Description
Book SynopsisHelps you develop your skills and confidence in approaching everyday medical ethics and legal issues - from consent to capacity and confidentiality. This title provides a practical approach to common ethical and legal issues.
Trade Review“Despite being written for doctors, this is a useful reference for all healthcare professionals and students on the everyday legal issues they may face in their work.” (Nursing Management, 21 August 2013)
Table of ContentsMedical Ethics Committee xvii
List of case examples xix
Preface xxiii
1 A practical approach to ethics 1
Does medical ethics help and how? 2
Key terms and concepts 2
Professionalism 4
Duties and rights 5
The public interest 5
Medical law and healthcare law 6
Statute and common law 6
Human rights law 7
Quasi (or soft) law 8
Ethical decision making 9
Approaching an ethical problem 10
The BMA’s approach 11
Recognise that a dilemma exists 11
Dissect the problem 13
Do you need more information? 13
Identify and apply relevant legal or professional guidance 13
Analyse the facts 14
Can you justify the decision with sound arguments? 15
A final word on problem solving 15
References 16
2 The doctor–patient relationship 17
Setting the scene 17
Responsibilities for patients and the duty of care 18
The duty of care 19
Independent assessors 21
Professionals with dual obligations 22
Continuity of care and patients’ rights to change 22
Delegation of tasks and referral of patients 23
Patient autonomy and choice 24
Managing patients’ expectations 24
Do patients have choices about who provides care? 24
Rights of homeless people, detainees and asylum seekers 25
Can patients insist on having the drugs they prefer? 25
Do patients have the right to a second opinion? 26
Patients’ rights to combine NHS and private care 26
Patients’ rights to reject medical advice 27
What are the rights of patients who are violent or misuse services? 28
Patients’ rights to complain 28
Truth-telling and good communication 29
Giving bad news 29
Telling patients about unfunded treatments 31
Reporting mistakes and telling patients about them 32
Keeping patients’ trust 34
Managing confl icts of interest 34
Conflicts when commissioning services 35
Payment for referrals or recommendations 36
Accepting gifts and bequests 36
Covert medication 37
Recording consultations 38
Covert recording and surveillance 38
Chaperones and accompanying persons 39
Intimate examinations 40
Recognising boundaries 41
Managing personal relationships with patients 41
When a friendship becomes inappropriate 42
Intimate relationships 43
Use of social media 44
Health professionals acting as witnesses to legal documents 46
Advance decisions about medical treatment 46
Acting as a legal advocate for a patient 46
Firearms certifi cates 47
Health professionals’ personal beliefs 47
Conscientious objection 49
Breakdown of the doctor–patient relationship 50
Limits or boundaries on advertising services 51
Treating oneself, friends and family 52
Self-diagnosis and treatment 52
Treating family or close friends 53
Staff who are also patients 53
Providing a safe service 54
Whistle-blowing 54
Emergency situations 55
Ensuring competence in daily practice 56
Locums, out-of-hours services and arranging medical cover 57
Vetting and barring 57
Students, shadowing and work experience 59
Writing references for colleagues 59
A last word on the doctor–patient relationship 60
References 60
3 Consent, choice and refusal: adults with capacity 65
Setting the scene 65
The importance of information 67
Offering information for contemporaneous and advance decisions 67
Translation and signing services 69
What type of information? 70
Information to make an advance decision 71
Information about participating in a research project 72
How much information? 72
The duty to warn about risks 73
Can information be withheld? 76
Can patients refuse information? 77
Refusal of treatment 78
Seeking consent 80
Who should seek the patient’s consent? 80
What type of consent or refusal is valid? 81
Implied decisions and explicit or express decisions 81
Written and verbal decisions 82
Voluntary and pressured decisions: Do patients mean what they say? 82
Undue influence 82
Cultural influences 85
The influence of incentives 85
Documenting the decision 86
Documenting consent 86
Documenting refusal 86
Documenting views about future medical treatment 87
Advance requests 88
Advance decisions refusing treatment: The law in England and Wales 89
Advance refusals in Scotland 91
Advance refusals in Northern Ireland 91
Implementing the decision 91
Does having consent mean the procedure must proceed? 91
A last word about patient consent and refusal 92
References 92
4 Treating adults who lack capacity 96
Setting the scene 96
The law concerning treatment and non-treatment of adults lacking capacity to consent 98
General legal principles across the UK 98
England and Wales 99
Scotland 99
Certificate of incapacity and the general authority to treat 99
Common law in Northern Ireland 100
Assessing patients’ capacity 101
What is mental capacity? 101
How is it assessed? 102
What factors indicate capacity? 102
What factors indicate impaired capacity? 103
Fluctuating capacity 104
Who should assess capacity and when? 105
Providing care and treatment for adults lacking mental capacity 106
