Law & Ethics for FinalsChristiane Riedinger 2014-2015

Formatting and Resources● Definitions● ♚ Court cases● ◉ Conventions, Acts of Parliament (if left black then not included in

vocabulary sheet)● Management

● Cambridge Law and Ethics syllabus ● Pre-clinical notes in Ethics and Law● GMC Tomorrow’s Doctors● Medical Law and Ethics, 2nd Edition, Hope et al.● The internet (links indicated where used)

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Contents of this Presentation1. Introduction

2. Consent, Competence and Capacity incl. Minors and Psychiatric Patients

3. Confidentiality

4. Professional Regulation and the GMC

5. Medical Errors, Negligence and Malpractice

6. Fertility Treatment, Research on Embryos and Abortion

7. Issues at the End of Life

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Contents of Course Handbook1. Introduction

2. Professional Regulation and the GMC

3. Confidentiality and Data

4. Negligence, Medical Error and Protecting Patients

5. Consent, Capacity and Best Interests

6. Rights, Resources and Responsibilities

7. Issues around the Beginning of Life

8. The Care of Children and Young People

9. Psychiatry, Ethics and the Law

10. Issues towards the End of Life

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Aims of the Course● Integrate ethical and legal analysis and decision making into clinical

judgement, actions and decisions

● “Elaborate on common ethical arguments”

● “Display professional attitudes and behaviours consistent with Good Medical Practice”

● “Be aware of own values” and respect different views while maintaining professional integrity

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1. Introduction to Medical Ethics and Law

Ethics and Medicine

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The Concept of Ethics and Medicine● Ethics: Philosophy concerned with the nature of morality (i.e. the principles of

what’s right or wrong) and the moral principles that govern a person's behaviour

or the activities. How we ought to live. Code of ethics: How we ought to

behave.

● Ethical concepts to do with medicine

○ Duties - of doctors, defined by GMC, ◉ Declaration of

Geneva 1948, WHO, Hippocrates

○ Rights - of patients and doctors

○ Consequences - of treatment and withdrawal of treatment

○ Character - of doctors

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Major Ethical Theories● Deontology - judge morality of action based on its adherence to RULES

○ Kant - categorical imperative, act as if behaviour should become universal law, but problems if several moral duties collide. Consistent, distinguishes acts and omissions, one rule for all

● Consequentialism - judge morality of an action based on its OUTCOME○ Bentham, Sidgwick, Mill, Singer - utilitarianism, maximise utility, cost-benefit

analysis of actions, maximise happiness for most people (Bentham), minimise suffering. Ends justifies means. Good for populations but ruthless towards minority. Doctors have special duty.

● Virtue ethics - importance of CHARACTER in evaluating ethical behaviour○ Aristotle - importance of good character, appropriate for medicine○ Plato - virtues: self-control, wisdom/prudence, courage, justice○ Communitarianism - connection between individual and community

Self-awareness and reflection important (moral wisdom is acquired), can find a mean between deontology and utilitarianism.

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Principles of Medical Ethics by Beauchamp & Childress

● Combination of ethical theories to enable doctors to explore a problem from all ethical angles. Four “mid-line” principles common to both utilitarianism and deontology.

● Autonomy○ Respect patient’s choices => consent

● Beneficence○ Act in patient’s best interest => duty of care

● Non-Maleficence○ Do no harm => duty of care○ Interventions should have more benefit than risk

● Justice○ Treat patients similarly○ Distribute care evenly/fairly

● Principlism - Doctor determines which principles are relevant and weighs them against each other = Rawls’ REFLECTIVE EQUILIBRIUM.Criticism: no guidance, prioritisation of respect for autonomy? risk of influence of mistaken beliefs.

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Approaches to Medico-ethical Problems● “A doctor knows what one must not do, and then decides him/herself what

he/she will actually do.” (And be able to explain why)

● General approach○ Define Problem - what are the ethical issues?○ ID relevant legal/ethical background knowledge and clinical/case-related

facts○ Apply background knowledge to the facts○ Develop justifiable courses of action

● Reflective equilibrium○ How can I help the patient? What would harm the patient?○ What does the patient want?○ What would be fair○ => What should I do?

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Toolkit for Ethical Reasoning1. Distinguish medical facts from moral values

2. A valid argument is a chain of logically connected statements, the conclusion is the logical consequence

If this is like that, then this is like this, and therefore….

3. Conceptual analysis: How are basic concepts/terms used/understood? What do they mean in detail? What are the differences/similarities between a single term used by different people and different/opposing terms used by different people?

4. Apply 4 principles of medical ethics, which is the most relevant?

5. Case comparison with simpler cases to ID underlying principle for decision.

6. Imaginary case comparison

7. Consequentialist approach: Which outcome maximises happiness? For each possibility of action p(outcome)*happiness(outcome)

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Summary Approach1.

● Identify the problem○ Clinical background○ Ethical considerations○ Application of 4 principles of medical ethics

● Decision-making process○ The most relevant ethical principle(s)○ Precedent cases○ Thought experiments○ Consequentialist approach (what decision would maximise +ve

outcome?)

● Define/Confirm the decision○ Is it a valid argument, i.e. logical chain of facts from which conclusion

arises which doctor is able to explain

Ethics, Justice and Law

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Links between Ethics and Law● Law Rules by society to regulate itself.

● Links between ethics and law

○ Beneficence/non-maleficence => Negligence

○ Autonomy => Consent => Assault/Battery

○ Autonomy => Capacity

○ Autonomy => Confidentiality

○ Justice => Discrimination

● Links between ethics and public health politics

○ Justice => Resource allocation

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Theories of Justice● Not everything that is immoral is also unlawful● Utilitarian - maximise utility

○ Maximise health gain○ e.g. QALY’s○ Theory by Alan Williams

● Libertarian - freedom of choice and voluntary action○ Society must protect individual liberty○ Suggest free market in healthcare services

● Egalitarian - all humans are equal ○ John Rawls, Robert Nozick: “Most reasonable principles of justice are

those that everyone would agree to from a fair position”○ Oregon Health Plan: List of state fundable medical conditions

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Introduction to Law● Hierarchy of laws in the UK

○ International law - European Convention of Human Rights, Decisions of the European Court of Human Rights / Court of Justice

○ Acts of Parliament = Parliamentary Statute○ Court decisions

■ Previous decisions of higher courts in England■ Foreign jurisdictions persuasive to the UK■ Judge-made law

○ Relevant to the medical profession: The General Medical Council - Duties of a Doctor

● Hierarchy of courts in the UK○ International, then European courts○ Supreme Court○ Court of Appeal○ High Court of Justice○ Crown Court○ Magistrate’s Courts

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Introduction to Law● Categories of UK law

○ Statute vs. case/common law○ Criminal vs. civil law○ Public vs. private law○ Statute law Passed by parliament○ Common law Set by precedent cases○ Criminal law Crown prosecution prosecutes defendant “R v Y”○ Civil law Plaintiff prosecutes defendant “X v Y”○ Public law Against state or emanation, public authorities, e.g. NHS ○ Private law Against private person, e.g. TORT* law: battery, negligence, breach of confidence

○ ratio decidendi binding part of a precedent case○ obiter dictatum lat. for btw, annotation of a precedent case, not binding.○ rules of construction guiding principles for interpretation of statute law:

interpretation of words, keeping in mind the purpose of the law, chose the most appropriate principle.

