Chapter 13. Legal and ethical practice
The doctor–patient relationship 397
Appropriate resuscitation and DNAR 399
Death certification 400
Capacity, consent and competence 404
Child protection 407
Mental Health Act 409
Driving 411
Notifiable diseases 414
HIV testing 414
Computers and data protection 416
THE DOCTOR–PATIENT RELATIONSHIP
Although these principles of care should be reflected in all doctor–patient relationships, different forms of relationship will evolve depending on the level of trust and willingness expressed by the patient and the level of openness and the communication structure employed by the clinician.
Types of relationship
One current theory describes four forms of relationship with differing levels of patient or doctor control:
• paternalistic: a typical doctor-centred style, often using closed questions to elicit yes or no answers; this style concentrates on the doctor’s decisions around diagnosis and treatment rather than the patient’s view or experience of their illness
• consumeristic: the patient takes the active role and the doctor accedes to the patient’s request for something, e.g. a second opinion
• mutualistic: both patient and doctor jointly exchange information and agree a plan, using an open questioning style.
Patient expectation
Patient expectation influences the role they adopt in the relationship. Older patients often expect a paternalistic approach and can be confused by the more modern mutual sharing of ‘power’. If the option to share the decision-making process appears to be rejected, it may be necessary for the doctor to assume control. However, this can be difficult or stressful for doctors trained to practise mutuality, especially where the discussion involves life-threatening decisions. It is worth considering a mental outline of both types of conversation before you see the patient.
It is important not to assume that the patient wishes you to be paternalistic in all areas of their care. They may wish you to decide on whether a referral to another discipline should be made, but may still wish to choose what kind of painkiller to have. It is worth making repeated attempts to engage them in management decisions throughout the consultation. Patient involvement in clinical decision-making has also been shown to improve treatment compliance and reduce the need for repeated consultations with other clinicians.
Potential difficulties
Compliance
It is the responsibility of the doctor to enable the patient to understand their diagnosis and treatment options. However, patients have a choice to take your advice or to leave it. Rejection of the advice given/failure to take medication prescribed can strain the doctor–patient relationship, with doctors feeling that the patient has not fulfilled ‘their side of the bargain’. However, the overly righteous doctor risks losing what trust they have been given by the patient. It may be better to accept gracefully patient non-compliance with some aspects of advice or treatment, if it means they continue to attend for advice at all.
Time
Time, or the lack of it, can lead to some doctors feeling pressurized and irritable with patients who take a long time to get to the point or get undressed, those who have a self-inflicted problem, or those with a relatively minor illness. However, it is not the patient’s fault that time is short and all patients deserve the same high level of personal courtesy.
Defining boundaries
The doctor–patient relationship is an unusual invasion of personal privacy permissible only by the definition of unspoken boundaries between the two parties. It is important to:
• strike a balance between showing compassion for a patient and allowing personal friendship; where you feel a patient has developed an unhelpful personal attachment to you, it can be worth discussing this with colleagues and arranging a transfer of patient care; meantime you have a duty to maintain patient care
• not enter into romantic or personal relationships with existing, or even prior, patients
• be cautious about accepting gifts of significant value from patients
• avoid seeing patients within the context of your home or personal social environment.
The doctor–patient relationship can be a challenging responsibility, but is also a tremendously rewarding privilege.
APPROPRIATE RESUSCITATION AND DNAR
All clinicians have a responsibility to ensure that the treatments they offer are in the best interests of the patient and have a reasonable chance of success. This is particularly true when considering cardiopulmonary resuscitation, since it is invasive, often traumatic and >80% of patients will die at the time of arrest or before discharge from hospital. CPR is often a difficult topic to raise with patients or their families. However, prospective consideration of the appropriateness of resuscitation is essential in the management of all patients at risk of a cardiac arrest. Decisions to withhold resuscitation should, where appropriate, be discussed with the patient and family and be documented.
Advance care planning
Since the majority of patients are not expected to arrest, advance care planning regarding CPR is not necessary or appropriate in this group. If they arrest, resuscitation should be attempted unless they have expressed a contrary wish.
In other patients, there may be clear risk factors for cardiac arrest, including advanced malignancy, recent MI, unstable coronary disease, severe sepsis or respiratory failure. In such patients, the issue of CPR should be considered early, and a decision made, before a crisis arises. Whether this should be discussed with the patient or their family is considered below.
