Medicine and the LawA Clinician’s Perspective:hypothetical scenarios in

Aged Care

Dr Mark LattGeriatrician

Royal Prince Alfred HospitalSenior Lecturer,

Sydney Medical SchoolThe University of Sydney

Disclaimers

Medical perspective

Confidentiality

– Any resemblance of hypothetical cases to persons living or deceased is unintentional.

More questions than answers.

Law

Ethics

Policy

Law Ethics

Policy

Law

Policy

Ethics

Policy

Law

Ethics

Scenarios

83 year-old lady with recurrent falls, atrial fibrillation, heart failure and depression; on many cardiovascular medications and warfarin.

78 year-old man, moderate dementia; hospitalized for malnutrition; attempting to leave hospital despite no home or carer.

89 year-old man with dementia; wants to leave his estate to charity. Family unhappy.

93 year-old man. Children accuse his second wife of neglect and physical/emotional abuse. Want to take him out of his nursing home to live with them.

Advance directives

The Law

Failure to provide informed consent

Negligence

– Duty of care

– Breach of duty of care

– Harm or loss of chance as a result

Criminal negligence

Trespass

Manslaughter

Murder

Problems with the law

Common law applies to specific situations– Heavy supplementation by statute law

Does not cover all common end-of-life disputes

– Curnow K, Toohey L. (2013) 24 ADRJ

Different applications of the law in different cases and jurisdictions

Formal dispute resolution Slow, costly

Mrs EC

80 year-old lady, presenting to ED:

– Reduced level of consciousness,

Background:

– Strokes over 10 years - Quadriplegia since 1 year, Aphasic

Disabilities: Requires full assistance with ADLs

– Bedbound for 2 years, aphasic, incontinent

Social situation: Lives with a very supportive single daughter. No Advance Care Directive

Examination: HR 110; BP 88/52; SaO2 88% (room air); T 37.9; Unresponsive to stimuli; RR 35

– Atrophy, rigidity, and contractures in all limbs

– Sacral pressure areas

– Coarse crepitations in right lower lobe

Mrs EC

Impression

– Guarded prognosis – may die imminently from septic shock

– Person without capacity to make medical decisions and without Advance Care Directive

Medical approach

1. What is Mrs EC‟s prognosis?

2. What treatment options are available?

3. What treatments are in Mrs EC‟s best interests? Exclude treatments that are not in her best interest.

4. Who can tell us which treatments in (3.) Mrs EC would wish to undergo?

5. Implement treatments that are in Mrs EC‟s best interests and which she would be willing to undergo.

1. Prognosis

Premorbid clinical state

– severe deficits (motor and cognitive) and disability due to previous strokes.

Current clinical state

– hypoactive delirium, hypotension

Lower respiratory tract infection – aspiration pneumonia

Possible outcomes:

– Recovery (partial or complete)

– Septic shock

– Type II respiratory failure

– Death during hospitalization

Figure 2. Long-term survival probability for patients aged 65 years at first nonfatal stroke by subtype.

Brønnum-Hansen H et al. Stroke. 2001;32:2131-2136

1. Prognosis

Mortality after first stroke– 10 years 60-70%

Risk of stroke recurrence– 5 years 32% (Whisnant J, ed.Stroke. Oxford: Butterworth-

Heinemann Ltd.; 1993:135–153.)

Pneumonia– Class V on Pneumonia Severity Index

– 27% mortality (Fine MJ, et al. NEJM 1997: 336;243)

ICU mortality– In ICU 31%

– 6 months 52% (Dardaine V et al.JAGS 2001;49:564-70)

“Poor” prognosis

2. Available treatment options

Oxygen via Hudson mask IV fluids IV paracetamol IV antibiotics Oxygen via NIV IV inotropes IV cardioversion Electrical defibrillation Intubation Chest compression

Soft mattress Single room Opioid Benzodiazepine

3. Treatment options in Mrs EC’s best interests

Oxygen via Hudson mask

IV fluids

IV paracetamol

IV antibiotics

Soft mattress Single room Opioid prn Benzodiazepine prn

4. Decision-maker

Carer insisting on the following should the need arise:

Intubation

Electrical and pharmacological cardioversion

Inotropic support

Prognosis is NOT poor

Mrs EC has a good quality of life

What would you do?