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Ethics of Rights, Responsibilities and Conflicts of Interest

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Classification of Rights● Right = entitlement, permission

○ Other people have duty to respect claim.

● Absolute rights○ Cannot be overridden, whatever the circumstances

● Qualified rights○ Must be respected with exceptions

● Positive rights○ Create duty for others to provide in order to claim right

● Negative rights○ Create duty for others to abstain from actions

● Legal right○ Defined by law

● Natural right○ Universal and inalienable (and not always legal rights)

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Theories of Rights● Interest theory

○ Rights are grounded in interest, (almost?) anybody has interests○ => Competition of interests => qualified rights (there have to be exceptions)

● Rational choice theory

○ A right imposes a duty/obligation on others to respect the right, therefore limits their freedom

○ Therefore one has to chose when it is reasonable to claim a right○ Therefore a right can only be accorded to those able to make rational moral

choices ○ Disregards / excludes those who cannot make that choice but good for

distinguishing competing claims

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Human Rights Act: Application to Medicine

● ◉ United Nations Universal Declaration of Human Rights 1948 (social-economic rights focus)● ◉ Human Rights Act 1998 and European Convention of Human Rights 1953, incorporates human rights into

UK law. (civil-political focus)● Article 2 - Right to Life (negative right)

○ Does not extend to fetus ♚ Paton v British Pregnancy Advisory Services 1979○ Legal deportation of AIDS patient to country where treatment not available.

♚ D v UK (so no positive right)○ Rationing of Herceptin ♚ R v Swindon NHS 1* Care Trust (rationing possible if fair system for

decisions)○ Includes right to fair access of treatment

● Article 3 - Prohibition of Torture / Inhuman Treatment○ Treatment of mentally ill? Medically necessary and in patient’s best interest○ Withdrawal of treatment of terminally ill if in patient’s best interest no violation of article 3.○ Assisted suicide to prevent terminal effects of illness under art 3 not granted.

Authorities not responsible for natural progression of terminal illness, only for exacerbations by treatment (not withdrawal) ♚ Pretty in European Court of Human Rights

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Human Rights Act: Application to Medicine ctnd.

● Article 4 - Slavery

● Article 5 - Right to Liberty and Security○ Unless deprivation prescribed by law in democratic society○ Detainment on the grounds of unsoundness of mind (Article 5(1)(e))

■ Limits ♚ Winterwerp v the Netherlands 1979● Objective medical evidence of mental disorder● Mental disorder of degree warranting confinement● Periodic review

■ Further limit ♚ Litwa v Poland (also see ◉ MHA 2007)● Least restrictive alternative, proportionate response

● Article 6 - Right to a fair Trial● Article 7 - Retrospective crimes

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Human Rights Act: Application to Medicine ctnd.

● Article 8 - Right to Privacy and Family Life○ May be overridden if necessary to protect others○ Includes personal integrity => Prohibition of treatment without consent ○ Interference with personal integrity of child lawful if morphine given in best

interest of patient ♚ Glass v United Kingdom

● Article 9 - Freedom of Conscience and Religion

● Article 11 - Right to Freedom of Assembly

● Article 12 - Right to Marriage and Foundation of a Family○ Not in handout○ Includes right to fertility treatment? Look up court cases

● Article 14 - Discrimination

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Resource Allocation● Right to health care = positive right

○ Article 2 of ◉ European Convention of Human Rights○ Article 25 of ◉ UN Declaration of Human Rights (re. standard of living)

● But conflict with limited resources: autonomy vs. beneficence vs. justice (=> Fairness in distribution of resources)

● Above articles => Legal duty to ration justly○ Health care providers make decisions autonomously but must

■ Ensure life-saving treatment■ Explain priorities■ Explain refusal to fund but cannot be explanation for everything

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Ethical Decision-Making● Principles of decision making

○ Equality Identical rights○ Equity Impartial and fair

● Approaches to decision making, based on○ Need e.g. rule of rescue: life-threatening conditions ○ Benefit In terms of cost, clinical result, QALYs○ Merit Acc. to patient’s responsibility for health, dependants, worth○ Utility Benefit to society

● NICE guidelines○ NO unacceptable opportunity cost○ Avoid discrimination, whether based on income, class, age, race, gender

(unless risk factors for benefits inherent in latter)○ If self-infliction affects outcome of intervention, can take into account

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Decision Making: Framework for Prioritising from PH ch. 7

● ID service

● Assess need for service E.g. Joint Strategic Needs Assessment

● Assess effectiveness of service E.g. Cochrane Library, Office of Nat. Stat.

● Assess acceptability Involve people two whom service is targeted

● Assess cost-effectiveness Economic evaluation, see next two slides

● Make the decision

● Implement the decision

● Evaluate its outcome Audit or other types of evidence

● Re-prioritise

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Decision Making: Ethics of Decision Making from PH ch. 7

● Back to basics - Beauchamp and Childress principles of medical practice○ Beneficence Do good○ Maleficence Do no harm, avoid harm○ Patient autonomy Obtain consent○ Justice Distribute care with fairness○ => duties that arise from this

● Ethical approaches○ Black and white morals○ Expert opinion○ Utilitarian - greater good○ Tradition ○ Standards○ Rule of rescue

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NICE GUIDELINES?

2. Consent and CapacityIn general

If capacity => autonomy comes first

If no capacity => beneficence comes first

Consent● Respect for patient’s autonomy => Consent to treatment required● “The right of choice is not limited to decisions others regard as sensible” =>

respect the choices of competent patients● Protects from medical paternalism and exploitation

● Has to be ○ Voluntary - not coerced, no undue influence or duress○ Informed - patient knew nature and purpose of the act○ By a person with capacity (i.e. a mentally competent person)

● Treatment without consent is assault and/or battery ● Consent can be withdrawn at any time● Doctor is NOT obliged to provide all treatments REQUESTED by the

patient, e.g. to ensure fair distribution of resources or if treatment futile.

2.

Assault and Battery● Treatment without consent is assault

● Private tort (civil) law○ Doctors can be sued by plaintiffs○ Result: liability may result in a fine○ compare with negligence: plaintiff has to prove that breach of duty of care caused injury

● Defences against liability for assault○ Valid consent obtained from patient○ Valid consent obtained from proxy○ Exception for consent granted by statute (e.g. ◉ MCA)○ Exception for consent granted by common law (e.g. necessary to

prevent death)

2.

Capacity● All adults are assumed to have capacity, unless proven otherwise

● A person with capacity has to be able to ○ Understand and retain information relating to the treatment○ Weigh the information to make an informed choice○ Be able to communicate the decision.

● There are different levels of understanding required for different decisions

● See also: http://www.nhs.uk/Conditions/Consent-to-treatment/Pages/Capacity.aspx

2.

