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Simpson’s forensic medicine


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Simpson’s forensic medicine

  1. 1. Simpson’sForensic Medicine
  2. 2. Professor CEDRIC KEITH SIMPSON CBE (1907–85)MD (Lond), FRCP, FRCPath, MD (Gent), MA (Oxon), LLD (Edin), DMJKeith Simpson was the first Professor of Forensic Medicine in theUniversity of London and undoubtedly one of the most eminentforensic pathologists of the twentieth century. He spent all his pro-fessional life at Guy’s Hospital and his name became a ‘householdword’ through his involvement in innumerable notorious murdertrials in Britain and overseas. He was made a Commander of theBritish Empire in 1975.He was a superb teacher, through both the spoken and the printedword. The first edition of this book appeared in 1947 and in 1958won the Swiney Prize of the Royal Society of Arts for being the bestwork on medical jurisprudence to appear in the preceding ten years.
  3. 3. Simpson’sForensic MedicineTwelfth Edition Richard Shepherd Senior Lecturer in Forensic Medicine Forensic Medicine Unit St George’s Medical and Dental School Tooting, London, UK A member of the Hodder Headline Group LONDON
  4. 4. First published in Great Britain in 1947Twelfth edition published in 2003 byArnold, a member of the Hodder Headline Group,338 Euston Road, London NW1 3BHhttp://www.arnoldpublishers.comDistributed in the United States of America byOxford University Press Inc.,198 Madison Avenue, New York, NY10016Oxford is a registered trademark of Oxford University Press© 2003 ArnoldAll rights reserved. No part of this publication may bereproduced or transmitted in any form or by any means,electronically or mechanically, including photocopying,recording or any information storage or retrieval system,without either prior permission in writing from thepublisher or a licence permitting restricted copying.In the United Kingdom such licences are issued by theCopyright Licensing Agency: 90 Tottenham Court Road,London W1T 4LP.Whilst the advice and information in this book arebelieved to be true and accurate at the date of going topress, neither the authors nor the publisher can accept anylegal responsibility or liability for any errors or omissionsthat may be made. In particular (but without limiting thegenerality of the preceding disclaimer) every effort has beenmade to check drug dosages; however it is still possible thaterrors have been missed. Furthermore, dosage schedules areconstantly being revised and new side-effects recognized.For these reasons the reader is strongly urged to consult thedrug companies’ printed instructions before administeringany of the drugs recommended in this book.British Library Cataloguing in Publication DataA catalogue record for this book is available from theBritish LibraryLibrary of Congress Cataloging-in-Publication DataA catalog record for this book is available from theLibrary of CongressISBN 0 340 76422 8ISBN 0 340 81059 9 (International Students’ Edition –restricted territorial availability)1 2 3 4 5 6 7 8 9 10Commissioning Editor: Serena BureauDevelopment Editor: Layla VandenberghProject Editor: James RabsonProduction Controller: Deborah SmithCover Design: Stewart LarkingTypeset in 9.5/12 pt Minion by Charon Tec Pvt. Ltd,Chennai, IndiaPrinted and bound in India What do you think about this book? Or any other Arnold title? Please send your comments to
  5. 5. ContentsPreface ix Mental health legislation and the criminalAuthor’s Note x justice system 23Acknowledgements xi Criminal responsibility: age and mental capacity 24 The effect of drink or drugs on responsibility 251 The Doctor and the Law 1 Testamentary capacity 25 The legal system 2 Doctors and the law 2 5 The Medical Aspects of Death 27 Doctor in court 3 Definition of death 27 The behaviour of a doctor in court 5 Resuscitation 28 Preparation of medical reports 5 Persistent vegetative state 29 Structure of a report 6 Tissue and organ transplantation 29 Death certification 302 The Ethics of Medical Practice 8 Medico-legal investigation of death 32 International Code of Medical Ethics 9 The autopsy 34 Medical ethics in practice 10 Exhumation 35 Medical confidentiality 11 Consent to medical treatment 13 6 Changes after Death 37 Early changes 373 Medical Malpractice 15 Rigor mortis 38 Medical negligence 15 Cadaveric rigidity 38 Systems of compensation 17 Post-mortem hypostasis 39 Compensation and damages 17 Cooling of the body after death 40 Types of medical negligence 17 Estimation of the time of death 41 Professional misconduct 19 The General Medical Council 20 7 Identification of the Living and the Dead 49 Morphological characteristics 494 The Medico-legal Aspects of Mental Disease 22 Fingerprints 50 Normal and abnormal behaviour 22 Identity from teeth 50 Types of abnormal mental condition 22 Identification of the origin of tissue or samples 51
  6. 6. vi Contents The individuality of cells 51 Aircraft fatalities 92 Identification by DNA profiling 52 Mass disasters and the doctor 92 Tattoos and body piercing 53 Identity of decomposed or skeletalized remains 54 13 Asphyxia 94 Facial reconstruction from skulls 55 Suffocation 95 Smothering 968 Blood Stains 57 Gagging 96 Blood-stain patterns 57 Choking 96 Tests for blood 58 Pressure on the neck 97 Species specificity 58 ‘Vagal inhibition’ or reflex cardiac arrest 97 Manual strangulation 989 The Examination of Wounds 59 Ligature strangulation 98 Law on wounding 59 Hanging 99 Reports 60 The sexual asphyxias 101 Terminology 60 Traumatic asphyxia 101 Wounds 60 Patterns of injury 66 14 Immersion and Drowning 103 Survival 68 Signs of immersion 103 Self-inflicted injuries 68 Drowning 104 Laboratory tests for drowning 10510 Regional Injuries 70 Head injuries 70 15 Injury due to Heat, Cold and Electricity 107 Neck injuries 75 Injury due to heat 107 Spinal injuries 75 Cold injury (hypothermia) 110 Chest injuries 76 Electrical injury 111 Abdomen 77 Death from lightning 11311 Firearm and Explosive Injuries 79 16 Effects of Injuries 115 Types of firearms 79 Haemorrhage 115 Gunshot wounds 81 Infection 116 Air weapons, unusual projectiles and other weapons 84 Embolism 116 Accident, suicide or murder? 85 Disseminated intravascular coagulation 118 The doctor’s duty in firearm injuries and deaths 85 Adult respiratory distress syndrome 118 Explosives 86 Suprarenal haemorrhage 118 Subendocardial haemorrhages 11912 Transportation Injuries 87 Road traffic injuries 87 17 Unexpected and Sudden Death from Natural Causes 120 The medical examination of victims of road traffic accidents 90 Causes of sudden and unexpected death 120 Railway injuries 91 Cardiovascular system 121
