THE GOLDEN RULE: “ABOVE ALL, DO NO HARM”

I will follow that regimen which according to my ability and judgment, I consider for the benefit of patients and abstain from whatever is deleterious and mischievous, nor shall I suggest any such counsel’ (EMS Hippocratic Oath).

Whereas it is a general rule of law that every person should be held liable for the results of their acts and omissions, EMS practitioners are protected from this legal responsibility to a certain extent by the ‘Double Effect Doctrine’. According to St. Thomas Aquinas, the EMS practitioner will be legally and morally blameless if covered by the doctrine.

 

wp-1488037803105.jpegPhoto credit: Matlock Combat Supplies

The primary aim of health care services is to preserve and respect the sanctity of life while doing the greatest good and the least harm to our patients. Also known as the Golden Rule, the principle of ‘Do No Harm’ in Emergency Medical Services (EMS) thus states that an EMS practitioner should do good (beneficence) and avoid doing harm. Therefore, under the veil of the golden rule, an EMS practitioner can either:

  1. Do good (act in the best interests of the patient); or
  2. Do no harm (Fail to act)

Doing good

Medical paternalism is when the EMS practitioner is allowed to act against the wishes of the patient (especially those who lack the capacity to consent to emergency care) based on the desire to promote the patient’s best interests and doing good. (Fairburn: Justified Paternalism and Suicide, 1991)

Simply put, the EMS practitioner will ask him or herself, what would a father do if his or her child was sick? In this situation, it is implied that the EMS practitioner knows what is best for his or her patient.

Medical paternalism is allowed whereby;

  1. The EMS practitioner believes that based on best medical practice grounds, the patient is misinformed and there is no time for the patient to seek a second medical opinion
  2. The patient is of unsound mind, has altered mental status (AMS), is senile, delusional, insane, etc which renders her or him mentally incompetent to consent to a regimen
  3. The patient is unconscious or unable to communicate but is suffering from a life threatening injury or illness that can benefit from emergency medical care
  4. The patient is under a court ordered disability and does not have the legal capacity to consent to treatment. Also when the treatment is subject to a court order
  5. The patient is a minor and the parents or legal guardians are not nearby to consent to patient care

The Doctrine of Double Effect

As a general rule according to the text of the law, every person is legally responsible for the results of his or her actions rather than the consequences that follow from the actions. (Individuals can only be held liable for the consequences of their actions if they expressly intended to achieve such resulting consequences).

For instance, the consequences of administering a particular drug may be recorded as relieving pain and improving the condition of the patient. However, due to peculiar reactions of the patient to the drug, the patient may deteriorate and even die. In this regard, the law will consider the result, which is a deteriorated condition and/or death rather than the known consequence which is an improved medical condition.

To this extent, the EMS practitioner can be held legally liable for various counts including professional negligence and wrongful death (premature death). This is because every prudent EMS practitioner is expected;

  1. To gather and be guided by the patient’s history,
  2. To possess knowledge of the present condition and the necessary interventions based on the standard of care which is enshrined in best practice and comparative standards
  3. To form the ability to predict the outcomes of the patient care regimen based on good judgment of the interventions (foretell the future condition of the patient).

In emergency, pre-hospital and out-of-hospital set ups, every second counts. We do not have the time or the sophisticated equipment to test each and every drug or procedure and cross reference it to the patient’s idiosyncratic reactions before prescribing it. All that is left is the need to do the greatest good for the greatest number with the hope that the patient will respond positively to the patient care services administered.

In these situations, the EMS practitioner is covered by the doctrine of double effect which states that when an action is done with good intentions but it results in unintended, unforeseeable and/or adverse secondary bad effects, the EMS practitioner will not be held legally or morally liable.

For instance, you can administer a Diclofenac injection to relief pain in a patient who says that they have no known allergies to the medication. However, the medication triggers anaphylaxis. If the patient dies from the anaphylaxis, should the attending EMS practitioner be sued for wrongful death (premature death)? In case the patient does not die, can a litigious patient sue her or him for medical malpractice? According to St. Thomas Aquinas and his doctrine of double effect, the EMS practitioner is morally and legally blameless!

