Medical law and ethics refresher 2013

New Zealand Medical
Law and Ethics
Refresher 2013

Dr Chris Cresswell
Emergency Medicine Physician
Whanganui

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?

!   The doctors had concerns re his safety to drive an
ambulance and manage patients

!   What would you do?

!   Encouraged pt to take time off and talk to his employer

!   Pt refused

!   Drs asked if they could talk to his employer

!   Pt refused


!   Discussion between the junior and senior doctor on
duty and a senior nurse

!   Considered there to be a serious and risk to the
patient or the public

!   d/w ambulance station manager

!   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

!   What does this mean?

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
!   What is competence?

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.


!   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


!   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


!   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


!   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


!   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?


!   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


!   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

Medical law and ethics refresher 2013

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