Obtaining Consent● Has to be informed, willing and voluntary after discussion, given by

capable person● Can be expressed or implied (i.e. hold out arm for vaccination)

● BRAIN of informed consent - INFORMATION that should be given○ Benefits○ Risks Common and serious adverse effects○ Alternatives Lay out all the options, including no treatment○ Indications Purpose of treatment○ Nature of procedure What treatment entails○ + Any information a reasonable patient would want to know.

2.

Patients who may lack Capacity● Relating to age (i.e. minors, see later slides)

○ 16+17 special case, can consent like adults, but refusal can be overridden○ Fraser Guidelines: Consent of person with parental responsibility or Court

authorisation must be sought unless the child is shown to be “Gillick competent”, i.e. <16 and fully understands nature and purpose of treatment.

● Relating to disease○ Mental health conditions (see later slides)○ Dementia○ Severe learning disabilities○ Brain damage○ Any physical or mental conditions that cause confusion, drowsiness or LOC○ Intoxication by drug or alcohol misuse

2.

Two-stage Test of Capacity: according to MCA

● DIAGNOSTIC THRESHOLD

○ Does the patient have a disorder or dysfunction of the mind/brain?

● TEST OF ABILITY TO MAKE THE DECISION

○ Is she/he unable to understand, retain or weigh up relevant

information as a result of the condition? Is he/she unable to

communicate his/her decision?

● Capacity is only impaired if both apply.

2.

CCS for obtaining consent2.

Treatment Decisions w/o Capacity● From manual: “BEFORE adopting an alternative approach to seeking

consent, you must demonstrate that the patient lacks the capacity to make this decision.”

● Can treat without consent if○ Necessary to prevent death and patient cannot consent○ Assessment of mental health disorder

● Take measures to maximise capacity (DUTY! give time, involve carers to relay information, use visual aids, delay treatment until consent is possible)

● Follow valid advance directive● Consult with donee of valid advance directive, lasting Power of Attorney● No AD or LPA: Act in patient’s best interests, doctor has a duty to consult

with someone who knows the patient or IMCA*

2.

◉ Mental Capacity Act 2005

● To empower and protect those who lack capacity

● Aims to maximise capacity and defines what to do if no capacity

● Enables advance decisions

● Enables allocation of lasting power of attorney

● Can limit human right to liberty: permits acts connected with the person’s

health and welfare in absence of consent if no capacity

● If incompetent others decide in best interest

● Defines criteria for best interest

Advance Decisions (AD): According to ◉ MCA 2005

● Decision to refuse future specific treatment in particular circumstances at a time when person lacks capacity

● Doctor liable for continuation of treatment if AD valid and applicable to treatment! = treatment without consent!!!

● Prerequisites for validity of AD○ Person >18 and with capacity○ Written○ Signed○ Witnessed○ Explicit: i.e. includes statement of refusal of treatment “even if life at risk”○ DOES NOT need to be in formal language

● What invalidates AD○ Withdrawal when patient has capacity (can be oral or behaviour inconsistent with AD)○ Lasting Power of Attorney granted to someone○ Treatment or circumstances not that specified in AD (apply to the court of protection for clarification if in doubt!!!)

○ Situation that patient could not have anticipated

2.

Lasting Powers of Attorney: According to ◉ MCA

● LPA is appointed by an adult with capacity (donor) to give legal power to make decisions on donor’s behalf when donor lacks capacity.

● Is registered with the Office of Public Guardian OPG● Personal welfare LPA includes giving or refusing consent to medical treatments. Other types?● LPA acts in donor’s best interests, also defined in general by MCA in “best interest checklist”

○ NOT JUST what is good for patient’s health, also ethical, social, emotional and welfare considerations

○ NOT based on age, appearance, unjustified assumptions○ Keep in mind likelihood of donor regaining capacity: reversible treatment options available?

Encourage and promote donor’s ability to participate○ Least restrictive and invasive option usually better○ NOT be motivated to bring about the donor’s death when it comes to life-sustaining treatment○ Consider donor’s past and present wishes and feelings, beliefs and values, other factors,

views of named persons to be consulted, carers

2.

Best Interests Checklist: according to ◉ MCA

2.

Hierarchy of Decision Makers: according to ◉ MCA

● Advance decision by patient him/herself: written, signed, witnessed and

explicit - “even if life is at risk”

● Appointed lasting power of attorney

● Court of protection

● Appointed person by court of protection

● Doctor

2.

Previous Case Law re. Capacity● Case-law to enter MCA:

○ ♚ Re F Decide in best interest○ ♚ Re C Capacity to consent may persist, criteria for capacity○ ♚ Re T Make advance decision otherwise instructions can be set aside if

assumed that patient was not aware of certain circumstances and consequences● ♚ Re MB

○ Woman can refuse caesarian even if fetus dies○ But doctor may find reasons to declare incompetent

● ♚ Re B○ Switch off ventilator = refusal of treatment

● Regarding information○ If inadequate, can claim for battery○ ♚ Sidaway v hospital 1984

● Regarding voluntariness○ Exclude undue influence○ See ♚ Re T

2.

Notes on Paternalism● Paternalism

○ = Benevolent action irrespective (and even against) the wishes of the

beneficiary)

○ = interfering with a person against their wishes for person’s own good

● Weak paternalism ? Overriding a doubtfully competent person’s

wishes

● Strong paternalism? Overriding a competent person’s wishes

● Soft paternalism Allow action if patient knows danger

● Hard paternalism Prevent action if patient knows danger

2.

Special Case: Minors

Consent of Children and Minors● Legal age boundaries

○ England: minor <18○ Scotland: minor <16○ Child <16○ England: special case 16-18 years

● Also note○ ◉ MCA applies to adults and young people unable to give consent

● England: minors 16+17 years of age

○ ◉ Family Law Reform Act 1969■ Consent if >16 as if he/she were of full age (no need to ask parents)■ But if minor refuses treatment, then parents can authorise it.

○ Management■ Can presume capacity, no need to gain consent of parents■ If need to override refusal: get legal advice

2.

Consent of Children < 16● ♚ Gillick vs West Norfolk and Wisbech Area Health Authority and Department of Health and Social

Security 1985○ Parental rights don’t exist, only safeguard in the best interest of children○ In some circumstances, minor can consent to treatment, then don’t have to ask parents○ Test: does child fully understand medical treatment?○ Authority of parents diminishes (parent’s right to veto ends) with child’s evolving maturity○ A child that is Gillick competent can veto his/her parents viewing the records○ Emancipation: parents have no authority anyway, e.g. marriage or military

● Management○ Test: competent child able to understand the nature, purpose and possible consequences of

the proposed investigation or treatment, as well as the consequences of non-treatment.○ If competent child refuses treatment, parent can authorise it if in best interest (unless in Scotl.)○ If child competent, parents act in best interest in terms of consent or refusal○ In emergency proceed in best interest of the child

2.

Fraser GuidelinesThe Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgement of the Gillick case in the House of Lords (1985), which apply specifically to contraceptive advice. Lord Fraser stated that a doctor could proceed to give advice and treatment:provided he is satisfied in the following criteria:1. that the girl (although under the age of 16 years of age) will understand his advice;2. that he cannot persuade her to inform her parents or to allow him to inform the

parents that she is seeking contraceptive advice;3. that she is very likely to continue having sexual intercourse with or without

contraceptive treatment;4. that unless she receives contraceptive advice or treatment her physical or mental

health or both are likely to suffer;5. that her best interests require him to give her contraceptive advice, treatment or

both without the parental consent." (Gillick v West Norfolk, 1985)

2.

