Clinical Law for Clinical Practice

Robert Wheeler

• Publisher: CRC Press
• Year: 2020
• Print ISBN: 9780367335632
• eBook ISBN: 9781000079524
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

Clinicians must practice medicine in conformity with regulatory requirements. That is the daily challenge, and those requirements have been founded on medical law.

This book describes clinical law. A series of 62 brief commentaries are described, each setting out an important clinical legal case decided in an English court. The clinical relevance of the judgement is explained, together with how it should influence the care of the patient. Clinical readers are given skeleton guidance by their regulators, but almost no specific tuition as to how to apply it. This book sets out how clinical law has been applied in numerous cases, and thus provides guidance which is directly applicable to every clinician's practice in the United Kingdom.

Although most court cases concentrate on the medical aspects of patients' care, the common currencies within clinical law touch on all clinical professions. Doctors, physiotherapists and others take consent every day; pharmacists must protect confidentiality; speech therapists consider the capacity of their patients; and nurses wrestle with discussions relating to whether their patients wish to be resuscitated

The book is directed at members of the eight regulated clinical professions, the lawyers who deal with disputes, and all potential patients.

About the Author

Robert Wheeler, RCS MS LLB(Hons) LLM is a Consultant Neonatal and Paediatric Surgeon. He is the Associate Medical Director for the Department of Clinical Law, University Hospital of Southampton, Southampton Hampshire, England and Honorary Senior Lecturer, University of Southampton.

https://www.uhs.nhs.uk/HealthProfessionals/Clinical-law-updates/Clinicallawupdates.aspx

Chapter 1

Adults Who Refuse Blood

Newcastle Upon Tyne Hospitals FT v LM [2014] EWHC 454 (COP)

In a recent High Court application from Newcastle, a 63-year-old woman (LM), who had been a Jehovah’s Witness since the 1970s, was found wandering and confused outside her home; her Hb was 37 on presentation to hospital, where a bleeding duodenal ulcer was diagnosed. Discussing her plight with the gastroenterologists, she was adamant that she did not want treatment with any blood products. They were sure that she had full capacity to make this decision, and that she was aware that she could die without blood transfusion. LM had received other medical treatment over the years, and her adherence to her faith, together with her steadfast refusal of blood in any circumstances, had been regularly and frequently documented in her notes.

The conversation with the gastroenterologists was recorded in the notes, but no formal advanced decision to refuse life-saving treatment existed. Similarly, she had not created a Lasting Power of Attorney enabling refusal of life-saving treatment.

Three days following her discussion with the gastroenterologists, LM deteriorated, requiring intubation, ventilation and sedation. Henceforth, she lacked capacity for further decision-making. Her clinicians felt that transfusion would improve but not guarantee her chances of survival. Perhaps anxious that this woman had not provided a valid advance decision to refuse a life-saving blood transfusion, the clinicians approached the Court of Protection, seeking a declaration that withholding transfusion would be lawful in her case.

The court heard from Mr R, a representative of her congregation, who had known her for 40 years, and who brought with him letters from three other members of the religious group who knew her. R described LM as a formerly active member of the congregation, who fully subscribed to the tenets of the faith (including those opposing blood transfusion) and had taught them to others. Her beliefs on this matter had been consistent. The Trust’s position was that LM had made her wishes known, even with the knowledge of impending death. When considering her now, incapacitated, the Trust did not feel that transfusion was in her best interests, since it would be an affront to her established wishes.

The court found that LM had capacity during her early admission to decide whether to accept or refuse a transfusion, and that the advance decision she took prior to losing her capacity (to refuse transfusion) was both valid and applicable to her later more serious condition, when she had lost her capacity. It was therefore lawful to withhold transfusion.

LM died on the day of the judgement.

The judge also noted that he would have granted a declaration even if she had not made a valid applicable decision, since on the facts presented to the court, both from her congregation and the clinicians, a transfusion would not have been in her best interests. This was because her wishes and feelings and long-standing beliefs and values carried determinative weight. It was also relevant that the transfusion might not have been effective in saving her life.

This judgement serves to reinforce the principles of the Mental Capacity Act 2005 (MCA). Adults are presumed to have capacity, but this may be challenged by clinicians should they suspect otherwise. The facts show that LM’s clinicians tested her capacity, and found it intact.

The adult patient with capacity is entitled to defend herself against any clinical intervention she chooses to avoid, even if death may result. LM took the opportunity, while she had capacity, to assert her intentions to avoid transfusion. The MCA obliges us when dealing with a patient who lacks capacity to consider, as far as we can ascertain, any past and present wishes expressed by the patient, together with any beliefs and values that would be likely to influence her decision. In so considering her comments made when talking to the gastroenterologists, the Trust concluded that transfusion would not be in her best interests.

