16.10 ETHICS Summary GMC - duties of a doctor, Fitness to practice/revalidation Consent incl. Gillick Competence Confidentiality incl.

incl. Caldecott guardian Alder Hey enquiry Kennedy enquiry into Bristol cardiac service Negligence: Bolham, Bolitho Duties of a doctor - GMC Make the care of the patient your first concern Treat every patient politely and considerately Respect patients dignity and privacy Give patients information in a way they understand Allow patients to be fully involved in decisions about their care Keep professional knowledge and skills up to date Recognise your professional limits Be honest and trustworthy Respect and protect confidential information Make sure your personal beliefs do not prejudice patient care Act quickly to protect patients from risk if you have good reason to believe that your colleague may not be fit to practise Avoid abusing your position as a doctor Work with colleagues in the way that best serves the patient Fitness to practice - GMC GMC regulates doctors in UK Powers Prevent doctor from practising Suspend a doctor from register Place conditions on their registration Formal action if Behaved badly/inappropriately Not done their job properly Criminal conviction or caution Been found guilty by another regulatory body Fitness to practice impaired by physical/mental heath Fitness to practice conduct or performance of colleagues Duty to protect pts from risk posed by another doctors Conduct Performance Health (including alcohol and substance abuse) Chain of command to inform Medical director Chief executive Director of public health If in doubt talk to own defence union/GMC Revalidation Designed to assess doctors fitness to practice

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-1

Following recent SHIPMAN report (5th) (Dame Janet Smith) all parties have requested more time to consider proposals Postponement of revalidation launch (April 05)

Consent ethical considerations (GMC guidance good medical practice) Success requires: Effective communication Patient trust Sufficient delivery of information allowing informed decisions Respect of patient autonomy and right to decline

Consent sufficient information Details of diagnosis & prognosis Uncertainties re: diagnosis Options for Rx including option not to Rx The purpose of the proposed Ix or Rx The likely benefits & probability of success Any serious or frequently occurring risks Whether proposed Rx is experimental How the patient will be monitored post Rx The name of the responsible doctor Must all be discussed in the context of: Patients beliefs Patients culture Patient occupation Ensure voluntary decision making Consent responding to Questions Answer honestly Answer objectively Answer as full as the patient wishes Consent withholding information You should not withhold information necessary of decision making Only exception is when it would cause serious harm No-one can take decisions on behalf of a competent adult Even when asked by relatives to withhold information Even when patient asks for someone else to make decisions If information is withheld it must be documented Consent who obtains consent Should ideally be done by the doctor undertaking the Ix & Rx Delegation may take place only if person Suitably trained and qualified Has sufficient knowledge of the proposed Ix & Rx Acts in accordance with GMC guidelines Consent - Emergencies Where consent cannot be obtained Allowed to provide Rx to save life or avoid significant deterioration in health Must respect valid advance refusal

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-2

Jehovahs witness and blood transfusion legally binding, unlike most other advance statements (living wills) Explain actions after sufficient recovery

Consent establishing capacity Work on presumption that every adult has capacity to consent to or refuse Ix & Rx If patient appears irrational or not in accordance of your belief of what is in their best interest it still does not mean they lack competence Fluctuating competence Consent mental incapacitation No one can give or withhold consent to Ix & Rx on behalf of a mentally incapacitated patient If they lack the capacity to decide, provided they comply then you can Ix or Rx If they do not comply you can Ix & Rx them under the Mental Health Act 1983 Adults with incapacity act Scotland 2000 Consent advanced statements They should be taken into account when patient losses capacity but has a pre-morbid written or deeply held belief with respect to Ix & Rx Consent - Children Must take into account legal precedents Age 16 - adult with capacity to decide Under 16 may have capacity depending on ability to understand (Gillick competence) Where a competent child refuses Ix & Rx the following parties can authorise it if in their best interest Person with parental responsibility Court Under 16 - a person with parental responsibility may authorise or refuse Ix & Rx but if deemed not in their best interest then can apply to court Parental responsibility Not all parents have parental responsibility Both do if married at time of conception Married at some point after childs birth Neither loose responsibility on divorce If never married, mother only has responsibility but father can apply to courts A legal guardian can be appointed by courts Consent Gillick competence Gillick vs. West Norfolk Health Authority 1985 - OCP < 16yrs "As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed." Lord Scarman A GC child can ask to have Ix & Rx that his/her parents dont want and you feel its in his/her interest then can proceed