Parents refuse Treatment of Child <16● If parents of <16 refuse treatment of child who lacks capacity

○ Ensure parents fully informed about diagnosis, prognosis and benefits/dangers of treatment

○ Give careful consideration to overriding with view to future of child○ Override if:

■ Refusal not in child’s best interests○ If so, seek court ruling or provide necessary emergency treatment

● Who has parental responsibility?○ Always mother, father if married at time of birth or registered father or

father with responsibility agreement/court order or guardian● Zone of Parental Control = decisions parents expected to make● Parents decisions must give regard to what is normal practice in our society and

act in best interests of child.

Special Case: Ethics and Law relating to

Mental Illness

Ethics relating to Psychiatric Illness● Psychiatry covers dysfunctions of the brain (assumption), but it is difficult to

identify underlying pathology of the mental disorder, therefore one classifies and diagnose based on symptoms. Values have a bigger influence on the practice of psychiatry than on the remainder of medicine.

● Ethical concepts relating to valuesObjectivism Moral truths apply to everything and can be discovered by reasonWeak objectivism Some principles are fundamentally applicableStrong objectivismAll principles are fundamentally applicableSubjectivism Moral judgements depend on individual person’s beliefs and vary

E.g. in psychiatric illness the medical/factual/scientific and more value-based approach to diagnosis.

● Justification for psychiatric treatment○ How sure are we of the illness○ How sure are we that we should interfere with the liberty of another person?○ Be aware of the rational and value-based approach

2.

Value Based Practice: Introduction

● Values-based practice is an approach to working with complex and conflicting values in mental health practice by reaching a balanced decision within frameworks of shared values and mutual respect for different views.*

● VBP supports decision making through good process rather than prescribing preset right outcomes.

● There are ten key elements of the process of VBP covering ○ Clinical skills○ Professional relationships○ The inter-relationship of science (EBP) and VBP○ And dissensus in partnership in decision making

2.

Value Based Practice: The 10 Principles

Science and Value-based Principles

1. Two-feet principle Medical decisions are based on facts and values2. Squeaky-wheel principle Values are more easily noticed when they are conflicting3. The science-driven principle Scientific progress enables choices and increases

diversity of values relevant to these choices

Principles regarding Professional Relationships

4. The patient-perspective pri. The perspective of the patient comes first, but also considerthe values of other people involved.

5. The multi-perspective principle Be aware of different values within the medical team and resolve conflicts of values by balanced evaluation of different perspectives.

2.

Value Based Practice: The 10 Principles ctnd.

Principles based on Clinical Skills1. The values-blindness principle Evaluate the language used to describe values and be

aware that there may be differing values between individuals (again?)

2. The values-myopia (knowledge of values) principleRely on empirical and philosophical values for improving knowledge of people’s values but know that they can’t trump people’s personal beliefs and values.

3. The space of values principle Use ethical reasoning such as deontology, utilitarianism etc. to explore different values, not judge them or chose the “right” value.

4. The how it’s done (CCS) principle Communication skills are essential, both for eliciting values and conflict resolution.

Principles based on Partnership1. The who decides principle Partnership in decision making depends on consensus after

considering conflicting values and remaining dissensus

2.

Statute relating to Mental Illness● ◉ Mental Health Act 1983

○ Reception, care and treatment of mentally ill. ● ◉ Mental Health Act 2007 - amendment of 1983 Act ACT WITHOUT CONSENT

○ Includes community treatment○ Extends role of health professionals○ Lays out criteria for involuntary commitment, but not in case of alcohol or drug abuse.

Once detained, consent not required for treatment of mental disorder.*○ Puts in place mental health review tribunal, independent health advocates, ○ Limits the use of electroconvulsive treatment without consent (cannot carry out if refusal of

consent of patient with capacity or AD)○ No clear definition of mental disorder, learning disability not considered mental disorder

unless associated aggression or irresponsible conduct.● ◉ Mental Capacity Act 2005 REFUSE TREATMENT

○ To empower and protect those who lack capacity, enable advance decisions. Can limit human right to liberty if no capacity, but others have to decide in best interest.PERMITS WITHOUT CONSENT ACTS CONNECTED WITH THE PERSONS’s HEALTH AND WELFARE!

2.

Statute relating to Mental Illness (2)● Difference between MHA AND MCA:

○ MHA

■ Enables acts without consent in the case of mental illness

○ MCA

■ Aims to maximise capacity and protects those without capacity

■ Enables acts without consent for the sake of the patient’s welfare

○ Normally MHA trumps MCA

○ Exception: electro-convulsive therapy where MCA trumps MHA

2.

◉ MHA 2007: Detention without ConsentDifferent scenarios considered in Act:

1. Detainment in the case of mentally ill in need of immediate care and control from

public space or hospital

2. Detainment of individuals with mental illness for assessment

3. Detainment of individuals with for treatment

4. Detainment of individuals awaiting court trial or sentence or sentenced for

assessment or treatment

5. Deprivation of Liberty Safeguards: admission of those who lack capacity to

hospital admission

2.

◉ MHA 2007: Detention without Consent

1. Authorisation of detainment without consent

○ S136: Police constable who finds mentally disordered person in public place can detain in “place of safety” (e.g. police custody suite, A&E, section 136 suite of psychiatric hospital) for up to 72h for medical examination and psychiatric evaluation

○ S5-3: Consultant in care of hospital patient (NOT A&E) who withdraws consent for ongoing admission and treatment of mental disorder can detain for up to 72h for full Mental Health Act assessment. The consultant in charge can nominate another doctor to oversee care during absences (usually the psychiatrist)

○ S5-4: A qualified mental health nurse in case of a hospital patient receiving care for a mental disorder who poses a health or safety risk to himself or others may be detained for up to 6h until S5-3 can be imposed after psychiatric assessment. This has to be documented in writing.

2.

◉ MHA 2007: Detention without Consent (3)2. S2: Authorisation of admission for assessment without consent

○ Patients suffering from severe signs of mental disorder or posing a health or safety risk* (S2-2) can be admitted after written recommendations** of two registered medical practitioners considered by an approved mental health practitioner, at least one of them having previously known the patient and at least one of them possessing expertise with mental disorders (S2-3).

○ S2-4: Detainment on these grounds cannot exceed 28d.○ There are exceptional circumstances under which emergency admission can take

place after approval of a single mental health practitioner for 72h

2.

◉ MHA 2007: Detention without Consent (4)

3. S3: Authorisation of admission for treatment without consent

○ Apply during voluntary or s2 admission or prior to admission for up to 6m with potential for

renewal.

○ S3-2: Medical treatment in hospital has to be appropriate (see later slide on treatment),

available and necessary (e.g. due to severity and rapid fluctuations/deterioration) and

cannot be provided by other means.

○ S3-3: Requires written recommendations** by two registered doctors.

2.

