Everyday Medical Ethics and Law

BMA Medical Ethics DepartmentThis 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 xviiList of case examples xixPreface xxiii1 A practical approach to ethics 1Does medical ethics help and how? 2Key terms and concepts 2Professionalism 4Duties and rights 5The public interest 5Medical law and healthcare law 6Statute and common law 6Human rights law 7Quasi (or soft) law 8Ethical decision making 9Approaching an ethical problem 10The BMA’s approach 11Recognise that a dilemma exists 11Dissect the problem 13Do you need more information? 13Identify and apply relevant legal or professional guidance 13Analyse the facts 14Can you justify the decision with sound arguments? 15A final word on problem solving 15References 162 The doctor–patient relationship 17Setting the scene 17Responsibilities for patients and the duty of care 18The duty of care 19Independent assessors 21Professionals with dual obligations 22Continuity of care and patients’ rights to change 22Delegation of tasks and referral of patients 23Patient autonomy and choice 24Managing patients’ expectations 24Do patients have choices about who provides care? 24Rights of homeless people, detainees and asylum seekers 25Can patients insist on having the drugs they prefer? 25Do patients have the right to a second opinion? 26Patients’ rights to combine NHS and private care 26Patients’ rights to reject medical advice 27What are the rights of patients who are violent or misuse services? 28Patients’ rights to complain 28Truth-telling and good communication 29Giving bad news 29Telling patients about unfunded treatments 31Reporting mistakes and telling patients about them 32Keeping patients’ trust 34Managing confl icts of interest 34Conflicts when commissioning services 35Payment for referrals or recommendations 36Accepting gifts and bequests 36Covert medication 37Recording consultations 38Covert recording and surveillance 38Chaperones and accompanying persons 39Intimate examinations 40Recognising boundaries 41Managing personal relationships with patients 41When a friendship becomes inappropriate 42Intimate relationships 43Use of social media 44Health professionals acting as witnesses to legal documents 46Advance decisions about medical treatment 46Acting as a legal advocate for a patient 46Firearms certifi cates 47Health professionals’ personal beliefs 47Conscientious objection 49Breakdown of the doctor–patient relationship 50Limits or boundaries on advertising services 51Treating oneself, friends and family 52Self-diagnosis and treatment 52Treating family or close friends 53Staff who are also patients 53Providing a safe service 54Whistle-blowing 54Emergency situations 55Ensuring competence in daily practice 56Locums, out-of-hours services and arranging medical cover 57Vetting and barring 57Students, shadowing and work experience 59Writing references for colleagues 59A last word on the doctor–patient relationship 60References 603 Consent, choice and refusal: adults with capacity 65Setting the scene 65The importance of information 67Offering information for contemporaneous and advance decisions 67Translation and signing services 69What type of information? 70Information to make an advance decision 71Information about participating in a research project 72How much information? 72The duty to warn about risks 73Can information be withheld? 76Can patients refuse information? 77Refusal of treatment 78Seeking consent 80Who should seek the patient’s consent? 80What type of consent or refusal is valid? 81Implied decisions and explicit or express decisions 81Written and verbal decisions 82Voluntary and pressured decisions: Do patients mean what they say? 82Undue influence 82Cultural influences 85The influence of incentives 85Documenting the decision 86Documenting consent 86Documenting refusal 86Documenting views about future medical treatment 87Advance requests 88Advance decisions refusing treatment: The law in England and Wales 89Advance refusals in Scotland 91Advance refusals in Northern Ireland 91Implementing the decision 91Does having consent mean the procedure must proceed? 91A last word about patient consent and refusal 92References 924 Treating adults who lack capacity 96Setting the scene 96The law concerning treatment and non-treatment of adults lacking capacity to consent 98General legal principles across the UK 98England and Wales 99Scotland 99Certificate of incapacity and the general authority to treat 99Common law in Northern Ireland 100Assessing patients’ capacity 101What is mental capacity? 101How is it assessed? 102What factors indicate capacity? 102What factors indicate impaired capacity? 