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Everyday Medical Ethics and Law

Information about major developments since the publication of this book maybe obtained from the BMA’s website or by contacting:Medical Ethics DepartmentBritish Medical AssociationBMA HouseTavistock SquareLondon WC1H 9JPTel:020 7383 6286Email:ethics@bma.org.ukWebsite: bma.org.uk/ethics

Everyday MedicalEthics and LawBritish Medical Association Ethics DepartmentProject ManagerVeronica EnglishWritten byAnn SommervilleEditorial boardSophie BrannanEleanor ChrispinMartin DaviesRebecca MussellJulian SheatherDirector of Professional ActivitiesVivienne NathansonA John Wiley & Sons, Ltd., Publication

This edition first published 2013, 2013 by BMA Medical Ethics Department.BMJ Books is an imprint of BMJ Publishing Group Limited, used under licence by Blackwell Publishing which wasacquired by John Wiley & Sons in February 2007. Blackwell’s publishing programme has been merged with Wiley’s globalScientific, Technical and Medical business to form Wiley-Blackwell.Registered office: John Wiley & Sons, Ltd, The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UKEditorial offices: 9600 Garsington Road, Oxford, OX4 2DQ, UKThe Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK111 River Street, Hoboken, NJ 07030-5774, USAFor details of our global editorial offices, for customer services and for information about how to apply for permission toreuse the copyright material in this book please see our website at www.wiley.com/wiley-blackwellThe right of the author to be identified as the author of this work has been asserted in accordance with the UKCopyright, Designs and Patents Act 1988.All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in anyform or by any means, electronic, mechanical, photocopying, recording or otherwise, except as permitted by the UKCopyright, Designs and Patents Act 1988, without the prior permission of the publisher.Designations used by companies to distinguish their products are often claimed as trademarks. All brand names andproduct names used in this book are trade names, service marks, trademarks or registered trademarks of their respectiveowners. The publisher is not associated with any product or vendor mentioned in this book. This publication is designedto provide accurate and authoritative information in regard to the subject matter covered. It is sold on the understandingthat the publisher is not engaged in rendering professional services. If professional advice or other expert assistance isrequired, the services of a competent professional should be sought.The contents of this work are intended to further general scientific research, understanding, and discussion only and arenot intended and should not be relied upon as recommending or promoting a specific method, diagnosis, or treatment byphysicians for any particular patient. The publisher and the author make no representations or warranties with respect tothe accuracy or completeness of the contents of this work and specifically disclaim all warranties, including withoutlimitation any implied warranties of fitness for a particular purpose. In view of ongoing research, equipmentmodifications, changes in governmental regulations, and the constant flow of information relating to the use of medicines,equipment, and devices, the reader is urged to review and evaluate the information provided in the package insert orinstructions for each medicine, equipment, or device for, among other things, any changes in the instructions or indicationof usage and for added warnings and precautions. Readers should consult with a specialist where appropriate. The factthat an organization or Website is referred to in this work as a citation and/or a potential source of further informationdoes not mean that the author or the publisher endorses the information the organization or Website may provide orrecommendations it may make. Further, readers should be aware that Internet Websites listed in this work may havechanged or disappeared between when this work was written and when it is read. No warranty may be created or extendedby any promotional statements for this work. Neither the publisher nor the author shall be liable for any damages arisingherefrom.Library of Congress Cataloging-in-Publication DataSommerville, Ann.Everyday medical ethics and law / British Medical Association Ethics Department ; [project manager], VeronicaEnglish ; [written by] Ann Sommerville ; [editors], Sophie Brannan . . . [et al.] ; [director of professional activities],Vivienne Nathanson.p. ; cm.Includes bibliographical references and index.ISBN 978-1-118-38489-3 (pbk.)I. English, Veronica. II. Brannan, Sophie. III. British Medical Association. Medical Ethics Department. IV. Title.[DNLM: 1. Ethics, Medical–Great Britain. 2. Jurisprudence–Great Britain. 3. Patient Rights–legislation &jurisprudence–Great Britain. 4. Physician-Patient Relations–ethics–Great Britain. 5. Professional Practice–ethics–Great Britain. W 50]174.2–dc232012047947A catalogue record for this book is available from the British Library.Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be availablein electronic books.Cover design by Rob Sawkins for Opta Design. Image #617669 from Istockphoto.com 2005 Clayton HansenSet in 9.5/12 pt Garamond MT by Toppan Best-set Premedia Limited12013