  7. 7. Contents vii Respiratory system 126 The measurement of alcohol 160 Gastrointestinal system 126 The effects of alcohol 160 Gynaecological conditions 126 Dangers of drunkenness 161 Deaths from asthma and epilepsy 126 Drinking and driving 16218 Sexual Offences 128 24 Drugs of Dependence and Abuse 164 Types of sexual offence 128 Tolerance and synergy 164 The genuineness of allegations of sexual Dependence and withdrawal symptoms 165 assault 131 The dangers of drug dependence 165 Forensic examination of victims of sexual Shared syringes 165 offences 131 Solid drugs 165 Examination of an alleged assailant 132 Overdosage and hypersensitivity 166 Heroin, morphine and other opiates 16619 Pregnancy and Abortion 134 Barbiturates and other hypnotics 167 Conception: artificial insemination, in-vitro Amphetamines 167 fertilization and embryo research 134 Cocaine 167 Pregnancy 134 Cannabis 168 Abortion 135 Lysergic acid diethylamide (LSD) 168 Solvent abuse 16820 Deaths and Injury in Infancy 141 Stillbirths 141 25 Medicinal Poisons 170 Infanticide 142 Analgesics 171 The estimation of maturity of a newborn Antidepressant and sedative drugs 172 baby or fetus 143 Barbiturates 172 Sudden infant death syndrome 144 Chloral 173 Child abuse 145 Phenacetin 173 Lithium 17321 Neglect, Starvation and Abuse of Human Insulin 173 Rights 150 Physical abuse of human rights: torture 150 26 Corrosive and Metallic Poisons 175 Neglect and starvation 152 Corrosive poisons 175 Heavy-metal poisoning 17622 General Aspects of Poisoning 154 The toxic and fatal dose 155 27 Agrochemical Poisons 179 Tolerance and idiosyncrasy 156 Pesticides and insecticides 179 The doctor’s duty in a case of suspected Herbicides (weed killers) 179 poisoning 156 Samples required for toxicological analysis 157 28 Gaseous Poisons 18123 Alcohol 159 Carbon monoxide 181 Carbon dioxide 182 Sources of alcohol 159 Ammonia 183 Absorption of alcohol 160 Cyanogen gas and cyanides 183 Elimination of alcohol 160
  8. 8. viii Contents29 Miscellaneous Poisons 184 Appendix 2 Preparation of the Reagent for the Kastle–Meyer Test 189 Strychnine 184 Halogenated hydrocarbons 184 Gasoline and kerosene 185 Recommended Reading 190 The glycols 185 Autopsy procedures and anthropology 190 Nicotine 185 Forensic medicine and pathology 190 Medical ethics 190Appendix 1 Guidelines for an Autopsy and Toxicology 191 Exhumation 186 Websites 191 Guidelines for a medico-legal autopsy 186 The autopsy 187 Index 193
  9. 9. PrefaceThe increasing interest in Forensic Medicine throughout and they must be able to interpret accurately thethe world is no doubt a result of the global rise in both results provided by the toxicologist. In the field ofcrime and litigation. The advancement of the academic human identification, DNA technology has all butas well as the popular aspects of the subject have led to obliterated the study of serology that was so importantthe continuing success of Simpson’s Forensic Medicine. to Keith Simpson and his contemporaries. The causes and effects of homicides, suicides and As our own specialist knowledge develops and pro-accidents and the abuse of drugs and poisons are broadly gresses we must also ensure that our basic skills con-the same wherever a Forensic Practitioner works. While tinue to be reviewed and that advances in our specialityno single textbook can be expected to record and report are debated, tested and validated by our forensic peersall of the possible legal permutations, it is hoped that this before they are presented to the courts as reliable evi-twelfth edition of Simpson’s Forensic Medicine, written dence. We must never allow ‘good enough’ to be accept-from a broad perspective but with a firm attachment to able, since we are dealing not only with the lives of theBritish and European law, will serve as a useful basis for injured or killed, and but also with the lives and theForensic Practitioners working within any legal system. freedom of the accused. A Forensic Practitioner whoTo this end, the book has been completely re-written, and lacks knowledge, skill or impartiality has no role what-new photographs and diagrams have been included to soever in today’s local, national or international prac-elucidate and expand the text, and, particularly, to clarify tice of Forensic Medicine.significant forensic points. Other professionals in the legal systems – the police, Improved techniques for the examination of both the lawyers and the forensic scientists – need an under-the living and the dead are continually being devel- standing of our skills and the limits of our knowledge sooped, often in response to particular events, and they that together we can strive to improve the quality of ourare commonly associated with major advances in the advice and the standard of the evidence we give to theForensic Sciences. As a result, some aspects of Forensic courts. Simpson’s has been popular with students, doc-Medicine originally described by Keith Simpson in the tors, scientists, police officers and lawyers for manyearly editions of this textbook are now outdated. Two years and, it would seem, has furthered that under-examples are toxicology and human identification, standing of the role of the Forensic Practitioner. It isboth of which have developed into specialities in their hoped that this edition will continue that long tradition.own right. Whatever the future of Forensic Medicine and Toxicology has become something of a ‘black box’ Science, the author’s aim is that Simpson’s Forensicscience to Forensic Practitioners: they do not need to Medicine will continue to provide a firm foundationknow the minutiae of the analytical processes. How- for all those requiring accurate and clear information,ever, they do still need to know some of the funda- whether in the field, the laboratory or the courtroom.mentals that underpin them, they must understandthe effects of natural or man-made drugs and poisons, Richard Shepherd
  10. 10. Author’s NoteThroughout this book, the words ‘he’ and ‘she’ are applicable, except where the context makes it obvi-used at random and where words denoting the ously inappropriate.gender are encountered, the opposite sex is equally
  11. 11. AcknowledgementsThe first 35 years and eight editions of this great ‘little’ by the previous editor. I have prepared the latest edi-textbook were written by Professor Keith Simpson tion of ‘Simpson’s’ to reflect the advantages of the lastalone. He was joined for the 9th edition, which was years of the old century, and to anticipate the expectedpublished in 1985, by Professor Bernard Knight. When advances of this new millennium. I owe a deep debt ofProfessor Knight assumed sole editorship of Simpson’s gratitude to Professor Knight, whose excellent steward-he amended and brought it up to date, and for nearly ship of this book has made my job far easier and far20 years thereafter he ensured, through his scholarship, more stimulating.experience and writing, that Simpson’s Forensic Medicine I would also like to thank my family and friendsremained at the forefront of forensic publishing. who may have noticed a degree of introspection and It was somewhat daunted when asked to assume preoccupation during the inception, development andresponsibility for such an institution but, with the delivery of this book.guiding hand of Professor Knight to assist, I have It was the third edition of this textbook, shown toreviewed and updated this wonderful textbook, discov- me while still at school, that inspired my own interestering as I did so the many pearls of knowledge, com- and subsequent career in Forensic Medicine. I hopemon sense and simple wisdom left within its covers that this edition will inspire others in turn.
