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Published: Fri, 02 Feb 2018
Analyse Legal And Ethical Issues Facing Paramedics
A paramedic’s work is individual in its role, context and circumstances. When discussing pre-hospital emergency care, it has been argued that “this care is unique and characterized by factors that are likely to give rise to a different set of ethical conflicts in comparison with other forms of care” (Nordmark & Sandman, 2006, p.1). Paramedics face extreme physical and emotional challenges every day, but many issues arising for them are based around legal and ethical responsibilities. These ethical and legal responsibilities are largely concerned with matters of duty of care towards patients and the public, negligence in treatment and practice, a patient’s consent to treatment and procedures, and confidentiality of a patient’s personal and medical information.
To minimise the likelihood of issues arising, paramedics should always practice beneficence and non-maleficence, respect the right to autonomy of all patients, and always strive for justice in all situations.
Duty of care refers to the obligation that a person has to exercise reasonable care with respect to the interests of others, including assisting in the management of suffering, and preventing any further suffering through error or omission. In the 1932 case of Donoghue V Stevenson, duty of care was Ms Donoghue’s main point of contention when suing David Stevenson, a soft drink manufacturer, after she found a snail in her ginger beer. Donoghue was successful in her action as it was found Stevenson owed her a duty of care. As highly trained health care professionals, paramedics have a duty of care towards the health and well-being of others that is higher than that of the general public. In the theory of principle based ethics a paramedic must practise non-maleficence and beneficence. This means that not only must they avoid doing harm – non-maleficence, they must also display active well-doing and an unselfish concern of the well being of others – beneficence. The principles of non-maleficence and beneficence in relation to duty of care are also inextricably linked to the principle of justice, that is, that a fair, unbiased and appropriate treatment in light of what is appropriate or owed to a person must be undertaken.
“One likely cause of action against either an emergency service or a member of that service will be an action alleging negligence” (Eburn. 2005. p. 125). It is the presence or absence of a duty of care that will determine the outcome of a claim of negligence. For a plaintiff to be successful in a claim of negligence they must prove three key points. The first is that the defendant did in fact owe the plaintiff a duty of care, which will vary from case to case depending on a wide variety extraneous factors. If the presence of a duty of care is established it must then be proven that the defendant failed in that duty of care. And finally, it must be shown that the plaintiff suffered loss or damage as a direct result of the defendant’s actions or omissions.
In cases of accused negligence there are often many factors that can be used as a defence against the claim. If there is found to be no duty of care present or no breach of the duty of care, the defence will usually be successful, as it will be if there is no causation or injury, or if there was a voluntary assumption by the plaintiff of the risks involved. A defence will also usually stand if there were intervening factors involved at the time, or if the statute of limitations (7 years) has expired. If all these defences fail however, the defendant can also take partial blame and accept contributory negligence or joint liability.
Whilst failure to follow a duty of care can lead to accusations of negligence, a failure to gain informed consent can lead to charges of assault and battery.
Following World War II sixteen doctors were prosecuted by the International War Crimes Tribunal for medical and psychological experiments performed in Nazi concentration camps. The trials of these doctors led to the development of the Nuremberg Code which sets out the moral and ethical principles for medical research on humans (Kerridge, Lowe, & McPhee. 2005). This subsequently led on to include the issue of informed consent for all medical treatment, an integral part of ethical and legal issues in modern medicine.
Informed consent refers to the right of the patient to know about, and to say no to, treatment. “Ethical considerations, decisions, and actions should be based in the patient’s beliefs about health and well-being” (Bremer, Dahlberg, & Sandman. 2009. p. 323). The common law doctrine of informed consent dictates that an individual has the right to determine what will be done with her or her own body, and that no doctor, nurse or paramedic has the right to take that away from them. Just as negligence is linked to non-maleficence and beneficence, the issue of consent is inextricably linked to the ethical principle of autonomy. As an autonomic being, you have the right to withhold or give consent to procedures affecting your body. If a paramedic acts against the patient’s wishes and treats without consent, they are then liable to legal charges of assault and battery. There are situations however, that may restrict autonomy and therefore override the giving or withholding of consent. If a situation potentially endangers public health or is potentially harmful to others autonomy may be restricted, as it is for situations that may require a scarce resource. The duty to respect autonomy ends when a person is deemed to be incompetent of acting in an autonomous manner as stated in the Mental Health Act 1986. This may be due to maturity or immaturity (irrespective of age), mental illness or temporary incapacity due to intoxication, drugs, or medical issues such as shock or head injuries. In deciding upon the validity of informed consent, one must examine five key points. Firstly, competence of the patient must be established. If the patient is indeed found to be competent, full disclosure of all available information regarding the proposed treatment/procedure must be made, and it must be ensured that the patient understands this information. Informed consent is not valid if the person is coerced or pressured into any decision making, so consent must be voluntary. And of course the final step is to gain consent, whether it be verbal, written or implied (where a person acts in a way that indicates they give consent such as extending an arm for cannula insertion).
Consent must also be considered when discussing confidentiality which is “one of the most important and well established moral obligations of health-care ethics” (Hendrick. 2004. p. 115). Privacy and confidentiality are essential in both maintaining human dignity, and holding the public’s trust in paramedics. Confidentiality must be applied to observed, verbal or written information obtained about a patient, abiding by the Health Records Act 2001. In modern health care it is often a challenge to balance respect for a person’s privacy and confidentiality, with the need for information for further health care or for the safety of others. A breach of confidentiality will occur if information is passed on without authorisation or a valid reason for doing so. However, the protection of confidentiality ends when public peril begins. If withholding information may lead to harm of others, confidentiality may be broken. Other situations where confidential information may be used include if the patient consents to the use, emergency situations, to protect a third party from danger, if you are required to do so by law, or if you are requesting the commitment or hospitalisation of a psychiatrically ill patient.
Paramedics confront a large variety of ethical and legal issues on a daily basis and it is how they avoid or deal with these issues that determine the ease or complexity of this aspect of their jobs and any legal problems that may arise. If paramedics always practise non-maleficence, beneficence, and therefore follow their duty of care, they can avoid or defend accusations of negligence. If they respect a person’s right to autonomy and justice, issues of consent can be controlled. And if a paramedic follows the rules of consent or assesses a situation and makes informed, rational judgements that deem consent unnecessary or the breaking of confidentiality valid, then they will be covered by common law if acting in the best interest of the patient and the larger community.
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