LEGAL & ETHICAL ISSUES Dr Les Gemmell MBBS, FRCA, MA

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1 LEGAL & ETHICAL ISSUES Dr Les Gemmell MBBS, FRCA, MA

2 Many doctors are unsure of their roles and responsibilities in their interactions with the legal system. This is not surprising, given the increased requirements imposed on medical practitioners by legislation, regulations and guidelines.

3 The first duty of a doctor must be to ensure the wellbeing of patients and to protect them from harm this responsibility lies at the heart of medical professionalism. Patients expect doctors to be technically competent, open and honest, and to show them respect. By demonstrating these qualities, doctors earn the trust that makes their professional status and privileges possible. Healthcare professionals involved in the transfer of critically ill patients have to consider both the ethical and legal consequences of their actions and decisions

4 Critical care is in an emerging crisis of conflict between what individuals expect and the economic burden society and government are prepared to provide. Demand exceeds capacity Pressure of targets GP OOH contracts Junior doctors hours Patients expectation

5 LEGAL ASPECTS DEFINITIONS Statutory law Common (case) law Public law and Private law Criminal law and Civil law Civil proceedings- a mere preponderance of probability Criminal Proceedings-beyond all reasonable doubt.

6 HEALTHCARE LAW A branch of law. Healthcare professionals and patients. Covers a lot of areas of law: tort, criminal, public and administrative law, and family law. Ethical issues are involved in all the problems that arise in medical law.

7 MEDICAL NEGLIGENCE Negligence We must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour... Lord Atkin in Donoghue v Stevenson (1932)

8 MEDICAL NEGLIGENCE Requirements for proving negligence: Duty of Care Breach Causation

9 MEDICAL NEGLIGENCE Gross Negligence Manslaughter Criminal prosecution. Prosecution must prove (beyond reasonable doubt) Existence of duty Breach of duty causing death Gross negligence to justify a criminal conviction

10 Doctors charged with manslaughter in the course of medical practice,

11 In my view, the law requires the trainee or learner to be judged by the same standard as his more experienced colleagues. If it did not, inexperience would frequently be urged as a defence to an action for professional negligence. LJ Glidewell Wilsher v Essex AHA 1987

12 Duty of Care Who has this duty during a transfer? Consultant in charge The transferring team The receiving unit

13 Duty of Care Health professionals in an ICU have a duty of care to their patients and must act in their patients best interests. Consider the difficulty in making a decision that is not entirely in this patient s best interest. Does the intensive care team also have a duty of care to a patient who is currently physically elsewhere in the hospital but who is in need of intensive care treatment?

14 Staying out of trouble Effective communication with patients, their families and other healthcare providers Staying up-to-date clinically Realising and practising within the limits of your skills, knowledge and experience.

15 GUIDELINES In 1993 Professor Ian Kennedy commented that: the role of protocols and guidelines will become more and more important. His words remain apt, although in England and Wales clinical practice guidelines do not yet constitute legally binding standards of care, nor have they replaced expert testimony.

16 GUIDELINES In Early v Newham Health Authority (6), the 13 year old claimant recovered consciousness while still paralysed from an unsuccessful attempt to intubate her in preparation for appendix surgery. She panicked and was in great distress until she had recovered all of her physical functions. The anaesthetic senior house officer had followed the health authority s written Failed Intubation Procedure correctly. The guidelines had been drawn up by the hospital¹s division of anaesthesia, which included eight consultant anaesthetists

17 GUIDELINES The claimant sued the health authority, claiming that the doctor was incompetent and negligent, and that the guidelines he followed were faulty and flawed. The claim failed. Bennett QC concluded that the small risk of transient consciousness was far outweighed by the avoidance of the far greater risk of injury due to hypoxia. It could not be said that the guidelines were such that no reasonably competent authority would have adopted them.

18 Where clinical guidelines have been developed in a robust manner, which reflects wide consultation and best practice, then it is unlikely that a health professional who follows such guidelines would be held to be negligent for the outcome of the treatment or process used.

19

20 The Offence Corporate Manslaughter Such organisations are guilty of the offence of corporate manslaughter if the way in which their activities are managed or organised: (a) causes a person s death; and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased (Section 1(1)).

21 Impetus for the new legislation Serious management failures, causing death: Herald of Free Enterprise, March 1987, 200 died. Sheen report: from the top to bottom, the body corporate was infected with the disease of sloppiness. Clapham rail crash, December 1988, 35 died, 500 injured, British Rail were criticised for practices that were positively dangerous Southall rail crash, September 1997, 7 died, 151 injured. Trial judge identified a serious fault of senior management Hatfield rail crash, October 2000, 4 died, 70 injured. Serious management failures by Railtrack Fines imposed did not address public disquiet

22 Code of Ethics Codes of Ethics Professional responsibilities duties and obligations Professional relationships professional behaviour good communication Accountability

23 Bioethical Principles Four Major Bioethical Principles in Healthcare The Principle of Autonomy The Principle of Non-Malficence The Principle of Beneficence The Principle of Justice

24 Resource Allocation Article 2 - Right to life Treatment that could prolong life may sometimes be withheld on the grounds of scarce resources. The court is unlikely to interfere in a particular case with a Health Authority's decisions on allocation of resources.

25 BENEFITS RISKS RISKS

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