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  13. 13. C h a p t e r o n e The Doctor and the LawThe legal system Doctor in court Medical reports and statementsThe criminal system Statement The behaviour of a doctor in courtCivil courts Request or order to attend court Preparation of medical reportsDoctors and the law Attendance at court Structure of a reportProfessional witness Giving evidenceExpert witness Doctor for the defenceMost countries in the world have established rules and increasingly litigious nature of current medical practice,codes that govern the behaviour of the population especially in the Western world, suggests that it iswithin that country. By and large, the rules have been essential for doctors to be aware of the specific lawsestablished over many hundreds of years and are gen- relating to medicine.erally accepted because they are for the mutual benefit The great diversity of the legal systems around theof the population – they are the framework which world poses a number of problems to the author whenprevents anarchy. Whereas there are some funda- giving details of the law in a book such as this. Laws onmental rules (for instance concerning the casual taking the same aspect commonly differ widely from countryof life) that are to be found in every country, there are to country, and some medical procedures (e.g. abortion)also considerable variations from country to country that are considered standard practice in some countriesin many of the other codes or rules. The laws of a are considered to be a crime in others. Even within thecountry are usually established by an elected political British Isles, there are three main legal systems with con-institution, the population accepts them and they are siderable medico-legal variations: England and Wales,enforced by the imposition of penalties on those who Scotland, and Northern Ireland. There are also smallerare found guilty of breaking them. jurisdictions with their own individual variations in the Members of the medical profession are bound by Isle of Man and the Channel Isles. Over all of these areasthe same general laws as the population as a whole, there is now European legislation and with it the possi-but they are also bound by additional laws specific to bility of final appeals to the European Court. Whilethe practice of medicine. The training, qualification and accepting the variations between continents and coun-registration of doctors, the use of drugs and medicines, tries, this book will try to present best current practicethe registration of births and deaths, and the organiza- as viewed from the UK, but with the other medico-legaltion of the health service may all be regarded as parts of areas in mind.more general medical legislation, and individual laws It is important also to establish the differencemay be passed to deal with specific issues such as abor- between legal and ethical responsibilities. Ethicaltion, transplantation, in-vitro fertilization etc. responsibilities are discussed in greater detail in There was a time when the practice of medicine Chapter 2, but, put simply, ethics are a self-imposedwas more paternalistic and a relatively low level of code of the national or international medical com-legal awareness was probably acceptable. However, the munity which are not fixed in legislation but which
  14. 14. 2 The doctor and the laware assumed or adopted voluntarily by the medical that is not the concern of the state. The dispute may beprofession. based upon alleged negligence, contractual failure, debt, libel/slander etc. The state accepts that human interactions are fallible but that differences are not necessarily criminal. The civil courts can be viewed as THE LEGAL SYSTEM a mechanism set up by the state that allows for the fair resolution of disputes in a structured way.There are many national variations but the basic pattern The penalty that can be imposed by these courtsis very similar. The exact structure is often rooted deep is designed to restore the position of the successfulwithin the history or the religious beliefs of the country. claimant to that which he had before the event, and is generally financial compensation (damages). In theThe criminal system USA there may also be a punitive part to these damages. In both civil and criminal trials, the person againstCriminal law deals with disputes between the state and whom the action is being taken is called the defendant;the individual. Criminal trials involve offences that are the accuser in criminal trials is the state and in civil‘against public interest’; these include offences against trials it is the plaintiff.the person, property, public safety, security of the state There are situations in which both types of pro-etc. The dispute is between the state and the individual ceeding may follow a single incident. An example isand in these matters the state acts as the voice or the a road traffic accident following which the driveragent of the people. may be charged through the criminal court with traffic In continental Europe, a form of law derived from offences (such as dangerous driving) and sued throughthe Napoleonic era applies. Napoleonic law is inquisi- the civil court for the injuries he has caused to anothertorial and both the prosecution and the defence have person make their cases to the court, which then chooseswhich is the more credible. Evidence is often taken inwritten form as depositions, sometimes referred to as‘documentary evidence’. DOCTORS AND THE LAW The Anglo-Saxon model applies in the UK and inmany, if not most, of the countries that it has influ- Doctors may become involved with the law in theenced in the past. It is an adversarial system and so it same way as any other citizen: they may be chargedis for the prosecution to prove their case to the jury with a criminal offence or they may be sued throughor the magistrates ‘beyond reasonable doubt’. The the civil court. A doctor may also be witness to a crim-defence does not have to prove innocence because any inal act and may be required to give evidence about itindividual is presumed innocent until found guilty. in court.However, it is most unusual for the defence lawyers There are circumstances in which doctors becomesimply to remain silent, and they will usually attack involved with the law simply because they have profes-the weaknesses of the case presented by the prosecu- sional skills or experience. In these cases, the doctortion lawyers and also present their own evidence. may have one of two roles, which are sometimes The penalties that can be imposed in the criminal overlapping.system commonly include monetary charges (fines)and loss of liberty (imprisonment). Some countriesallow for corporal punishment (beatings), mutilation Professional witness(amputation of parts of the body) and capital punish-ment (execution). This role is equivalent to a simple witness of an event, but occurs when the doctor is providing factual medical evidence. For instance, a casualty doctor mayCivil courts confirm that a leg was broken or that a laceration was present and may report on the treatment given. AThese courts exist to resolve disputes between individ- general practitioner may confirm that an individualuals caused by some private wrong or disadvantage has been diagnosed as having epilepsy or angina. No
  15. 15. Doctor in court 3comment or opinion is given and any report deals service etc.) that is requesting him to give evidence orsolely with medical facts. he can ask at the court itself.Expert witness StatementAn expert witness is one who expresses an opinion A statement in a criminal case is a report that is pre-about medical facts. An expert will form an opinion, pared in a particular form so that it can be used as evi-for instance about the cause of the fractured leg or the dence. There is an initial declaration that ensures thatlaceration. An expert will express an opinion about the the person preparing the statement is aware that hecause of the epilepsy or the ability of an individual must not only tell the truth but must also ensure thatwith angina to drive a passenger service vehicle. Before there is nothing within the report that he knows to beforming an opinion, an expert witness will ensure that false. The effect of this declaration is to render the indi-the relevant facts about a case are made available to vidual liable for criminal prosecution if he has lied.them and they may also wish to examine the patient. In civil proceedings a different official style is There are often situations of overlap between these adopted. In these cases a sworn statement (an affi-two witness roles: the dermatologist may diagnose davit) is made before a lawyer who administers anan allergic dermatitis (professional aspect) and then oath or other formal declaration at the time of sign-comment on the role that exposure to particular ing. This makes the document acceptable to the court.chemicals may have played in the development of that In many countries, a statement in official form ordermatitis (expert aspect). Forensic pathologists will a sworn affidavit is commonly acceptable alone andproduce a report on their post-mortem examination personal appearances in court are unusual. However,(professional aspect) and then form conclusions based in the system of law based on Anglo-Saxon