Ethical issues in Emergency

Medicine
Joseph Kayongo
Anaesthesia Resident
Content
1. Introduction

2. Consent, Competence and Capacity (Minors and Psychiatric patients)

3. Confidentiality

4. Professional Regulation and the UMDPC

5. Medical Errors, Negligence and Malpractice

6. Fertility Treatment, Research on Embryos and Abortion

7. Issues at the End of Life

Based on Cambridge Law and Ethics for Finals by Christiane

Reidinger 2014-2015
Objectives

• To elaborate on common ethical arguments.

• To display professional attitudes and behaviours consistent with Good Medical Practice.

• To integrate ethical/legal analysis and decision making into clinical judgement.

• To beware of own values and respect different views while maintaining professional integrity.
1. Introduction
Ethics and Medicine
The Concept of Ethics and Medicine
• Ethics: Philosophy concerned with nature of morality and the moral principles that govern a
person’s behaviour or activities.

• Ethical concepts pertaining to Medicine

• Duties – of doctors, *Declaration of Geneva 1948, WHO, Hippocrates

• Rights – of patients and doctors

• Consequences – of treatment and withdrawal of treatment

• Character – of Doctors
Major Ethical Theories
• Deontology – judge morality of actions based on RULES
• Kant – categorical imperative, universal law/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 and minimise suffering.

• Virtue ethics - importance of character in evaluating ethical behaviour

• Aristotle – good character, appropriate for medicine

• Plato – virtues: self-control, wisdom/prudence, courage, justice

• Communitarianism – connection between individual and community

Principles of Medical Ethics
• Autonomy
• Respect patient’s choices → consent

• Beneficence
• Act in patient’s best interest → duty of care

• Non – maleficence
• Do no harm → duty of care

• Justice
• Similar treatment for all patients

• Distribute care evenly/fairly

Ethical Foundations of Emergency Medicine
• A description of professional and societal attention to moral issues in health care.

• Moral Pluralism
• Describes the disparate sources of moral guidance - professional oaths and codes of ethics, cultural values, social norms embodied in the
law, religious and philosophical moral traditions, clinical experience, practical reasoning skills, and professional role models.

• Problems arise, however, when different sources of moral guidance come into conflict.

• Moral challenges of emergency physicians

• The unique setting and goals of emergency medicine give rise to a number of distinctive moral challenges.
• These special circumstances shape the moral dimensions of emergency medical practice.

• Take note of the Good Samaritan Law.

• Virtues in emergency medicine

• Are morally valuable attitudes, character traits, and dispositions.
• Two timeless virtues - courage and justice. Others include - vigilance, impartiality, trustworthiness, and resilience.
Approaches to Medico-ethical Problems
• 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 course of action

• Reflective equilibrium
• Principlism – Doctor determines which principles are relevant and weighs them against each other = Rawl’s REFLECTIVE EQUILIBRIUM
• HOW CAN I HELP THE PATIENT? WHAT WOULD HARM THE PATIENT?

• WHAT DOES THE PATIENT WANT?

• WHAT WOULD BE FAIR?

• AND FINALLY, WHAT SHOULD I DO?

Toolkit for Ethical Reasoning
• Distinguish medical facts from moral values

• A Valid Argument is a chain of logically connected statements, the Conclusion is the logical consequence.

• 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 termsused by different people?

• Apply the 4 principles of medical ethics, which is most important?

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

• Imaginary case comparison

• Consequentialist approach: which outcome maximises happiness? For each possibility of action p(outcome)*happiness(outcome)
Approach Summary
1. Identify the problem
• Clinical background

• Ethical considerations

• Application of 4 principles of medical ethics

2. Decision-making process
• The most relevant ethical principle(s)

• Precedent cases

• Thought experiments

• Consequentialist approach (what decision would maximise +ve outcome?)

3. Define/Confirm the decision

• Is it a valid argument, i.e. logical chain of facts from which conclusion arises which the doctor is able to explain
Ethics, Justice and Law
Links between Ethics and Law

• Law – rules by society to regulate itself.

