Published on January 16, 2014
Legal Issues in Emergency Medicine
The Law • Commonwealth of Australia Constitution Act; 1900 • Australia Act; 1986 • Common Law • Civil Law • Criminal Law
Medical Ethics • • • • Beneficence Autonomy Non-Malificience Justice • Honesty • Respect
Why do we need to know this? • To avoid getting sued • To keep our employers happy • To pass fellowship exams • To provide the best possible care to our patients and avoid adverse outcomes
When do we you get taught about legal issues in medicine? • • • • At medical school? As a junior doctor? As a trainee? As a specialist?
Where do we get information on this topic? • • • • Textbooks/journals/online resources Medical defence organisations Hospital policies Legal precedents • Informal conversations with colleagues • Trial and error • Experience
Legal issues in emergency medicine • • • • • • • • • Consent Patient confidentiality Competence Documentation Medical error Open disclosure Medicolegal reports Mental health act Coronial police • • • • • • Duty of care Giving advice Transfer of responsibility Leaving against advice Leaving without being seen Refusing treatment
What will we discuss • • • • • • Duty of care Consent Competence/capacity Privacy/confidentiality DAMA/Refusal of treatment Negligence
Duty of care • Not just relating to mental health issues • Principle that doctors have a duty to provide care to patients which is – In the patients best interests – Is to the best of his/her ability – Is appropriate to the situation • Focussed on what is reasonable • Negligence requires a duty of care
Some examples in ED • • • • • Cardiac arrest End of shift Medication prescribing Clinical knowledge Consultant responsibility
Consent • Medical treatment requires patient consent • Consent may given – Implied – Verbally – Written • Involving the patient in decision making about their care
Valid Consent 1. Must be legally capable of giving consent – Competent, not a minor, under guardianship, mentally ill, disabled by drugs or alcohol 2. 3. 4. 5. Consent must be informed Consent must be specific Consent must be freely given Consent must cover that which is actually done
What does informed consent imply? • • • • Clear Accurate Relevent Material • Treatment options • Consequences of treatment • Consequences of no treatment
Rogers & Whittaker • Australian High Court decision • The case • The decision – All medical treatment is preceded by the patients choice – Duty to disclose all material risks to the patient • A reasonable person would attach significance to it • The outcome
Ability to consent in difficult situations • • • • • Children/adolescents Intellectually impaired Mentally ill Drug and alcohol affected Patient in the emergency department • What would a reasonable doctor do? – The “will I look like a dickhead” test
Capacity vs Competence • Capacity – – – – Decision making capacity Personal values Comprehension Understanding • Our role to determine • Competence – Whether a person is legally able to manage their affairs or not – Presumed for adults • Courts role to detemine
Determining capacity • Functional assessment • Ability to understand the information • Ability to appreciate the situation and consequences • Ability to rationally manipulate the information • Ability to communicate a choice • Understanding/Belief/Reasoning/Choice
How to determine capacity What do you believe is wrong with you? What treatment has been proposed? What will happen if you don’t have it? Why have I(has the doctor) recommended it? Can you tell me what your decision is? How did you reach your decision?
Consent/Competence in Children • Not usually a problem if parental consent available • In absence of parental consent – Not strictly determined by age – More about maturity • Adult >18 • Mature minor > 16 • Minor ~14 or less – Grey area in between • Gillick competence (test) – Understanding – Maturity “A minor is considered to be competent to consent to treatment when the person ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’”
Consent/Competence in Children • Advice for young players – Depends on understanding of child – Depends on complexity of treatment – Try to persuade child to involve parents – Involve colleague/second opinion – Document all discussion/actions taken – Exceptions include emergency/life-saving treatments
Privacy/Confidentiality • Information gained in doctor-patient relationship shall remain confidential • Grey areas exist • Exceptions • Conflicts – Duty to community – Notifiable diseases • Medical risk – Mandatory reporting • Serious crime – Impaired health practitioner
DAMA/Refusal of treatment • Patient has right to refuse treatment – – – – Competent Informed Meticulous documentation Responsibility to ensure safe discharge • Risks for DAMA – – – – Young, male Indigenous Alcohol/drug user Low socioeconomic status
Negligence • Requires a duty of care situation • Negligence – Medical duty of care – Breach of duty of care – Harm and causation • Court decision – Expert opinion – Guidelines – Bolam (UK law) – Bolitho • Reasonable care
Bolam and Bolitho • UK high court decision 1954 • The case • UK House of Lords 1993 • The case • Not negligent if actions in keeping with current practice of peers • Medical profession decides • Defence cannot be based on standard practice if that is not reasonable practice • Up to the court to decide
Take Home Message • Legal issues are complex – Focus on what a reasonable person would do • Always act in the best interests of the patient – Bearing in mind what they would want • • • • Know the features of valid consent Know how to assess capacity Documentation is important Our work environment makes it more difficult
Sources of information • • • • Cameron, Adult Textbook of Emergency Medicine, 3rd edition Tintinalli, Emergency Medicine 7th Edition Dunn, The Emergency Medicine Manual 5th Edition Life in the Fast Lane website – http://lifeinthefastlane.com/education/ccc/consent/ – http://lifeinthefastlane.com/education/ccc/consent-and-competence-inchildren/ – http://lifeinthefastlane.com/education/ccc/capacity-and-competence/ • Stewart C, et al. The Australian Medico-Legal Handbook (1st edition), Elsevier,2007 • Don’t forget the bubbles website – http://dontforgetthebubbles.com/gillick-competence-crash-course/
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