principles,upon their findings (expert aspect). personal appearances are common and it is the verbal The role of the expert in the civil courts has evidence – tested by the defence – that is important.recently changed in the UK and the court now expects If a case comes to trial, any statement made for theexperts to report on all relevant aspects of a case and prosecution will be made available to all interested par-not just those aspects that are of importance to the ties at the court; at present the same does not apply toparty who has instructed them. The civil courts may all reports prepared for the defence in a criminal request experts from opposing sides to meet andproduce a joint report. The aims of these new rulesare to enable the court to identify and deal more Request or order to attend courtspeedily and fairly with the medical points at issue ina case. If summoned to appear as a witness for the court, it is the duty of every citizen to comply, and attendance at court is generally presumed without the need to resort to a written order. In general, a doctor is sent a ‘witness DOCTOR IN COURT order’, which is a letter informing them of the name of the accused and possibly the nature of the case,There are many different courts in the UK: Coroner, together with the time, date and place they shouldMagistrate, Crown and the Courts of Appeal etc. attend to give evidence.Court structure in other jurisdictions will have similar In a few cases – usually when a witness has failed tocomplexity and, although the exact process doctors attend after the usual witness order or if it is thoughtmay experience when attending court will depend to that a witness may be reluctant to attend the court – asome extent upon which court in which jurisdiction formal subpoena may be issued. A subpoena is a courtthey attend, there are a number of general rules that order signed by a judge or other court official thatcan be made about giving evidence. If there is any must be obeyed or the individual will be in contemptdoubt in a doctor’s mind about what will happen when of court and a fine or imprisonment may result. It ishe attends a particular court, he should ask either the rare for a doctor to be subpoened, but occasionallyperson or group (solicitor, police, state prosecution doctors may request such an order to demonstrate to a
  16. 16. 4 The doctor and the lawpatient that they are unwilling to divulge the medical may be expanded into the opinions that have beenfacts that the court is going to require them to give. expressed and other opinions may be sought. When this questioning is finished, the other lawyers will have the opportunity to question the wit-Attendance at court ness; this is commonly called ‘cross-examination’. This questioning will test the evidence that has been given and will concentrate on those parts of the evidenceBefore going to court, doctors should ensure that they that are damaging to the lawyer’s case. It is likely thathave all of the relevant notes, x-rays, reports etc. The both the facts and any opinions given will be tested.notes should be organized so that the relevant parts The final part of giving evidence is thecan be easily found. ‘re-examination’. Here, the original lawyer has the It is imperative for a witness to attend at the time opportunity to clarify anything that has been raised instated on the witness order or subpoena, because one cross-examination but cannot introduce new topics.can never be faulted for being on time, but it is likely The judge may ask questions at any time if he feelsthat witnesses will have to wait to give their evidence. that by doing so he may clarify a point or clear a pointCourts are usually conscious of the pressures on pro- of contention. However, most judges will refrain fromfessional witnesses such as doctors and try hard not to asking questions until the end of each of the three sec-keep them waiting any longer than necessary. tions noted above.Giving evidence Doctor for the defenceWhen called into court, every witness will, almost The defence commonly needs specialist expert med-invariably, undergo some formality to ensure that they ical advice too. Doctors may be asked to examinetell the truth. This is colloquially known as ‘taking the living victims of crime or the accused, to consideroath’ or ‘swearing in’. The oath may be taken using witness statements, photographs or medical notes etc.some acceptable religious text (the Bible, Koran etc.) They may also be asked to comment on ‘normal’ oror by making a public declaration in a standard form ‘standard’ protocols. All of these areas have their ownwithout the need to touch a religious artefact. This particular aspects and it is a foolhardy doctor who islatter process is sometimes referred to as ‘affirming’. tempted to stray outside his own area of expertise.However it is done, the effect of the words is the same: The initial form of advice to the solicitor acting foronce the oath has been taken, the witness is liable for the defendant is a letter or a report. There may followthe penalties of perjury. a conference with the solicitor or with counsel, provi- Whether a doctor is called as a witness of fact, a sion of additional information and then the prepar-professional witness of fact or an expert witness, the ation of a final report. This is a privileged document,process of giving evidence is the same. However, before which does not have to be released to other parties indescribing this process it is important to remember either a criminal or civil case. Whether or not histhat the doctor’s overriding duty is to give evidence to report is released to the court, the doctor may beassist the court. requested to attend the court to listen to the evidence, Whoever has ‘called’ the witness will be the first to in particular the medical evidence given by others. Theexamine him under oath; this is called the ‘examin- doctor will be able to advise counsel about the ques-ation in chief ’ and the witness will be asked to confirm tions that can be asked of the medical and other wit-the truth of the facts in his statement(s). This exam- nesses and may also be called to give evidence.ination may take the form of one catch-all question asto whether the whole of the statement is true, or thetruth of individual facts may be dealt with one at atime. If the witness is not an expert, there may be Medical reports and statementsquestions to ascertain how the facts were obtained andthe results of any examinations or ancillary tests per- Apart from slight differences in emphasis, there willformed. If the witness is an expert, the questioning be no essential difference between medical reports
  17. 17. Preparation of medical reports 5produced for legal purposes – whether for the police, extremely irritating for all those in the court who needthe lawyers acting for the defence, an insurance com- to hear what is said if a witness has to be constantlypany or any other instructing authority. Before agree- reminded to speak up. A muttering witness also givesing to write a report, a doctor must be certain that he the impression that his evidence is not of value or thathas the necessary training, skill and experience and, he is not comfortable with what he is saying.whether because of medical secrecy or confidentiality, When replying to questions, it is important to keepthat he is legally entitled to do so. the answers to the point of the question and as short as possible: an over-talkative witness who loses the facts in a welter of words is as bad as a monosyllabic wit- ness. Questions should be answered fully and then the THE BEHAVIOUR OF A DOCTOR IN COURT witness should stop and wait for the next question. On no account should a witness try to fill the silence withAny medico-legal report must be prepared and writ- an explanation or expansion of the answer. If theten with care because it will either constitute the med- lawyers want an explanation or expansion of anyical evidence on that aspect of a case or it will be the answer, they will, no doubt, ask for it. Clear, concisebasis of any oral evidence that may be given in the and complete should be the watchwords when answer-future. Any doctor who does not, or cannot, sustain ing questions.the comments and conclusions made in the original A witness, particularly a professional one, shouldreport while giving evidence will have a difficult time never become hostile, angry, rude or sarcastic whileduring cross-examination. However, any comments or giving evidence. It is important to remember that it isconclusions within the report are based upon a set of the lawyers who are in control in the courtroom; theyfacts that surround that particular case. If other facts will very quickly take advantage of any witness whoor hypotheses are suggested by the lawyers in court shows such emotions. No matter how you behave as aduring their examination, a doctor should reconsider witness, you will remain giving evidence until the courtthe medical evidence in the light of these new facts or says that you are released; it is not possible to bluff,hypotheses and, if necessary, should accept that, in boast or bombast a way out of this situation – and everyview of the different basis, his conclusions may be dif- witness must remember that they are under oath.ferent. A doctor clinging to the flotsam of his report in A