Legal Principles

Introduction

The following principles are intended to be applied only to a variety of individual situations you may face on the
USMLE

Capacity, Competence, and Consent

Capacity vs competence

o capacity is a medical term

o competence is a legal term

Competent patients have the right to refuse medical information and medical treatment(s)

o a feeding tube is a medical treatment

o a competent person can refuse lifesaving hydration or nutrition

Assume that the patient is competent unless

o history of suicide attempt

o psychotic

o patient cannot communicate

Obtain informed consent

o patient must understand

risks

benefits

alternatives

including no treatment

o patient must agree with plan of care without coercion

o exceptions

emergencies

waiver by patient
 patient lacks decision-making capacity

therapeutic privilege

physician deprives an unconscious or confused patient of his autonomy in order to protect

the patient's health (paternalism)

o note that written consent can be revoked orally at any time

o components of informed consent include:

patient makes and communicates a choice

patient is informed

information has not been withheld from the patient

decision remains stable over time

decision is consistent with patient's values and goals

decision is not result of delusions or hallucinations

o consent from a patient's spouse is not required treatment of a patient with capacity

End-of-Life Issues

If the patient cannot make decisions, surrogate decision makers must use the following criteria:

o subjective standard (advance directive of patient)

living will = patient provides specific instructions to withhold or withdraw life-sustaining treatment

o substituted judgment (what would the patient want)

durable power of attorney = patient designates healthcare proxy to make decisions

supersedes living will if both exist

o "best interests" of the patient

o when no living will or durable power of attorney exists, the clinician is responsible for determining an
appropriate surrogate decision maker from available family members

the priority of next-of-kin for surrogate decision making is as follows:

legal guardian appointed by a court

spouse
 adult children (> 18 yrs)

parents

adult siblings

grandparents/grandchildren

friend of the patient

Euthanasia

o passively allowing patient to die is acceptable

but do everything you can to relieve patient's suffering

o active killing of the patient is not acceptable

when treatment should stop

o physician thinks treatment is futile but family insists on treatment

continue treatment

o after declaraion of brain death but family insists on treatment

stop treatment

Confidentiality

Confidentiality between physician and patient is generally absolute

o exceptions

suspicion of child/elder abuse

gunshot or stabbing injuries must be reported to the police

communicable disease must be reported

the patient is a harm to others or self

tarasoff decision

no alternative means exists to warn others

patient waves right to privacy

e.g. for insurance purposes

Minors

Minors cannot give informed consent unless emancipated through:

o marriage

o a parent

o military service

o living alone

A minor's refusal of treatment can be overruled by a parent

Parents cannot withhold life- or limb-saving treatment from their children, but can refuse other treatments

Examples

o 17-year-old girl whose parents cannot be contacted

physician may treat a threat to health under in locum parentis

o 17-year-old girl living on her own

patient can choose whether or not to give consent

o 17-year-old girl who is requests birth control

provide access even in absence of parental consent

o 16-year-old girl refuses but mother consents

treat

o 16-year-old girl consents but mother refuses

do not treat

Other Principles

Avoid going to court

Use trained medical interpreters when possible

Committed mentally ill patients retain their rights

Never abandon a patient

o transferring a patient to another physician's care is rarely (if ever) a correct answer on the USMLE
 o If a treatment (such as abortion, birth control, etc) is against a physician's personal beliefs - that physician
does not have to provide that treatment; however, they are responsible for referring their patient to a
provider who is willing and able to provide such care

Disclose all errors, regardless of harm

o consulting risk management alone is rarely (if ever) a correct answer on USMLE

Child and Elder Abuse

If suspected abuse is occurring, physicians are mandated reporters and MUST report

Ethical Principles

Author: Greg Kurkis

Topic updated on 05/27/17 1:05pm

Core Ethical Principles

There are 4 core ethical principles

Autonomy

o respecting patients as individuals

o honoring patient's preferences in medical care

o respecting confidentiality

Beneficence

o acting in patient's best interest

o balance autonomy and beneficence, but autonomy trumps beneficence

Nonmaleficence

o "do no harm"

Justice

o distributive Justice

governs allocation of limited resources

 o formal Justice

equals must be treated equally

Other Principles

Breaking bad news

o set up the interview

o assess the patient's perception

o obtain the patient's invitation (i.e. permission)

o give the patient the necessary knowledge

o address the patient's emotions with empathetic responses

Patients (in general) have a right to know their diagnoses

Open-ended questions are the best way to elicit a patient history; closed-ended questions are useful for follow-up
or clarification

Many patient encounters necessitate a combination of the above ethical principles--a few general principles
include:

o encourage open communication between patients and other treating physicians

o attempt to preserve the patient's relationship with other health-care providers.

o nonetheless, ensuring that the patient is receiving the best available care is always the primary priority

o if a mistake is discovered the physician should disclose that to patient/family.

Privacy and the doctor-patient relationship

o all patients, regardless of age, should have the option of speaking to their physician alone

o this includes adolescents, spouses, and elderly adults.

Conflicts of interest:

o physicians should report conflicts of interest

o physicians can accept honoraria and be compensated for travel expenses, but cannot have assistance wit
slide presentations from pharmaceutical companies

Capacity
o physician's can determine capacity which is the ability for the patient to understand their treatment as
well as the risks, benefits and alternatives

o competence is a legal designation and can not be determined by a physician