Do No Harm

According to the 6th Commandment of Arthur Hugh Clough (1819 – 1861): The Latest Decalogue;

“Thou shalt not kill; but need’st not strives officiously to keep alive;”

Despite of the controversies and various interpretations given to Clough’s 6th Commandment, the point still remains that EMS practitioners are not duty bound to always act to preserve life at all costs. Sometimes, you do not have to act but withhold medical care where such interventions could be futile. For instance, in a mass casualty incident, you can come across a casualty with a hemicorporectomy (the body is severed in half at the waist) or a similar massive injury. Do you render or withhold emergency medical care?

Another scenario is when you have advanced life support medication in your ambulance without off line protocols and the medical director is off air. Do you administer the medication and risk the consequences of doing more harm than good or just stick to basic life support protocols such as Scoop and Run (Load and Go)?

The answer to these questions can partly be found in the Acts and Omissions Doctrine. The doctrine states that the actions which result in undesirable consequences are always morally worse than failing to act which might have the same consequences (Gillon, R: Philosophical Medical Ethics, 1986).

Exceptions to the Golden Rule

Despite of the foregoing, there are circumstances when it is acceptable to permit harm without doing good and without attracting legal penalties.

  • Patient autonomy – one of the fundamental principles of patient care is the right of our patients to choose and consent to health care services prescribed for them. This concept which is also known as the right to self determination means that EMS practitioners are bound to perform the wishes of the patient even if it is against the overall best interest and the overriding public policy to preserve the sanctity of life.

Whenever an EMS practitioner is faced with the decision between choosing to do good in the best interests of the patient in accordance with the standard of care (beneficence) and doing what the patient wants (the principle of respect for persons), the courts have upheld patient autonomy for patients with a legal capacity. Always respect the wishes of the patient even if it can cause them harm.

On the same footing, it is thus not in the place of the EMS practitioner to ignore a valid Do Not Resuscitate (DNR) order. You will be held liable in a court of law.

  • Quality of life. As discussed above on the hemicorporectomy patient, sometimes we can fail to do good and permit harm (loss of life) to befall those patients with a poor prognosis of life expectancy. These are patients with poor chances of survival and/or even if they survive, they may never lead a normal life again. You can imagine saving someone who requests to be left to die in peace only to have them on life support for the entire length of their remaining lives.
  • Distributive justice. The reality of our existence is that resources are never enough. Having worked in various EMS institutions, the reality in the field is that EMS providers do not have the state of the art resources that are required to offer the required standard of care.

Would you respond to an emergency call of a massive traumatic brain injury without oxygen therapy, intravenous therapy and suction equipment? The truth is, there is a great risk of secondary brain damage and depending on the accessibility of the nearest appropriate receiving facility, you will deliver a patient who is brain dead. (Research shows that the brain can only survive for 3 to 4 minutes without oxygen and if it lacks oxygen for 10 minutes, the patient can sustain irreversible brain damage. The ‘cabbage state’ in common parlance)
Conclusion

Medical ethics is a controversial area which lacks a one fits all answer to the various medico-legal and bioethical matters that arise in the line of duty. In this case, it is up to the individual practitioner to act in good faith, good conscience and equity in treating the patient and not the illness or injury.

All in all, in the famous case of R v Adams (1957), Lord Devlin upheld that, “The doctor (read EMS practitioner) is entitled to relieve pain and suffering even if the measures he takes may incidentally shorten life.” This therefore means that the principle of ‘Do No Harm’ should not prevent us from doing that which is in the best interests of our patients because of the fear of doing harm which may lead to legal sanctions. It is up to the attending EMS practitioner to weigh the risks of the prescribed regimen against the potential benefits and then make the judgment call.