Agree with daughter?

– Could conflict with personal/professional ethics.

Disagree with daughter?

– Potential for litigation.

Suspend a decision?

– Procrastination? Time may force a decision.

Legal approach for doctors1. What is in Mrs EC‟s best interests?

2. Who has the capacity to make a decision about treatment in her best interests?

3. Is it lawful to withhold or withdraw treatment?

4. Can treatment be withheld or withdrawn without Mrs EC‟s or her daughter‟s consent?

5. What steps need to be carried out?

1. What is in Mrs EC’s best interests?

Best interests: „ a bona fide decision on the part of the attending doctors‟, :

1. „prevailing medical standards…which command general approval within the medical profession.‟

2. „All relevant tests‟

3. „specialist opinions and agreement‟

4. „Consultation with the medical profession‟s recognised ethical body‟

5. „Finally the patient‟s family or guardian must be fully informed and freely concur in what is proposed.‟

59 year-old male with severe Guillain-Barre syndrome. Thomas J in Auckland Area Health Board vs Attorney General (Re L) [1993]

1 NZLR 235 (NZ HC)

2. Who has the capacity to make a decision?

Legal definitions

– Incapable of giving consent if:

a) is incapable of understanding the general nature and effect of the proposed treatment; or

b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

Part 5 of the Guardianship Act 1987 (NSW), s 33(2).

Patient lacks capacity

2. Who has the capacity to make a decision?

Advance directive

Hierarchy:„(a) the person’s guardian, …

(b) the spouse of the person, if any, if: (i) the relationship between the person and the spouse is close

and continuing, and

(ii) the spouse is not a person under guardianship,

(c) a person who has the care of the person,

(d) a close friend or relative of the person.‟

Guardianship Act 1987 No 257, 33A Person responsible

Order of the Supreme Court - parenspatriae jurisdiction

3. Is it lawful to withhold or withdraw treatment?

May be lawful when:

– Competent adult has refused treatment;

– Surrogate decision-maker has refused on the patient‟s behalf;

– Treatment is „futile‟; or

– Treatment imposes a burden not justified by the potential advantages.

Skene L (2008) Law and Medical Practice: Rights, Duties, Claims and Defences. LexisNexis Butterworths, Australia

AND if withholding/withdrawing treatment is „accepted at the time as proper by a responsible body of medical opinion‟.

3. Futility

Quantitative

– Low probability of success.

Qualitative

– Inability to

achieve the patient‟s wishes or goals,

offer reasonable chance of survival,

Achieve a physiological effect and

Offer minimal QOL or medical benefit– Kerridge I, Lowe M, Stewart C (2009) Ethics and Law for Health

Professionals. Sydney, The Federation Press.

Difficult to define

Relies on medical AND judicial consensus

3. Who decides? Doctors?

„… it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime … to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree…

…it is simply an acceptance of the fact that the treatment of the patient … is principally a matter for the expertise of professional medical practitioners.‟

Justice Howie. Messiha v South East Health [2004] NSWSC 1061

3. Who decides? Supreme Court

Northridge v Central Sydney Area Health Service [2000] NSWLR 1241

– Mr T, overdosed on heroin

– Severe brain injury, respiratory arrest –resuscitated

– No antibiotics as considered futile

– T‟s sister applied to High Court to have decision overturned

– No reasonable medical consensus

3. Is it lawful to withhold or withdraw treatment?

O‟Keefe J: „There is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extra-ordinary and, excessively burdensome, intrusive or futile) medical treatment …

….What constitutes appropriate medical treatment in a given case is a medical matter in the first instance.

However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person.‟ (at [24])

3. Is it lawful to withhold or withdraw treatment?

Probably - unanimous agreement among 3rd party experts

Auckland Area Health Board vs Attorney General (Re L) [1993] 1 NZLR 235 (NZ HC)

– patient with extreme GBS.