◉ MHA 2007: Detention without Consent (4)4. Authorisation of admission for assessment or treatment of those awaiting trial, sentence or already sentenced at Court

● S35○ Like S2 for those awaiting trial or sentence. Up to 28d/time or total of 12w

● S36○ Like S3 for those awaiting trial or sentence. Up to 28d/time or total of 12w

● S37 Hopital order, transfer from prison to mental health institution, MHI instead of prison○ Like S3 for those already sentenced○ Up to 6m initially and can be renewed for another 6m

● S41 Restriction order○ Restricts discharge from S37

● Section 37/41 given by the crown court○ For individuals at high risk to the public○ Responsible clinician needs approval of the Secretary of State for Justice before

discharge

2.

◉ MHA 2007: Detention without Consent (4)5. Deprivation of Liberty Safeguards DoLS

○ “The safeguards apply to vulnerable people aged 18 or over who have a mental health condition (this includes dementia), who are in hospitals, care homes and supported living, and who do not have the mental capacity (ability) to make decisions about their care or treatment.” The treatment is for a physical disorder not connected to the mental disorder!http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=1327

○ Individuals may not appear to object to treatment○ Deprivation of liberty has to be necessary in best interest of patient to provide treatment○ Procedure

■ Application by senior nurse or ward manager■ Assess by mental health and best interest assessor.■ Authorisation by Supervisory Body■ Give access to Court of Protection for Appeal, e.g. to relevant person’s representative

○ Independently monitored by Quality Care Commission.

2.

Medical Treatment of Mental Disorders● According to MCA

● Treatment is aiming at amelioration or prevention of worsening, including treatment of the physical consequences of self-harm which results from the mental disorderNote: only the purpose is specified, not effects!

● Treatment has to be appropriate, this also means to consider benefits and chances of success● Also includes nursing, psychological intervention, specialist mental health habilitation,

rehabilitation and care● Treatment is only limited to mental health condition NOT OTHER ILLNESSES!● Treatment under detention can be given without consent (except if S136, …)● Treatment for which there always has to be consent

■ Surgery removing or destroying function of brain tissue■ Electroconvulsive Treatment

● Definition of treatment according to case law○ Treatment of underlying condition○ Treatment of the physical consequences of the mental disorder

2.

Treatment requiring Consent Psychosurgery

● Requires consent of the patient AND○ Written certification that patient is capable of consent and that treatment is

appropriate by two registered medical practitioners○ Consultation of two other healthcare professionals (1 nurse and NOT the

physician in charge, NOT the GP or any other physician?) who have cared for patient required

● If patient detained, consent of patient AND○ Member of Second Opinion Appointed Doctors (SOAD) service (part of

CQC) who independently assesses and authorises treatment

2.

Treatment requiring Consent (2)Electroconvulsive Therapy

● Patient needs to consent AND○ Medical practitioner needs to certify in writing that patient capable of

consent and treatment appropriate● If patient lacks capacity

○ Refer to SOAD who may authorise if treatment appropriate AND no valid AD or proxy decision to refuse ECT

● If patient <18 consent AND SOAD authorisation

2.

Treatment Requiring a 2nd Opinion● S57+58: If treatment given for three months to detained patient without

consent○ Need to assess capacity and ask for consent○ If capacity, then requires consent AND written certification that patient has

capacity and has consented○ If capacity and no consent or still no capacity then certify appropriateness of

treatment with consultation of two other medical professionals (1 nurse and NOT the clinician in charge or any other physician?) and ask SOAD to authorise treatment

● Exceptions: urgent treatment does not require S57+58 procedures○ If life in danger, if serious deterioration, if serious suffering, if minimum

interference in case health or safety risk○ Psychosurgery can be carried out without consent if necessary to save the

patient’s life

2.

Community Treatment Orders● Allows the possibility to enforce return to treatment centre for regular treatment in discharged subjects● Needs to meet criteria for issue

○ Patient suffering from mental disorder○ Treatment is necessary for health or safety reasons○ Treatment requires recall○ Enforcement of recall is required (as lack of enforcement would cause deterioration)○ Appropriate treatment is required

● Certification that order if appropriate and criteria are met, and specifies conditions for patient to meet, e.g. assessment prior to renewal, taking medication, abstaining from drug abuse, meeting with community MH teams

● Criteria for enforced recall (after written notice) and detainment for 72h (for treatment, after which CTO may be revoked)

○ Hospital treatment required○ Health or safety risk○ Failure to comply with set conditions

2.

Consent of Psychiatric Patients● Detained under S2/S3 of MCA: treatment for condition can be given

without consent even if they have capacity.● Consent or 2nd independent opinion required for psychosurgery or

psychoactive medication > 3m

2.

3. Confidentiality

Principles of Confidentiality

Confidentiality: Concept

● Confidentiality = need CONSENT to pass on information= ethical, legal and contractual obligation

● = comprises all data collected by doctors (incl. regarding deceased patients)● Perception of person giving information determines if doctor is engaging in

professional capacity (therefore anonymous info that does not ID someone not confidential)

● Disclosure only within clinical care of patient to whom it relates except○ Where there is consent○ Where there is legal need for disclosure○ Where there is public interest in disclosure

● but: lack of clear legal basis for confidentiality (GMC)

3.

Confidentiality: Legal Basis

● Statutory law ◉ Data Protection Act 1988

○ Data must be accurate and held for defined purposes for limited time○ 8 Principles of Data Protection, describes the requirements of processing of

patient data■ Regarding the type of data: limited, compatible with purpose, adequate,

relevant, not excessive, accurate, lawfully processed■ Regarding the patient: in line with his/her rights, fair■ Regarding confidentiality: secure data storage, not transferrable to countries

with inadequate data protection policies○ Patient has right to receive copies except

■ If this causes harm to patient■ Other people concerned

○ Respect for private life (acc. to ◉ Human Rights Act 1998) but not absolute right to privacy as interference by public authority possible if democratic rights of others or national well-being compromised

3.

Confidentiality: Legal basis ctnd.

● Case Law Decisions on case-by-case basis (GMC guidelines for public interest)

○ Duty to respect confidence

○ Information may be disclosed with consent or when legally required

○ Precedences of when confidentiality may be breached

● Contractual Obligations

○ For all doctors excluding GPs and practitioners outside the NHS (but GMC

standards apply to all)

○ Employed staff have a clause in the contract

○ Disciplinary action if confidentiality breached

3.

Confidentiality: Social Media

● Standards not changed if communicating through media rather than directly● Keep up to date with organisation’s policy● Regarding patients

○ Maintain patient confidentiality and professional integrity (enable trust)○ Maintain professional boundaries. Do not use private profile to communicate with patients

● Regarding using internet forums and giving advice, advertising services○ Make sure information is factual○ Make sure information can be checked○ Follow guidance on prescribing○ If you identify yourself as a doctor, you also need to mention your name. Do not give anonymous

advice assuming the role of the doctor.● Regarding your colleagues

○ Treat colleagues with fairness and respect● Regarding yourself

○ Be aware that privacy settings are not guaranteed and patients or employers may obtain access○ Respect copyright○ Be aware of potential conflicts of interest when posting material online.

3.