Perhaps regrettably, LM was not prompted at that stage to make an advanced decision to refuse a life-saving blood transfusion. If she had done so, her clinicians, it seems, would have been content to rely upon it when she finally lost her capacity due to the progression of her illness. Nevertheless, with the assistance of the Court of Protection (which exists precisely for this eventuality), LM’s informal assertions refusing blood were given full weight. Even in their absence, the court made it clear that pleadings from her congregation (together with previous refusals documented in her notes) would have been sufficient to allow the declaration to be made; that blood transfusion would not have been in her best interests.

Thus Newcastle Upon Tyne Hospitals FT v LM provides authority for asserting both that (i) an advance decision to refuse blood transfusion gives both clinicians and patients some certainty that blood transfusion will be withheld in the prescribed circumstances, and that (ii) in the absence of such a formal document, recourse to the Court of Protection (CoP) with substantial informal evidence of the patient’s wishes and beliefs can achieve the same result. We should view the CoP as providing an immense benefit to both clinicians and patients, ensuring that the tensions between preserving life and respecting wishes are independently adjudicated.

Chapter 2

Discussing the Prospects of Cardiopulmonary Resuscitation

RoA David Tracey v Cambridge NHSFT & Ors [2014] EWCA Civ 822

On 5 February 2011, Mrs Tracey was diagnosed with lung cancer with an estimated life expectancy of 9 months. On 19 February, she sustained a serious cervical fracture after a major road accident. She was admitted to the hospital and transferred to the Neuro-Critical Care Unit under the care of a consultant neurosurgeon. Because she had chronic respiratory problems she was placed on a ventilator, but did not respond to treatment for her chest infection. On 23 and 25 February, efforts were made to wean her from the ventilator, but these were unsuccessful. On 26 February her treatment was reviewed by a consultant intensivist and on 27 February by a consultant oncologist.

The intensivist and oncologist decided that Mrs Tracey should be taken off the ventilator. The question arose as to what would happen if she suffered a cardiorespiratory arrest. On 27 February, a Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notice was completed. Mrs Tracey was successfully weaned from the ventilator, and her condition appeared to improve. The circumstances in which this DNACPR notice came to be completed and placed in her notes lie at the heart of these proceedings. When one of her daughters discovered that the notice had been made, she was horrified and registered her objections. As a result, the notice was removed and cancelled on 2 March.

Mrs Tracey’s condition deteriorated, and she died at 10:38 on 7 March.

The claim against the Trust was that it, among other things breached
Mrs Tracey’s rights because in imposing the notice, it failed (i) adequately to consult Mrs Tracey or members of her family; (ii) to notify her of the decision to impose the notice; (iii) to offer her a second opinion.

The court found that Mrs Tracey did wish to be consulted about any DNACPR notice that the clinicians were contemplating completing and placing in her notes.

Was it inappropriate to consult in relation to the notice on the facts of this case? The Trust submitted that the intensivist was entitled in the exercise of his clinical judgement to decide not to consult Mrs Tracey on the grounds that (i) he believed that CPR would be futile, and (ii) he knew that it would cause her distress to be involved in a discussion as to whether she should be resuscitated in the event of a cardiorespiratory arrest.

Further, the Trust submitted that it was inappropriate to involve the patient if the clinician formed the view that CPR would be futile even if he considered that involvement was unlikely to cause the patient harm. The court rejected this submission for two reasons. First, a decision to deprive the patient of potentially life-saving treatment is of a different order of significance for the patient from a decision to deprive them of other kinds of treatment. It calls for particularly convincing justification. The presumption should be that the patient is entitled to know that such an important clinical decision has been taken. The fact that the clinician considers that CPR will not work means that the patient cannot require him to provide it. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told that the clinician has made a DNACPR decision, he will be deprived of the opportunity of seeking a second opinion, which may be desirable from the patient’s perspective.

In terms of avoiding distress to a patient, the court made two findings that clinicians may not agree with. Firstly, that a belief that it would cause distress to the patient to discuss the issue is unlikely to be sufficient, without more, to make it inappropriate to involve her. The distress must be likely to cause the patient a degree of harm. It was accepted that if the intensivist had given evidence that he did not discuss CPR with her because he thought that she would be distressed and that this might cause her harm, the court would have been most unlikely to interfere with his clinical judgement. In that event, the court would have concluded that the clinician was entitled to decide that it was inappropriate to involve her in the process. The difficulty in this case is that the intensivist gave no such evidence.

