BAPEN 2nd Northern Ireland Regional Study Day 14th April 2005

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BAPEN 2nd Northern Ireland Regional Study
Day14th April 2005

• Medical Legal IssuesRosemary Wilson

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Legal Issues in Practice

• Accountability
• Consent
• 3. Negligence
• 4. Documentation

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Accountability

• Being personally answerable to the law of the
  land for all your actions or omissions (including
  what you write or dont write, what advice you
  give or dont give) while fulfilling your
  contract as a healthcare professional

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Consent

• Every human being of adult years and sound mind
  has a right to determine what shall be done with
  his own body and a surgeon (dietician / nurse
  etc) who performs an operation (procedure)without
  his patients consent, commits an assault, for
  which he is liable in damages
• Cardozo J (1914)

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What Constitutes Legal Consent?

• 3 Interdependent elements -
• 1. Voluntariness
• 2. Capacity
• 3. Knowledge

All 3 necessary!
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• Types of Consent
• Express (Written / Oral) or Implied
• All equally legally valid but Trusts insist on
  WRITTEN consent for certain interventions !
• N.B New DHSS Guidelines onGood Practice in
  Consent April 2004
• Emphasises the right of the patient to make their
  own decision ( where possible) based on full
  information!

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• Professional should ensure that the person
  receives the necessary information to make a
  judgement to accept treatment or not.
• Advisable to inform person of -
• The benefits and risks in the proposed care /
  treatment.
• What the intervention will involve
• Any alternatives.
• Implications and possible risks incurred by doing
  nothing.

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• Chester v Afshar (2004) If patient had been
  fully informed of serious risk, surgery would
  not have been taken place!
• Key points from case -
• Duty of professional to warn of risks of serious
  adverse incidents of procedures even if very low
  incidence
• Need to document adequately discussions around
  consent and risks etc

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Age of Consent

• At age 18 considered an adult in N.Ireland
• By virtue of Sect 4 Age of Majority Act (NI)
  (1969) - any person, of sound mind, who has
  attained 16 years of age is entitled to consent
  to their own medical treatment including an
  anaesthetic
• But Act also states parents or guardians can
  also give consent up to 18 as well as the 16
  17 years old!
• Same 3 essential elements required as for an
  adult
• However refusal by a 16 or 17 year old in certain
  circumstances can be overridden by person with
  PR or the court

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Adults without capacity

• Legally no one is able to give or refuse consent
  on behalf of another adult i.e. over 18 (not even
  the courts) This applies to adults with or
  without capacity!
• Relatives have no legal rights but it would be
  good practice to involve them in decision making
  on behalf of an incapacitated adult. HOWEVER the
  health professional remains accountable for
  ultimate decision! (DOCUMENT)
• Any doubt or arguments about a persons capacity
  or best interests can be referred to the Courts
• See Mental Incapacity Bill (2005) Only applies
  to England Wales but watch this space!!!

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Testing Capacity?

• To demonstrate Capacity person must -
• Comprehend and retain information
• Believe it
• Weigh it in the balance and arrive at a choice
• Communicate his choice
• Per Thorpe J - Re C ( Adult)( Refusal of Medical
  Treatment) 1994

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• All people with learning disability have Legal
  Right to make decisions /choices to the level of
  their competence !
• People have capacity if they have sufficient
  intelligence understanding to make that
  particular decision / choice. Re C (1994)
• Where an adults lack/ absence of capacity is
  permanent, it is lawful for professionals to
  carry out any procedure which is in the best
  interests of the patient F- v West Berkshire
  HA (1989)

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• Best interests are not confined to best medical
  interests ( e.g. persons own values and beliefs)
  
• Courts have said that actions taken to preserve
  life, health or well-being of an incapacitated
  individual will be in their best interests
• Assessments and discussions re best interests
  should be documented in patients notes
• A Professional carer has a duty to prolong life
  but not to inappropriately prolong dying
• CREST Guidelines for the Management of Enteral
  Tube Feeding in adults April 2004 Page 8

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Guidelines for Practitioners in face of Refusal
per Lord Donaldson

• Is patient capable of refusing?
• What are the implications - pain / suffering /
  death?
• Is patient aware of implications?
• Scope of refusal - all or some procedures?
• Undue influence?