ContentsMedical Ethics CommitteexviiList of case examplesxixPreface12A practical approach to ethicsxxiii1Does medical ethics help and how?Key terms and conceptsProfessionalismDuties and rightsThe public interestMedical law and healthcare lawStatute and common lawHuman rights lawQuasi (or soft) lawEthical decision makingApproaching an ethical problemThe BMA’s approachRecognise that a dilemma existsDissect the problemDo you need more information?Identify and apply relevant legal or professional guidanceAnalyse the factsCan you justify the decision with sound arguments?A final word on problem solvingReferences224556678910111113131314151516The doctor–patient relationship17Setting the sceneResponsibilities for patients and the duty of careThe duty of careIndependent assessorsProfessionals with dual obligationsContinuity of care and patients’ rights to changeDelegation of tasks and referral of patients17181921222223

viCONTENTSPatient autonomy and choiceManaging patients’ expectationsDo patients have choices about who provides care?Rights of homeless people, detainees and asylum seekersCan patients insist on having the drugs they prefer?Do patients have the right to a second opinion?Patients’ rights to combine NHS and private carePatients’ rights to reject medical adviceWhat are the rights of patients who are violent or misuse services?Patients’ rights to complainTruth-telling and good communicationGiving bad newsTelling patients about unfunded treatmentsReporting mistakes and telling patients about themKeeping patients’ trustManaging conflicts of interestConflicts when commissioning servicesPayment for referrals or recommendationsAccepting gifts and bequestsCovert medicationRecording consultationsCovert recording and surveillanceChaperones and accompanying personsIntimate examinationsRecognising boundariesManaging personal relationships with patientsWhen a friendship becomes inappropriateIntimate relationshipsUse of social mediaHealth professionals acting as witnesses to legal documentsAdvance decisions about medical treatmentActing as a legal advocate for a patientFirearms certificatesHealth professionals’ personal beliefsConscientious objectionBreakdown of the doctor–patient relationshipLimits or boundaries on advertising servicesTreating oneself, friends and familySelf-diagnosis and treatmentTreating family or close friendsStaff who are also 3839404141424344464646474749505152525353

CONTENTS3viiProviding a safe serviceWhistle-blowingEmergency situationsEnsuring competence in daily practiceLocums, out-of-hours services and arranging medical coverVetting and barringStudents, shadowing and work experienceWriting references for colleaguesA last word on the doctor–patient relationshipReferences54545556575759596060Consent, choice and refusal: adults with capacity65Setting the sceneThe importance of informationOffering information for contemporaneous andadvance decisionsTranslation and signing servicesWhat type of information?Information to make an advance decisionInformation about participating in a research projectHow much information?The duty to warn about risksCan information be withheld?Can patients refuse information?Refusal of treatmentSeeking consentWho should seek the patient’s consent?What type of consent or refusal is valid?Implied decisions and explicit or express decisionsWritten and verbal decisionsVoluntary and pressured decisions: Do patients meanwhat they say?Undue influenceCultural influencesThe influence of incentivesDocumenting the decisionDocumenting consentDocumenting refusalDocumenting views about future medical treatmentAdvance 8686868788

viii4CONTENTSAdvance decisions refusing treatment: The law in Englandand WalesAdvance refusals in ScotlandAdvance refusals in Northern IrelandImplementing the decisionDoes having consent mean the procedure must proceed?A last word about patient consent and refusalReferences89919191919292Treating adults who lack capacity96Setting the sceneThe law concerning treatment and non-treatment of adults lackingcapacity to consentGeneral legal principles across the UKEngland and WalesScotlandCertificate of incapacity and the general authority to treatCommon law in Northern IrelandAssessing patients’ capacityWhat is mental capacity?How is it assessed?What factors indicate capacity?What factors indicate impaired capacity?Fluctuating capacityWho should assess capacity and when?Providing care and treatment for adults lacking mental capacityBest interests and benefit for patientsExceptions to best interestsInvolving people close to the patientBest interests and covert medicationThe role of proxy decision makersPower of attorney in England and WalesThe power to make health and welfare decisionsDisputes arising in relation to LPAsCourt-appointed deputies (England and Wales)Independent mental capacity advocates (IMCAs)(England and Wales)The role of IMCAs in decisions to withhold or withdrawserious medical treatmentThe role of IMCAs in decisions about where patientsshould 07108108108109110110110111111