judge will normally intervene if he feels that thethe face of all evidence to the contrary is as absurd as questioning is unreasonable or unfair.the doctor who, at the first hint of a squall, changes his A witness must be alert to attempts by lawyersview to match the direction of the wind. unreasonably to circumscribe answers: ‘yes’ or ‘no’ Any doctor appearing before any court in either may be adequate for simple questions but they arerole should ensure that his or her dress and demeanour simply not sufficient for most questions and, if told toare compatible with the role of an authoritative pro- answer a complex question ‘with a simple “yes” or “no”fessional. It is imperative that doctors retain a profes- doctor’, they should decline to do so and, if necessary,sional demeanour and give their evidence in a clear, explain to the judge that it is not possible to answerbalanced and dispassionate manner. such a complex question in that way. The oath or affirmation should be taken in a clear The old forensic adage of ‘dress up, stand up, speakvoice. In some courts, witnesses will be invited to sit, up, and shut up’ is still applicable and it is a fool whowhereas in others they will be required to stand. Many ignores such simple witnesses prefer to stand as they feel that it addsto their professionalism, but this decision must bematter of personal preference. Whether standing orsitting, the doctor should remain alert to the proceed- PREPARATION OF MEDICAL REPORTSings and should not lounge or slouch. The doctorshould look at the person asking the questions and, if The diversity of uses of a report is reflected in the indi-there is one, at the jury when giving his answers, and viduals or groups that may request a report: the police,should remain business-like and polite at all times. prosecutors, coroners, judges, medical administrators, Evidence should also be given in a clear voice that government departments, city authorities and lawyersis loud enough to reach across the court room. It is of all types. The most important question that doctors
  18. 18. 6 The doctor and the lawmust ask themselves before agreeing to write a reportis whether they are entitled to write such a report – STRUCTURE OF A REPORTthey may be limited by confidentiality, medical secrecy The basis of most reports lies in the notes made at theor, of course, by lack of knowledge or expertise. The time of an examination and it is important to remem-fact of a request, even from a court, does not mean ber that these notes may be required in court. A reportthat a doctor can necessarily ignore the rules of med- should be headed with the details of the patient,ical confidentiality; however, a direct order from a including their name, date of birth and address. Thecourt is a different matter and should, if valid, be doctor’s address and qualifications should follow. Theobeyed. If there are any doubts, contact your medical date of the report is clearly essential and the date(s)defence society or a lawyer. and place(s) of any examination(s) should be listed, Medical confidentiality is dealt with in greater as should the details of any other person who wasdetail in Chapter 2, but in general terms the consent of present during the examination(s). The details of whoa living patient is required and, if at all possible, this requested the report, the reasons for requesting it andshould be given in writing to the doctor. However, in any special instructions should be documented. A briefsome countries the law rides roughshod over individ- account of the circumstances as reported to the doctorual patients’ rights and a doctor may be forced to should follow. The fact of consent of the patient mustwrite reports without any reference to the wishes of be included, although the patient’s signature will remainthe patient. If no consent was provided, this should in the doctor’s notes of the examination(s).be stated in the report, as should the basis on which What follows next are the details of the physicalthe report was written. In other countries, for example examination and then the details of any treatment given.Belgium, the protection of medical secrecy is very If information other than observation during a physicalstrict and even the patient’s written consent may not examination (medical records, x-rays etc.) forms partbe sufficient to allow for the disclosure of medical facts of the basis of the report, it too must be recorded. Thisby a doctor. is the end of the factual, professional report where no In most advanced, democratic countries with estab- opinions are given. A more senior doctor or an expert inlished civil and human rights, the police have no particu-lar power to order a doctor to provide confidentialinformation against the wishes of the patient, although Case no. Namewhere a serious crime has been committed the doctorhas a public duty to assist the law enforcement system.It is usual for the victim of an assault to be entirelyhappy to give permission for the release of medical factsso that the perpetrator can be brought to justice. It isimportant to remember that a doctor cannot simplyassume this consent, especially if the alleged perpetratoris the husband, wife or other member of the family. It isalso important to remember that consent to disclose theeffects of an alleged assault does not imply consent todisclose all the medical details of the victim, and a doc-tor must limit his report to relevant details only. If a victim refuses to give consent or for some reasonthe doctor is of the opinion that he cannot make areport, there are commonly laws available to the courtsto force the doctor to divulge medical information. Thelaws may be very specific: for instance in NorthernIreland, where terrorist shootings and explosions werecommon for the last quarter of the twentieth century,emergency powers make it compulsory for doctors toreport any injuries due to guns or explosives. More gen- Figure 1.1 Typical body chart for marking injuries etc. in the livingerally, there is a duty to report some infectious diseases. or the dead. A whole range of charts is available.
  19. 19. Structure of a report 7a particular field may well be asked to express opinions having to attend court at all, and if you do have to giveabout aspects of the case and those opinions will follow evidence, it is so much easier to do so from a reportthe factual part of the report. that is legible. There is no great trick to writing medical reports Autopsy reports are a specialist type of report andand, to make the process simpler, they can be con- may be commissioned by the coroner, the police orstructed along the same lines as the clinical notes in that any other legally competent person or body. Thethey need to be structured, detailed and accurate. Do authority to perform the examination will replace thenot include every single aspect of a medical history consent given by a live patient, and is equally import-unless it is relevant. A court does not need to know every ant. The history and background to the death will bedetail, but it does need to know every relevant detail, obtained by the police or the coroner’s officer, but theand a good report will give the relevant facts clearly, doctor should seek any additional details that appearconcisely and completely and in a way that an intelligent to be relevant, including speaking to any cliniciansperson without medical training can understand. involved in the care of the deceased and reviewing the Medical abbreviations should be used with care hospital notes. A visit to the scene of death in non-and highly technical terms, especially those relating to suspicious deaths, especially if there are any unusualcomplex pieces of equipment or techniques, should be or unexplained aspects, is to be encouraged.explained in simple, but not condescending, terms. On An autopsy report is confidential and should only bethe other hand, the courts are not medically illiterate disclosed to the legal authority who commissioned theand abbreviations in common usage such as ECG can examination. Disclosure to others, who must be inter-safely be used without explanation. ested parties, may only be made with the specific per- It goes without saying that the contents of each and mission of the commissioning authority and, in generalevery report must be true. A report should be typed on terms, it would be sensible to allow that authority tostandard-sized (A4 or foolscap) paper and not scrib- deal with any requests for copies of the report.bled on paper torn from a drug company’s advertising Doctors should resist any attempt to change orpad; remember it will be you who is trying to read the delete any parts of their report by lawyers who mayscribble 6 or 12 months later while under oath and feel those parts are detrimental to their case; anyunder stress in the witness box. Counsel will have had requests to rewrite and resubmit a report with alter-weeks to decipher your writing and if even you cannot ations for these reasons should be refused. A doctor ismake sense of your report, it is unlikely that the court a witness to and for the court; he should give his evi-will take much notice of it. On the other hand, a clear, dence without fear or favour because it is for the courtconcise and complete report may just save you from to decide upon the facts and not the witnesses.