Making a decision not to resuscitate
A ‘Do Not Attempt Resuscitation order’ (DNAR) can be made by any junior doctor who has full GMC registration, although local protocols may vary and it is advisable to seek senior advice. In all cases, the responsible senior doctor (usually the consultant) should be informed about the decision as soon as possible. A DNAR order may be appropriate in the following circumstances:
• where the patient’s condition is such that effective CPR is unlikely to be successful
• where successful CPR is likely to be followed by a length and quality of life that is not in the patient’s best interests
• where CPR is not in accordance with the known or expressed sustained wishes of patient who is mentally competent
• where CPR is not in accordance with a valid and applicable advanced life directive, e.g. anticipatory refusal or living will.
Discussion
In critically ill patients, as in all circumstances, it is important to maintain a dialogue with the patient and their family, as well as with nursing and other medical staff. This allows a consensus view on the likely outcome of any resuscitation attempt to be formed by all those involved, including, where appropriate, the patient.
Where decisions are to be made that relate to perceived quality of life following resuscitation, discussion is mandatory with the patient (or their nominated representative if they are not competent). The most senior doctor available should undertake such a discussion and, where practical, the responsible senior doctor should be informed beforehand.
If you are involved, it is important to consider the stress that such discussions are likely to create and to approach the topic with sensitivity and honesty. You may need to discuss the specifics of a patient’s condition or treatment and should prepare for this ahead (see also ‘Verbal communication’, p. 385).
Documentation
When the decision has been made, it must be documented appropriately. Refer to your local protocol. Where DNAR forms exist, they should be completed in full, signed and placed in the notes. If no form exists, document clearly in the notes by writing ‘Do Not Attempt Resuscitation’ rather than ‘not for 2222’ or ‘DNR’. Include the date and time that the decision was made, with whom it was discussed and when the decision should be reviewed.
Review
Decisions regarding whether or not to commence resuscitation should be reviewed by a senior member of the medical team on a regular basis, as per local protocol. This review should take account of any changes in the patient’s condition and whether this has any bearing on the previous decision.
DEATH CERTIFICATION
Death certification enables families to register the death of their loved ones and provides a permanent legal record of the event. The family must produce a death certificate to arrange disposal of the body and settle the estate of the deceased. In addition, the causes of death recorded on death certificates are recorded centrally and used to monitor disease patterns in the general population. For all three reasons, the accuracy of what is entered on the certificate is very important.
How to establish a death
Any suitably qualified individual, e.g. registered nurse, can verify that a death has occurred. It is worth noting that there is no legal definition of death in the UK; however, you should examine the body and then write in the notes.
Examine the body
Several Asian religions object to contact with the body: you should wear disposable gloves and keep the body covered with a plain white sheet. Jewish patients should not be touched until 20 min after death:
• check for spontaneous movement, including respiratory effort
• check for reaction to voice and pain (sternal rub or supraorbital nerve)
• palpate at least two major pulses for 1 min
• inspect the eyes looking for dryness, fixed dilated pupils, absence of corneal reflexes and clouding of the cornea
• remember to note if a pacemaker is present.
Write in the case-notes
• the date and time of death (the time the patient actually died, even if this is according to other staff, rather than your own observations)
• when you were contacted and the date and time of certification, if this is different
• a description of what you did to establish death
• what you wrote on the certificate (see below)
• whether a pacemaker was present
• whether the family know if the deceased wished cremation or not
• whether you have informed the GP or Coroner/Fiscal of the death.
Writing the certificate
Legal certification of the death can only be performed by a doctor who has provided care during the last illness and who saw the patient within 14 days preceding their death (28 days in Northern Ireland), or after death.
In hospital, many doctors can be involved in the final illness, but the proper certification of death is ultimately the responsibility of the consultant in charge. If you are called to see a patient briefly when on-call and they later die, it is wise to leave the certification of death to the ‘parent’ team who are likely to know them better. Sometimes, the death occurs in situations that require the doctor to report it to the Procurator Fiscal in Scotland, or Coroner in England and Wales, rather than proceed to issue a certificate (see below).