103Fluctuating capacity 104Who should assess capacity and when? 105Providing care and treatment for adults lacking mental capacity 106Best interests and benefit for patients 106Exceptions to best interests 107Involving people close to the patient 107Best interests and covert medication 108The role of proxy decision makers 108Power of attorney in England and Wales 108The power to make health and welfare decisions 109Disputes arising in relation to LPAs 110Court-appointed deputies (England and Wales) 110Independent mental capacity advocates (IMCAs) (England and Wales) 110The role of IMCAs in decisions to withhold or withdraw serious medical treatment 111The role of IMCAs in decisions about where patients should live 111Attorneys and guardians in Scotland 111Resolving disputes (Scotland) 113Decisions needing special safeguards 113Giving treatment with serious implications 113Withholding treatment with serious implications 115Taking legal advice and involving the courts 116The Official Solicitor (England and Wales) 116Withholding or withdrawing life-sustaining treatment 117Clinically assisted nutrition and hydration 118Safeguards for participation in research 120Dementia research 120Emergency research 121Control, restraint and deprivation of liberty 121Deprivation of Liberty Safeguards 124England and Wales 124Scotland 124Northern Ireland 125The difference between protection, restraint and deprivation of liberty 125A last word on caring for adults who lack capacity 126References 1275 Treating children and young people 131Setting the scene 131Consent to examination and treatment 132Competence to consent to or refuse treatment or examination 133Consent or refusal on behalf of babies and young children 133Parental responsibility 134Best interests 134Disagreements between people with parental responsibility 137Refusal by people with parental responsibility 137Involving older children in decisions 138Unaccompanied minors 139Confi dentiality 139Assessing competence in children and young people 140Competence to consent 141Competence to refuse 143Consent and refusal by competent young people 143Consent 143Refusal 144Research involving children and young people 147Parental consent or refusal for children and babies 147Assent from children who lack competence 148Consent or refusal by competent children and young people 148Emergency research involving children and babies 149Availability of research and trial data 149Consent and refusal in exceptional circumstances 149Male infant circumcision 149Serious difference of opinion between parents and health professionals 150Paternity testing 151Consent to testing 151Refusal of testing 151Testing and best interests 152Advance decision making 152Using restraint to provide treatment 152Refusal of medical or psychiatric examination under the Children Act 1989 153Child protection 153Confidentiality and disclosure of information about abuse or neglect 157Advisory services and involving the courts 159A last word on treating children and young people 160References 1606 Patient confidentiality 165Setting the scene 165What is confidential? 167Identifiable data 168Anonymised data 168Pseudonymised data 169Keeping information secure 170Informing patients about possible uses of their health information 171The law on confidentiality and disclosure 172The common law protecting confi dentiality 172Data Protection Act 1998 172Health and Social Care Act 2012 (England) 173The NHS Future Forum and the review of information governance 174Statutory disclosures 174Statutory restrictions on disclosure 175Human Rights Act 1998 (UK-wide) 176NHS Act 2006 (England and Wales) 177Comparable arrangements in Northern Ireland 178Comparable arrangements in Scotland 178Computer Misuse Act 1990 (UK-wide) 178Use of patient information for purposes directly related to care 178Consent by patients with capacity 178Sharing information with other health professionals 180Sharing information with relatives, parents and patients’ friends 181Sharing information for social care 181Leaving phone messages for patients and texting them 182When adults lack capacity 182Sharing information to invoke a Lasting Power of Attorney (LPA) 182Sharing information with other proxy decision makers 183Information sharing when children lack competence 183Uses of patient information for purposes indirectly related to care 184Secondary uses of data 184Clinical audit 185Financial audit and other healthcare management purposes 185Commissioning agencies’ use of patient information 186Teaching 187Medical research 187Public health 188Disclosures unrelated to health care 189Employment, insurance, immigration and social benefits 189Reports to insurers and employers 189Disclosure to government departments 190Disclosure to the driver and vehicle licensing agency (DVLA) 190Releasing health information to the media 190Disclosures to identify and address poor health care 191Patient complaints 191Involving elected representatives 192Whistle-blowing about substandard care 192Disclosure to agencies monitoring standards 192Disclosure requested by regulatory bodies 193Disclosures related to crime prevention, detection or prosecution 193Disclosure to the police and investigatory agencies 193Gunshot and knife wounds 195Domestic violence 195Abuse of vulnerable adults and minors who lack capacity 196Disclosure to courts and tribunals 196Disclosure to solicitors 197Disclosures in the public interest 198The confidentiality owed to deceased patients 201Factors to consider before disclosure 201The needs