Chapter 59. Legal issues
Record-keeping
A Patient Report Form (PRF) should be completed for each patient treated and a copy handed over to the receiving hospital. Written records are the only defence when faced with complaints and legal action.
• Good notes – good defence
• Poor notes – poor defence
• No notes – no defence.
The names of all professionals who have been involved in the care of a patient should be clearly recorded in full. If a patient (or his relatives or friends) is aggressive or uncooperative, this should also be recorded. The form must be viewed as a legal document and stored safely for future recall.
If it was not written down, it was not done
Consent
Patient consent is required before providing any form of treatment
Consent may take one of three forms according to the circumstances of the incident:
1. Express consent is where a patient grants specific permission for a treatment to be carried out
2. Implied consent is where patients, by their actions, present themselves for treatment but without specific verbal or written authorisation
3. Presumed consent can be used, e.g. in the unconscious patient, where the patient is not able to give consent but it could be presumed that if they were able to give consent, they would do so in the given circumstances.
Informed consent implies that the patient has been informed of the foreseeable benefits and possible side-effects of the treatment concerned and understands their right to refuse treatment and the consequences of doing so. Failure to obtain consent is, in legal terms, an assault and such an action brings with it the risk of prosecution.
Capacity
In order to provide consent a patient must have capacity. This means that a patient must be able to make their own decisions by:
• Understanding the information and choices presented
• Weighing up the information to determine what the decision will mean for them
• Then communicating that decision.
Failures of any of these areas mean that the patient may lack capacity. Difficult situations arise with patients who refuse treatment but lack capacity. Clearly, the hypoglycaemic diabetic who is violently resisting treatment needs to be treated anyway.
Refusal of treatment
• Every patient with capacity has the right to refuse treatment
• In this situation, the patient should ideally sign the medical documentation to show that they have had the possible consequences of their actions explained to them
• If they refuse to sign, then the documentation should be signed by another witness, such as another ambulance crew member
• Ambulance control should be informed of the incident and any further information carefully documented
• Any patient who wishes to be taken to hospital should be transported, as there is, as yet, no clearly defined policy which allows an ambulance service to refuse to convey a patient
• If a patient is properly examined and there appear to be no grounds for attending hospital, the patient must be fully in agreement with the decision to stay at home.
Children
• A minor (under 16 years of age) may consent to or refuse treatment without reference to an adult where they are of sufficient maturity to understand the full implications of what is happening to them
• A child may consent to treatment against the wishes of their parents, but may not refuse treatment of a serious or life-threatening illness if the parents consent.
Living wills
Living wills (also known as ‘advance directives’) are a method of withholding consent to treatment in the event that any future illness incapacitates them to the extent that they cannot express their wishes. The circumstances in which an advance directive will have the greatest impact for paramedics are where an individual with a ‘living will’ suffers a cardiac arrest out of hospital.
Ethically, it is obvious that the wishes of the patient should be honoured, however there may not be incontrovertible evidence that the document is genuine or does indeed represent the patient’s current wishes.
If ambulance staff are not satisfied that the patient had made a prior and specific request to refuse treatment, then all clinical care should be provided in the normal way. Local ambulance trusts may have specific guidance to follow if presented with an advance directive, e.g. to discuss the situation with the medical director.
‘Do not resuscitate’ (DNR) orders
DNR orders take the form of written and signed instructions from the physician responsible for the care of the patient concerned. They must always be in writing. Ideally, the DNR order should be confirmed face-to-face with the responsible doctor.
The wishes of the patient, the family and the responsible doctor should be followed if possible. If the situation is different from that predicted, then the DNR may not be valid. For example, a patient who has a simple blocked airway after choking on food should not be left untreated simply because of a DNR order relating to an ongoing terminal condition.
Any decision to withhold treatment of a patient must be documented thoroughly
Confidentiality
The ethical obligation to maintain confidentiality is also a legal duty and applies to all professions where a practitioner has a privileged relationship with a client. The HPC, responsible for the state registration of paramedics, includes breach of confidentiality as an example of infamous conduct.
Maintaining confidentiality includes not talking about specific patients while off-duty and correct handling of patient records. Confidentiality continues to apply after the patient’s death.
Restraint or assault
Ambulance personnel have no legal right to restrain a patient over and above that of the ordinary citizen. Should restraint or forced transportation be necessary for any reason, the assistance of the police should be requested. In the event of an assault, one has a legal right to defend oneself but it is only permissible to use ‘reasonable force’ to prevent harm being inflicted.
Breaking and entering
Ambulance personnel have no legal rights to force entry into private property, even if they suspect that an individual’s life is at risk. The assistance of the police should be requested and their arrival awaited before forcing an entry. In practice, if the police were not immediately available, it seems unlikely that anyone would press charges for breaking and entering in the event of a paramedic having strong suspicion that a patient was at risk.
Pronouncing death
In law, the ability to certify death is confined to registered medical practitioners. This should not be confused with the pronouncement that death has occurred, specifically that the patient has a non-salvageable condition.
There will be some circumstances where it is not appropriate for the paramedic to attempt resuscitation.
Some ambulance services widen the definition to allow paramedics to identify ‘irreversible death’ and thus not commence resuscitation.
Any pronouncement of death by a paramedic must be unquestionable. If in doubt, resuscitate and let a doctor at the receiving hospital make the decision to stop.
Stopping resuscitation
The outcomes of patients receiving full advanced cardiac life support in the field who do not develop a perfusing rhythm prior to transportation are universally poor and transporting a patient with CPR in progress is potentially hazardous for unrestrained staff in the back of the ambulance.
Some services are now introducing appropriate policies which have medical approval, authorising paramedics to abandon resuscitation attempts in specific circumstances.
If resuscitation is stopped in the field, it will be necessary to inform the patient’s general practitioner and the police, who will act for the coroner’s officer.
History
• Patient in a lifeless condition for at least 10 minutes with no bystander CPR.
Vital signs
• No carotid or femoral pulses
• No spontaneous respirations
• Fixed and dilated pupils
• 30-second trace of continuous asystole.
Drug security
Controlled drugs such as morphine sulphate must, by law, be kept in a locked container within a locked cabinet fixed to an immovable surface.
An ambulance suffices for legal purposes, however, there have been many instances of the theft of these substances from ambulances.
Unaccounted for controlled drugs must be declared at the first opportunity to allow an immediate investigation. Controlled drugs that are ‘out-of-date’ must be returned to the supplying pharmacy for witnessed disposal with the correct documentation.
For further information, see Chs 61 and 64 in Emergency Care: A Textbook for Paramedics.
