Everyday Medical Ethics and Law

318 Pages·2013·3.5 MB·English

by  BMA Medical Ethics Department

Everyday Medical Ethics and Law
Information about major developments since the publication of this book may
be obtained from the BMA ’ s website or by contacting:
M edical Ethics Department
B ritish Medical Association
BMA House
Tavistock Square
London WC1H 9JP
Tel: [phone]
Email: [email protected]
Website: bma.org.uk/ethics
Everyday Medical

Ethics and Law

British Medical Association Ethics Department
Project Manager Veronica English
Written by Ann Sommerville
Editorial board Sophie Brannan
Eleanor Chrispin
Martin Davies
Rebecca Mussell
Julian Sheather
Director of Professional Activities Vivienne Nathanson
A John Wiley & Sons, Ltd., Publication
This edition fi rst published 2013, © 2013 by BMA Medical Ethics Department.
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Library of Congress Cataloging-in-Publication Data
Sommerville, Ann.
Everyday medical ethics and law / British Medical Association Ethics Department ; [project manager], Veronica
English ; [written by] Ann Sommerville ; [editors], Sophie Brannan . . . [e t al .] ; [director of professional activities],
Vivienne Nathanson.
p. ; cm.
Includes bibliographical references and index.
ISBN 978-1-118-38489-3 (pbk.)
I. English, Veronica. II. Brannan, Sophie. III. British Medical Association. Medical Ethics Department. IV. Title.
[DNLM: 1. Ethics, Medical–Great Britain. 2. Jurisprudence–Great Britain. 3. Patient Rights–legislation &
jurisprudence–Great Britain. 4. Physician-Patient Relations–ethics–Great Britain. 5. Professional Practice–ethics–
Great Britain. W 50]
174.2–dc23
2012047947
A catalogue record for this book is available from the British Library.
Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available
in electronic books.
Cover design by Rob Sawkins for Opta Design. Image #617669 from I stockphoto.com © 2005 Clayton Hansen
Set in 9.5/12 pt Garamond MT by Toppan Best-set Premedia Limited
1 2013
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 fi nal 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
vi CONTENTS
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
Confl icts 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
CONTENTS vii
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 infl uence 82
Cultural infl uences 85
The infl uence of incentives 85
Documenting the decision 86
Documenting consent 86
Documenting refusal 86
Documenting views about future medical treatment 87
Advance requests 88
viii CONTENTS
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
Certifi cate 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 benefi t 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
CONTENTS ix
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 Offi cial 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
x CONTENTS
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
Confi dentiality 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 confi dentiality 165
Setting the scene 165
What is confi dential? 167
Identifi able 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 confi dentiality 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