Confidentiality: Confidentiality Management Framework

● Regarding the information○ Received in medical setting?○ Received in capacity as doctor?○ Information renders patient identifiable?

● If yes, then confidential info not to be disclosed (unless exceptions in place)

● When dealing with requests for disclosure of information○ Inform patient○ Anonymise data○ Seek consent for disclosure where identifiable data requested○ Minimise disclosures○ Keep up to date with legal requirements○ (two points omitted as I didn’t understand them, page 29)

3.

Required Breaches of Confidentiality

● Implied consent if sharing with other health carers or in emergency (including audit)● Legal requirements

○ ◉ Infectious Diseases Act / PH Control of Diseases Act 1984 (see next page)○ ◉ Road Traffic Act 1988 (provide info reg. driver who may have committed offense)○ ◉ Terrorism Prevention Act 2011○ ◉ Children Act 1989○ ◉ NHS Act 2013 (Info to Social Care Information Centre)○ ◉ NHS Act 2006 (Secretary of State for Health can override confidentiality, e.g. in research studies

where cohort too large for consent, and no reasonable alternative)○ Court decision○ Disclosure to statutory bodies (e.g. GMC)

● Patients lacking competence under the ◉ Mental Capacity Act 2005○ But then requirement to discuss with proxy instead of patient

● Public interest○ Prevention of serious crime or harm to the security of the state or public order○ Protection of the patient or others from serious harm

● Regulated events○ Births, deaths, abortion, children born as a result of fertility treatment

3.

Confidentiality: Required Breaches of Confidentiality

List of Communicable Diseases UK● Acute encephalitis● Acute infectious hepatitis● Acute meningitis● Acute poliomyelitis● Anthrax● Botulism● Brucellosis● Cholera● Diphtheria● Enteric fever (typhoid or paratyphoid

fever)● Food poisoning● Haemolytic uraemic syndrome (HUS)● Infectious bloody diarrhoea● Invasive group A streptococcal disease● Legionnaires’ Disease● Leprosy

4.

● Malaria● Measles● Meningococcal septicaemia● Mumps● Plague● Rabies● Rubella● SARS● Scarlet fever● Smallpox● Tetanus● Tuberculosis● Typhus● Viral haemorrhagic fever (VHF)● Whooping cough● Yellow fever

3.

Child Protection

Child Protection and Confidentiality3.

SMACK

* Safety of child* Manage presenting symptoms]* Always discuss with senior** Contact authorities, communicate with parents*** Keep clear notes

● Duty of confidentiality towards the patients vs. responsibility for the well-being of the child● Beneficence vs. non-maleficence (harm by unwanted allegations)● Management

○ Discuss with trained professionals, even if just to confirm if to proceed○ Reasonable belief of serious risk of immediate harm => act immediately by contacting/reporting to

1 of 3 statutory bodies:■ Police => Ix under Section 47 of ◉1989 Children’s Act!■ Social Services■ National Society for the Prevention of Cruelty to Children NSPCC

○ Always document concerns or discussions about child’s welfare■ See Common Assessment Framework CAF for

standardised approach to conducting an assessment of a child’s additional needs

Children At Particular Risk● Child e.g. does not meet parents’ expectation, disability

● Carers Substance abuse, mental health problems

● Family Stepparents, domestic violence, multiple births, social isolation

● Environment poverty, poor housing, bad neighbourhood

● Hx GP, social worker, health visitor, who lives at home?

● Ix specific to injury, growth, fundoscopy for retinal haemorrhages,

skeletal survey, rule out congenital conditions that may explain

injuries

3.

BMA Flowchart for Consent and Confidentiality3.

Disclosure

Flip-side of Confidentiality: Disclosure3.

● Which / how much information should be given● Consent NOT VALID until information given, otherwise ASSAULT, NEGLIGENCE● Duty of care => duty to inform● Tailor language to patient’s level of understanding!● In terms of how much information to give, ethical and legal principles guide:

○ Respect for autonomy of patient to make his/her own decision○ BOLAM test What would other doctors do?○ Prudent Pt test What would prudent/sensible patient like to know○ Non-maleficence not to overburden the patient○ Beneficence benefits of knowing about condition, procedure

4. Professional Regulation and the GMC

The General Medical Council (GMC)● “The GMC is an independent* regulator who aims to protect, promote and

maintain the health and safety of the public by ensuring proper standards in the practice of medicine.”

● Functions○ Register of qualified doctors○ Promoting good medical practice / Maintaining standards of m.p.○ Promoting high standards of medical education and training○ Dealing with questions about fitness to practice○ = PROTECT PATIENTS NOT DOCTORS!

● Law that gives authority to the GMC: ◉ Medical Act 1983. Recent reform after Shipman report (GP who killed patients), filed 2005. Standard of proof at GMC ~ civil cases, so balance of probability (prior to 2008 beyond reasonable doubt but no longer today). Cases brought before MPTS Medical Practitioners Tribunal Service since 2012.

6.4.

Good Medical Practice (GMP)● Defines duties of a doctor

● Most important

○ Patient comes first. Act with respect, fairness, no discrimination, professional

integrity.

○ Provide good and up-to date standard of care, know your limits. Always be able to

justify decisions.

○ Protect public’s health and safety

● Medical students

○ Consent, confidentiality, professional boundaries,

○ Honesty (no plagiarism)

○ Personal health (including being registered with a GP)

6.5.4.

Four Domains of a Doctor’s Duties● Knowledge, skills and performance - Doctor’s attributes

○ Competence and up to date skills (and be able to justify actions)○ Know limits○ Keep records

● Safety and quality - General standards and protocols○ Comply with protocols, e.g. audits, reporting of adverse events or “near misses”○ Protect other’s health from risk posed by personal health

● Communication, partnership and teamwork - Interactions with people○ Respect towards patients○ Teamwork, teaching and mentoring of colleagues

● Maintaining trust - Professional integrity○ Confidentiality, don’t abuse trust○ Never discriminate. Don’t engage in unlawful behaviour.○ Act when patients put at risk○ Cooperate and be honest if professional investigations or competing (financial) interests

6.5.4.

GMC Procedures: Fitness to Practice Panel

● Impairment to fitness of practice○ Misconduct

■ Violation of patient’s fundamental rights○ Deficient performance

■ Harm to patient through persistent technical failings and departures from good practice (or persistent risk of harm)

■ Deliberate recklessness regarding responsibilities○ Criminal convictions or cautions, fraudulent or dishonest behaviour○ Physical or mental ill-health

■ If condition AND NOT following appropriate medical advice re. practice and patients put at risk

○ Regulatory body decision

● If strong evidence, then referral to MPTS (Medical Practitioners Tribunal Service) for panel hearing and decision

5.4.

GMC Procedures: Fitness to Practice Panel ctnd.● Panel steps

○ Have facts been proven?○ Has fitness to practice been impaired?○ Should/What action (to) be taken? (Doctor can submit suggestions too)

● Functions of the panel○ Not: retributive punishment (like courts)○ But: Interest of the public, maintaining confidence in doctors, protection of patients,

upholding standards

● Determining sanctions○ Proportionality

■ interests of public vs. practitioner○ Mitigating factors

■ Doctor’s understanding and actions to address the problem■ Doctor’s overall adherence to good practice

○ Aggravating factors

5.4.