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• Adults with capacity can refuse even life saving
  treatment for a good reason, a bad reason or no
  reason at all Dame Butler Schloss in Miss C (
  An Adult Refusal of Treatment 2002)
• Adults with capacity can make advanced
  directives / living wills re refusal of future
  treatments ( e.g non-insertion of PEG Tube) and
  these have legal authority and should be honoured
  by professionals. (See Mental Incapacity Bill
  2005)

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Negligence

• To be successful in an action of Negligence the
  Plaintiff has to show-
• 1. A Duty of Care is owed by Defendant to
  Plaintiff ( Claimant)
• 2.There has been a Breach of the Standard of Care
  owed to the Plaintiff
• 3. The Breach has caused reasonably foreseeable
  harm, loss or damage to the Plaintiff

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1. Duty of Care

• Exists where two parties involved in close
  proximate relationship
• Donoghue - v - Stevenson (1932)
• Lord Atkin - You must take reasonable care to
  avoid acts or omissions which you can reasonably
  foresee would be likely injure your neighbour
  e,g Duty to assess the patients nutritional
  status and requirements

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• Your neighbour - Persons who are so closely
  directly affected by my acts, that I ought
  reasonably to have them in contemplation as being
  so affected, when I am directing my mind to the
  acts or omissions in question
• Courts regard Doctors,Dieticians, Nurses,
  Physiotherapists etc as owing a Duty of Care to
  their patients.

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2. Breach of the standard of Duty

• Bolam - v - Friern Barnett H.M.C. (1957)
• The Test is the standard of the ordinary skilled
  man, exercising and professing to have that
  skill. A man ( dietician / doctor / nurse) need
  not possess the highest expert skill at the risk
  of being found negligent. It is well established
  law, that it is sufficient if he exercises the
  ordinary skill of an ordinary man exercising that
  particular art

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• Court will have regard to body of opinion of
  those practitioners of similar standing as to
  whether actions complained of were acceptable
  practice.
• ( EXPERT WITNESSES)
• Healthcare Professional should ask themselves-
• Can I justify tomorrow, my action today, to my
  professional colleagues and would they have acted
  in the same manner?
• Standards rise as knowledge develops
• Courts apply knowledge of that time
• Wilsher - v - Essex A.H.A. (1986)
• C.O.A. - Novice Expert - same standard expected!

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3. Breach has caused foreseeable harm.

• Remoteness of Damage
• Causation - The But for Test
• Barnett - v - Chelsea A.H.A. (1969)

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Death of a patient following PEG Insertion

• 40 Year old man with chronic neurological disease
• Developed dysphagia
• PEG inserted by very competent surgeon but had
  not inserted many PEGs
• Part of tubing not attached not noticed by
  surgeon and nurses
• Feeds given.PEG had come out of stomachfeeds
  given into peritoneal cavity
• Patient died soon after from Bronchopneumonia and
  Peritonitis
• Case settled out of court

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Documentation

• Legally / Professionally accountable for
  everything you write / dont write
• Good documentation is integral to professional
  care management
• Any document required by the court or complaint
  investigatory team becomes a discoverable
  document e.g. Fluid Balance Charts, Swallowing
  Assessment records
• An appropriate standard of documentation is a
  requirement under clinical governance
• Duty of Care to make accurate observations,
  apply knowledge and record appropriately

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Records should demonstrate-

• Appropriate individualised assessment of
  patients nutritional and hydration status and
  needs, including ability to swallow
• Individualised management specified including
  insertion of a PEG Tube where appropriate
• Follow CREST Guidelines re details of PEG Tube,
  when inserted, by whom, length of tubing visible,
  consent / refusal etc

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• 4. Recording changes, deterioration, progress,
  improvement and action taken
• 5. Record discussions re patients future
  nutritional needs / wishes etc
• 6. Proper discharge planning / liaison with
  community colleagues careful recording

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Good Practice in Record Keeping

• Write legibly
• Black Ink preferably
• Record contemporaneously
• Any alterations, line through and sign date
• Abbreviations and jargon to a minimum
• No correcting fluid
• All entries date, time and sign
• Proper sequencing
• Be objective explain opinions

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Prendergast V Sam Dee Ltd (1989)

• G.P. prescribed 21 Amoxil 250mg Tablets
• Pharmacist dispensed Daonil Patient suffered
  brain damage
• Court said Doctors writing was very poor
• Pharmacist however should have been alerted to
  dose of 250 mgs
• Awarded 119,302 Dr 25 Pharmacist 75
• Rule The dangers of poor handwriting!

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Wet Lips by Melinda Smith

• The first sip..I touched the glass cold against
  my lips, pressing down hard on my tongue,
• Holding head back, I let it fill up the inside of
  my mouth,
• and swallowed it whole
• That bitter taste forces me to shut my eyes

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• I felt her fingertips gently around the glass
  underneath my wet chin
• As she wiped away the dribble stain running down
  my neck,
• Ahhhhhhhhhhhh!
• So thats what its like
• drinking beer out of a glass
• Better, I winked at her, than through a bloody
  straw!