Medical law part 2

Question 1

The role of medical ethics and law in health care.

Answer 1

• Medical schools equip medical students with the scientific background and technical skills they need for practice –> Just as important: they must also be enabled to understand and commit to high personal and professional values
• International consensus = knowledge of the ethical and legal basis of medicine is essential.

The practice of good medicine inevitably raises both ethical and legal issues –> demands an understanding of both.

Question 2

Differences between ethics and law

Answer 2

Law

• -Formal written document
• Established by legislature
• Applicable to everyone
• Priority decided by the court
• Court makes the final decision
• Enforceable by police and courts.

Ethics

• Unwritten principles
• Interpreted by each individual
• Presented by philosophers, religious and professional groups
• Priority determined by individual
• No external decision-maker
• Limited enforcement

Question 3

South African laws of emergency treatment

Answer 3

Section 27(3) of the Constitution

“no one may be refused emergency medical treatment”
-This section is fundamental to the constitutional protection of rights to life and health without health, there will be no life.

People find comfort in the fact that they may never be refused emergency medical treatment –> conductive to a state of psychological and social well-being

Question 4

South African definition of a medical emergency: Medical Schemes Act 131 of 1998

Answer 4

‘the sudden and, at the time, unexpected onset of a health condition that requires immediate medical or surgical treatment, where failure to provide medical or surgical treatment would result in serious impairment to bodily functions or serious dysfunction of a bodily organ or part or would place the person’s life in serious jeopardy

Question 5

Soobramoney vs Minister of Health (KZN)

Answer 5

Judges defined medical emergency:

“dramatic, sudden situation or event which is of a passing nature in terms of time. There is some suddenness and at times even an element of unexpectedness in the concept ‘emergency medical treatment’.”

PROBLEMATIC:
An asthma attack may be an allergic-type incident, seasonally anticipated –> constitutionally NOT a medical emergency —> lack of a dramatic, sudden event which was unexpected.

Many acute life-threatening medical emergencies involve acute exacerbations or complications of already diagnosed, and in some instances undiagnosed, chronic illnesses.

Safer to consider the definition of the Medical Schemes Act 1998 than that of the Constitutional Court in the Soobramoney case.

Question 6

Section 2(5) of the National Health Act of 2003

Answer 6

“A health care provider, health worker or health care establishment may not refuse a person emergency medical treatment”
any patient who required assistance in a medical emergency could thus present themselves to any health care establishment in South Africa, where emergency medical treatment could not be refused.

PROBLEM:
The Constitution, National Health Act, Health Professions Act, Nursing Act, the Department of Health‘s Ethical Rules of Conduct, Department of Health’s Patients’ Rights Charter are collectively mute on defining the basic practical scope of emergency medical treatment that can be expected to be provided when any individual presents to a health care provider or health care establishment for emergency medical assistance.

Question 7

Triage in the emergency department

Answer 7

triage in the emergency department in order to categorize the level of a medical emergency, so as to ensure that the most critical patients are always seen immediately and the less critical timeously, is an accepted international practice that occurs daily in every emergency department.

not acceptable to triage emergency patients and redirect them away from any health care establishment without initial stabilization and appropriate analgesia —> counter the need to redress the ‘socio-economic injustices, imbalances and inequities of health services of the past’.

Question 8

Medical institutions and emergency medical treatment to patients

Answer 8

the medical institutions must be in a position to treat and stabilize (resources permitting) any emergency medical patient who presents through its doors
unethical and serious breach of the Constitution for any patient, who presents at a medical institution with a medical emergency to be turned away and redirected to another health care establishment without initially receiving basic medical treatment

Question 9

Section 27 (3) of the Constitution - the one about everyone having a right to emergency medical care - is not guaranteed or absolute and may need to be limited if necessary.

