dr mark latt, geriatrician, royal prince alfred hospital & senior lecturer, sydney medical...
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Mark Latt delivered the presentation at the 2014 Medico Legal Congress. The Medico Legal Congress this is the longest running and most successful Medico Legal Congress in Australia, bringing together medical practitioners, lawyers, medical indemnity organisations and government representatives for open discussion on recent medical negligence cases and to provide solutions to current medico legal issues. For more information about the event, please visit: http://www.healthcareconferences.com.au/medicolegalcongress14TRANSCRIPT
Medicine and the LawA Clinician’s Perspective:hypothetical scenarios in
Aged Care
Dr Mark LattGeriatrician
Royal Prince Alfred HospitalSenior Lecturer,
Sydney Medical SchoolThe University of Sydney
Disclaimers
Medical perspective
Confidentiality
– Any resemblance of hypothetical cases to persons living or deceased is unintentional.
More questions than answers.
Law
Ethics
Policy
Law Ethics
Policy
Law
Policy
Ethics
Policy
Law
Ethics
Scenarios
83 year-old lady with recurrent falls, atrial fibrillation, heart failure and depression; on many cardiovascular medications and warfarin.
78 year-old man, moderate dementia; hospitalized for malnutrition; attempting to leave hospital despite no home or carer.
89 year-old man with dementia; wants to leave his estate to charity. Family unhappy.
93 year-old man. Children accuse his second wife of neglect and physical/emotional abuse. Want to take him out of his nursing home to live with them.
Advance directives
The Law
Failure to provide informed consent
Negligence
– Duty of care
– Breach of duty of care
– Harm or loss of chance as a result
Criminal negligence
Trespass
Manslaughter
Murder
Problems with the law
Common law applies to specific situations– Heavy supplementation by statute law
Does not cover all common end-of-life disputes
– Curnow K, Toohey L. (2013) 24 ADRJ
Different applications of the law in different cases and jurisdictions
Formal dispute resolution Slow, costly
Mrs EC
80 year-old lady, presenting to ED:
– Reduced level of consciousness,
Background:
– Strokes over 10 years - Quadriplegia since 1 year, Aphasic
Disabilities: Requires full assistance with ADLs
– Bedbound for 2 years, aphasic, incontinent
Social situation: Lives with a very supportive single daughter. No Advance Care Directive
Examination: HR 110; BP 88/52; SaO2 88% (room air); T 37.9; Unresponsive to stimuli; RR 35
– Atrophy, rigidity, and contractures in all limbs
– Sacral pressure areas
– Coarse crepitations in right lower lobe
Mrs EC
Impression
– Guarded prognosis – may die imminently from septic shock
– Person without capacity to make medical decisions and without Advance Care Directive
Medical approach
1. What is Mrs EC‟s prognosis?
2. What treatment options are available?
3. What treatments are in Mrs EC‟s best interests? Exclude treatments that are not in her best interest.
4. Who can tell us which treatments in (3.) Mrs EC would wish to undergo?
5. Implement treatments that are in Mrs EC‟s best interests and which she would be willing to undergo.
1. Prognosis
Premorbid clinical state
– severe deficits (motor and cognitive) and disability due to previous strokes.
Current clinical state
– hypoactive delirium, hypotension
Lower respiratory tract infection – aspiration pneumonia
Possible outcomes:
– Recovery (partial or complete)
– Septic shock
– Type II respiratory failure
– Death during hospitalization
Figure 2. Long-term survival probability for patients aged 65 years at first nonfatal stroke by subtype.
Brønnum-Hansen H et al. Stroke. 2001;32:2131-2136
1. Prognosis
Mortality after first stroke– 10 years 60-70%
Risk of stroke recurrence– 5 years 32% (Whisnant J, ed.Stroke. Oxford: Butterworth-
Heinemann Ltd.; 1993:135–153.)
Pneumonia– Class V on Pneumonia Severity Index
– 27% mortality (Fine MJ, et al. NEJM 1997: 336;243)
ICU mortality– In ICU 31%
– 6 months 52% (Dardaine V et al.JAGS 2001;49:564-70)
“Poor” prognosis
2. Available treatment options
Oxygen via Hudson mask IV fluids IV paracetamol IV antibiotics Oxygen via NIV IV inotropes IV cardioversion Electrical defibrillation Intubation Chest compression
Soft mattress Single room Opioid Benzodiazepine
3. Treatment options in Mrs EC’s best interests
Oxygen via Hudson mask
IV fluids
IV paracetamol
IV antibiotics
Soft mattress Single room Opioid prn Benzodiazepine prn
4. Decision-maker
Carer insisting on the following should the need arise:
Intubation
Electrical and pharmacological cardioversion
Inotropic support
Prognosis is NOT poor
Mrs EC has a good quality of life
What would you do?
