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. Consent must be informed

3. Consent must be specific

4. Consent must be freely given

5. 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– Notifiable diseases– Mandatory reporting– Impaired health practitioner

• Conflicts– Duty to community

• Medical risk• Serious crime

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

• Not negligent if actions in keeping with current practice of peers

• Medical profession decides

• UK House of Lords 1993

• The case

• 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-in-

children/– 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/