In the application of Herrington; re King [2007] VSC 151

– Female, hypoxic brain damage, renal failure, persistent vegetative state

Melo v Superintendent of Royal Darwin Hospital [2007] NTSC 71

– Male, MVA, severe spinal injury, GCS 3

4. Can treatment be withheld or withdrawn without consent?

Consent to Medical Treatment and Palliative Care Act 1995 (SA). Section 17(2)

A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness …

…. is, in the absence of any express direction by the patient or the patient‟s representative to the contrary, under no duty to use, or continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery or in a persistent vegetative state.

Can potentially life-prolonging treatments be withheld without the surrogate decision maker‟s consent?

4. Can treatment be withheld or withdrawn without consent?

Healthcare: includes “withholding or withdrawal

of a life-sustaining measure”. GAA(Schedule2,s. 5). Guardianship and

Administration Act 2000 [QLD]

Consent required to provide healthcare.

Therefore, consent is needed to withhold or withdraw a life-sustaining measure.

Lawrence S et al. MJA 2012; 196(6):404-5

4. Can treatment be withheld or withdrawn without consent?

Importance of consent– 82 year-old lady with pulmonary fibrosis, respiratory

failure.

– NFR made by ED physician. No consent from family – NFR unlawful.

“…significant legal consequences may have followed” if patient had arrested in the ED

– Patient later died on respiratory ward. Sufficient discussions with family – “tacit consent”

Original NFR now lawful

Would the case be considered differently in NSW?

5. What steps need to be carried out?

Guidelines for end-of-life care and decision-making. NSW Department of Health 2005

6.2 When a patient’s family disagrees with a patient’s decision

„The wishes of the adult patient with decision-making capacity are paramount...

every effort should be made to communicate this information to the family.‟

5. What steps need to be carried out?

6.3 Inappropriate requests for continuing treatment

All requests for continuing treatment should be given due consideration.

Review the diagnosis and prognosis and the margins of certainty.

Explain to the patient or family why they think the desired test or treatment is inappropriate.

Support family members and assisting them to resolve their difficulties in accepting the reality of the patient‟s impending death.

Continue treatment until conflict with relatives is resolved– however time critical situations pose extremely difficult

choices and challenges.

5. What steps need to be carried out?

6.5 Options for resolving disagreement Time and repeat discussion Second medical opinion Time limited treatment trial Facilitation

– senior member of hospital administration, – a senior health professional, – or another person agreed upon by those involved.

sufficient seniority, respected by all parties, and Demonstrably independent of the treating team.

Patient transfer– another institution or – another suitable treating clinician within the same institution

Guardianship Tribunal (Guardianship Division of NSW Civil and Administrative Tribunal)

5. What steps need to be carried out?

Legal intervention

■ obtained a second specialist medical opinion in

writing

■ received senior institutional advice

■ discussed this course of action with the family

■ sought advice from the Guardianship Tribunal if

the patient does not have decision-making capacity

■ informed the hospital executive of the proposed

approach. © NSW Department of Health 2005

Guidelines for guidelines Demonstrate your communication

– Talk to the patient – Patient‟s views paramount

– Talk to the family

– Nurses, allied health to support patient and family

– Healthcare professionals provide consistent advice

Share the responsibility (depending on seriousness)

– Specialist Consults

– Hospital Administration, Hospital Ethics Committee (patient care)

– Medical Defence Union

– Guardianship Tribunal

– Supreme Court

Transfer to a medical team that would treat patient differently.

Active treatment until sure of position.

Problems

Need for Consent

– Time pressures

– May lead to management that is not in the patient‟s best interests, as determined medically.

– Evidence-based ethical medical practice may be outside the law in some instances.

– What may be lawful in one case may not be lawful in another (eg. no surrogate decision-maker)

– Variance in clinical practice

Mrs EC Progress

– Many lengthy discussions/negotiations with carer

– ED, Aged Care, ICU physicians

Chest compression, intubation and inotropesinappropriate

Continue current antibiotic and fluid support

“Arrest calls” and ICU assistance if required

– Improvement without escalation of treatment

– Discharge home after 4 weeks in hospital

– Represented to another facility two months later with recurrence of pneumonia and respiratory arrest.

Resuscitation (intubation and inotropes attempted in ED) - unsuccessful

Acknowledgements

Dr Tamsin Waterhouse

Dr George Szonyi

Dr Melanie Wroth

– Royal Prince Alfred Hospital

Opinions expressed are entirely my own