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-3

If parents want GC child to have an Ix & Rx but child (< 16) doesnt want to then you can proceed despite their refusal i.e. minors can consent but cant refuse If parents cannot decide between them re life/limb saving procedures, then do what you think is in best interest. No current ruling on Aesthetic Surgery and Gillick Competence.

Consent - Express Indication of consent can be written or oral Written consent should be obtained where Ix & Rx deemed complex with significant risks Part of research programme Significant possible consequences Use consent form and notes to document discussion and explanation Implied consent pt lying down for treatment does not mean they understand! Consent - research Separate consent for research Currently it is ethical for those who lack capacity to participate in therapeutic research Currently in UK deemed unlawful for those who lack capacity to participate in non-therapeutic research Minors competent to consent must have additional parental approval for research Rx Consent - teaching Pts consent required for student observation Pts consent required for photo and video recordings for teaching purposes Pts written consent required for use of human tissue for educational purposes Confidentiality GMC Pt rights Pts have right to expect information held in confidence Central to trust between doctor and pt If asked to provide info on a pt you must: Inform pt about disclosure Anonymise data where identifiable Seek pts express consent to disclose information Keep disclosure to minimum Keep up to date with statute and common law Keep up to date with data protection policy Confidentiality protecting information Ensure against improper disclosure Avoid discussion of a patient in public Avoid leaving notes around Avoid leaving details on patients where public have access Confidentiality sharing information with patients Pts have right to the information about their health care: Diagnosis Prognosis Treatment options Outcome of treatment Common serious side effects of treatment

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-4

Likely time scales of treatment Where relevant doctor needs to explain how information on a pt may be used to undertake research, audit, teach or train others

Confidentiality Disclosure pt implied consent Sharing info on health with allied medical personnel Must respect pt wish not to disclose unless it put others at serious risk Private pt who does not want GP informed Dr has right to refuse to treat. If he/she does he/she become sole carer responsible Clinical audit if data identifiable, patient must be informed and given right to object Confidentiality Disclosure - pt express consent Where identifiable data needed for: Research Epidemiology Financial Audit Administration If pt refuses can only disclose if Required by law In public interest (s60 Health and Social Care Act 2001) Confidentiality Disclosure - to judicial or statutory proceedings Requirement by law: Communicable disease pt consent not required Disclosure to courts with relation to litigation: Must disclose info if ordered to do so by judge Can object to judge if you deem inappropriate level Must not disclose info to 3rd party except in exceptional circumstances Disclosure to statutory regulatory bodies Pt notes may be needed when Ix into a professionals fitness to practice Confidentiality Disclosure - in the public interest Can do so if deemed in societys best interest: without consent consent actively withheld Pt not competent to give consent Unable to trace pt despite great effort Action must be taken quickly (outbreak of disease) Ultimately only the courts can decide what is in the public interest Confidentiality Disclosure - to protect the patient and others Can do so without consent if failure to do so results in the pt or others experiencing: Death Serious harm Neglect, physical, sexual or emotional abuse Example: Assistance. Prevention, detection or prosecution of a serious crime (i.e. Child abuse)

