ETHICAL DILEMMAS IN CLINICAL

FORENSIC MEDICINE

NATIONAL FORENSIC NURSING

CONFERENCE

THURSDAY 20TH FEBRUARY 2014

Margaret M Stark

Director, CFMU, NSWPF

Adjunct Professor, The University of Sydney

DEFINITION OF ETHICS

The study of what we ought to do!

OUTLINE

Role of forensic practitioners (FP) (nurses and

doctors)

Guidance for practitioners

Key concepts in medical ethics

Model for ethical problem solving in clinical

medicine

Case examples

ROLE OF FORENSIC PRACTITIONERS (FP)

Individuals detained in police custody have the

same rights and expectations to medical care as

any other patients

The right to privacy, dignity and confidentiality

FP have dual responsibilities:

To provide forensic and therapeutic services

Duty of care to person being examined/treated

See Sarkar U., Stark MM. Wall I. The role of the Independent FP,

2014 & Randle J., Fewkes S., & Stark MM. The Role of the HCP, 2012

www.fflm.ac.uk

ROLE OF FP - 2

Ensure patient understands FP has dual

obligations

Consent is important

Confidentiality is important - information should

not normally be disclosed without the patient’s

knowledge and consent

FP have a duty to monitor and speak out when

services are inadequate, hazardous, or otherwise

pose a potential threat to health

FFLM & BMA. Health care of detainees in police stations. Feb 2009

www.fflm.ac.uk

GUIDANCE FOR PRACTITIONERS EXISTS -1

International – UN, WMA

National – AMA, BMA

AMA Health and the Criminal Justice System, 2012

https://ama.com.au/position-statement/health-and-

criminal-justice-system-2012

Regulator – AHPRA/MBA/NMB, GMC, NMC

GUIDANCE FOR PRACTITIONERS EXISTS -2

Professional bodies – IAFN, NAFN, UKAFN,

FFLM, AAFP, ACLM, FAMSACA

Medical Guidelines from, e.g. National Institute

for Health and Clinical Excellence (NICE), CMO,

NSW Health, etc.

Medical and health care law

Statute law made by parliament

International laws

Common law precedents set by judges in previous

cases

INTERNATIONAL

UN

Body of principles for the Protection of All Persons

under Any Form of Detention or Imprisonment

www.un.org

Optional Protocol to the UN Convention against

Torture

National Preventive Mechanisms (NPM) with involvement

of HCPs (UK and NZ)

WMA

Declaration of Tokyo – Guidelines for Physicians

Concerning Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment in relation

to Detention and Imprisonment, 1975

Declaration of Hamburg concerning Support for

Medical Doctors refusing to participate in or to

Condone, the use of Torture or Other Forms of

Cruel, Inhuman or Degrading Treatment (1997,

reaffirmed 2007)

REGULATOR

AHPRA Australia

MBA Good medical practice: A Code of Conduct for Doctors in

Australia

Nursing and Midwifery Board of Australia Code of Ethics and

Code of Professional Conduct for Nurses & Midwives

Nursing & Midwifery Council NMC

The Code: Standards of conduct, performance and

ethics for nurses and midwives, 2008 www.nmc-

uk.org

General Medical Council (GMC-UK)

Good Medical Practice, 2013 www.gmc-uk.org

MEDICAL GUIDELINES

Suspected Internal Drug Traffickers (SIDTs) Independent report of the CMO’s expert group on medical care

of SIDTS. January 2013

www.gov.uk/government/publications/report-on-the-care-of-

suspected-internal-drug-traffickers-published

Head Injury

Head injury. Triage, assessment, investigation and early

management of head injury in children, young people and

adults. January 2014. NICE clinical guideline 176

www.guidance.nice.org.uk/cg176

CRIMES ACT 1900 NSW

Concealing serious indictable offence

• Penalty of two years imprisonment if there is no

‘reasonable excuse’

• Serious criminal offence one attracting a penalty of 5

years imprisonment or more

MANDATORY REPORTING

Required for Child Abuse - NSW Children and

Young Person (Care & Protection) Act 1998

Blood samples required under Road Traffic

legislation

DV NSW Health DV policy required reporting of

DV to police

GMC – UK GUIDANCE FOR GUNSHOT &

KNIFE WOUNDS

Inform police so they can perform a risk assessment

You should make a professional judgement about whether disclosure of personal information about a patient, including their identity, is justified in the public interest.

Disclosures in the public interest may be justified when: (a) failure to disclose information may put the

patient, or someone else, at risk of death or serious harm, or

(b) disclosure is likely to help in the prevention, detection or prosecution of a serious crime.

No agreed definition of ‘serious crime’. DH gives some examples of serious crime murder, manslaughter, rape and child abuse, etc.

www.gmc-uk.org/Confidentiality_reporting_gunshot_wounds_2009.pdf_27493825.pdf

HUMAN RIGHTS LAW RELEVANT ARTICLES

2 the right to life

3 prohibition on torture, inhuman or degrading

treatment

5 the right to liberty and security

6 the right to a fair hearing or fair trial

8 respect for private and family life

9 freedom of thought, conscience and religion

10 freedom of expression

12 the right to marry and found a family

14 the enjoyment of these rights to be secured

without discrimination

NSW CRIMES (FORENSIC PROCEDURES)

ACT 200

Experts not obliged to carry out forensic

procedures S108:

“Nothing in this Act requires a medical

practitioner, nurse or dentist, dentist prosthesist

or appropriately qualified police officer or person

to carry out a forensic procedure.”