GMC Procedures: Fitness to Practice Panel ctnd.

● Panel decisions○ No action (if doctor has demonstrated understanding and has engaged in remedial

action)○ Issuing of warning (if fitness of practice not impaired)○ Conditions for continuing registration for next three years, renewable○ Suspension from register for up to 12 months (or indefinite if illness)

■ Serious breach of Good Medical Practice where removal not in public interest (i.e. it may not be “in the public interest to retain the services of a good doctor”)

■ Where there is potential for remediation or retraining■ Where judgment is impaired and conditions for continuation not possible■ No evidence of personal problems or risk of repetition

○ Removal from register, except if case solely relates to doctor’s health■ If only means of protecting patients and public interest

5.4.

NHS Disciplinary Procedures● Follow local procedures● Report to seniors/trainers/training programme directors who then take it further● Examples

○ Personal misconduct○ Failure to fulfill contractual obligations○ Intermediate procedure (what is this?)○ Serious professional misconduct

● Mechanisms○ Hearings, reviews, investigations, external assessments

● Outcomes○ Reports○ Warnings, reported for 5 years○ Disciplinary action○ Dismissals, removal from the register if evidence of impaired fitness to practice, e.

g. not competent or knowledge not up-to-date, have taken advantage of role of doctor, illness prevents safe work, “have done something wrong”.

6.5.4.

From Public Health Syllabus6.5.4.

5. Issues around the Duty of Care

Negligence● Breach of the duty of care, treatment below the standard of care.

Test for negligence● Does duty of care exist? Doctor has duty of care towards patient

● Was duty of care breached? Was quality of care sub-standard?

● Was injury a result of the breach? Could injury have been foreseen?

● Private tort* (civil) law ○ Doctors can be sued by plaintiffs for negligence○ Plaintiff has to establish if breach of duty caused the injury ○ Resulting: potential fine depending on

■ Pain and suffering■ Loss of earnings and travel expenses■ Future loss

● Criminal law if manslaughter (rare)

5.5.

Negligence: ctnd.

● Establish standard of care ♚ Bolam v HMC 1957○ Bone fracture due to electroconvulsive therapy, risks not informed○ Doctor acted in “accordance with .. respected medical opinion”○ BOLAM TEST = do what other doctors would do, then not negligent

● Medical care has to be reasonable ♚ Bolitho v Health Authority 1997○ Boy not seen and then not intubated early enough, died○ “If professional opinion not capable of withstanding logical analysis then

judge is entitled to hold that .. opinion not reasonable or responsible”○ Judge can choose between two existing professional bodies of opinion

● “But for” principle ○ Did injury occur but for the breach of duty rather than the illness?

● Avoid negligence by following the GMC duties of a doctor! (Chapter 5)

5.6.5.

Medical Errors● Types of errors

○ 850k critical incidents of which 400 deaths (up to 10% of inpatients!)○ 10k drug reactions

● Reasons for errors○ Systems failure○ Inadequate training or supervision○ Fatigue or ill-health○ Excessive work load

● Reporting systems○ Procedures adopted from airline industries incl. near misses○ Reporting is early, open (by anyone), formalised, provides protection

for whistleblowers

5.6.5.

Dealing with Medical Errors● Reporting errors is part of the doctor’s duties as first duty is towards patients. There

is legal protection for whistle blowers and one does not need to wait for proof if reasonable belief.

● When observing an error directly: Can hide behind naivete if you watch an error take place to alert the person carrying out the error

● Familiarise yourself with the complaints procedure● Talk to seniors● Review patient’s care● Complete adverse incident form, document the incident● Inform the patient, explain and apologise to the patient

● Confidential helpline: Public Concern at Work, 02074046609● Get advice from

○ Trust guidelines, MDU, BMA, GMC, National Patient Safety Agency (which has a national reporting and learning system)

5.6.5.

Dealing with Medical Errors: ctnd.● What to think about when considering raising a concern

○ Regarding colleague posing the risk■ Is someone unaware of risk posed■ What could be the method for least damage to colleague involved

○ Regarding the risk■ Would colleagues have similar concerns■ What would happen if concern not raised and the risk continues?

○ Regarding raising the issue■ Have you talked to colleagues? Why not?■ How would you want topic to be addressed if you were the one causing the risk■ Have you consulted the trust’s whistleblowing policy■ Why raise the concern now?■ What is the motivation to raise the concern?

○ Regarding the potential resolution■ Can a solution within the team be found?■ What would be a satisfactory outcome?

5.6.5.

Complaints● Explanation and early apology can often avoid formal steps. Apologising

does not mean accepting liability!

● 28k written complaints / year

● Procedures

○ Local resolution, team meeting, potential apology or written response

○ Independent review by trust complaints officer (convenor), then report

prepared by panel and letter

○ Health Service commissioner (Ombudsman) reviews, may order report

to chief executives or trust or health authorities

5.6.5.

6. Issues around Research and the Beginning of Life

Research● Single intention Therapy aimed at patient’s welfare or

advancement of science● Dual intention Therapeutic research aimed at patient and

advancement of science● Ethical concerns:

○ HARM○ CONSENT, right to withdraw○ COERCION, ○ CONFIDENTIALITY

● ◉ ○ Nuremberg code○ Declaration of Helsinki○ UK Research Ethics Committees RECs

6.

Research using Embryos● Reproductive cloning illegal● Therapeutic cloning legal within limits● Hybrid embryos can be used for research● ◉ 2001 Cloning Act

○ Banned reproductive cloning● ◉ Human Fertilisation and Embryology Act 1990, amended ◉ 2008

○ only until 14d of development

7.6.

Fertility Treatment● Note

○ Reason for treatment: infertility or avoiding disease● Ethical issues

○ justice vs. beneficence vs. autonomy vs. non-maleficence to future children

● ◉ Human Fertilisation and Embryology Act 1990, amended ◉ 2008○ Section 4 1990 Using embryos requires licence from HFEA regarding storage,

treatment, research○ Section 13 1990

■ Treatment only if welfare of child (and other children) secured■ treatment only if proper counselling of consequences received■ Information and methods of informing child of its conception■ Information about changes in co-parenting decisions required■ Cannot select embry because of illness■ Sex selection only possible if it avoids sex-linked disease

○ Research only until 14d of development

7.6.

Fertility Treatment: ctnd.

● ◉ Surrogacy Arrangements Act 1985○ Commercial surrogacy is unlawful○ Criteria

■ Parents > 18 ■ In relationship■ One of them genetic parent■ No payment

7.6.

Termination of Pregnancy: Ethical considerations

● Woman’s right of autonomy vs. fetus’ right to live

● Determining stage of development at which embryo becomes morally significant cannot be undertaken scientifically, it is value-based

● Fetus○ Value of human life Potential religious justification○ Interests of fetus Interest theory○ Viability argument When can infant survive outside the mother’s body○ Personhood What qualities does fetus share with humans

● Pregnant woman○ Right to bodily self-determination affected by fetus?○ Do circumstances of pregnancy change right to self-determination?

7.6.