• check that you have the right information; consider whether you are the correct person to certify the death
• obtain the death certificate book (usually one held on each ward)
• if necessary, discuss case with Coroner (Fiscal) before certifying (see below)
• if the case is being referred for a post-mortem examination, a provisional certificate may be issued, but you should indicate that further information from autopsy may be available
• ensure every section of the certificate is complete, including the duration of illnesses
• use black ink and write clearly and neatly, preferably in block capitals
• the ‘place of death’ refers to the ward, hospital and city of death
• your ‘residence’ should be given as your work, not your personal address
• your ‘qualifications’ are your medical degree
• consider the final cause of death (cause Ia); the sequence leading to this (causes I b, c, d, in reverse order of contribution); any other conditions that did not result in cause I, but did contribute in some way to the death (cause II); see also below
• remember to include non-disease states that resulted in the death, e.g. chronic smoking in lung cancer, chronic alcohol consumption in variceal bleeding
• avoid using modes of death, e.g. any organ ‘failure’, arrest or exhaustion
• write all conditions in full: never use symbols or abbreviations, e.g. TIA
• unacceptable completion will result in refusal of the certificate by the Registrar with distressing delay for the family and notification of your senior colleagues.
Causes of death
When describing the cause of death it is worth noting that organ ‘failure’, especially without explanation of how it developed, is not an acceptable cause of death. It is wise to give as much detail as possible as to the nature and extent of disease. Abbreviations such as ‘COPD’ should be avoided and the terms given in full.
Discussion with family
As the certifying doctor, you will usually be asked to give the certificate to the family and talk to them about the death. It is worth taking a senior nurse with you.
Family members may be angry at you, other colleagues, the hospital, themselves, other relatives or the GP. It is wise to show that you understand how upset they feel, but not to comment on the actions of other people, especially members of medical or nursing staff. They may also have questions that relate to the death or what to do next:
• what caused the death: if there is any doubt about this, if you do not know the case well, or if any medical mishap was involved, check with a senior what you should say
• when did they die and who was with them: they will need reassurance that it was peaceful, or that the patient was unaware of what was happening
• advice on what to do next: many hospitals have information leaflets you can give families about where and when to register the death and how to contact an undertaker; some families also benefit from the support available from the hospital chaplaincy.
In some cases, it is necessary to contact the Fiscal or Coroner before the certificate can be issued (often the next day). You will need to explain your legal obligation to do this and that any decisions about disposal of the body need to wait until after this.
In other cases, a post-mortem may be considered. It is now recommended that any consent to post-mortem should be taken by a senior member of staff, but you may need to give the family the relevant information leaflet prior to this discussion; see below. It is worth noting that some faiths find post-mortem examinations unacceptable and you should be sensitive to this.
If the patient is to be cremated, additional paperwork will be necessary (see below), so you will need to establish if a cremation is intended. Many Asian faiths prefer cremation, while burial is preferred by some Christian faiths. You should approach this sensitively.
Reporting deaths to the Procurator Fiscal or Coroner
When to report
Legally, the Registrar (the government-appointed individual who checks the validity and acceptability of papers such as death certificates) has the responsibility to report deaths that occur in certain situations to the Fiscal or Coroner. However, when the doctor is aware that such reporting would be necessary, it is usual practice for them to report directly to the Fiscal or Coroner to avoid unnecessary delay. Local practices may vary slightly, but doctors should usually consult the Fiscal or Coroner when:
• no doctor has seen the patient during their last illness and within 14 days before death, or after death
• the patient’s identity or usual residence is unknown
• the cause of death is unknown
• the death was sudden and unexpected (deaths within 24 h of hospital admission are included here, where the evidence for cause of death may be lacking, in which case the patient’s GP may be asked to certify)
• the death was due to food poisoning or infectious disease
• the death was due to alcohol or drugs
• the death was due to neglect (by self or others)
• the death was due to industrial disease or occurred at work
• the death occurred in or shortly after release from prison or police custody
• the death occurred following an abortion or attempted abortion
• the deceased is a newborn child
• the deceased is a foster child or a child in the care of a local authority or on a local ‘at risk’ register (some areas of the UK recommend reporting in the case of any child under the age of 18)
• the death might be due to a case of sudden infant death
• the death might relate to recent surgery or anaesthetic (including procedures such as endoscopy)
• the death might relate to a medical mishap (include cases where the family are clearly unhappy with the care given and may make a formal complaint or seek legal action).
Before phoning the Fiscal or Coroner you should discuss the case with the consultant responsible. This allows them to agree that it is appropriate for them to be contacted, that you are the correct person to phone them (you need to know their case well), whether as a team you are prepared to issue a certificate and what it will say.
What you will be asked
• your details, including qualifications (with dates) and how you knew the patient
• the patient’s details, including their address and next of kin
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