KEY CONCEPTS IN MEDICAL ETHICS

Self determination/autonomy

Mental capacity

Honesty & integrity

Confidentiality (note public interest disclosure that is for the public good)

Harm and benefit (example of blood from incapacitated drivers)

Fairness & equity

From: BMA Ethics Department. Everyday Medical Ethics and Law,

Wiley-Blackwell, 2013

MODEL FOR ETHICAL PROBLEM SOLVING IN

CLINICAL MEDICINE

Identify the ethical problem

Get the facts (H,E,SI)

Consider core ethical principles

Consider how the problem would look from another perspective or using another theory

Identify ethical conflicts between principles, values or perspectives

Consider the law

Identify a way forward

From: Principle-based ethics. Chapter 7 pp.138-9 Kerridge I., Lowe M.,

& Stewart C. Ethics and law for the health professions, 4th edn, The Federation Press, 2013

CASE 1

You are called by the local police to take intimate

samples from a murder suspect

He is 15 years old

His mother who is not at the police station has

schizophrenia

ISSUES TO CONSIDER

Can the 15 year old consent to having the

samples taken?

Who has parental responsibility for a child?

Can the mother, who is suffering from a

significant mental health problem, give consent?

Can a parent lose parental responsibility?

NSW CONSENT

Therapeutic/Forensic

Child under 18 years ‘vulnerable’ under the Law

Enforcement (Powers and Responsibilities)

Regulation (NSW) need a support person present

whilst in custody

Considered ‘incapable’ of consenting to a forensic

procedure

Authorisation by order of a magistrate or

authorised officer

Need an interview friend to be present for the

procedure

NSW CONSENT

Cf: Age of consent for treatment

Minors (Property and Contracts) Act 1970 14 yrs

Gillick competence

Child not competent then parental power survives till

child is 18 yrs

Best interests of the child

Both parents have PR for a child under 18 years

unless court order to the contrary

Guardianship covers incompetent patients over

16 yrs

CASE 2

You are called to see a suspect arrested for a

serious assault.

He has some injuries to his hands and you ask

how he got them. He replies “I punched him

because he raped me”.

ISSUES TO CONSIDER

Does the management of the alleged sexual

assault take priority over the assessment of a

person of interest?

Would you lose evidence if you managed the

suspect as a complainant first?

DUTY OF CARE

Suspect owed a duty of care

Assessment and treatment at the local sexual

assault service would allow all samples to be

taken with consent and as appropriate and

treatment needs assessed

CASE 3

You are called to see a suspect who has recently

arrived from South America on an extradition

warrant for a serious assault.

The police ask you to see the suspect to document

his injuries and assess whether he is fit for

interview (after the long journey).

The suspect through an interpreter advises that

you can ask him some questions, look at his body,

but he will not speak to you about any injuries

and you cannot tell the police what you find in

relation to the injuries.

ISSUES TO CONSIDER

Would you see a suspect who is giving only

partial consent to an assessment?

How do you manage the lack of absolute

confidentiality?

How confident would you be to assess any

injuries you may find on examination without the

history of causation?

DUAL ROLE

Need to explain dual role

Full consent maybe obtained later to release information

Long journey so an assessment as to his fitness for detention & interview is essential.

Need to exclude fatigue, hunger, current and past medical and psychiatric issues.

DUTY OF CARE

If no assessment is performed the police cannot proceed – long journey for no outcome!

Injury documentation can be done/interpretation without a full history may have limitations

FORENSIC ROLE

CONCLUSIONS

There are no absolutes and no easy answers

Cases need to be dealt with on an individual case

by case basis

BUT remember:

1. You are a healthcare professional first

2. Get as much information as possible

3. Seek advice from a senior colleague

4. Seek medico-legal advice as appropriate – Ministry

of Health/independent professional indemnity, e.g.

AVANT

REFERENCES/FURTHER READING

BMA Ethics Department. Everyday Medical Ethics and

Law, Wiley-Blackwell, 2013

BMA. Medical Ethics Today. The BMA’s Handbook of

Ethics and Law, 3rd edn, Wiley-Blackwell, 2012

Stewart C., Kerridge I. & Parker M. The Australian

Medico-Legal Handbook, Churchill Livingstone, 2008

Kerridge I., Lowe M., & Stewart C. Ethics and law for the

health professions, 4th edn, The Federation Press, 2013

FFLM. Consent from patients who may have been seriously

assaulted. 2011 http://fflm.ac.uk/library/

BMA. Taking blood specimens from incapacitated drivers.

Guidance for doctors from the BMA and FFLM. 2010

http://fflm.ac.uk/library/