Emergency department administration, legal matters and quality care

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Chapter 47 Emergency department administration, legal matters and quality care

S. Lesley Forster, Gordian W.O. Fulde, Sally McCarthy

HOW THE LAW AFFECTS THE PRACTICE OF EMERGENCY MEDICINE

(S Lesley Forster)

There have been a number of recent changes in society and in the law which greatly affect the practice of medicine in general, and emergency medicine in particular. Those practising emergency medicine need to be aware of these changes and to ensure that their practice conforms to the legal requirements. In court, ignorance of the law is no excuse.

This chapter also considers ways of decreasing the likelihood of legal action, and what to do if you are sued.

Confidentiality

The overriding ethical maxim in the treatment of patients is that the doctor must keep secret anything he or she hears about the patient. There are, of course, exceptions; for example, where a patient consents to the disclosure of information, or when giving evidence in court.

When faced with requests from police officers for information regarding a patient’s condition, ideally the written consent of the patient should be obtained first. It is the doctor’s duty to ensure that information is given only to those who are entitled to it.

It is accepted that, in some instances, public interest can override a doctor’s duty of confidentiality. If, for example, a patient confides to a doctor an intention to commit a serious criminal offence such as homicide or sexual assault, then it would be in order for the doctor to provide a relevant third party with that information.

There are other circumstances where the situation is not quite so clear, and judgement must be made according to the circumstances at the time as to what constitutes a serious criminal offence. It seems to be fairly well accepted among the medical profession, for example, that a doctor should not notify police of a patient’s involvement in minor criminal activities, such as personal use of illicit drugs or property offences.

Some occasions arise where there is no absolute answer to the problem; for example, if a patient who is known to be involved in drug trafficking presents to the emergency department. In such a case, where doubt may exist, the advice of colleagues, medical administration and, even better, the advice of a medical defence organisation should be sought in order to assist the doctor to make the very serious decision as to whether to override the duty of confidentiality.

For guidance, the St Vincent’s Hospital policy regarding internally concealed drugs is shown in Box 47.1.

Box 47.1 St Vincent’s Hospital policy and procedure for management of patients with internally concealed drugs

These patients may present of their own accord or may be brought in by the police.

Some drugs, e.g. heroin and cocaine, may cause death if leakage occurs. This is much less likely with hashish. Mechanical problems such as obstruction may occur with any ingested packets.

Medical management should proceed as appropriate. Drug screens and other investigations are performed if medically indicated. Abdominal and chest X-rays, CT may be required. Close observation and supportive therapy are indicated. Specific antidotes such as naloxone may be required. Decontamination may be needed if packet rupture and toxicity have occurred (toxicity may occur by diffusion without packet rupture). Glycoprep (or similar) may be used to hasten transit. Laparotomy may be indicated to relieve mechanical obstruction or to urgently remove leaking packets which cannot be otherwise retrieved.

If, in the judgement of the treating doctor, the amount of substance is small, i.e. unlikely to be intended for large-scale trafficking but rather intended for individual use, and the patient was not brought in by the police, then it is not mandatory that the police be contacted. Where large quantities are involved, the following steps should be taken:

• Contact the emergency department director.

• Contact medical administration.

• A decision will then be taken regarding the need to contact police. The police will be contacted where the patient has obviously been involved in drug trafficking.

• Medical management should never be impeded and remains first priority.

• Patients should not be forcibly restrained.

• Consent issues for medical procedures and treatment apply in the same way as with all patients.

• The safety of St Vincent’s Hospital staff should not be compromised.

• Packets recovered are the responsibility of the police, if they are present. If the police are not present, recovered packets should be placed in a signed sealed bag, labelled and locked in the S.8 cupboard (checked in by two registered nurses). A check should be made between shifts to ensure that the seals remain unbroken. This must be documented in the S.8 book and in the patient’s medical record. The packets should then be passed on to the police when they arrive.

• Ensure that the documentation in the medical record is comprehensive and precise, as the history may be called in evidence.

(Reproduced with permission.)

Telephone calls

The decision as to whether information about a patient should be given over the telephone is one that arises frequently in the emergency department.

As a general rule, unless the patient has given consent, specific information regarding any patient should not be given over the telephone where it is impossible to be sure of the identity of the caller.

Relatives of very ill patients should be asked where possible to come to the hospital where any information can be thoughtfully and sympathetically given. As a general rule, the results of tests (e.g. pregnancy, human immunodeficiency virus (HIV), sexually transmitted diseases etc) which have been performed in the department should not be released by phone. The patient should return to the emergency department or receive the results from the local doctor. In this way, mistakes and even medicolegal complications can be avoided.

By phone or mail

• Acute viral hepatitis

• Adverse event following immunisation

• Creutzfeldt-Jakob disease (CJD)

• Variant Creutzfeldt-Jakob disease (vCJD)

• Tuberculosis

∗ Under the Public Health Act 1991 and Regulation, hospital CEOs (or their delegates) are required to notify the following diseases to the local public health unit.

More legal obligations

Blood alcohol

In Australia, as in many countries, the treating doctor in an emergency department must perform a venipuncture and obtain a blood alcohol sample (refer to your own state legislation), basically within 12 hours of an accident, if the patient was on a public road and could have directly contributed to that accident, i.e. pedestrian, driver, skateboarder.

These must be done with supplied police kits. There is also a special kit for public transport accident victims (e.g. passenger in a bus who fell).

Drug testing

At times the police will bring someone for drug testing. Each state has its guidelines and strict conditions, kits, supervision of the passing of urine. At times the test (e.g. DNA sampling) should be taken by the police doctors instead of the emergency department.

Sexual assault forensic tests

Sexual assault forensic tests should be done at sexual assault crisis units with trained staff and protocols.

How do you avoid a law suit?

The usual assumption is that good doctors are not sued. Sadly, this is not true. Good doctors are sued even when they do everything right and, if we are honest, even good doctors have bad days.

In a study, the most common reasons given for beginning a malpractice suit against a doctor were:

• advice from a knowledgeable friend (Comment: be careful what you say about your colleague’s work.)

• anger at being manipulated by medical personnel

• belief that a ‘cover up’ was taking place

• outcome failed to meet expectations

• was not told what was happening.

Think about these reasons carefully—they show that the remedy is in your own hands, but it has very little to do with your medical knowledge.

If you do not want to be sued, treat your patients and their relatives the way you would want to be treated in the same circumstances. Be open and friendly, concerned and, above all, talk to them and tell them what is happening. The attitude of your other staff (nurses, clerks etc) is equally important—if the department is rude and uncommunicative, the hospital and the doctor will be sued.

Make your patients and their relatives feel you value them as people and that you will spend the time and thought needed to make them well. Patients do not expect to be cured, but they do expect that everyone will treat them courteously. (G Stubbs, personal communication)

Consent

There has been a change in the legal definition of informed consent following the Rogers v Whittaker decision. Courts now believe that, in giving informed consent, a patient must be informed of all material risks. A risk becomes ‘material’ if the judge believes that a reasonable person in the patient’s position would be likely to attach significant importance to it in deciding whether or not to have treatment.

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