CONTENTS5ixAttorneys and guardians in ScotlandResolving disputes (Scotland)Decisions needing special safeguardsGiving treatment with serious implicationsWithholding treatment with serious implicationsTaking legal advice and involving the courtsThe Official Solicitor (England and Wales)Withholding or withdrawing life-sustaining treatmentClinically assisted nutrition and hydrationSafeguards for participation in researchDementia researchEmergency researchControl, restraint and deprivation of libertyDeprivation of Liberty SafeguardsEngland and WalesScotlandNorthern IrelandThe difference between protection, restraint anddeprivation of libertyA last word on caring for adults who lack 0121121124124124125Treating children and young people131Setting the sceneConsent to examination and treatmentCompetence to consent to or refuse treatment or examinationConsent or refusal on behalf of babies and young childrenParental responsibilityBest interestsDisagreements between people with parental responsibilityRefusal by people with parental responsibilityInvolving older children in decisionsUnaccompanied minorsConfidentialityAssessing competence in children and young peopleCompetence to consentCompetence to refuseConsent and refusal by competent young 139140141143143143144125126127

x6CONTENTSResearch involving children and young peopleParental consent or refusal for children and babiesAssent from children who lack competenceConsent or refusal by competent children and young peopleEmergency research involving children and babiesAvailability of research and trial dataConsent and refusal in exceptional circumstancesMale infant circumcisionSerious difference of opinion between parents andhealth professionalsPaternity testingConsent to testingRefusal of testingTesting and best interestsAdvance decision makingUsing restraint to provide treatmentRefusal of medical or psychiatric examination under theChildren Act 1989Child protectionConfidentiality and disclosure of information aboutabuse or neglectAdvisory services and involving the courtsA last word on treating children and young 60Patient confidentiality165Setting the sceneWhat is confidential?Identifiable dataAnonymised dataPseudonymised dataKeeping information secureInforming patients about possible uses of theirhealth informationThe law on confidentiality and disclosureThe common law protecting confidentialityData Protection Act 1998Health and Social Care Act 2012 (England)The NHS Future Forum and the review of informationgovernanceStatutory 153153171172172172173174174

CONTENTSStatutory restrictions on disclosureHuman Rights Act 1998 (UK-wide)NHS Act 2006 (England and Wales)Comparable arrangements in Northern IrelandComparable arrangements in ScotlandComputer Misuse Act 1990 (UK-wide)Use of patient information for purposes directly related to careConsent by patients with capacitySharing information with other health professionalsSharing information with relatives, parents andpatients’ friendsSharing information for social careLeaving phone messages for patients and texting themWhen adults lack capacitySharing information to invoke a Lasting Power ofAttorney (LPA)Sharing information with other proxy decision makersInformation sharing when children lack competenceUses of patient information for purposes indirectlyrelated to careSecondary uses of dataClinical auditFinancial audit and other healthcare management purposesCommissioning agencies’ use of patient informationTeachingMedical researchPublic healthDisclosures unrelated to health careEmployment, insurance, immigration and social benefitsReports to insurers and employersDisclosure to government departmentsDisclosure to the driver and vehiclelicensing agency (DVLA)Releasing health information to the mediaDisclosures to identify and address poor health carePatient complaintsInvolving elected representativesWhistle-blowing about substandard careDisclosure to agencies monitoring standardsDisclosure requested by regulatory bodiesDisclosures related to crime prevention, detection or 190191191192192192193193