Answer 9

In Soobramoney v Minister of Health, the Constitutional Court argued that section 27(3) cannot be practically enshrined as an absolute right but is subject to the provisions of section 27(2), which states that the:
“The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”

Question 10

Advance Directives

Answer 10

life-sustaining medical interventions when patients are no longer competent to participate in decisions about their care = problematic and give rise to ethical and legal issues
treatment decisions may be morally charged, costly, contested, or to counter to the wishes of the patient

advance directives may be a means of extending the autonomy of patients when they are incompetent –> living will be written advance directive or proxy decision-maker by means of power of attorney for a person’s health care

although most patients desire advance directives, one barrier = patients’ expectation that physicians would initiate the discussion

living wills permit people to state ahead of time how they would like to be treated if they become severely ill and are unable to express their own wishes  state preferences for any degree of intervention depending on the circumstance + choose a friend or relative to make health care decisions for them if they become unable to do so themselves

Question 11

In SA advanced directives are governed by section 8 of the National Health Act:

Answer 11

If a health care user lacks legal capacity to give informed consent to participate in a decision affecting his or her personal health and treatment, such consent may be given “by a person other than the user” and after the health care user has been adequately informed.

Any person who under normal conditions has mental maturity and capacity to provide informed consent may provide another person with a decision making proxy  thus children aged 14 and 18 years, and pregnant women of any age wishing to terminate a pregnancy may provide such proxy because they are originally entitled to provide consent themselves in terms of Children’s Act and Choice on Termination of Pregnancy Act

Question 12

PATIENT PARTICIPATION IN HEALTHCARE DECISION MAKING IN TERMS OF THE NATIONAL HEALTH ACT

Answer 12

Sections 6,7 and 8 of the National Health Act

Any health care user has the right to participate in decisions affecting his or her personal health and treatment.

To enable a health care user to properly exercise his or her right to participate, health care provider MUST inform about:

• User’s health status – unless such information may be contrary to the best interest of user;
• Range of diagnostic procedures and treatment options generally available;
• Benefits, risks, costs, and consequences generally associated with each treatment;
• Right to refuse health services and explanation of implications, risks, and obligations associated with such refusal

In a language that the user understands taking into account his or her literacy levels.

Question 13

Factors that may affect patient participation:

Answer 13

1. health care providers’ perceived lack of time
2. societal norms and the permissiveness of the health care environment in which they receive treatment. Sometimes the culture dictates a passive role, a significant proportion of patients is likely not to “want” to participate.
3. health care workers that are not interested in receiving patient input

Patient participation could also help prevent medical errors.

Question 14

A brief overview of clinical negligence.

Answer 14

clinical error = the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim

• medical negligence not only entail breaches of confidentiality, fiduciary doctor-patient relationships, etc. but also incorporates clinical negligence
• development and implementation of new medical technologies and procedures, together with the broader evolvement of medicine, played a consistent and central role in the history of clinical negligence
• doctors are required to use the same skill, knowledge, and care as would be expected for a reasonably competent doctor in the same circumstances
• technological development has dramatically altered the essential content of this standard
• In addition –> significant paradigm shifts in the practice of medicine and the nature of the patient-doctor relationship = influence on the understanding of clinical negligence

Question 15

Doctor-Patient relationship

Answer 15

• During the second half of 20th-century there was a shift away from the traditionally paternalistic relationship model (do as the doctor says, he knows best) towards patient autonomy (patient decide) brought about by human/patient rights and consumerism
• Changing perceptions gave rise to novel legal doctrines –> informed consent
• How doctor and patient will relate to one another, both medically and legally, will also be influenced by the availability of quality resources, the provision of high-quality health care in the context of patient autonomy, and the “best interest of the patient” concept, within the border framework of medical evolution and information technology –> concept of professional/clinical negligence must find application.
• The critical element in medical professionalism is the need for an individual who can combine humanitarian leadership with secure technical knowledge = cornerstone of preserving the doctor-patient relationship.

