Today’s topic is intended to cover some of those policy/admin/legal topics that interns tend to run into and get confused by.
Everything we do to patients requires their consent. Without consent our actions would leave us open to being sued. For consent to be valid, it needs to be “informed” – that is the patient needs to be provided with adequate information about what is intended to be done and the accompanying risks. It is a fact, that when things go wrong, one of the commonest grounds on which patients sue, is failure to provide adequate consent.
For this reason, NSW Health consent policy (PD2005_406)
is that it is the responsibility of the admitting doctor and should not be delegated to interns. Interns should be aware of the policy, be able to find it quickly, when required (google NSW Health consent policy) and NEVER become involved in consent, other than for minor procedures, if you do not know enough yourself to provide adequate information to the patient.
Although we do not see many children at Westmead, it does happen occasionally, and consent becomes a little tricky with minors. For now, the main thing to remember is that under the age of 14, parental consent is required, for age 14 and 15 it is NSW Health policy to seek consent from both the child and a parent, and at age 16 and above, only the patient can consent.
Interns should be aware that patients are entitled to deny consent for treatment, and (assuming they have capacity) we are required to respect this choice, even if it does not seem to be in the patient’s best interest. However, you should also be aware that parents are NOT legally entitled to deny treatment for their children.
What if the patient is unable to give consent?
This is another tricky area which interns may have to navigate. Patients may be unable to consent because of their acute illness (ie they are unconscious), or due to diminished capacity. In either event the provisions of the Guardianship Act
apply and interns should be broadly aware of the effect of this legislation.
In a nutshell, it specifies that in an emergency, consent is not required. In less urgent situations it sets out a hierarchy of individuals who are entitled to consent on behalf of the patients ie
Advanced Care Planning and Resuscitation Plans
- Appointed guardian
- Spouse (or partner)
- Friend or relative (who has a close personal relationship
Consent with regard to treatment at the end of life is another area which can create difficulties for interns. Like out generic policy on consent, our policy for Resuscitation Plans
places the responsibility on the Admitting doctors and prohibits interns from acting independently in this regard.
You will all come to realise, during your after hours shifts the distress which can be caused to staff family and patients if resuscitation plans are not completed when they should have been, so interns should be advocates for their patients in ensuring that, when appropriate, a resuscitation plans has been completed.
Interns may encounter enquiries from the police in a variety of circumstances. They may make an informal request for information in the process of undertaking an investigation. You should always be circumspect in providing patient information to any third party – even those who may have a right to that information. Usually, police requests for information should come through a formal channel. If in doubt you should escalate your concern to someone more senior.
A request coming through a formal channel often takes the form of a police statement, which will usually take the form of a statement of your involvement with the patient. You should not ignore these requests. If police don’t receive a response you are likely to be subpoenaed to give evidence in court, which might sound exciting, but is generally not an enjoyable experience. In a police statement, or in court appearance, you should always stick to a recitation of the facts, rather than be drawn in to offering an expert opinion. You are not yet an expert!
Error, litigation, investigation and the Coroner.
Sometimes interns get caught up in events which they worry will result in some form of investigation and possible sanction. No matter what the investigation, high quality documentation is always a protection, and, like James Comey, it is useful to make your own contemporaneous notes, bearing in mind that most investigations take a long time to bear fruit. Don’t forget to inform your Medical Defence Union and also tell someone in Medical Administration. You should remember that you are also legally covered through the hospital’s indemnity – but for this to occur, the hospital needs to know about the events.
The sorts of enquiries which can occur are:
- Root Cause Analysis - An in-depth investigation conducted by the hospital aimed at identifying the underlying root causes of serious adverse patient events. The hospital’s investigators may wish to talk to junior staff, to get your perspective. You should be aware that it is beyond the scope of these investigations to assign individual blame, and they usually take 2-4 months before you will hear of any outcome.
- Health Care Complaints Commission – An independent statutory body charged with investigating complaints (usually from patients or families) about doctors. If you were involved in the care of a patient who has made a complaint to the HCCC it is likely that they will ask you for a statement. While you are legally obliged to respond to such a request, you should ensure that the hospital is also made aware of the request and you should consult with your Medical Defence union before submitting your response.
- Coroner’s Court – Of all the cases referred to the coroner, only a tiny fraction result in a full inquest, so the likelihood of you ever being involve in the coroner’s court is low, and if it does occur, it will be at least 2-3 years after the death of the patient. If you are called as a witness, make sure you have adequate support. The coroner’s court is a surprisingly adversarial environment and can feel highly threatening to junior medical staff.
Technically you do not write a “Death Certificate”. A Death Certificate is a document produced by the Registry of Births Deaths and marriages. Doctors are required to write a Medical Certificate of Cause of Death, which is sent by the hospital to the Registry of Births Deaths and Marriages and transcribed onto a Death Certificate.
Interns may get confused about when they can and can’t write a Medical Certificate of Cause of Death. Never having treated the patient prior to death is NOT a reason for declining to write one. Indeed it is our policy that the certificate should be completed by which ever staff is available at the earliest opportunity. Commonly this will mean the after hours interns. Most of the time you should be able to deduce the cause of death from the notes and the clinical circumstance. If you are very unsure, you should discuss with the admitting doctor, before reporting to the coroner that the cause of death was unknown. Remember that the degree of certainty is not high. You only have to be convinced “on the balance of probabilities”
There are a variety of mandatory reasons for deaths to be reported to the coroner – all of which are documented on the Coronial checklist. Those which commonly catch interns out are:
- Patients who came in after an MVA and whose death occurs after a lengthy admission and seems unrelated to the MVA
- Patients from a Mental Health facility
- Patients who did within 24hrs of an anaesthetic is NOT a reason for mandatory reporting. Although this ceased being the law almost a decade ago, it is still a powerful myth that all anaesthetic deaths need to be reported to the coroner. If the death was causally related to the anaesthetic then we would need to report (irrespective of timing with the procedure), but it is no longer mandatory to report all deaths occurring within 24 hrs of an anaesthetic.
Occasionally interns make minor errors on Medical Certificates of Cause of Death and are asked by families to correct them. Under these circumstance, you are able to write an amended certificate, label it a duplicate and ensure that it is sent to the Registry of Births Death and Marriage, from whom the relatives can request an updated Death Certificate.
For further information about Death Certificates, see Orientation Information, under Clinical Processes and Systems