of the bereaved 202The interests of justice 202Investigations by a coroner or procurator fiscal 203Access to records in relation to claims 203Freedom of Information Act 2000 203A last word on confidentiality 204References 2047 Management of health records 211Setting the scene 211Defining medical records 212Manual and electronic patient records 212Images 213Visual and sound recordings 213Patients who lack capacity (including children) 214Recording telephone calls 214Making a health record 215What to include in the record 215Standardising hospital records 215Recording discussion with patients and noting their wishes 216Aggressive or threatening behaviour 216What to exclude from the record 216Records made and shared by several professionals 217National summary records 218Changing medical records or adding to them 218Disputes about accuracy 218Patient requests to omit or remove some information 218Altering or tampering 219Adding information later to the record 219Adding or removing information when the record is shared 220Transsexual patients 220Adopted patients 220Tagging records 221Primary and secondary uses of records 221Primary uses of records 221Secondary uses of records 221Secondary uses of children’s records 222Using material in publications or other media 222Giving access to patient records and reports 223Ownership of records 223NHS records 223Private records 224Access by patients 224Information which should not be disclosed 225Access by solicitors 226Access by people other than the subject 226Access to the records of children and young people 227Access to the records of incapacitated adults 228Access to the records of deceased persons 228Access to reports for insurance or employment 228Security of data 229The obligation to protect identifi able data 229Records management policies 230Transmission of information 231By fax 231NHSmail 231Transfer of information within the NHS 231Transfer of GP records 232Sending information abroad 232Retention and destruction of records 233Accessing records after the duty of care has ended 233Recommended retention times 233Disposal of manual records 235Storing and disposing of recordings 235A last word about records management 235References 2368 Prescribing and administering medication 241Setting the scene 241Talking to patients and obtaining consent 242Giving information about a prescription 242Concordance/medicines adherence 243Taking account of patients’ values and religion 244Prescribing placebos 244Pressure from patients 245Patients’ requests for complementary and alternative medicines (CAMs) 246Requests for repeat prescriptions 247‘Lifestyle drugs’ 249Choosing the right product for the patient 250Responsibility for prescribing 250Clinical freedom 250Prescribing errors 251Pressure from employers 252Complying with official guidance 253NICE (England and Wales) 253Comparable arrangements for technology evaluation in Scotland 254Arrangements for technology appraisals in Wales 254Arrangements for technology appraisals in Northern Ireland 255Prescribing and monitoring resources 255‘Topping up’ NHS treatment 256Generic prescribing 256Drug switching 257Off-label prescribing and unlicensed drugs 257Prescribing drugs off-label to save money 258Reporting adverse drug reactions and adverse incidents 259Shared prescribing and continuity of care 259Prescribing shared between different doctors 260Prescribing shared between primary and secondary care 260Prescribing shared between the NHS and the private sector 261Patient group directions (PGDs) 261Prescribing shared between doctors and other health professionals 262Supplementary prescribing and independent non-medical prescribers 262Prescribing shared with practitioners of complementary therapies 263Continuity of care 263Exchange of information between doctors in referrals and discharge summaries 263Prescribing for people at a distance – internet, email or telephone 264Prescribing for patients abroad 266Prescription-only medicines on the internet 266Prescribing for different patient groups 267Controlled drugs and prescribing for addicts 267Prescribing strong opioids for pain in adult palliative care 269Use of opioids and the principle of double effect 269Prescribing for older people 270Involving older people in concordance 270Over-medication of older people 271Prescribing for children 272Prescribing for oneself, friends or family 272Conflicts of interest 273Financial interests in health-related products or services 273Ownership of pharmacies 274Dispensing doctors 274Gifts and hospitality from pharmaceutical companies 274Participation in market research 276Administering medication 276Following guidance and protocols 277When medication needs special safeguards 277Covert medication 278Patients with capacity 278Patients who lack mental capacity 279A last word about prescribing and administering medicine 279References 280Index 287

“Despite being written for doctors, this is a useful reference for all healthcare professionals and students on the everyday legal issues they may face in their work.”  (Nursing Management, 21 August 2013)