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Healthcare | Legal

Balancing the rights and responsibilities of doctors and patients

15 Nov 2019, by Amy Sarcevic

In December 2014, a 21-year old man was brought to a Victorian Emergency Department (ED) by his family because of bizarre behaviour.

Clinicians believed he was suffering from a mental illness, probably psychosis. He was, however, co-operative and agreeable to staying for further assessment and probable admission. Therefore, he did not meet criteria for involuntary admission under the Mental Health Act.

In the early hours of the morning he left the ED for a cigarette, accompanied by a family member. Unknown to ED staff, they had an argument and the patient ran off. The family member followed.

Soon after, the patient returned to the ED with blood on his clothing, but uninjured. The family member was found in a nearby street gravely injured. The patient had attacked him and he later died.

Clinical versus legal and ethical imperatives

Although this is a remarkable case, it’s indicative of a more prevalent issue affecting ED staff throughout Australia, highlights senior emergency physician and academic, Professor Anne-Maree Kelly.

“On a daily basis, ED staff are exposed to complex challenges, most centering around the need to balance clinical, ethical and legal issues,” says Prof. Kelly ahead of the Medico Legal Congress 2020.

“These challenges range from patients wishing to discharge themselves against medical advice, to managing those with complex psychiatric symptoms or those brought in by police who may be violent or threatening.

“Achieving the best possible patient outcomes is always a priority, but when it’s at the expense of staff or community safety – or against the wishes of the patient – it’s not always clear what the ‘right’ decision is. Nor what the legal repercussions may be.”

The number of patients presenting to EDs with mental health problems has increased in recent years, consistent with the growth in general ED presentations and the prevalence of alcohol and drug abuse, among other factors.

New provisions under the Mental Health Act (Victoria) were introduced in 2014, to protect patient rights, including consent to medical treatment.  They emphasise least restrictive care with voluntary assessment and treatment preferred.

Though Prof. Kelly supports the increased rights, she says they create complexities and risks for ED staff and patients.

Legal minefield

“Exercising the involuntary provisions under the Mental Health Act is somewhat of a legal minefield. The Mental Health Act recognises that giving patients more rights, carries risk. But I think it has possibly underestimated the type and prevalence of risk it exposes people to. Moreover, it’s not yet clear how much ED staff will be held legally accountable if that risk materialises.

“Someone could be brought in by police because of strange or aggressive behaviour. They may be spitting, kicking or yelling death threats at staff. Does the fact the patient is brought in by police impose a duty-of-care responsibility on ED staff, when the patient is non-consenting, violent, and has not sought care; and when intervening risks injury to both staff and patient? After all, we all have a right to a safe workplace like anyone else,” she says.

“Here the staff will also need to balance the risks of sedation and restraint (which carries complications that can rarely include death), with the potential risk of injury to staff undertaking it, and the risks to community safety if it not done. All of this happening in a situation that is evolving quickly and in which fast decisions are needed. Not every ED has adequate security staff to offset this.”

In situations like these, it’s also not clear whether being aggressive, cognitively impaired or drug affected means a patient can automatically be assumed “incompetent” to make decisions regarding treatment, Kelly highlights.

These complexities have already led to coronial cases in Australia and some civil litigation is also underway; but Prof. Kelly believes the industry is yet to experience the full extent of legal pitfalls.

“There hasn’t yet been a case that’s really tested what the rights and responsibilities are, and I’m dying to have a conversation with lawyers about this,” she says.

Mitigation, not litigation

Legalities aside, Prof. Kelly’s team at Western Health has a number of strategies in place to offset these challenges.

“For patients declining treatment, we’ve have found that assessing the reasons why can sometimes offer a simple solution.

“It could be that they are a foreign resident and are worried about costs. Or that they have pets at home that need feeding. Talking this through with the patient should always be a first step,” she advises.

Regarding the risk of occupational violence, staff at Western Health ED conduct violence and aggression risk assessment for all patients.   “When people are judged “at risk”, we intervene early and work through their problems, either through de-escalation strategies or medication.

“Chemical restraint is not ideal, but if the patient is persistently violent we are often left with no choice but to sedate them – for everyone’s safety,” she says.

Professor Anne-Maree Kelly is a Director at Joseph Epstein Centre for Emergency Medicine Research; a Senior Emergency Physician at Western Health, Melbourne (a finalist at in the Victorian Woksafe Awards); and a Professorial Fellow at The University of Melbourne.
She will talk more about these strategies at the Medico Legal Congress due to take place 12-13 March 2020.

Learn more and register.

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