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PATIENT CONFIDENTIALITY AND BREAKING THE SILENCE

NEVER REVEALING WHAT I SEE OR HEAR IN THE LIVES OF MEN UNLESS REQUIRED BY THE LAW”

Upon graduation, Emergency Medical Service practitioners take an EMS Hippocratic Oath to never reveal whatever they see or hear in the lives of their patients. This is regardless of whether the patient is alive or dead. While bearing in mind the sacrosanct nature of an oath, majority of the EMS personnel endeavor to keep it inviolate in their line of duty. What does this obligation mean and under what circumstances does the law require you to break the silence?

emt-class-of-2015            Photo Courtesy: Kenya Council of Emergency Medical Technicians

Patient confidentiality is the legal requirement to keep the information relating to a patient (like their medical records and personal details) a secret, private and confidential. This obligation on EMS personnel means that, unless authorized by the law, a patient’s information shall not be shared even with colleagues in the teaching environment or leisure time gossip.

The Constitution of Kenya[1] provides that every person has a right to privacy, which includes the right not to have the privacy of their communications violated or any information relating to their family or private affairs unnecessarily required or revealed.  The Kenya National Patients’ Rights Charter[2] reinforces this position by providing that patient confidentiality shall be maintained even upon death of the patient.

Among the many laws with strict provisions on confidentiality is the HIV and AIDS Prevention and Control Act of 2006. Section 20 of this Act contemplates privacy guidelines like the use of an identifying code when collecting, recording, storing and securing information of HIV tests and related medical assessments instead of the patient’s name or other personal details. The Public Health Act[3] further provides that proceedings in cases of patients with venereal diseases shall be held in secrecy.

DISCLOSURE UNDER THE LAW

However, rights are not absolute and sometimes they can be limited by the law[4]. For example, the right to privacy can be limited on public interest grounds, upon consent to disclose or if it is a requirement under the applicable laws[5] as follows;

  1. The information is required by law through a court order. The court can order the production of information especially when the information contained in the medical records is relevant to the proceedings before the court or tribunal. In this case, the EMS practitioner cannot cite the Hippocratic Oath. In the famous case of Hunter v Mann[6], the court compelled a doctor to disclose the identity of the patient whom he had treated and was linked to a hit and run accident. The doctor refused while citing the Hippocratic Oath to defend his non-disclosure but he was convicted and fined.;
  2. The Public Health Act[7] requires the disclosure of the following notifiable diseases to a medical officer of health:- smallpox, plague, cholera, scarlet fever, typhus fever, diphtheria, measles, whooping-cough, erysipelas, puerperal fever, typhoid fever, epidemic cerebro-spinal meningitis, acute poliomyelitis, leprosy, anthrax, glanders, rabies, Malta fever, sleeping sickness, beri-beri, yaws and all forms of tuberculosis
  3. The information can be released if the consent of the patient is given or through the consent of his or her legal and personal representatives. For example, the parents of an underage sick child can authorize an EMS practitioner to release the medical records.
  4. The information is necessary to protect the welfare of the individual or the community[8]. It is in the public interest to protect the general public from serious harm
  5. The information is communicated to healthcare personnel in the continuum of care or to protect them. Many a times, EMS practitioners are required to handover the patients who need further management to persons of equal or higher certification for continuity of care. Failure to hand over can lead to the offense of abandonment. While handing over, you can disclose the patient’s medical details through an oral or written patient care report.EMS practitioners should also disclose any hazards or contagious diseases associated with a particular patient in order to protect the receiving health care personnel from harm.
  6. The information is recorded in patient care reports and other quality assurance based tools
  7. The information is provided for research purposes. Provided that information offered for research shall not include the patient’s name, photo or other identification marks that will make it possible to identify the patient.
  8. The information is submitted to relevant administrative organs and regulatory bodies such as The Kenya Council of Emergency Medical Technicians (KCEMT) through the grievance submission procedures. In addition, upon the death of a person attending medical practitioners are required by law[9] to provide information on the cause of death and other relevant details of the deceased to the Registrar of Births and Deaths.
  9. Information is submitted for the insurance billing process
  10. Information related to commission of criminal activities such as child abuse, terrorism, or fraud whether such information is acquired before, during or after providing emergency medical care

Unless these conditions for disclosure are met, breach of patient confidentiality is an offense in Kenya. Upon conviction, the liable party can be  fined up to one hundred thousand shillings and/or two years imprisonment.