xii7CONTENTSDisclosure to the police and investigatory agenciesGunshot and knife woundsDomestic violenceAbuse of vulnerable adults and minors who lack capacityDisclosure to courts and tribunalsDisclosure to solicitorsDisclosures in the public interestThe confidentiality owed to deceased patientsFactors to consider before disclosureThe needs of the bereavedThe interests of justiceInvestigations by a coroner or procurator fiscalAccess to records in relation to claimsFreedom of Information Act 2000A last word on 201202202203203203204204Management of health records211Setting the sceneDefining medical recordsManual and electronic patient recordsImagesVisual and sound recordingsPatients who lack capacity (including children)Recording telephone callsMaking a health recordWhat to include in the recordStandardising hospital recordsRecording discussion with patients and noting their wishesAggressive or threatening behaviourWhat to exclude from the recordRecords made and shared by several professionalsNational summary recordsChanging medical records or adding to themDisputes about accuracyPatient requests to omit or remove some informationAltering or tamperingAdding information later to the recordAdding or removing information when the record is sharedTranssexual patientsAdopted patientsTagging 18218218218219219220220220221

CONTENTS8xiiiPrimary and secondary uses of recordsPrimary uses of recordsSecondary uses of recordsSecondary uses of children’s recordsUsing material in publications or other mediaGiving access to patient records and reportsOwnership of recordsNHS recordsPrivate recordsAccess by patientsInformation which should not be disclosedAccess by solicitorsAccess by people other than the subjectAccess to the records of children and young peopleAccess to the records of incapacitated adultsAccess to the records of deceased personsAccess to reports for insurance or employmentSecurity of dataThe obligation to protect identifiable dataRecords management policiesTransmission of informationBy faxNHSmailTransfer of information within the NHSTransfer of GP recordsSending information abroadRetention and destruction of recordsAccessing records after the duty of care has endedRecommended retention timesDisposal of manual recordsStoring and disposing of recordingsA last word about records 3233233235235235236Prescribing and administering medication241Setting the sceneTalking to patients and obtaining consentGiving information about a prescriptionConcordance/medicines adherenceTaking account of patients’ values and religionPrescribing placebos241242242243244244

xivCONTENTSPressure from patientsPatients’ requests for complementary and alternativemedicines (CAMs)Requests for repeat prescriptions‘Lifestyle drugs’Choosing the right product for the patientResponsibility for prescribingClinical freedomPrescribing errorsPressure from employersComplying with official guidanceNICE (England and Wales)Comparable arrangements for technology evaluationin ScotlandArrangements for technology appraisals in WalesArrangements for technology appraisals in Northern IrelandPrescribing and monitoring resources‘Topping up’ NHS treatmentGeneric prescribingDrug switchingOff-label prescribing and unlicensed drugsPrescribing drugs off-label to save moneyReporting adverse drug reactions and adverse incidentsShared prescribing and continuity of carePrescribing shared between different doctorsPrescribing shared between primary and secondary carePrescribing shared between the NHS and the private sectorPatient group directions (PGDs)Prescribing shared between doctors and other healthprofessionalsSupplementary prescribing and independent non-medicalprescribersPrescribing shared with practitioners of complementarytherapiesContinuity of careExchange of information between doctors in referralsand discharge summariesPrescribing for people at a distance – internet, emailor telephonePrescribing for patients abroadPrescription-only medicines on the 3264266266

CONTENTSPrescribing for different patient groupsControlled drugs and prescribing for addictsPrescribing strong opioids for pain in adult palliative careUse of opioids and the principle of double effectPrescribing for older peopleInvolving older people in concordanceOver-medication of older peoplePrescribing for childrenPrescribing for oneself, friends or familyConflicts of interestFinancial interests in health-related products or servicesOwnership of pharmaciesDispensing doctorsGifts and hospitality from pharmaceutical companiesParticipation in market researchAdministering medicationFollowing guidance and protocolsWhen medication needs special safeguardsCovert medicationPatients with capacityPatients who lack mental capacityA last word about prescribing and administering 72273273274274274276276277277278278279279280287

