Ethics and Legal issues Flashcards
What are Advanced directives?
Advance directives may be defined as a document written at a time when a person is of sound mind, of that individual’s preferences with respect to medical treatment, should they later become unable to express those wishes directly.
It is important that any directive refers to a specific treatment in a specific circumstance rather than a general statement. According to the Mental Capacity Act the perspective of any Lasting Power of Attorney has precedence over the written advance decision.
It is good practice that advance directives have a limited time frame so that they are reviewed at regular intervals (e.g. 2 yearly) to ensure they are still applicable.
3 types of Consent
There are 3 types of consent:
- Informed
- Expressed
- Implied
Capacity
Key points include:
1. Understand and retain information
2. Patient believes the information to be true
3. Patient is able to weigh the information to make a decision
All patients must be assumed to have capacity
Decisions related to cardiopulmonary resuscitation
Where a patient has not appointed a welfare attorney or made an advance decision, the treatment decision rests with the most senior clinician responsible for the patients care. Where CPR may re-start the patients heart and breathing for a sustained period, the decision as to whether CPR is appropriate must be made on the basis of the patients best interests. In order to assess best interests, where possible the views of those close to the patient must be sought, to determine any previously expressed wishes and what level or chance of recovery the patient would be likely to consider of benefit, given the inherent risks and adverse effects of CPR
Duty of Candour
All healthcare professionals must be honest when something has gone wrong. They must:
- Tell the patient when something has gone wrong
- Apologise to the patient (or carer or family member where appropriate)
- Offer an appropriate resolution
- Explain the potential short and long-term effects of the error
Important to note:
- Saying sorry is not an admission of legal liability
- The patient has a right to receive an apology from ‘the most appropriate team member’ - this will usually be the lead or accountable clinician
- The process for reporting adverse incidents and near misses varies between different health organisations: you must follow your own organisations policy
- The National Report d scheme
Accountability
The GMC guidelines, good medical practice, states in the section on accountability in multi-disciplinary and multi-agency mental health teams that; if delegating to a more junior doctor the consultant is not accountable for their decisions but are accountable to ensure that junior member is adequately trained and experienced to do the job.
GMC guidelines state that all doctors are accountable to the GMC for the decisions they take and doctors are not accountable to the GMC for the decisions of other clinicians.
Being a responsible clinician
The GMC have written guidance on being a responsible consultant or clinician. They state that you must respect the wishes of any patient who objects to particular information being shared within the healthcare team or with others. This must stand unless disclosure would be justified in the public interest.
If a patient objects to a disclosure, which is considered essential to the provision of safe care, you should explain that you cannot refer them or otherwise arrange for their treatment without also disclosing that information.
In this example disclosure is vitally important in identifying the cause of her recurrent urinary tract infections. Thus it must be mentioned. However doing this without her consent would be bad practice and against GMC guidence.
Thus we must accept her request and make the referral obtaining her consent to share the information, if possible.
Partnership and teamwork
The GMC good medical practice talks about partnership and teamwork, they say;
‘You must work collaboratively with colleagues, respecting their skills and contributions. You must treat colleagues fairly and with respect. You must be aware of how your behavior may influence others within and outside the team.’
This question is looking at the aspects of working in a team and working collaboratively with each other. The best answer to achieve this is to communicate this with your colleague, however, then documenting this in the communication book is unnecessary.
Escalating this up to the consultant or filling out a clinical incident form is unnecessary and you should always start by talking to the person involved first.
Asking the nurse to bleep the other FY1 neither deals with the situation or allows for the provision of the best and safest clinical care to your patients.
Ending your professional relationship with a patient
The GMC guidelines contain information on ending your professional relationship with a patient. They state that;
You must only end a professional relationship with a patient when the breakdown of trust means you cannot provide good clinical care. This includes the patient being violent, threatening you or being abusive or the patient having stolen from you or the premises. It also includes the patient persistently acted inconsiderately or unreasonably or if they have made a sexual advance to you.
You should not end a relationship due to a complaint or due to resource implications.
Before you end the relationship you must warn the patient you are considering ending it and do what you can to restore the relationship. If this fails you must explore alternatives to ending it and discuss the situation with an experienced colleague or your employer.
When you end a relationship you must be satisfied that your reason is fair and does not discriminate. Then make sure the patient is told this is happening, and why. If practical do this in writing.