Agree with daughter?
– Could conflict with personal/professional ethics.
Disagree with daughter?
– Potential for litigation.
Suspend a decision?
– Procrastination? Time may force a decision.
Legal approach for doctors1. What is in Mrs EC‟s best interests?
2. Who has the capacity to make a decision about treatment in her best interests?
3. Is it lawful to withhold or withdraw treatment?
4. Can treatment be withheld or withdrawn without Mrs EC‟s or her daughter‟s consent?
5. What steps need to be carried out?
1. What is in Mrs EC’s best interests?
Best interests: „ a bona fide decision on the part of the attending doctors‟, :
1. „prevailing medical standards…which command general approval within the medical profession.‟
2. „All relevant tests‟
3. „specialist opinions and agreement‟
4. „Consultation with the medical profession‟s recognised ethical body‟
5. „Finally the patient‟s family or guardian must be fully informed and freely concur in what is proposed.‟
59 year-old male with severe Guillain-Barre syndrome. Thomas J in Auckland Area Health Board vs Attorney General (Re L) [1993]
1 NZLR 235 (NZ HC)
2. Who has the capacity to make a decision?
Legal definitions
– Incapable of giving consent if:
a) is incapable of understanding the general nature and effect of the proposed treatment; or
b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.
Part 5 of the Guardianship Act 1987 (NSW), s 33(2).
Patient lacks capacity
2. Who has the capacity to make a decision?
Advance directive
Hierarchy:„(a) the person’s guardian, …
(b) the spouse of the person, if any, if: (i) the relationship between the person and the spouse is close
and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person.‟
Guardianship Act 1987 No 257, 33A Person responsible
Order of the Supreme Court - parenspatriae jurisdiction
3. Is it lawful to withhold or withdraw treatment?
May be lawful when:
– Competent adult has refused treatment;
– Surrogate decision-maker has refused on the patient‟s behalf;
– Treatment is „futile‟; or
– Treatment imposes a burden not justified by the potential advantages.
Skene L (2008) Law and Medical Practice: Rights, Duties, Claims and Defences. LexisNexis Butterworths, Australia
AND if withholding/withdrawing treatment is „accepted at the time as proper by a responsible body of medical opinion‟.
3. Futility
Quantitative
– Low probability of success.
Qualitative
– Inability to
achieve the patient‟s wishes or goals,
offer reasonable chance of survival,
Achieve a physiological effect and
Offer minimal QOL or medical benefit– Kerridge I, Lowe M, Stewart C (2009) Ethics and Law for Health
Professionals. Sydney, The Federation Press.
Difficult to define
Relies on medical AND judicial consensus
3. Who decides? Doctors?
„… it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime … to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree…
…it is simply an acceptance of the fact that the treatment of the patient … is principally a matter for the expertise of professional medical practitioners.‟
Justice Howie. Messiha v South East Health [2004] NSWSC 1061
3. Who decides? Supreme Court
Northridge v Central Sydney Area Health Service [2000] NSWLR 1241
– Mr T, overdosed on heroin
– Severe brain injury, respiratory arrest –resuscitated
– No antibiotics as considered futile
– T‟s sister applied to High Court to have decision overturned
– No reasonable medical consensus
3. Is it lawful to withhold or withdraw treatment?
O‟Keefe J: „There is undoubted jurisdiction in the Supreme Court of New South Wales to act to protect the right of an unconscious person to receive ordinary reasonable and appropriate (as opposed to extra-ordinary and, excessively burdensome, intrusive or futile) medical treatment …
….What constitutes appropriate medical treatment in a given case is a medical matter in the first instance.
However, where there is doubt or serious dispute in this regard the court has the power to act to protect the life and welfare of the unconscious person.‟ (at [24])
3. Is it lawful to withhold or withdraw treatment?
Probably - unanimous agreement among 3rd party experts
Auckland Area Health Board vs Attorney General (Re L) [1993] 1 NZLR 235 (NZ HC)
– patient with extreme GBS.