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-5

Confidentiality Disclosure - children / lacking capacity If the above groups ask you not to disclose to a 3rd party can do so if: Essential In their medical interests Should inform pt of your actions Confidentiality Disclosure - after a patient dies Still under obligation to keep information confidential about deceased Confidentiality Caldecott principles Recommendations of Caldecott committee report 1997 commissioned by CMO in response to IT developments in NHS. Define principles re disclosure/access to patient information Key requirements from the report on its use: Justify purpose for using it Only use when absolutely necessary Access strictly on a need to know basis Everyone should be aware of their responsibilities Understand and comply with the law Research the uses ID data must have C Guardian permission Caldecott Guardian = person responsible for maintaining confidential records (usually head of IT) AS IN ALL SITUATIONS YOU MUST PREPARED TO JUSTIFY YOUR ACTIONS Alder Hey Enquiry Started Dec 99 to look into post mortem Removal Retention Disposal of human organs/tissue Published Jan 2001 Found: Systematic organ removal between 1988 1995 Many cases no consent and no subsequent histology Many not used for education or research Preliminary PMs often left unfinished Practice based on Human Tissue Act 1961 (no consent required) Recommendations: Recently established retained organs commission All hospitals catalogue their tissue archive Respond to any general public queries Relatives should be informed of nature of examination Relatives should have options for consent to: Retention for teaching Diagnosis Research Limit the time of retention State how the material is disposed of Kennedy report Bristol enquiry Enquiry into complex cardiac surgery in children between 1984 1995 Public enquiry 1998 2001
Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc -6

Results Lack of leadership, insight and communication Reflected in part the underlying feeling within NHS Split site operations, no paediatric ITU beds no full time paeds cardiac surgeon, too few trained paediatric nurses 1/3 of children received inadequate care 30 to 35 children died in excess than that expected Recommendations Children in hospital must be cared for in children-centred environment by trained staff Safe care promotion by non-executive member of trusts Continuous revalidation of professionals within trust Organisation Standards of care Openness monitoring

Negligence Negligence only recognised since 1932: Donnaghue vs Stevenson concerned with remnants of a snail in bottle of ginger beer! Case law allowed development of a duty of care to include healthcare professionals Bolam test formulated by high court judge in 1957 acted as guide to courts as to the standard of care in medical negligence cases Bolam test Bolam Vs Friern Hospital Management a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible group of medical men skilled in their particular art Bolitho case Bolitho vs City and Hackney Hospital Young boy admitted with croup discharged then readmitted leading to cardiac arrest and severe brain damage and subsequently died (1984) The house of lords looked at proof of causation when the negligent act was one of omission of care as apposed to a direct action resulting in harm Still able to apply Bolam test to medical negligence Recommended that medical experts must be prepared to defend their evidence (Appeal 1997)

Living Wills (Advance Directives = Advance Statements) Summary from BMJ Guide 14.1 Although not binding on health professionals, advance statements deserve thorough consideration and respect. 14.2 Where valid and applicable, advance directives (refusals) must be followed. 14.3 Health professionals consulted by people wishing to formulate an advance statement or directive should take all reasonable steps to provide accurate factual information about the treatment options and their implications. 14.4 Where an unknown and incapacitated patient presents for treatment some checks should be made concerning the validity of any directive refusing lifeprolonging treatment. In all cases, it is vital to check that the statement or refusal presented is that of the patient being treated and has not been withdrawn.
Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc -7

14.5 If the situation is not identical to that described in the advance statement or refusal, treatment providers may still be guided by the general spirit of the statement if this is evident. it is advisable to contact any person nominated by the patient as well as the GP to clarify the patient's wishes. if there is doubt as to what the patient intended, the law requires the exercise of a best interests judgement. 14.6 If an incapacitated person is known to have had sustained and informed objections to all or some treatment, even though these have not been formally recorded, health professionals may not be justified in proceeding. This applies even in an emergency. If witnessed and made at a time when the patient was competent and informed, such objections may constitute an oral advance directive. Health professionals will need to consider how much evidence is available about the patient's decisions and how convincing it seems. All members of the health care team can make a useful contribution to this process. 14.7 In the absence of any indication of the patient's wishes, there is a common law duty to give appropriate treatment to incapacitated patients when the treatment is clearly in their best interests. Checklist for Writing an Advance Statement In drawing up an advance statement you must ensure, as a minimum, that the following information is included: Full name Address Name and address of general practitioner Whether advice was sought from health professionals Signature Date drafted and reviewed Witness signature A clear statement of your wishes, either general or specific The name, address and telephone number of your nominated person, if you have one

From Aina Jehovas witness

Last printed /var/www/apps/conversion/tmp/scratch_3/144844667.doc

-8