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Everyday Medical Ethics and Law


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Table of Contents

Medical 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

About the Author

BMA Medical Ethics Department This book is written by medical ethics professionals in consultation with leading medical and legal experts invited by the BMA Medical Ethics Department and in agreement with the General Medical Council guidelines.


Despite being written for doctors, this is a usefulreference for all healthcare professionals and students on theeveryday legal issues they may face in their work. (Nursing Management, 21 August 2013)

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