Sources:

[1] Article 31 (c) and (d), Constitution of Kenya, 2010.

[2] Chapter 1, Article 7 of the Kenya National Patients’ Rights Charter, 2013. Ministry of Health.

[3] Section 54 of the Public Health Act Cap 242 of the Laws of Kenya

[4] Article 24, Constitution of Kenya, 2010

[5] Section 22 of the HIV and  AIDS Prevention and Control Act (No. 14 of 2006)

[6] Hunter v Mann (1974) 1 QB 767

[7] Section 17 and 18 of the Public Health Act Cap 242 of the Laws of Kenya

[8] Section 22(c) of the HIV and  AIDS Prevention and Control Act (No. 14 of 2006)

[9] Section 18 of the Births and Deaths Registration Act, Cap 149 of the Laws of Kenya

 

About the author

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Brian Beauttah is a Director at Knights Emergency Medical Services. He was the Best Advanced Emergency Medical Technician (EMT-1) in Kenya (2014). He has since acquired Advanced Life Support (ALS) endorsements. He is the winner of the Priory of St John Kenya Best Life Saver Award (2016) among other accolades. He has served as an Assistant Secretary in the Kenya Council of Emergency Medical Technicians – KCEMT. Moreover, he has engaged in professional practice in various EMS institutions. Brian is a 3rd year law student at the prestigious University of Nairobi in Kenya.

The Pillars of Kenya Emergency Medical Services Development

Despite of the common perception that Kenya is deficient of resources to strengthen her Emergency Medical Services System, the stakeholders own and hold a lot of resources. If the available resources are pooled together to strengthen the key pillars of Emergency Medical Services, we can establish a robust pre-hospital and out-of-hospital care system.

By: Brian Beauttah                      Folder: EMS Research and Development

On behalf of Knights Emergency Medical Services

In Kenya, we have enough resources to boost our pre-hospital and out-of-hospital care systems. The key pillars of Kenya Emergency Medical Services (EMS) development are: –

  1. Training and certification of EMS providers and personnel
  2. Transport systems capacity (Ambulance services capacity, equipment, mutual response)
  3. EMS Communications Systems capacity
  4. EMS Policy and funding (Setting standards and pooling resources)
  5. Data collection and analysis (Research and documentation)
  6. Organization and oversight structures
  7. Public Participation in EMS development

It all starts with stakeholder awareness, inter-agency collaboration and embracing a common coordinated way forward.

Sources:

  1. Thompson, M. J. (2013). A Comprehensive Review of the Emergency Medical Services System in Kenya. Emory University Press. Permanent url: http://pid.emory.edu/ark:/25593/f8jff
  2. Sasser S, Varghese M, Kellermann A, Lormand JD. Prehospital Trauma Care Systems. Geneva, World Health Organiation, 2005.
  3. National Policy on Emergency Medical Services (draft). Afya House, Kenya Ministry of Health, 2014.

About the author

img-20160512-wa0000-copy

Brian Beauttah is a Director at Knights Emergency Medical Services. He was the Best Advanced Emergency Medical Technician (EMT-1) in Kenya (2014). He has since acquired Advanced Life Support (ALS) endorsements. He is the winner of the Priory of St John Kenya Best Life Saver Award (2016) among other accolades. He has served as an Assistant Secretary in the Kenya Council of Emergency Medical Technicians – KCEMT. He has engaged in professional practice in various EMS institutions. Brian is a 3rd year law student at the prestigious University of Nairobi in Kenya.