  20. 20. C h a p t e r t w o The Ethics of Medical PracticeInternational Code of Medical Ethics Medical ethics in practice Express consentDuties of physicians in general Medical confidentiality The concept of informed consentDuties of physicians to the sick Consent to medical treatmentDuties of physicians to each other Implied consentThere has been a proliferation of the types of ‘medical own parents, to make him partner in my livelihood:practice’ that are available around the world. There when he is in need of money, to share mine withis the science-based ‘Western medicine’, traditional him; to consider his family as my own brothers andChinese medicine, Ayurvedic medicine in India, the to teach them this art, if they want to learn it, with-many native systems from Africa and Asia and the out fee or indenture. To impart precept, oral instruc-rapidly proliferating modes of ‘fringe medicine’ in tion and all other instruction to my own sons, theWesternized countries. These alternative forms of medi- sons of my teacher and to those who have taken thecine may have their own traditions, conventions and disciples oath, but to no-one else. I will use treat-variably active codes of conduct but we are only con- ment to help the sick according to my ability andcerned in this book with the ethics of the science-based judgement, but never with a view to injury ormedical practice, ‘Western medicine’. wrong-doing. Neither will I administer a poison to To describe modern, science-based medicine as anybody when asked to do so nor will I suggest such‘Western medicine’ is historically inaccurate because a course. Similarly, I will not give a woman a pessaryits origins can be traced through ancient Greece to a to produce abortion. But I will keep pure and holysynthesis of Asian, North African and European medi- both my life and my art. I will not use the knife, notcine. The Greek tradition of medical practice was epit- even sufferers with the stone, but leave this to beomized by the Hippocratic School on the island of done by men who are practitioners of this work. IntoCos around 400 BC. It was there that the foundations whatsoever houses I enter, I will go into them for theof both modern medicine and the ethical facets of benefit of the sick and will abstain from every volun-the practice of that medicine were laid. A form of tary act of mischief or corruption: and further, fromwords universally known as the Hippocratic Oath was the seduction of females or males, of freeman ordeveloped at and for those times, but the fact that it slaves. And whatever I shall see or hear in the courseremains the basis of ethical medical behaviour, even of my profession or not in connection with it, whichthough some of the detail is now obsolete, is a testa- ought not to be spoken of abroad, I will not divulge,ment to its simple common sense and universal accept- reckoning that all such should be kept secret. Whileance. A generally accepted translation runs as follows: I carry out this oath, and not break it, may it be granted to me to enjoy life and the practice of the I swear by Apollo the physician and Aesculapius and art, respected by all men: but if I should transgress it, Health and All-heal and all the gods and goddesses, may the reverse be my lot. that according to my ability and judgement, I will keep this Oath and this stipulation – to hold him What is now broadly called ‘medical ethics’ has who taught me this art, equally dear to me as my developed over several thousand years and is constantly
  21. 21. The ethics of medical practice 9being modified by changing circumstances. The laws by the World Medical Association in 1949. The codegoverning the practice of medicine vary from country was amended in 1968 and in 1983 and currently reads:to country, but the broad principles of medical ethicsare universal and are formulated not only by nationalmedical associations, but by international organiza- Duties of physicians in generaltions such as the World Medical Association. Following the serious violations of medical ethicsby fascist doctors in Germany and Japan during the A physician shall always maintain the highest stand-1939–45 war, when horrific experiments were carried ards of professional conduct.out in concentration camps, the international medical A physician shall not permit motives of profit tocommunity re-stated the Hippocratic Oath in a mod- influence the free and independent exercise of pro-ern form in the Declaration of Geneva in 1948. This fessional judgement on behalf of patients.was amended by the World Medical Association in A physician shall, in all types of medical practice,1968 and again in 1983 and the most recent version be dedicated to providing competent medical ser-was approved in 1994. vice in full technical and moral independence, with This declaration, made at the time of being admit- compassion and respect for human dignity.ted as a member of the medical profession, states that: A physician shall deal honestly with patients and I solemnly pledge myself to consecrate my life to colleagues and strive to expose those physicians the service of humanity. deficient in character or competence or who I will give to my teachers the respect and gratitude engage in fraud or deception. which is their due. The following practices are deemed to be unethical I will practice my profession with conscience and conduct: dignity. a. Self-advertising by physicians, unless permitted The health of my patients will be my first by the laws of the country and the Code of consideration. Ethics of the National Medical Association. I will respect the secrets which are confided in me, b. Paying or receiving any fee or other consider- even after the patient has died. ation solely to procure the referral of a patient I will maintain by all the means in my power, or for prescribing or referring a patient to any the honour and noble traditions of the medical source. profession. A physician shall respect the rights of patients, of My colleagues will be my brothers and sisters. colleagues and of other health professionals and I will not permit considerations of age, disease or shall safeguard patient confidences. disability, creed, ethnic origin, gender, nationality, A physician shall act only in the patient’s interest political affiliation, race, sexual orientation or when providing medical care which might have the social standing to intervene between my duty and effect of weakening the physical and mental condi- my patients. tion of the patient. I will maintain the utmost respect for human life A physician shall use great caution in divulging dis- from its beginning and even under threat I will not coveries or new techniques or treatment through use my medical knowledge contrary to the laws of non-professional channels. humanity. A physician shall certify only that which he has per- I make these promises solemnly, freely and upon sonally verified. my honour. Duties of physicians to the sick INTERNATIONAL CODE OF MEDICAL ETHICSAn International Code of Medical Ethics (derived A physician shall always bear in mind the obliga-from the Declaration of Geneva) was originally adopted tion of preserving human life.
  22. 22. 10 The ethics of medical practiceTable 2.1 Declarations of the World Medical Association A physician shall give emergency care as a humani-1970–2001 tarian duty unless he is assured that others are will- Date Name Subject ing and able to give such care. 1970 The Declaration of Oslo Therapeutic abortion Duties of physicians to each other 1973 The Declaration of Munich Racial, political discrimination etc. in medicine A physician shall behave towards his colleagues as he would have them behave towards him. 1975 The Declaration of Tokyo Torture and other cruel and degrading treatment A physician shall not entice patients from his or punishment colleagues. 1975 The Declaration of Human experimentation A physician shall observe the principles of the Helsinki and clinical trials Declaration of Geneva approved by the World Medical Association. 1981 The Declaration of Lisbon Rights of the patient The fact that both the Declaration of Geneva and 1983 The Declaration of Venice Terminal illness the International Code of Medical Ethics have had to 1983 The Declaration of Oslo Therapeutic abortion be amended during the past 50 years serves to remind us that medical ethics are not static. Both the practice 1984 The Declaration of Pollution of medicine and the societies in which doctors work San Paulo change, and medical ethics must alter to reflect these 1987 The Declaration of Madrid Professional autonomy changes. The World Medical Association has adopted and self-regulation a number of other important declarations over the years, providing international guidance, and some- 1987 The Declaration of Medical education times support, for doctors everywhere (Table 2.1). Rancho Mirage 1989 The Declaration of The abuse of the elderly Hong Kong 1995 The Declaration of Lisbon The rights of the patient MEDICAL ETHICS IN PRACTICE 1996 The Declaration of Helsinki Biomedical research There are many aspects of medical ethics and the sub- involving human subjects ject has blossomed to the point where there are now Institutes of Medical Ethics and full-time specialists 1997 The Declaration of Support for doctors Hamburg refusing to participate in called medical ethicists. torture or other forms of It is hard to find any medical activity that does not cruel inhuman or have some ethical considerations, varying from research degrading treatment on patients to medical confidentiality, from informed consent to doctor–doctor relationships. Many older 1998 The Declaration of Ottawa The right of the child to health care ethical considerations have progressed into law, while new concerns have arisen. But despite all this change, the basic nature of ethical behaviour remains the same and all medical ethics can be said to rest on the principle A physician shall owe his patients complete loyalty that ‘The patient is the centre of the medical universe and all the resources of his science. Whenever an around which all the efforts of doctors revolve’. examination or treatment is beyond the physician’s The doctor exists for the patient, not the other way capacity, he should summon another physician around. The doctor must never do anything to or for a who has the necessary ability. patient that is not in the best interests of that patient A physician shall observe absolute confidentiality and all other considerations are irrelevant in that on all he knows about his patient even after the doctor–patient relationship. From this one simple patient has died. statement spring all other aspects of ethical behaviour,
