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Medicolegal dilemmas from the advice line

Junior doctors regularly contact MPS about a range of medicolegal dilemmas – here medicolegal adviser Dr James Lucas shares some of them, together with the advice given

A 35-year-old man was admitted to the emergency department by ambulance, having been found collapsed on a footpath in the local town centre. I have examined him and found a facial laceration which I intend to suture. However, the patient is quite heavily intoxicated. Is it medicolegally appropriate to proceed with treatment in circumstances where the patient is intoxicated?

Advice

The Medical Council makes clear that there is a legal and ethical obligation to respect patient autonomy, by ensuring that informed consent has been given by a patient before any medical treatment is carried out.

The starting point is always to presume that a patient will have capacity to make decisions about their own healthcare.

In circumstances where a patient lacks capacity to make a decision, it is a matter for the doctor to decide what action to take

If a patient is unable to understand, retain, use or weigh up the information they have been given to make the relevant decision, or if they are unable to communicate their decision, they may be regarded as lacking the capacity to give consent to the proposed investigation or treatment.

In your opinion, the patient’s degree of intoxication is such that he cannot understand an appropriate explanation of the procedure. Furthermore, it is your view that the patient cannot retain the relevant information, or use it to make a decision about treatment. The patient is therefore considered to lack capacity to consent to suturing of his facial wound.

In circumstances where a patient lacks capacity to make a decision, it is a matter for the doctor to decide what action to take. You should consider a number of factors, including which treatment option would provide the best clinical benefit for the patient; whether the patient’s capacity is likely to increase; the views of other people close to the patient (such as family members), who may be familiar with the patient’s preferences, beliefs and values; and the views of other healthcare professionals involved in the patient’s care.

Outcome

Staff at the department had already attempted to contact the patient’s family, without success. Following a discussion with the patient’s consultant and in view of the very minor degree of blood loss from the wound, the doctor decided to postpone the decision to suture the wound on the assumption that the patient’s capacity would increase as the intoxication diminished. The decision to postpone suturing and the plan to reassess the patient in the emergency department at regular intervals were carefully documented in the clinical records.

I was asked by nursing staff to prescribe additional analgesia for a post operative patient complaining of pain. I undertook a brief assessment of the patient and prescribed a nonsteroidal anti-inflammatory drug (NSAID). Due to an emergency on another ward, I was unable to document my clinical management in the patient’s records. At the end of my shift, I was told that the patient suffered from an acute exacerbation of asthma following administration of the NSAID. I am concerned because I failed to elicit the history of asthma and furthermore, I didn’t have an opportunity to document my assessment. What should I do?

Advice

Whilst records should be made at the same time as the events that are being recorded, it is clear in this instance that there were extenuating circumstances due to an emergency on another ward. You should make a retrospective entry in the records, making clear the time and date on which the additional information has been added, and an explanation as to why a contemporaneous note had not been made.

The Medical Council’s guidance on adverse events indicates that patients are entitled to honest, open and prompt communication with them about adverse events that may have caused them harm.
 
The guidance requires doctors to acknowledge that the event happened; explain how it happened; apologise, if appropriate; and give an assurance as to how lessons have been learned to minimise the chance of the event happening again.

The Medical Council’s guidance on adverse events indicates that patients are entitled to honest, open and prompt communication with them about adverse events that may have caused them harm

You should reflect on the incident with your supervising consultant and consider whether it is appropriate to undertake some continuing professional development (CPD) activity in relation to prescribing of NSAIDs.

You should check whether the incident is required to be reported as a patient safety incident in accordance with the hospital’s clinical governance policy.

Outcome

The doctor and his consultant had a joint meeting with the patient. The doctor explained what had happened, offered an apology for the distress that had resulted from the prescription of the NSAID, and the lessons that had been learned from the incident. The patient, who had made a full recovery from the episode, was very appreciative of the doctor’s open and honest approach to the adverse incident.

I assessed an 18-year-old woman in hospital for a fractured metacarpal and several fractured ribs. I later received a telephone call from the Gardaí, requesting a statement in relation to the clinical findings. The officer alleged that the patient was involved in an altercation with another woman at a nightclub, and explained that the patient has been charged with an assault. I was encouraged to provide information to assist with the prosecution of the patient. What should I do?

Advice

There are certain limited circumstances in which disclosure of patient information may be required by law, for example in accordance with a court order.

In the absence of such a requirement, you are advised not to disclose information about the patient without the patient’s express consent, unless it could be justified in the public interest. Therefore, you should ask the officer for a copy of the patient’s signed consent to disclose the information, in the first instance.

The Medical Council advises that disclosure of patient information without consent may be justifiable in exceptional circumstances where it is necessary in the public interest.

There is also a public interest in having a confidential medical service and, before making a disclosure in circumstances where a patient has refused consent, the doctor should consider the possible harm that may result to the patient, as well as the benefits that are likely to arise.

In any case where a disclosure has been made in the interests of other people, you are advised to inform the patient of the disclosure unless this would cause them serious harm.

You would have to be able to justify any disclosure of information without consent and should discuss the matter with senior colleagues, and carefully document any decision made.

The Medical Council advises that disclosure of patient information without consent may be justifiable in exceptional circumstances where it is necessary in the public interest

Outcome

The doctor contacted the officer and asked for a form of authority signed by the patient. The doctor did not hear anything further from the Gardaí, but he learned that the authorities subsequently made an application to the courts to obtain the clinical records and this was dealt with via the hospital’s legal department.

The case reports detailed are based on MPS experience from around the world and are anonymised to preserve the confidentiality of those involved.

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