist help
Drugs and alcohol â 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 â you will be on solid ground
Restraing patient â may be justified if leaving is judged to have adverse medical consequences and you determine the patient lacks the capacity intheir intoxicated state. â 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 â a patient may be competent to consent for a simple procedure but not a complex procedure
The patientâs decision need not be one that others would regard as reasonable, but it must involve a process of reasoning
improvements in the patientâs level of comfort may improve competence â 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.
NOT BEEN DEFINED RIGIDLY BY THE COURTS â IT IS UP TO THE INDIVIDUAL DOCTOR TO DETERMINE COMPETENCE
Fraser guidelines â deal specifically with contraception in a minor
..a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria:â¨â¨1) that the girl (although under the age of 16 years of age) will understand his advice;â¨â¨2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;â¨â¨3) that she is very likely to continue having sexual intercourse with or without contraceptive treatment;â¨â¨4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;â¨â¨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