  23. 23. Medical confidentiality 11including the interaction of doctor with doctor and ofdoctor with society and with government. • Doctors must act reasonably and courteously to each other for the patient’s benefit as the best regi- The general principle which guides ethical behav- men of treatment cannot be provided by doctorsiour is ‘peer conduct’, in that, even if some action is not split by professional or personal disputes or jeal-strictly illegal in terms of the national laws, that action ousy. A doctor should not interfere in the treat-should not be carried out if it is against the accepted ment of a patient except in an emergency whenbehaviour of medical colleagues. In other words, even discussion with the treating doctor is not possible.if a doctor thinks he can ‘get away with it’ under the If emergency treatment is provided, the patient’snational criminal or civil laws, the disapproval of his usual doctor should be informed as soon as pos-fellow doctors – often reinforced by professional discipl- sible about the nature and extent of this emergencyinary procedures – should deter them from acting in treatment. A doctor should not criticize anotherthat way. doctor’s judgement or treatment directly to the International codes are quite clear and virtually all patient except in extreme and unusual situations,national medical associations subscribe to them in but should instead confront the other doctortheory, if, regrettably, less strictly in practice. The dis- directly if it is thought that the maximum benefit isciplinary process and the sanctions that can be applied not being offered to the patient. If a doctor is con-against the doctor found guilty of unethical practices cerned about the professional skills or the health ofby the General Medical Council in the UK are described a colleague, he is morally obliged to draw thosein more detail in Chapter 3 and range from a public concerns to the attention of the authorities.admonishment to permanent erasure from the register. Though the spectrum of unethical conduct is wide,certain universally relevant subjects are recognized.The seriousness with which each is viewed may vary MEDICAL CONFIDENTIALITYconsiderably in different parts of the world. Secrecy is now termed ‘confidentiality’, but whatever it• A doctor’s over-riding consideration is to the patient, while also accepting that doctors have a is called it is as vital now as when the Hippocratic Oath was written. It is a fundamental tenet that what- duty to their medical colleagues and to the com- ever a doctor sees or hears in the life of his patient must munity at large. The patient is the reason for the be treated as totally confidential. The British Medical doctor’s existence and all other matters must be Association (BMA) defines confidentiality as ‘the prin- subservient to this fact. A doctor cannot abandon ciple of keeping secure and secret from others, informa- his patient without ensuring that medical care is tion given by or about an individual in the course of a handed over to someone equally competent. A doc- professional relationship’. There are, however, exceptions tor cannot simply leave a patient because it is the to this fundamental rule, which are discussed later. end of his shift for that day nor can he refuse to The concept of medical confidentiality is also continue long-term treatment without ensuring directed at the well-being of the patient and assumes that some other doctor takes that person into care. that if people cannot be confident that what they tell• The doctor must always do what he thinks is best for the patient’s physical and mental health without their doctor will stay secret, they are much less likely to reveal everything during a consultation, especially in consideration of race, wealth, religion, nationality intimate matters concerning their sex life, social and etc. The doctor must act independently, or with moral behaviour, use or abuse of drugs or alcohol and other doctors, free of political or administrative even their excretory functions. As a result, the clinical doctrines or pressure to establish a diagnosis and to history may be deficient or even misleading and the carry out treatment. However, financial resources best diagnosis and hence the best treatment may not can be limited and health ‘priorities’ may be dic- be provided. tated by administrators and politicians and so The doctor must therefore keep everything he hears doctors may find themselves in situations where to himself and it must be appreciated that the ‘secrecy’ resources are limited and treatment options are belongs to the patient, not the doctor. The latter is denied. This may pose significant ethical dilemmas merely the guardian of the patient’s confidential mat- for the treating doctor. ters, which does not cease on the death of the patient.
  24. 24. 12 The ethics of medical practice Giving health information that can be identified as or venereal disease, as disclosure might cause severebelonging to a particular individual is termed ‘disclos- conflict between close relatives such as husbandure’. Healthcare information may only be disclosed in and wife. In some societies the senior male relativethe following situations, although different countries may play a dominant role in the family and maymay have variations of this list. well insist on the doctor providing him with med- ical information on anyone in the family, irrespect-• With the consent of the patient. If an adult patient gives consent for disclosure of information, in most ive of the wishes of the individual. While remaining aware of the various ethnic and religious factors, countries the doctor is free so to do. The crucial a doctor must resist if patients themselves will not feature in this process is the consent given by the give informed consent to the release of the infor- patient, which is defined by the BMA as ‘a decision mation. Where immature children are concerned, freely made in appreciation of its consequences’. it is obvious that all possible information must be However, as already mentioned in Chapter 1, some given to the parents or those with parental respon- countries have much stricter laws about the disclos- sibility. Mature children pose different problems ure of medical information. and, if a doctor considers them to be sufficiently An individual with ‘parental responsibility’ for mature, they may make their own decisions, which an immature minor may consent to the disclosure must be followed by the doctor. Such a child may of their medical information, but the situation also deny his parents access to his medical records. regarding mentally incapacitated adults is slightly more complicated. • Statutory (legal) requirements. The absolute duty of medical confidentiality has, in reality, been consid-• To other doctors. The keeping of medical notes and records is universal, indeed a doctor would be neg- erably diminished. Many national laws now force the doctor to reveal what are essentially medical ligent not to keep such records. These records are secrets and many are so commonplace that they are used to assist in the provision of health care to the not even thought about and the whole community patient and, in the absence of evidence to the con- accepts them without question, for example official trary, it is assumed that patients have given ‘implied notification of births, deaths and stillbirths. In consent’ for the sharing of their health information addition, statutory notification is required of many on a ‘need to know’ basis with other healthcare pro- infectious diseases and occupational diseases, as are fessionals, who should be under the same obliga- the details of therapeutic abortions, drug addiction tion of secrecy as the doctor. However, it must be etc. Doctors are citizens and have to obey the law of admitted that as multidisciplinary teams grow ever the land and so they have to submit to these regula- bigger, it is becoming increasingly difficult to con- tions and patients cannot complain about their trol information, which now reaches an ever- doctor revealing these types of personal informa- widening circle of people. tion. The patient has no right of refusal, but should• To relatives. In most circumstances, close relatives are told of the nature of the patient’s illness, espe- be notified about what information will be pro- vided and to whom. cially if they live together and have to care for the patient at home. However, this disclosure is by no • In courts of law. Where a doctor is a witness before a court or tribunal, the magistrate, judge, coroner means automatic and, if the patient requests that a etc. has the power to force the doctor to disclose relative is not told, the doctor must abide by that any relevant medical facts. The doctor may protest wish. If there is a medical reason why the relative or ask if he can write down the confidential facts so should be told, this can be discussed with the that the public and press in court do not hear the patient, but the doctor cannot disclose the infor- answer. However, if the judge so directs, the doctor mation in the face of refusal by the patient unless must answer, on pain of a fine or even imprison- not to do so would place the relatives at risk. This ment for ‘contempt of court’. In such circum- dilemma is now faced, for example, when one fam- stances, the evidence given by the doctor is totally ily member has been diagnosed as having active privileged and thus the patient cannot bring a legal pulmonary tuberculosis. action for breach of confidence. Particular caution is required over the disclos- ure of sexual matters, such as pregnancy, abortion • The police. In most Western countries the police have no greater power to demand the disclosure of