Medical Ethics CommitteeA publication from the BMA’s Medical Ethics Committee (MEC). The following people were members of the MEC for the 2011/12 session.Dr Anthony Calland, Chairman – General practice (retired), GwentDr JS Bamrah – Psychiatry, ManchesterDr John Chisholm (deputy) – General practice, BromleyDr Mary Church – General practice, GlasgowProfessor Bobbie Farsides – Medical law and ethics, BrightonClaire Foster – Medical ethics, LondonProfessor Ilora Finlay – Palliative medicine, CardiffProfessor Robin Gill – Theology, CanterburyProfessor Raanan Gillon – General practice (retired) and medical ethics, LondonDr Zoe Greaves – Junior doctor, South TeesDr Evan Harris – Former MP and hospital doctor, OxfordProfessor Emily Jackson – Medical law and ethics, LondonDr Surendra Kumar – General practice, WidnesProfessor Graeme Laurie – Medical law, EdinburghDr Lewis Morrison – General and geriatric medicine, LothianDr Ainslie Newson – Biomedical ethics, BristolProfessor Julian Savulescu – Practical ethics, OxfordDr Peter Tiplady (deputy) – Public health physician, CarlisleDr Frank Wells – Pharmaceutical physician (retired), IpswichDr Jan Wise – Psychiatry, LondonEx-officioDr Hamish Meldrum, Chairman of BMA CouncilProfessor David Haslam, President of BMADr Steve Hajioff, Chairman of BMA Representative BodyDr Andrew Dearden, BMA TreasurerThanks are due to other BMA committees and staff for providing informationand comments on draft chapters.

List of case examplesThroughout this book points are illustrated with the use of case examples.Some of these are cases that have been decided by the courts (these have thecase name, in italics, in the title) while other case examples are based on enquiries to the BMA or on material published by other organisations, including somedisciplinary cases heard by the General Medical Council.Chapter 2: The doctor–patient relationshipDuty of Care: Barnett 19Case example – continuing duty of care 20Case example – managing expectations 24Case example – failure to discuss 30Reporting errors: Froggatt 33Case example – accepting a bequest 37Case examples – maintaining professional boundaries 41Case example – personal relationships 43Case example – personal beliefs 48Case example – religious beliefs 48Case example – deregistration on grounds of cost and disability 50Case example – removal without warning 51Case example – doctors working outside their sphere of expertise 56Case example – out-of-hours cover 57Case example – writing references 59Chapter 3: Consent, choice and refusal: adults with capacityCase example – exceeding consent during surgery 68Case example – problems conveying information accurately 69Case example – advance decision made on the basis of incompleteinformation 72Duty to warn about risks: Sidaway 73Duty to warn about risks: Pearce 74Duty to warn about risks: Chester 75Refusal of life-sustaining treatment: Re B 79Case example – valid refusal of treatment following a suicide attempt 79

xxLIST OF CASE EXAMPLESRefusal and undue influence: Re T 83Case example – a pretence of refusal 83Alleged influence from a health professional: Mrs U 84Treatment without consent: Patrick McGovern 87Failure to make a formal advance decision: Re M 88Request for treatment: Burke 89Documentation of advance refusal: XB 90Chapter 4: Treating adults who lack capacityValid refusal of treatment by a mentally ill patient: Re C 102Refusal of treatment due to phobia: MB 104Case example – need for safeguards on powers of attorney 112Giving experimental treatment: Simms 114Bone marrow donation: Re Y 115Withdrawal of artificial nutrition and hydration: Bland 118Case example – powers of restraint 122Deprivation of liberty: Bournewood 123Chapter 5: Treating children and young peopleParents requesting treatment considered inappropriate: Re C 135Courts insisting on continuing treatment for a young child: MB 135The unpredictability of prognosis in some young children: CharlotteWyatt 136Parental refusal: Re T 137Consent by people under 16: Gillick 141Case example – requests for contraception by underage patients 142Young person’s refusal of a heart transplant: Re M 143The power to override a young person’s competent refusal: Re W 144Overriding a young person’s refusal of a blood transfusion: P 145Case example – Hannah Jones’s refusal of a heart transplant 146A young person’s refusal of treatment in Scotland: Houston 146Circumcision and a child’s best interests: Re J 150Involving the court: Glass 150Case example – judging who should act and when 154Case example – Victoria Climbié 155Case example – Baby P 155