Best interests and benefit for patients 106
Exceptions to best interests 107
Involving people close to the patient 107
Best interests and covert medication 108
The role of proxy decision makers 108
Power of attorney in England and Wales 108
The power to make health and welfare decisions 109
Disputes arising in relation to LPAs 110
Court-appointed deputies (England and Wales) 110
Independent mental capacity advocates (IMCAs) (England and Wales) 110
The role of IMCAs in decisions to withhold or withdraw serious medical treatment 111
The role of IMCAs in decisions about where patients should live 111
Attorneys and guardians in Scotland 111
Resolving disputes (Scotland) 113
Decisions needing special safeguards 113
Giving treatment with serious implications 113
Withholding treatment with serious implications 115
Taking legal advice and involving the courts 116
The Official Solicitor (England and Wales) 116
Withholding or withdrawing life-sustaining treatment 117
Clinically assisted nutrition and hydration 118
Safeguards for participation in research 120
Dementia research 120
Emergency research 121
Control, restraint and deprivation of liberty 121
Deprivation of Liberty Safeguards 124
England and Wales 124
Scotland 124
Northern Ireland 125
The difference between protection, restraint and deprivation of liberty 125
A last word on caring for adults who lack capacity 126
References 127
5 Treating children and young people 131
Setting the scene 131
Consent to examination and treatment 132
Competence to consent to or refuse treatment or examination 133
Consent or refusal on behalf of babies and young children 133
Parental responsibility 134
Best interests 134
Disagreements between people with parental responsibility 137
Refusal by people with parental responsibility 137
Involving older children in decisions 138
Unaccompanied minors 139
Confi dentiality 139
Assessing competence in children and young people 140
Competence to consent 141
Competence to refuse 143
Consent and refusal by competent young people 143
Consent 143
Refusal 144
Research involving children and young people 147
Parental consent or refusal for children and babies 147
Assent from children who lack competence 148
Consent or refusal by competent children and young people 148
Emergency research involving children and babies 149
Availability of research and trial data 149
Consent and refusal in exceptional circumstances 149
Male infant circumcision 149
Serious difference of opinion between parents and health professionals 150
Paternity testing 151
Consent to testing 151
Refusal of testing 151
Testing and best interests 152
Advance decision making 152
Using restraint to provide treatment 152
Refusal of medical or psychiatric examination under the Children Act 1989 153
Child protection 153
Confidentiality and disclosure of information about abuse or neglect 157
Advisory services and involving the courts 159
A last word on treating children and young people 160
References 160
6 Patient confidentiality 165
Setting the scene 165
What is confidential? 167
Identifiable data 168
Anonymised data 168
Pseudonymised data 169
Keeping information secure 170
Informing patients about possible uses of their health information 171
The law on confidentiality and disclosure 172
The common law protecting confi dentiality 172
Data Protection Act 1998 172
Health and Social Care Act 2012 (England) 173
The NHS Future Forum and the review of information governance 174
Statutory disclosures 174
Statutory restrictions on disclosure 175
Human Rights Act 1998 (UK-wide) 176
NHS Act 2006 (England and Wales) 177
Comparable arrangements in Northern Ireland 178
Comparable arrangements in Scotland 178
Computer Misuse Act 1990 (UK-wide) 178
Use of patient information for purposes directly related to care 178
Consent by patients with capacity 178
Sharing information with other health professionals 180
Sharing information with relatives, parents and patients’ friends 181
Sharing information for social care 181
Leaving phone messages for patients and texting them 182
When adults lack capacity 182
Sharing information to invoke a Lasting Power of Attorney (LPA) 182
Sharing information with other proxy decision makers 183
Information sharing when children lack competence 183
Uses of patient information for purposes indirectly related to care 184
Secondary uses of data 184
Clinical audit 185
Financial audit and other healthcare management purposes 185
Commissioning agencies’ use of patient information 186
Teaching 187
Medical research 187
Public health 188
Disclosures unrelated to health care 189
Employment, insurance, immigration and social benefits 189
Reports to insurers and employers 189
Disclosure to government departments 190
Disclosure to the driver and vehicle licensing agency (DVLA) 190
Releasing health information to the media 190
Disclosures to identify and address poor health care 191
Patient complaints 191
Involving elected representatives 192
Whistle-blowing about substandard care 192
Disclosure to agencies monitoring standards 192
Disclosure requested by regulatory bodies 193
Disclosures related to crime prevention, detection or prosecution 193
Disclosure to the police and investigatory agencies 193
Gunshot and knife wounds 195
Domestic violence 195