GMC: Intimate examinations and chaperones
Intimate examinations:
- Essentially this is anything the patient would consider intimate or intrusive
- This will most commonly be examinations of the rectum, genitalia and breasts
- This definition can be different for any patient and you should think about whether the patient would consider what you are doing intimate
Performing the examination:
- As with any procedure, you should seek informed consent from the patient to carry out the examination
- This involves explaining what you will do and why and how exposed they will be
- You should make sure they are happy to proceed and ensure they have had all their questions answered
- In addition you should explain that you will stop the examination at any point if asked to by the patient
- During the examination it is good practice to only talk if it is relevant to the examination
Chaperones:
- A chaperone is an impartial person who is present during the examination to both offer support to the patient and act as an observer to ensure the examination is carried out in a professional manner
- They should be a healthcare worker who has no relation to the patient or doctor. Patients may also wish to have family members present for support but they cannot be relied upon as chaperones as they are not impartial
- The full name and role of the chaperone should be documented in the medical records with the examination findings
- In the event of the patient making any allegations against the doctor with regards to the examination, the chaperone can be called on as a witness
- The chaperone should also be able to safely announce whether they feel any behaviours are inappropriate during the examination
- It is not mandatory to have a chaperone and many patients may wish to be examined without another individual present. In these cases, the offer and refusal should be documented in the medical records
- A doctor should not feel pressured to perform an examination without a chaperone if they do not wish. - However, they should ensure the patient is referred to a colleague who is comfortable doing so and that they would not wait unnecessarily for treatment because of this
Examples
- You are a male GP and are seeing a female Muslim patient who wears a Hijab due to a chronic cough. You need to perform a respiratory examination
- Although you may not normally consider listening to the chest to be an intimate examination, you must be sensitive to other people’s cultures and beliefs and in this case it is reasonable to assume the patient may wish for a chaperone to be present if she is to have her chest exposed for the examination
- A chaperone should be offered and then if requested their full name and role documented in the medical records
- A 63-year-old man attends his GP due to problems passing urine. His GP wishes to perform a prostate examination. The patient agrees but does not want a chaperone present
- The offer and refusal of a chaperone should be documented in the medical records but this should not prevent the doctor performing the examination
- If the doctor is comfortable to do so then they may perform the examination, if not they must refer to a colleague to do so
- A 19-year-old female attends her GP with urethral discharge. The male GP wishes to perform a vaginal exam and take swabs but he feels she has been very inappropriately sexual with him during the consultation and she is refusing to allow a chaperone to be present for the examination
- You should feel under no obligations to perform any procedure or examination you are not comfortable doing
- The most reasonable solution here would be to ask if a colleague could perform the examination on your behalf provided they are happy to do so without a chaperone
- A patient should never be forced to have a chaperone present for an examination if they do not wish although it is not unreasonable to further explain the reasons for offering a chaperone in these situations beyond simply offering one
- A patient’s care should not be delayed so ideally a colleague should be able to perform this examination within the immediate future or the patient should be referred on to another service which may be able to examine her
GMC: social media
The GMC has produced detailed guidance on the use of social media.
One of the key passages discusses anonymity online:
- If you identify yourself as a doctor in publicly accessible social media, you should also identify yourself by name. Any material written by authors who represent themselves as doctors is likely to be taken on trust and may reasonably be taken to represent the views of the profession more widely.
- You should also be aware that content uploaded anonymously can, in many cases, be traced back to its point of origin.
GMC: treating colleagues
The GMC guidance of ‘Good practice in prescribing and managing medicines and device’s says that wherever possible you must avoid prescribing for yourself or anyone with whom you have a close personal relationship, and they state that ‘We expect our registrants to follow our guidance’.
Patient complaints
It is important to be open and respond appropriately when a patient makes a complaint. This may happen through a number of channels:
- verbal complaint
- informal or formal written complaint addressed to the doctor concerned
- complaint addressed to a managing body e.g. hospital trust or GP practice
- complaint to the GMC
It should of course be remembered that patient complaints or comments may be unwarranted or without basis and therefore a formal reply is usually required to ensure the doctor has given their account of what has happened.
Patients who refuse treatment
Many patients who are admitted to hospital, or treated in the community, lack capacity. In the vast majority of cases, these patients do not refuse treatment that is given that is deemed to be in their best interest. The problem arises when patients who lack (or are suspected of lacking) capacity refuse treatment.
There are 3 main frameworks that are used in this scenario:
- Common law: used to treat patients in emergency scenarios.
- Mental Capacity Act: (MCA) used in patients who require treatment for physical disorders that affect brain function. Remember this may be delirium secondary to sepsis or a primary brain disorder such as dementia.
- Mental Health Act (MHA): used in patients who require treatment for mental disorders. For patients already admitted to hospital, a section 5(2) is used if there is not the time for a more formal section 2 or 3. A typical scenario would be a patient who has a mental health disorder attempting to discharge themselves, when it is thought this may result in harm.
Mental Capacity Act
The Mental Capacity Act of 2005 came into force in 2007. It applies to adults over the age of 16 and sets out who can take decisions if a patient becomes incapacitated (e.g. following a stroke). Mental capacity includes the ability to make decisions affecting daily life, healthcare and financial issues.
The Act contains 5 key principles:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Assessment of capacity:
The Act sets out a clear test for assessing whether a person lacks capacity. It is a ‘decision-specific’ and ‘time-specific’ test. An adult can only be considered unable to make a particular decision if:
- He or she has an ‘impairment of, or disturbance in, the functioning of the mind or
brain’ whether permanent or temporary AND - He or she is unable to undertake any of the following
a. understand the information relevant to the decision
b. retain that information
c. use or weigh that information as part of the process of making the decision
d. communicate the decision made by talking, sign language or other means
No individual can be labelled ‘incapable’ simply as a result of a particular medical condition. Section 2 of the Act makes it clear that a lack of capacity cannot be assumed by a person’s age, appearance, or any condition or aspect of a person’s behaviour
Best interests
The following should be considered when assessing what is in someone’s best interests:
- Whether the person is likely to regain capacity and can the decision wait.
- How to encourage and optimise the participation of the person in the decision.
- The past and present wishes, feelings, beliefs, values of the person and any other relevant factors
- Views of other relevant people
Lasting Powers of Attorney (LPAs)
The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future, replacing the current Enduring Power of Attorney (EPA). In addition to property and financial affairs the Act also allows people to empower an attorney make health and welfare decisions. The attorney only has the authority to make decisions about life-sustaining treatment if the LPA specifies that. Before it can be used an LPA must be registered with the Office of the Public Guardian.
Advance decisions
Advance decisions can be drawn up by anybody with capacity to specify treatments they would not want if they lost capacity. They may be made verbally unless they specify refusing life-sustaining treatment (e.g. Ventilation) in which case they need to be written, signed and witnessed to be valid. Advance decisions cannot demand treatment.
