Legal Principles

Introduction

• The following principles are intended to be applied only to a variety of individual situations you may face on the USMLE

Capacity, Competence, and Consent

• Capacity vs competence 
  • capacity is a medical term
  • competence is a legal term
• Competent patients have the right to refuse medical information and medical treatment(s)   
  • a feeding tube is a medical treatment
  • a competent person can refuse lifesaving hydration or nutrition 
• Assume that the patient is competent unless 
  • history of suicide attempt
  • psychotic
  • patient cannot communicate
• Obtain informed consent
  • patient must understand 
    • risks
    • benefits
    • alternatives
      • including no treatment 
  • patient must agree with plan of care without coercion 
  • exceptions
    • emergencies  
    • waiver by patient
    • patient lacks decision-making capacity 
    • therapeutic privilege
      • physician deprives an unconscious or confused patient of his autonomy in order to protect the patient’s health (paternalism)
  • note that written consent can be revoked orally at any time 
  • components of informed consent include: 
    • patient makes and communicates a choice
    • patient is informed
      • information has not been withheld from the patient
    • decision remains stable over time
    • decision is consistent with patient’s values and goals
    • decision is not result of delusions or hallucinations
      • temporally incapacitated patients, depending on mental state, may provide informed consent 
• consent from a patient’s spouse is not required treatment of a patient with capacity  

End-of-Life Issues

• If the patient cannot make decisions, surrogate decision makers must use the following criteria:
  • subjective standard (advance directive of patient) 
    • living will = patient provides specific instructions to withhold or withdraw life-sustaining treatment
  • substituted judgment (what would the patient want) 
    • durable power of attorney = patient designates healthcare proxy to make decisions
    • supersedes living will if both exist 
  • “best interests” of the patient 
  • when no living will or durable power of attorney exists, the clinician is responsible for determining an appropriate surrogate decision maker from available family members 
    • the priority of next-of-kin for surrogate decision making is as follows:
      • legal guardian appointed by a court
      • spouse
      • adult children (> 18 yrs)
      • parents
      • adult siblings 
      • grandparents/grandchildren
      • friend of the patient
• Euthanasia
  • passively allowing patient to die is acceptable
    • but do everything you can to relieve patient’s suffering
  • active killing of the patient is not acceptable
• When treatment should stop
  • physician thinks treatment is futile but family insists on treatment
    • continue treatment
  • after declaraion of brain death but family insists on treatment
    • stop treatment
• Code status 
  • refers to the level of interventions a patient would want should they undergo cardiopulmonary arrest
  • must be determined for any critically-ill patient admitted to the hospital on initial history
• can include full code (all interventions), do not resuscitate (DNR, or no interventions), or limited code (some interventions)

Confidentiality

• Confidentiality between physician and patient is generally absolute      
  • exceptions
    • suspicion of child/elder abuse 
      • domestic violence is not an exception 
        • physicians should ensure patients have a safe place to go
    • gunshot or stabbing injuries must be reported to the police
    • communicable disease must be reported
    • the patient is a harm to others or self
      • Tarasoff decision held that doctors have a duty to warn of imminent harm to others 
    • no alternative means exists to warn others
    • patient waves right to privacy
• e.g. for insurance purposes

Minors

• Minors cannot give informed consent unless emancipated through:
  • marriage
  • a parent  
  • military service
  • living alone
• A minor’s refusal of treatment can be overruled by a parent 
• Parents cannot withhold life- or limb-saving treatment from their children, but can refuse other treatments 
• Examples
  • 17-year-old girl whose parents cannot be contacted
    • physician may treat a threat to health under in locum parentis
  • 17-year-old girl living on her own
    • patient can choose whether or not to give consent
  • 17-year-old girl who is requests birth control 
    • provide access even in absence of parental consent
  • 17-year old girl who requests treatment for an STI
    • notification of parents is not required 
  • 16-year-old girl refuses but mother consents
    • treat
  • 16-year-old girl consents but mother refuses
• do not treat

Other Principles

• Avoid going to court
• Use trained medical interpreters when possible  
• Committed mentally ill patients retain their rights
• Never abandon a patient
  • transferring a patient to another physician’s care is rarely (if ever) a correct answer on the USMLE
  • If a treatment (such as abortion, birth control, etc) is against a physician’s personal beliefs – that physician does not have to provide that treatment; however, they are responsible for referring their patient to a provider who is willing and able to provide such care 
• Disclose all errors, regardless of harm   
• consulting risk management alone is rarely (if ever) a correct answer on USMLE

Child and Elder Abuse

• If suspected abuse is occurring, physicians are mandated reporters and MUST report