Abuse of vulnerable adults and minors who lack capacity 196
Disclosure to courts and tribunals 196
Disclosure to solicitors 197
Disclosures in the public interest 198
The confidentiality owed to deceased patients 201
Factors to consider before disclosure 201
The needs of the bereaved 202
The interests of justice 202
Investigations by a coroner or procurator fiscal 203
Access to records in relation to claims 203
Freedom of Information Act 2000 203
A last word on confidentiality 204
References 204
7 Management of health records 211
Setting the scene 211
Defining medical records 212
Manual and electronic patient records 212
Images 213
Visual and sound recordings 213
Patients who lack capacity (including children) 214
Recording telephone calls 214
Making a health record 215
What to include in the record 215
Standardising hospital records 215
Recording discussion with patients and noting their wishes 216
Aggressive or threatening behaviour 216
What to exclude from the record 216
Records made and shared by several professionals 217
National summary records 218
Changing medical records or adding to them 218
Disputes about accuracy 218
Patient requests to omit or remove some information 218
Altering or tampering 219
Adding information later to the record 219
Adding or removing information when the record is shared 220
Transsexual patients 220
Adopted patients 220
Tagging records 221
Primary and secondary uses of records 221
Primary uses of records 221
Secondary uses of records 221
Secondary uses of children’s records 222
Using material in publications or other media 222
Giving access to patient records and reports 223
Ownership of records 223
NHS records 223
Private records 224
Access by patients 224
Information which should not be disclosed 225
Access by solicitors 226
Access by people other than the subject 226
Access to the records of children and young people 227
Access to the records of incapacitated adults 228
Access to the records of deceased persons 228
Access to reports for insurance or employment 228
Security of data 229
The obligation to protect identifi able data 229
Records management policies 230
Transmission of information 231
By fax 231
NHSmail 231
Transfer of information within the NHS 231
Transfer of GP records 232
Sending information abroad 232
Retention and destruction of records 233
Accessing records after the duty of care has ended 233
Recommended retention times 233
Disposal of manual records 235
Storing and disposing of recordings 235
A last word about records management 235
References 236
8 Prescribing and administering medication 241
Setting the scene 241
Talking to patients and obtaining consent 242
Giving information about a prescription 242
Concordance/medicines adherence 243
Taking account of patients’ values and religion 244
Prescribing placebos 244
Pressure from patients 245
Patients’ requests for complementary and alternative medicines (CAMs) 246
Requests for repeat prescriptions 247
‘Lifestyle drugs’ 249
Choosing the right product for the patient 250
Responsibility for prescribing 250
Clinical freedom 250
Prescribing errors 251
Pressure from employers 252
Complying with official guidance 253
NICE (England and Wales) 253
Comparable arrangements for technology evaluation in Scotland 254
Arrangements for technology appraisals in Wales 254
Arrangements for technology appraisals in Northern Ireland 255
Prescribing and monitoring resources 255
‘Topping up’ NHS treatment 256
Generic prescribing 256
Drug switching 257
Off-label prescribing and unlicensed drugs 257
Prescribing drugs off-label to save money 258
Reporting adverse drug reactions and adverse incidents 259
Shared prescribing and continuity of care 259
Prescribing shared between different doctors 260
Prescribing shared between primary and secondary care 260
Prescribing shared between the NHS and the private sector 261
Patient group directions (PGDs) 261
Prescribing shared between doctors and other health professionals 262
Supplementary prescribing and independent non-medical prescribers 262
Prescribing shared with practitioners of complementary therapies 263
Continuity of care 263
Exchange of information between doctors in referrals and discharge summaries 263
Prescribing for people at a distance – internet, email or telephone 264
Prescribing for patients abroad 266
Prescription-only medicines on the internet 266
Prescribing for different patient groups 267
Controlled drugs and prescribing for addicts 267
Prescribing strong opioids for pain in adult palliative care 269
Use of opioids and the principle of double effect 269
Prescribing for older people 270
Involving older people in concordance 270
Over-medication of older people 271
Prescribing for children 272
Prescribing for oneself, friends or family 272
Conflicts of interest 273
Financial interests in health-related products or services 273
Ownership of pharmacies 274
Dispensing doctors 274
Gifts and hospitality from pharmaceutical companies 274
Participation in market research 276
Administering medication 276
Following guidance and protocols 277
When medication needs special safeguards 277
Covert medication 278
Patients with capacity 278
Patients who lack mental capacity 279
A last word about prescribing and administering medicine 279
References 280
Index 287
