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

!   What would you do?

?

!   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

!   Patient lost his job

!   Pt suicided

!   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

Some common cases

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).

A trickier case ...

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.

!   What would you do?

!   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

What do you think?

Some simpler cases …

!   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

!   What are you going to do?

!   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

!   What are you going to do?

!   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

!   What would you do?

!   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

!   What are you going to do?

!   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?

!   What would you do?

!   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

!   What are you going to do?

!   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