Termination of Pregnancy: Early Legislation

● ◉ Offences against the Person Act 1861○ It is unlawful to bring about miscarriage in oneself or another woman

● ◉ Infant Life (Preservation) Act 1929○ Child destruction (terminations at gestational age where child could have

survived) is a serious offense○ Legal to kill fetus to save woman’s life

● Precedents for rights of fetus○ ♚ Paton v British Pregnancy Advisory Services 1979

■ Fetus has no legal rights of its own until after birth (separation)○ ♚ Re F 1988

■ Court no jurisdiction to make a fetus a ward of court

7.6.

Termination of Pregnancy: Abortion Act

● ◉ Abortion Act 1967 (amended by HFEA 2008)○ No offence if two doctors are of opinion the following applies and carried out

by a doctor:■ <24w if continuation would involve greater risk of physical or mental

health risk to woman or her existing family than termination (e.g.1/18k v 1/1E06)

■ Necessary to prevent grave physical or mental injury (at any gestation)■ Greater risk to the life of the pregnant woman than termination (at any

gestation)■ Substantial risk that the child would suffer physical or mental

abnormalities resulting in serious handicap (at any gestation)○ Doctors are not under duty to perform

7.6.

7. Issues at the End of Life

End of Life: General Principles

● Ethical conflicts○ Beneficence vs. nonmaleficence○ Nonmaleficence vs. autonomy ○ Act vs. omission vs. intention of act!!!!!○ Principle/Doctrine of double effect:

Morally permissible to perform act with the intention to bring about a good result (e.g. pain relief) even if the foreseeable side-effect may cause serious harm (e.g. death). Legitimate act has undesirable consequences.

● Voluntary Requested by patient● Nonvoluntary Patient can’t express● Involuntary Against patient’s wishes

● General considerations/principles for management○ Consider benefits and burdens of treatment○ Consider consent, autonomy, capacity○ If there are doubts about capacity or validity of an advance decision, err on side of

preservation of life

9.7.

End of Life: DNAR

● When to consider○ CPR unlikely to be successful○ Not in accord with recorded wishes of patient or advance decision (written,

signed, witnessed and explicit, i.e. “even if life is at risk”)○ +ve outcome would lead to poor quality of life○ consider as part of advance care planning, when there is a risk of

cardiorespiratory arrest● Note: not in effect if reversible cause of arrest● 2007 BMA guidance

○ No decision = in favour of CPR (unless patient refused, terminal phase of illness, burdens of treatment outweigh benefits)

○ Individual assessment, wherever possible advance planning ○ Patient’s views important, if no capacity seek views of relatives regarding patient’s wishes

(although not binding)○ Communication and information to the patient and his/her relatives are essential○ DNAR only applies to CPR, not treatment○ DNAR does not override clinical judgement if reversible cause of arrest

9.8.7.

End of Life: Withdrawal of Treatment

● If requested by patient, must be respected (voluntary, informed, competent) or if advance decision

● Law distinguishes acts vs. omissions (deontological), switching off ventilator is withdrawal of treatment, not euthanasia

● English law gives autonomy greater weight than beneficence, unless no capacity, but always in best interest of the patient and NEVER with the motivation to cause death (it can be an unavoidable consequence).No capacity: ◉ MCA 2005

● ♚ Airedale NHS trust v Bland 1993○ Withdrawal of life-sustaining treatment can be in the best interest of

the patient if the burdens of treatment outweigh the benefits○ Basic care must always be provided, only treatment can be

withdrawn (treatment includes artificial nutrition and hydration ANH)

9.8.7.

End of Life: Euthanasia

● Euthanasia INTENTIONALLY bringing about the death of a person through act or omission for his or her sake,

● Treatment WITH INTENTION to end life is inpermissible● Issues

○ Beneficence vs. non-maleficence○ Non-maleficence vs. respect for autonomy ○ Compatibility with duty of care ○ Capacity, consent○ Principle of double effect○ See general ethical principles at the end of life

9.8.7.

End of Life: Suicide

● ◉ Suicide Act 1961○ Suicide decriminalised ○ BUT does not extend to assisted suicide:

■ Up to 14 years of prison!■ However, prosecution only if public interest, which is determined according to the 2010 DPP*

criteria, 6/16 of which summarised here: 6 IN FAVOUR:● victim under 18 * consent● victim to capacity or consent or request (counts for 3) * motivation = compassion● victim physically able to commit suicide * prior dissuasion● suspect stood to gain (not pure compassion) * minor reluctant encouragem.● suspect assisted in more than one case * report to the police● suspect a healthcare professional

● Issues○ Disabled less free to take their own life?○ Forces people with degenerative diseases to commit suicide earlier

● Management ○ Cannot lawfully give information about assisted suicide, e.g. in Switzerland (2010: unlikely for relatives

to be prosecuted if accompanied)

9.8.7.

End of Life Legal Decisions● ◉ MCA 2005: if no capacity and not advance directive, then act in best interest of patient, where life-

sustaining treatment concerned do not act with intention to cause death.● ◉ Suicide Act 1961● ♚ Airedale NHS Trust v Bland 1992

○ Withdrawal of artificial nutrition and hydration (ANH) from young man in vegetative state: burdens outweigh benefits (alternative view: vegetative state = no (best) interests)

○ Distinguished basic care (warmth, hygiene, .. incl. ORAL hydration) which must be provided from ANH which is treatment and can be withdrawn

● ♚ Dr Nigel Cox 1992○ KCl injection to elderly patient in pain Suspended sentence

● ♚ Dr David Moor 1999○ Giving lethal dose of morphine to “relieve pain”?○ Dr Anne Prety 2001: MND, human right to die

● ♚ Re F● Assisted dying for the terminally ill defeated in house of Lords 2006 (Lord Joffe’s assisted dying for the

terminally ill bill)● Switzerland: legal consequences for UK citizens travelling to die there

○ 2010 guidelines indicating that prosecution of relatives accompanying patient are unlikely to be prosecuted if good reasons (DPP policy to outweigh factors for and against public interest)

9.8.7.

Administrative Tasks After Death● Doctor: Verify death by registered medical practitioner at bedside● Doctor: Issue certificate of cause of death

○ Section 1a = immediate cause of death○ Lowest under 1 = underlying cause of death○ Section 2 = illness that contributed but not directly caused death○ Avoid: old age as single cause, organ failure or cardiac arrest as single cause, mode of dying

“syncope”, “collapse”, don’t use abreviations, avoid sepsis● Registration of death● Issuing of Death certificate

○ Doctor: issue cremation certificate if required● Refer to coroner if

○ Death <24h of admission to hospital○ If a doctor has not seen the patient within 14d of death○ If cause of death is uncertain○ Other compulsory reasons: suicide, RTA, sudden infant death, bone fracture within 12m of

death, acude alcohol poisoning, death following surgical procedures, industrial diseases and accidents, drugs

○ If in doubt, call ask the Coroner’s Office

7.

End of Life: See also

● Palliative Care notes● Death & dying course● CS4 mini-essay on DNARs

9.8.7.

Appendix: Things to look at in more Detail

● p.24: Ethical Toolkit for Students BMA http://bma.org.uk/practical-support-at-work/ethics