• Links between Ethics and Law

• Autonomy → assault/battery, Capacity, Confidentiality

• Beneficence/Non-maleficence → Negligence

• Justice → Discrimination, Resource allocation

Theories of Justice
• Not everything that is immoral is also unlawful

• Utilitarian – maximise utility

• Maximise health gain

• 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’
Introduction to Law
• Hierarchy of laws in Uganda • Categories of Uganda Law
• International Law
• Statute law – passed by parliament
• Constitution
• Common law – Set by precedent cases
• Parliamentary statute

• Court decisions • Criminal law – prosecution prosecutes defendant

• UMDPC Procedures and Codes of Conduct • Civil law – Plaintiff prosecutes defendant

• Public law – Against state or emanation, public authorities

• Hierarchy of Courts in Uganda
• International, then Regional Courts • Private law – against a private person e.g. Tort law*,

• Supreme Court battery, negligence, breach of confidence

• Court of Appeal/Constitutional Court

• High Court

• Magistrate Courts

• Tribunals
 Ethics of Rights,
Responsibilities and Conflicts
of Interest
Classification of Rights
• Right – entitlement, permission • Negative rights
• Create duty for others to abstain from actions
• Absolute rights
• Cannot be overridden, whatever the circumstances • Legal right
• Defined by law
• Qualified rights
• Must be respected with exceptions • Natural right
• Universal and inalienable (and not always legal
• Positive rights
rights)
• Create duty for others to provide in order to claim
right
Theories of Rights
• Interest theory
• Rights are grounded in interest

• Competition of interests – qualified rights

• 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

• 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
Human Rights Act – UN Universal
Declaration of Human Rights, 1948
Ethical Decision-Making

• Principles of decision making • Approaches to decision making,

• Equality – Identical rights based on
• Need – e.g. rule of rescue in life threatening conditions
• Equity – Impartial and fair
• Benefit – In terms of cost, clinical result

• Merit – Acc. To patient’s responsibility for health,

dependents, worth

• Utility – benefit to society

2. Consent and Capacity
In general
If capacity – autonomy comes first
If no capacity – beneficence comes first
Consent
• Respect for patient’s autonomy

• 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)

• Protects from medical paternalism and exploitation

• Treatment without consent is assault and/or battery

• Consent can be withdrawn at anytime

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

Obtaining Consent
• Has to be informed, willing and voluntary after discussion, given by a capable person

• Can be expressed or implied (i.e. hold out arm for vaccination)

• BRAIN of informed consent – INFO that should be given

• BENEFITS

• RISKS

• ALTERNATIVES

• INDICATIONS

• NATURE OF PROCEDURE
Patients who may lack Capacity
• Age related
• 16+ 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

• Dementia

• Severe learning disabilities

• Brain damage

• Drug/alcohol intoxication

• Any physical or mental conditions that cause confusion, drowsiness or LOC

Advance Decisions (AD)
• Decision to refuse future specific treatment in particular circumstances at a time when the person lacks capacity.

• Doctor liable for continuation of treatment if AD valid and applicable to treatment!

• Prerequisites for validity of AD

• Person >18 and with capacity

• Written and signed

• Witnessed

• Explicit

• Invalidation of AD
• Withdrawal when patient has capacity

• Lasting Power of attorney granted to someone

• Treatment or circumstances not specified in AD

• Situation that patient could not have anticipated

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

• Registered by the Office of Public Guardian.

• Part of the Best Interests Checklist according to the Mental Health Act.
Hierarchy of Decision Makers
• Advance Decision/Directive by patient him/herself

• Appointed lasting power of attorney

• Court of protection

• Appointed person by court of protection

• Doctor
Paternalism
• Paternalism – benevolent action irrespective (and even against) the wishes of the beneficiary or
simply 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

3. Confidentiality
Confidentiality: Concept
• Confidentiality – nondisclosure of patient information.

• Comprises all data collected by doctors (incl. regarding deceased patients)

• 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

Confidentiality: Legal Basis
• Statutory law
• Data Protection Act

• Respect for private life (acc. To Human Rights Act) but not absolute right to privacy to prevent public authority interference.

• Case law
• Decisions on case-by-case basis, duty to respect confidence

• Information may be disclosed with consent or when legally required or precedencies when there is a breach of confidentiality

• Contractual obligations
• Employed staff have a clause in the contract

• Disciplinary action if confidentiality breached

Confidentiality: dealing with requests for disclosure
• Inform patient

• Anonymise data

• Seek consent for disclosure where identifiable data requested

• Minimise disclosures

• Keep up to date with legal requirements

Confidentiality: required breaches of confidentiality
• Implied consent if sharing with other health carers or in emergency (incl. audit)

• Legal requirements
• Infectious disease Act/PH Control of Disease Act, Road traffic Act, Terrorism Prevention Act, Children Act

