Everyday Medical Ethics and Law

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.

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