‘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.
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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:
- Do good (act in the best interests of the patient); or
- Do no harm (Fail to act)
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;
- 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
- 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
- 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
- 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
- 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;
- To gather and be guided by the patient’s history,
- 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
- 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)
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.