In the application of Herrington; re King [2007] VSC 151
– Female, hypoxic brain damage, renal failure, persistent vegetative state
Melo v Superintendent of Royal Darwin Hospital [2007] NTSC 71
– Male, MVA, severe spinal injury, GCS 3
4. Can treatment be withheld or withdrawn without consent?
Consent to Medical Treatment and Palliative Care Act 1995 (SA). Section 17(2)
A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness …
…. is, in the absence of any express direction by the patient or the patient‟s representative to the contrary, under no duty to use, or continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery or in a persistent vegetative state.
Can potentially life-prolonging treatments be withheld without the surrogate decision maker‟s consent?
4. Can treatment be withheld or withdrawn without consent?
Healthcare: includes “withholding or withdrawal
of a life-sustaining measure”. GAA(Schedule2,s. 5). Guardianship and
Administration Act 2000 [QLD]
Consent required to provide healthcare.
Therefore, consent is needed to withhold or withdraw a life-sustaining measure.
Lawrence S et al. MJA 2012; 196(6):404-5
4. Can treatment be withheld or withdrawn without consent?
Importance of consent– 82 year-old lady with pulmonary fibrosis, respiratory
failure.
– NFR made by ED physician. No consent from family – NFR unlawful.
“…significant legal consequences may have followed” if patient had arrested in the ED
– Patient later died on respiratory ward. Sufficient discussions with family – “tacit consent”
Original NFR now lawful
Would the case be considered differently in NSW?
5. What steps need to be carried out?
Guidelines for end-of-life care and decision-making. NSW Department of Health 2005
6.2 When a patient’s family disagrees with a patient’s decision
„The wishes of the adult patient with decision-making capacity are paramount...
every effort should be made to communicate this information to the family.‟
5. What steps need to be carried out?
6.3 Inappropriate requests for continuing treatment
All requests for continuing treatment should be given due consideration.
Review the diagnosis and prognosis and the margins of certainty.
Explain to the patient or family why they think the desired test or treatment is inappropriate.
Support family members and assisting them to resolve their difficulties in accepting the reality of the patient‟s impending death.
Continue treatment until conflict with relatives is resolved– however time critical situations pose extremely difficult
choices and challenges.
5. What steps need to be carried out?
6.5 Options for resolving disagreement Time and repeat discussion Second medical opinion Time limited treatment trial Facilitation
– senior member of hospital administration, – a senior health professional, – or another person agreed upon by those involved.
sufficient seniority, respected by all parties, and Demonstrably independent of the treating team.
Patient transfer– another institution or – another suitable treating clinician within the same institution
Guardianship Tribunal (Guardianship Division of NSW Civil and Administrative Tribunal)
5. What steps need to be carried out?
Legal intervention
■ obtained a second specialist medical opinion in
writing
■ received senior institutional advice
■ discussed this course of action with the family
■ sought advice from the Guardianship Tribunal if
the patient does not have decision-making capacity
■ informed the hospital executive of the proposed
approach. © NSW Department of Health 2005
Guidelines for guidelines Demonstrate your communication
– Talk to the patient – Patient‟s views paramount
– Talk to the family
– Nurses, allied health to support patient and family
– Healthcare professionals provide consistent advice
Share the responsibility (depending on seriousness)
– Specialist Consults
– Hospital Administration, Hospital Ethics Committee (patient care)
– Medical Defence Union
– Guardianship Tribunal
– Supreme Court
Transfer to a medical team that would treat patient differently.
Active treatment until sure of position.
Problems
Need for Consent
– Time pressures
– May lead to management that is not in the patient‟s best interests, as determined medically.
– Evidence-based ethical medical practice may be outside the law in some instances.
– What may be lawful in one case may not be lawful in another (eg. no surrogate decision-maker)
– Variance in clinical practice
Mrs EC Progress
– Many lengthy discussions/negotiations with carer
– ED, Aged Care, ICU physicians
Chest compression, intubation and inotropesinappropriate
Continue current antibiotic and fluid support
“Arrest calls” and ICU assistance if required
– Improvement without escalation of treatment
– Discharge home after 4 weeks in hospital
– Represented to another facility two months later with recurrence of pneumonia and respiratory arrest.
Resuscitation (intubation and inotropes attempted in ED) - unsuccessful
Acknowledgements
Dr Tamsin Waterhouse
Dr George Szonyi
Dr Melanie Wroth
– Royal Prince Alfred Hospital
Opinions expressed are entirely my own