Question 16

guidelines developed by professional medical societies are focused primarily on achieving the best medical outcomes HPCSA: GUIDELINES FOR GOOD PRACTICE IN THE HEALTH CARE PROFESSIONS

Answer 16

Doctors duties to patients, colleagues, and other health care practitioners, patients of other health care practitioners, to themselves, society, the health care profession, and the environment

• duties may be ethical, legal or both at once
• legal duties are duties imposed by law (National Health Act, Health Professions Act) that require health care practitioners to follow certain procedures and to use particular skills and care when dealing with patients
• Ethical duties  you have a duty to another person, you are bound to that person in some respect and for some reason. To have a duty is to ask the question “What do I owe others?”

Question 17

Battery

Answer 17

-As a purely legal issue, forcing treatment on an unwilling person is no different from attacking that person with a knife. The legal term for harmful or offensive touching without permission is the battery.

The battery is a criminal offense, and it can also be the basis of a civil lawsuit.
The key element of battery is that the touching is unauthorized, not that it be intended to harm the person. Thus forcing beneficial care on an unwilling patient would be battery.

Consent is key.

Question 18

Decisional capacity

Answer 18

-Decisional capacity is based on the patient’s ability to understand the choices, to deliberate about those choices, and to articulate his choice. Decisional capacity is dynamic—that is, a patient who had appropriate decisional capacity yesterday may not have it today. There are numerous reversible causes of impaired decisional capacity, including intoxication, hypoxia, sedation, stress, and many others. Every effort should be made to reverse potential impairments in capacity, to assure that the patient is making the most rational, autonomous choice. Level of needed capacity may also be decision-specific. For example, the physician may have a lower threshold for allowing a patient to refuse to suture a small laceration, than for allowing a patient to refuse admission for myocardial infarction.

Question 19

The medical evaluation of capacity can be challenging.

Answer 19

• On some level, we assess the capacity of every patient we see. For most patients, we presume that if they are able to give a rational history, cooperate with the medical evaluation, and appear to understand the treatment recommendations, they possess the appropriate decisional capacity.
• Impaired capacity comes into question most often when patients refuse recommended medical treatment.

Question 20

To evaluate decisional capacity appropriately:

Answer 20

all reversible threats to capacity should be addressed. Patient goals and values should be assessed. Alternatives and consequences should be discussed, and the patient should demonstrate an understanding of these elements. Family members may be helpful in determining mental status as compared to baseline. Standardized tests, such as the Mini-Mental Status Examination, may be helpful.

Question 21

A common misconception regarding Decisional capacity.

Answer 21

Is that a signature on an “against medical advice” (AMA) form is sufficient to allow a patient to leave.

In fact, informed refusal is a process, not merely a signature on an AMA form. The process should consist of the determination of decisional capacity, delivery of information, including risks of refusing treatment, and documentation of the process.

In this particular case, the physician must make a judgment regarding decisional capacity. It is challenging because the patient exhibits some elements of capacity—he is awake, alert, and answers some questions appropriately.

However, there is also evidence of impaired capacity. The patient appears somewhat intoxicated and is somewhat uncooperative. He is unable (or unwilling) to cooperate with detailed questioning, which makes it impossible to ascertain whether he understands the risks of leaving against medical advice.

Question 22

Stages of alcoholism

Answer 22

The significance of alcohol intoxication and its relationship to decisional capacity is controversial. Some believe that any intoxication renders a patient unable to make medical decisions. Others believe that intoxicated patients should be evaluated for appropriate capacity. In some cases, intoxicated patients are in fact able and willing to understand choices and the ramifications of those choices and to make an autonomous decision. A blood alcohol level is not necessary or sufficient to make a determination of appropriate decisional capacity. However, it may provide supporting evidence of impaired capacity. Certainly, alcohol intoxication is a “red flag,” suggesting to the clinician possible impairment of capacity.

Question 23

In cases where a complete evaluation of decisional capacity is not possible

Answer 23

It is reasonable to / the patient until such an evaluation can be completed. Some options include explaining this simple fact to the patient. Often, when faced with the possibility of being physically or chemically restrained, the patient suddenly becomes more cooperative with answering questions. If the patient is able and willing to answer questions appropriately and understands the risks of leaving against medical advice, he should be allowed to leave. If he is not, he should be restrained until an appropriate evaluation of capacity can be completed.