• Patients lacking competence under the Mental Capacity Act

• 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
4. Professional Regulation and
the UMDPC
UMDPC
• The UMDPC is an independent regulator that 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 medical practice

• Promoting high standards of medical education and training

• Dealing with questions about fitness to practice

• The Medical Act gives authority to the UMDPC

Good Medical Practice
• 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 (incl. being registered with a GP)

Domains of a Doctor’s Duties
• Knowledge, skills and performance – doctor’s attributes

• Safety and quality – General standards and protocols

• Communication, partnership and teamwork – interactions with people

• Maintaining trust – professional integrity

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

5. Medical Errors, Negligence and
Malpractice – Tort Law and Issues
around the Duty of Care
Issues around the Duty of Care - TORT
• Negligence/Malpractice

• Medical errors

• Abandonment of duty

• Patient complaints

• Fraud and embezzlement

Overview of Tort Law

• A Tort is civil wrong which causes an injury, for which a victim may seek damages, typically in the
form of money damages, against the alleged wrongdoer.
• Tort law typically governs three legal theories of a lawsuit: negligence, strict liability, and intentional torts.

• Medical malpractice, or negligence law, is just one subset of the legal behemoth that is tort law.

• Medical negligence is a mistake that resulted in causing a patient unintended harm.

• The 4 D's of medical negligence are 1) Duty, 2) Deviation, 3) Direct Cause, and 4) Damages. The plaintiff must prove each of these
elements by a preponderance of the evidence.

• Medical malpractice is when a medical professional knowingly didn't follow through with the
proper standard of care.
Tort law - Vicarious Liability

• In tort law, personal liability is generally linked to a breach of one's own duty.

• Vicarious liability is neither based on any conduct of the defendant nor on a breach of his or her
own duty:
• it arises when the law holds the defendant (usually a master) responsible for the acts of another (usually his or her
servant) even though the master acted without blame or fault.

Strict Liability for the Wrongdoing of Another

Reading: Stickley, Australian Torts Law, Chapter 20
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. Good Samaritan Law – necessary to prevent death
Family presence during resuscitation

• FPDR is “the presence of family in the patient care area, in a location that affords visual or
physical contact with the patient during resuscitation events”.

• Several major international guidelines, including those of the American Heart Association,
recommend inviting family members to witness CPR.

• The family presence during resuscitation and other invasive procedures reduces family anxiety
and fear.

• The most frequently reported concerns are interference and PTSD.

Pérez Blanco A. How Do Healthcare Providers Feel About

Family Presence During Cardiopulmonary Resuscitation?. J Clin
Ethics. 2017;28(2):102-116.
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

• Statutes
• Nuremberg Code

• Declaration of Helsinki
Research using Embryos
• Reproductive cloning illegal

• Therapeutic cloning legal within limits

• Hybrid embryos can be used for research

Termination of pregnancy
• Women’s right of autonomy vs fetus’ right to live

• Fetus
• Value of human life

• Interests of fetus

• Viability argument

• personhood

• Pregnant woman
• Right to bodily self-determination affected by fetus?

• Do circumstances of pregnancy change right to self-determination?

7. Issues at the End of Life
End of Life: General Principles
• Ethical conflicts
• Beneficence vs nonmaleficence

• Nonmaleficence vs autonomy

• Act vs omission

• Doctrine of double effect: morally permissible to perform act with the intention to bring about a good result even if
the foreseeable side-effect may cause serious harm. Legitimate act has undesirable consequences

• Voluntary vs nonvoluntary vs involuntary

End of Life: DNR
• When to consider
• CPR unlikely to be successful

• Not in accord with recorded wishes of patient or advance decision (written, signed, witnessed and explicit)

• +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)

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
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 impermissible

• Issues
• Beneficence vs nonmaleficence

• Nonmaleficence vs respect for autonomy

• Compatibility with duty of care

• Capacity, consent

• Principle of double effect

End of Life: suicide
• Suicide Act 1961
• Suicide decriminalised

• But does not extend to assisted suicide:

• Up to 14 years in prison

• However, prosecution only if in Public interest

• Issues
• Disabled less free to take their own life?

• Forces people with degenerative diseases to commit suicide earlier

• Management
• Can not lawfully give information about assisted suicide
Administrative Tasks After Death
• Doctor: Verify death by registered medical practitioner at bedside

• Doctor: issue certificate of cause of death

• Registration of death

• Issuing death certificate

• Referrals to coroner