Clinical Law Southampton: Recent Episodes
CLAWS
Clinical Law Southampton: Mr Robert Wheeler, Consultant Paediatric Surgeon and Director of the Department of Clinical Law, discusses issues arising in clinical practice such as consent and confidentiality.
TC was 69 when she presented with a supraglottic laryngeal cancer, affecting both her breathing and swallowing.
An eagerly awaited case has been decided. You may recall the story of ABC, whose father, XX, killed her mother, leading to his detention in a psychiatric facility.
Two recent cases with similar facts have resulted in different outcomes. ZA was a 53 year old schizophrenic woman who lacked capacity, and would die if she did not undergo an above knee amputation.
The therapeutic relationship is based on a patient's trust and confidence; in particular that she believes that her doctor (or any other clinician) knows what they are doing.
In August 2019, a hospital sought a court declaration that RR (a 20 year old man)lacked the capacity to make decisions about the palliative care that he was being offered, and to approve the proposed plan.
It is intuitive that delusional illness impairs patients' capacity. But equally we are now well aware of the danger of discriminating against people on the basis of irrelevant considerations, as embodied in the Equality Act 2010.
It is not unusual to hear that a child or young person is refusing treatment, and that those with parental responsibility are providing consent on his or her behalf. Whether parental consent is valid in these circumstances requires resolution in each case. Highly unusual is a different presentation: where a competent child is seeking treatment and providing valid consent, but the parents oppose the intervention.
P is 17 with severe autism, living with his parents. He is unable to communicate in any consistently effective way.
Courts in England pass no judgement on but give considerable weight to families' religious beliefs provided they are legally and socially acceptable. The child's interests remain, however, paramount in all aspects of their upbringing, including religious matters.
It is not uncommon to receive a request from the police for patient data. Recently we admitted a patient who had suffered an injury at home, and it was thought not to have been an accident.
In a recent case, a High Court judge noted with 'surprise and concern' the lack of parental involvement in the deliberations of a hospital clinical ethics committee (CEC) regarding the options for the treatment of a young girl.
Ashley Sanderson is 17 and has cerebral palsy, giving her motor and visual deficits and learning difficulties. Her injuries were caused by brain ischaemia during delivery.
After two court hearings, a judgment was reached concerning QJ, an 87 year old man in a nursing home who was starving himself to death. Mr J had vascular dementia, but had made a clear decision towards the end of 2019 not to eat again.
Organ donation by incapacitated adults or by children requires the agreement of a court. The reason is plain to see. Fear lingers that the 'gift' of an organ could plausibly be the reverse, in reality an act of exploitation, or much worse.
Mr RS was in his middle age when in November 2020 he suffered 45 minutes of cardiac standstill.
The NHS is a free healthcare system. Whether or not a person is eligible to benefit from this is based upon their residency in the UK.
Without doubt there are benefits from virtual practice. The markedly improved attendance at multidisciplinary meetings is testament to that.
It is not unusual to encounter a patient or relative using their phone to take photographs within the hospital.
Pippa Knight was a healthy infant when at 20 months she suffered an acute necrotising encephalopathy, and sustained very severe brain damage.
The intoxicated patient's responsibility? It may be worth reflecting on why intoxication has a bearing on a person's responsibility for the way they behave in hospital.
Child C was seven years old, one of four children, when her sibship was, with the consent of their parents, placed with local authority foster carers in 2012.
We are becoming increasingly familiar with the identification of risks that need to be disclosed when seeking consent for treatment. Previously, we relied upon an arbitrary numerical cut-off expressed as a threshold percentage to determine what we would or would not disclose. But we now are accustomed instead to ask ourselves what the reasonable person in our patient’s circumstances would want to know.
The case of D, a 12 year old girl, was recently reported. She had significant difficulty with food. Starting abruptly when she was ten years old, D suffered unremitting symptoms ascribed to gastroenteritis. It had not been possible to identify an organic cause following detailed and extensive investigation.
At the late stage of 36 weeks' gestation, one week before proposed delivery, a hospital Trust’s application for a covert caesarean section was heard in the Court of Protection. The judge could see no reason why it should not have been possible for the application and hearing to have occurred much earlier.
Mrs G collapsed in church with a subarachnoid haemorrhage followed by cardiac standstill. Resuscitation commenced between five and seven minutes later, but she sustained very extensive damage to her brain. There was no evidence that she was sentient. A vegetative state was diagnosed.
AB is twenty-four. Born in Nigeria, she was adopted at birth by CD, though lived in Nigeria for many years whilst her adoptive mother worked in London as a midwife. When she was 12, AB moved to London, and it became apparent that she had significant developmental delay, with an IQ in the range of 35-49.
Five years ago, a judge’s decision provided us with helpful guidance on how to diagnose incapacity. The case related to JB, a 62 year old lady with paranoid schizophrenia.
We are accustomed to the situation where it may be better to prioritise the quality rather than the quantity of a patient’s remaining life. This shift in emphasis is made only in conjunction with the patient, or her family; but for the management of physical illness, this is rarely controversial.
The same cannot be said of mental illness.
A 64 year old lady was lying in the resuscitation room of an emergency department in London whilst an SHO was proposing to insert a cannula into her left arm.
Vets do this all the time. Faced with the stark prognosis of a beloved family friend with Cushing’s who will die unless he gets his daily bromocriptine, the vet recommends without qualms that the horse’s owner conceals the foul-tasting tablet by burial deep within a carrot.
It is not uncommon to hear of the patient with capacity who resists hospital discharge; but who has no medical cause to remain.
Compulsion may be needed for amputation. Hospitals sometimes seek judicial authorisation for amputations in incapacitated adults.
Patients do not often disagree with the clinician who is treating them. When disagreement occurs, under some circumstances, this may lead to the patient’s capacity to make decisions being questioned.
The foreseeable risks associated with clinical practice seem innumerable, and when seeking a patient’s consent for treatment, we are faced daily with the prospect of trying to identify what we will and will not disclose.
A 21 year old Sri Lankan woman had given birth to her first baby on 16 July. At that time, she spoke very few words of English; the antenatal records revealed at 16 weeks that she spoke Tamil, and an interpreter was required.
In a recent case from an employment tribunal, a band 5 nurse appealed against her dismissal for initiating discussions about religion with patients.
Twenty years ago, English courts were twice faced with the dilemma of needle phobia; both cases relating to women who had consented to urgent caesarean section and explicitly wanted their babies to be born safely.
All clinicians are well aware that patients must not be tricked or cheated into receiving treatment that they would otherwise refuse to undergo
Mr Gallardo complained that he had not been told of his malignant diagnosis, and that a plan for following his postoperative course had not been put in place.
In August 2018 a judge decided that a colostomy should be performed on an incapacitated man, and in doing so overruled the patient’s wishes to avoid the procedure. How can this be justified?
Whether admission to our hospital is recorded on paper or electronically, we faithfully record the patient’s ‘next of kin’. Is this useful information?
In a judgement reported recently, the Court of Protection made an order concerning a man in the late stages of a degenerative neurological disease.
In a recent case, the Court of Appeal distinguished clearly the clinician’s role in identifying the risks and complications inherent in an intervention from the patient’s role in deciding which risks she is willing to run.
Advance decisions allow an adult to refuse lifesaving treatment in a future where they envisage they may lack capacity to deliver that refusal personally.
Nearly twenty years ago, a court was faced with an agonising decision: whether the proposed separation of conjoined twins was lawful.
All those in clinical professions seek consent for what would otherwise be an unlawful touch. As citizens contemplate body modification, are there interventions which cannot be made lawful by consent?