LIST OF CASE EXAMPLESChapter 6: ConfidentialityThe use of anonymised data: Source Informatics 169Case examples – breaches of confidentiality 170Case examples – failure to keep data secure 171Case example – retention of information 173Confidentiality and the Human Rights Act: Campbell 176Case example – information fraudulently requested 179Case example – inappropriate discussion 180Clinical information and the media: Ashworth 191Case example – police request for too much information 194Patients’ rights to object to disclosure: TB 197Case example – disclosure to the police 198Disclosure in the public interest: Egdell 199Case example – contacting the DVLA 200Case example – patient with a serious communicable disease 201Freedom of Information requests: Bluck 204Chapter 7: Management of health recordsCase example – whether unsubstantiated allegations should berecorded 217Case example – tampering with records 219Case example – publication of an identifiable case 223Case example – disposing of private records 224Case example – third-party information in medical records 225Case example – separated parents applying for access to a child’srecord 227Case example – misplaced records 229Case example – unauthorised access by staff 231Case example – accessing records after the duty of care has ended 233Chapter 8: Prescribing and administering medicationCase example – patients insisting on having antibiotics 245Case example – media reports generating demand 246Case example – failure to tell patients about lack of evidence 247Case example – demand for inappropriate repeat prescriptions 248Case example – request for past prescribing to continue 248xxi

xxiiLIST OF CASE EXAMPLESCase example – drugs to improve exam performance 250Case example – failure to prescribe correctly 252Case example – pressure from employers 252Case example – Viagra 255Case example – prescribing off-label on cost grounds 258Case example – shared care 261Case example – failings in internet prescribing 265Case example – Annie Lindsell and double effect 269Case example – the influence of financial investments 273Case example – meeting with pharmaceutical company representatives 276Case example – lack of protocols for administering medication 277Case example – covert medication of people with capacity 278

PrefaceThe BMA is a doctors’ organisation which, among other activities, providesethical and medico-legal advice. Other health professionals are increasinglyexploring similar dilemmas to those facing doctors and BMA guidance hasbroadened out to reflect that. This book also summarises best practice standards, legal benchmarks and the advice published by a range of other authoritative organisations throughout the UK. This book may be useful for other healthand social care professionals as well as for doctors, although naturally, they areour main audience.Traditionally, medical ethics applied to the standards and principles that governed what doctors do but now often describes the obligations of all healthprofessionals. Some people prefer a broader and, arguably, more inclusive termsuch as healthcare ethics, but we have stuck with the term medical. While recognising that good patient care consists of a range of skilled personnel workingcooperatively, sharing the same basic values and with very similar ethical duties,our experience is primarily concerned with advising doctors. This book focuseson the daily ethical and medico-legal problems doctors face. We know whatthese are because, for several decades, the BMA has run an advisory servicethrough which members can receive prompt advice on specific dilemmas. Veryoften, the recurring problems involve aspects of confidentiality and patientconsent, such as whether an unmarried father can legally access his child’smedical records or who can consent to treatment for young people. Patternsof queries alter to reflect high-profile cases reported in the media and the verysignificant growth of case law (judge-made law) and statute. Now many of boththe mundane and the more tricky questions are covered by law, which can differsignificantly across the four nations of the UK. This is reflected in the followingchapters.Case examples are also included in the text. Some of these are cases whichhave gone through the courts and illustrate specific points of current goodpractice. Others are based on dilemmas doctors have raised with us. We havesummarised and anonymised real cases, but some of the examples are amalgams of many very similar scenarios, rather than one specific case. The aim isto capture the very common niggling worries that should have easy answersbut often do not.Above all, our approach is practical rather than abstract or theoretical. Aseach chapter is based on the problems raised with us by BMA members, manyof the fascinating topics of more abstract ethical debate, beloved of philosophers and examiners – such as the moral status of the embryo and whether

xxivPREFACEassisted dying should be perceived as a human right – are entirely absent fromthis volume. The BMA has, of course, explored all these issues in considerabledepth. Readers who wish to see the full range of topics should consult the thirdedition of our detailed ethics handbook, Medica

Medical Ethics Committee xvii List of case examples xix Preface xxiii 1 A practical approach to ethics 1 Does medical ethics help and how? 2 Key terms and concepts 2 Professionalism 4 Duties and rights 5 The public interest 5 Medical law and healthcare law 6 Statute and common law 6 Human rights law 7 Quasi (or soft) law 8 Ethical decision making 9

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