  25. 25. Consent to medical treatment 13 medical information by a doctor than anyone else. some other infective disease. Usually, people in There are a few well-defined circumstances, not positions of public responsibility are required to specifically related to medical information or to disclose significant illness to their employers and to medical practice, in which the police can require have occupational medical checks performed on disclosure of information by any citizen; these behalf of the employer or licensing authority. involve terrorist activity and information that may The proper course is for the doctor to explain the identify a driver alleged to have committed a traffic risks to the patient and to persuade him to allow offence. the doctor to report the problem to his employers. The police usually require information con- The patient may, of course, refuse. It is always wise cerning an assault on a patient, but where assault to seek the advice of senior colleagues or of a pro- occurs within a family, such as between spouses or fessional insurance organization or national med- close relatives, the victim may not wish to bring ical association before making any disclosure. criminal charges and so the doctor must not auto- matically assume that consent for disclosure will • Disclosure to lawyers. Lawyers have no automatic right to obtain medical information and records have be given. without the patient’s consent, but in general, if a• Disclosure by police surgeons (forensic medical examiners). A doctor examining a patient, usually a lawyer in a civil case wishes to obtain medical records and these are denied to him, he may apply victim or alleged perpetrator, at the request of to the court for ‘disclosure’. In the UK the Access to the police owes the same duty of confidentiality to Health Records Act 1990 means that this request that patient as any other doctor, and any informa- will be granted if a lawyer can show that his client tion that is not relevant to any criminal proceed- has reasonable grounds for wishing to see medical ings must be given the same protection as any other records; these grounds may be either to discover if medical information. The doctor in this situation there are grounds for a legal action or to obtain evi- may, however, disclose medical facts that are rele- dence for an action already commenced. vant to a crime, but the patient should be made When asked by a lawyer for a medical report, a aware of this before the examination begins. If doctor should always insist on seeing written per- ordered by a court to disclose other information mission for the disclosure of information signed by gained from this examination, the doctor must, of the individual about whom the report is to be writ- course, comply. ten. If a doctor releases confidential information to• In the public good. This is a most difficult issue and it must be left to the doctor’s own conscience another party without the consent of the patient, he may be sued or face disciplinary action by whether he should reveal matters which affect peo- the regulatory medical authorities for unethical ple other than the patient. For instance, if a doctor behaviour. learns of a serious crime (e.g. by treating wounds of an assailant that he knows must have originated in a serious assault or rape), then the issue of confiden- tiality clashes with the need to protect some indi- CONSENT TO MEDICAL TREATMENT vidual or the public at large from possible further danger. The same issue may arise where a doctor No adult person need accept medical treatment unless suspects that a child patient is being physically or they wish to do so. However, if they do desire medical mentally abused, but here the over-riding consider- attention, they must give valid consent. Permission for ation is the safety of the child. diagnosis and treatment is essential as otherwise the More commonly, the dilemma for a doctor doctor may be guilty of assault if he touches or even arises from disease rather than injuries. If a serious attempts to touch an unwilling person. In Britain, young illness in a patient poses a potential threat of persons over the age of 16 can choose their own doc- ‘serious harm’ to the safety or health of either the tor and children of this age are presumed to be com- patient or the public, the doctor must decide petent to give permission for any treatment. Below the whether to break silence about the condition, for age of 16 there is no presumption of competency, but example in the case of a bus driver with serious if the doctor thinks they are mature enough to under- hypertension or a teacher with tuberculosis or stand, they can still give valid consent. There is no
  26. 26. 14 The ethics of medical practicelower age limit to this competency, the crucial test Express consentbeing the child’s ability to comprehend and to make arational decision. Interestingly, a decision by a child Where complex medical procedures are concerned,under 18 to refuse treatment is not necessarily binding more specific permission must be obtained from theupon a doctor and may be overridden by those with patient, this being called ‘express consent’, and if theparental responsibility or by a court. same procedure is repeated on another occasion, fur- The situation in which an adult lacks the capacity, ther express consent must again be obtained.for whatever reason, to make an informed decision is Express consent may often be obtained in writing,somewhat confused. Where a patient is suffering from but this is not a legal requirement and written consenta mental condition, and is detained in hospital under is not more valid than verbal consent. However, writ-mental health legislation, he may be given treatment ten consent is much easier to prove at a later datefor his mental condition without his consent. However, should any dispute ever arise. Ideally, either verbal orthe legislation does not extend to other types of med- written consent should be witnessed by another per-ical treatment. The Adults with Incapacity Act applies son, who should also sign any Scotland only, and allows people over 16 years to Consent only extends to what was explained to theappoint a proxy decision maker to whom they delegate patient beforehand and nothing extra should be donethe power to consent to medical treatment, but only if during the operation for which express consent hasthe patient has lost the capacity to do so. not been obtained. This can pose a dilemma for a sur- In an emergency, such as an accident where the vic- geon if something unexpected is found at operationtim is in extremis, unconscious or shocked, no permis- that necessitates a change of procedure.sion is necessary and doctors must do as they thinkbest for the patient in those urgent circumstances. Aslong as medical intervention was made in good faith The concept of informed consentfor the benefit of the victim, no subsequent legalaction based on lack of consent is likely to succeed. Consent is not legally valid unless the patient under- Consent to medical treatment is of two types. stands what he or she is giving the doctor permission to do and why the doctor wants to do it, and it may well be that the patient, having weighed up the risks,Implied consent the pain and discomfort and many other factors, may decline the operation and it is their right to be able toMost medical practice is conducted under the principle do this. There is some room for clinical judgement andof ‘implied consent’, where the very fact that a person a doctor may withhold some information he believeshas presented at a doctor’s surgery to be examined, may cause mental anguish that would adversely affector asks the doctor to visit him, implies that he is will- the patient’s health or recovery. However, any with-ing to undergo the basic clinical methods of examina- holding of facts may need to be justified at a later datetion, such as history taking, observation, palpation and careful notes should be kept of any matters dis-and auscultation etc. It does not extend to intimate cussed, or specifically not discussed, during theexaminations such as vaginal and rectal examinations process of obtaining express consent.or to invasive examinations such as venepuncture. The question of consent has usually been con-These intimate and invasive tests should be discussed sidered by the medical and surgical teams at hospitalswith patients and their express consent specifically and as long as junior doctors conform to the protocolsobtained after explaining what is to be done and why. laid down by those teams they will not be personallyRefusal of consent for the procedure precludes the test responsible for any failings or omissions later dis-or examination. covered in the process as a whole.