The court therefore found that the Trust had violated Mrs Tracey’s right to respect for her private life in failing to involve her in the process which led to the DNACPR notice. The court was nevertheless concerned by a ‘well-balanced and powerful representation from the Resuscitation Council (RC), expressing the fear that a judgement which states (or implies) that there is a presumption that, save in exceptional cases, every DNACPR decision must be made after consultation with the patient would seriously hamper the ability of health care professionals to provide individualised and compassionate care for vulnerable people towards the end of their lives’. The RC made the further point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR and that a judgement requiring consultation with a patient save in exceptional circumstances would be likely to reverse that process. In suggesting the following formulation, the court hoped that the RC concerns would be largely met:

‘The clinician has a duty to consult the patient in relation to DNACPR unless he or she thinks that the patient will be distressed by being consulted and that that distress might cause the patient physical or psychological harm’.

It must be emphasised that the court is insisting only that we consult before making this decision. Explicitly, the court leaves the decision as to whether the DNACPR should be imposed to the doctor.

Our obligation to engage or consult with the patient may be met in a variety of ways. Oral discussion is one; but if you feel that the patient in front of you would find a written note of explanation more helpful, allowing them more time to consider their response (and subsequent questions); then such a note, signed by the consultant in charge of the patient’s care might be appropriate.

It should also be noted that the decision in Trac...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Foreword
• Introduction
• Chapter 1: Adults Who Refuse Blood
• Chapter 2: Discussing the Prospects of Cardiopulmonary Resuscitation
• Chapter 3: What Should Be Disclosed When Seeking Consent
• Chapter 4: Deprivation in Essex
• Chapter 5: The First Glimpse of a Duty to Warn?
• Chapter 6: Can a Patient Choose Her Surgeon?
• Chapter 7: Sentiments
• Chapter 8: Unwise Decisions
• Chapter 9: Consulting Relatives
• Chapter 10: Doctrine of Double Effect
• Chapter 11: Needle Phobia
• Chapter 12: Candid over Complications
• Chapter 13: Examining Patients with Their Consent
• Chapter 14: Covert Treatment
• Chapter 15: Can Blood Be Compulsorily Administered under the Mental Health Act 1983?
• Chapter 16: Genetic Confidentiality
• Chapter 17: Refusing Hospital Discharge
• Chapter 18: Consent for a Cannula
• Chapter 19: Changing Direction in Severe Anorexia
• Chapter 20: Be Informed; Then Disclose
• Chapter 21: Withdrawing Treatment in a Young Man
• Chapter 22: The Value of Going to Court
• Chapter 23: Articulating Best Interests
• Chapter 24: Loyal Friends
• Chapter 25: Apply to Court?
• Chapter 26: Disclosing the Miniscule Risk When Seeking Consent
• Chapter 27: Obtaining Consent
• Chapter 28: Deprivation of Liberty: The Story So Far
• Chapter 29: Falling from Hospital Property
• Chapter 30: Gross Negligence Manslaughter: Perhaps Better, ‘Betrayal of Trust’?
• Chapter 31: Interpretation
• Chapter 32: A Narrow Dispute
• Chapter 33: A Right to Be Told?
• Chapter 34: ‘But All Life Is an Experiment’
• Chapter 35: Avoid Discouraging Patients from Waiting to Be Treated
• Chapter 36: Mixed Messages
• Chapter 37: It Is for Clinicians to Identify Foreseeable Risks
• Chapter 38: Separating Twins
• Chapter 39: Body Modification
• Chapter 40: Seeking the Approval of a Court for Paternity Testing
• Chapter 41: Children Refusing Treatment
• Chapter 42: Can We Rely on Our Advance Decisions?
• Chapter 43: Is There a Role for ‘Next of Kin’?
• Chapter 44: Preaching to Patients
• Chapter 45: Deceiving Patients
• Chapter 46: Determining Incapacity
• Chapter 47: Reasons for Refusing Blood?
• Chapter 48: Justifying the Termination of a Pregnancy
• Chapter 49: The Feasibility of a Covert Caesarean Section
• Chapter 50: Communicating Risk: Words or Numbers?
• Chapter 51: Stark Compulsion in Grave Circumstances
• Chapter 52: Going to Court Too Soon
• Chapter 53: Best Interests in the Absence of Suffering
• Chapter 54: Patients Value Candour
• Chapter 55: Informed Consent and Informed Dissent: Two Sides of a Coin?
• Chapter 56: Parental Consent for Their Child’s Deprivation of Liberty
• Chapter 57: Vulnerable with Capacity
• Chapter 58: Compulsory Treatment for Diabetes
• Chapter 59: Approving Palliation
• Chapter 60: Acquiescence; Not Consent
• Chapter 61: Making Clinical Legal Decisions
• Chapter 62: ABC: A Duty to Balance Conflicting Interests
• Index