Legal & Ethical Issues of

Patient Transfers

The Situation

• Scott a 30yr old is in the ED with

meningococcal meningitis; he is very sick

and requires Intensive Care.

• The hospital’s ICU is full although there are

some stable patients but they still require

critical care.

• The nearest ICU bed is 50 miles away

The Situation

Evidence shows that premature

discharges from ICU increase mortality (Goldfrad & Rowan 2000; Blunt & Burchett 2001 etc,

etc)

However non-clinical transfers increase

morbidity (Kollef et al.1997; Duke & Green 2001;

Durai et al. 2003; Welch, Harrison & Rowan 2008)

The Reality

• Mr Keith Abel (retired surgeon) sustained a cerebral haemorrhage whilst being driven to High Wycombe hospital.

• He was unconscious, intubated and ventilated and required immediate neurosurgery but there were no neurocritical care beds available & considerable time was spent trying to locate one.

• Mr. Keith Abel: Death in hospital (Hansard, 14 February 1995).

Duty of Care

• Health professionals in an ICU have a duty of care to their patients and must act in their patients’ best interests.

• Consider the difficulty in making a decision that is not entirely in this patient’s best interest.

• Does the intensive care team also have a duty of care to a patient who is currently physically elsewhere in the hospital but who is in need of intensive care treatment?

www.ethics-network.org.uk/Ethics

www.gmc-uk.org/standards

Duty of Care

• Who has this duty during a transfer?

• Consultant in charge?

• The transferring team?

• The receiving unit?

Legal Responsibilities

• Many staff however are unsure of their

roles and responsibilities in their

interactions with the legal system.

• This is not surprising, given the increased

requirements imposed on practitioners by

legislation, regulations and guidelines.

Legal Responsibilities

• The first duty of a doctor must be to ensure the wellbeing of patients and to protect them from harm (this responsibility lies at the heart of the medical profession)

• Nurses must protect and promote the health and wellbeing of those in your care, their families and carers (Code of conduct).

• Patients expect staff to be technically competent, open and honest, and to show them respect.

Reality Conflict

Critical care is in an emerging crisis of conflict

between what individuals expect and the

economic burden society and government are

prepared to provide

Demand exceeds capacity

Pressure of targets

Patients’ expectation

Risks of Transfer

How good is the care patients receive

during interhospital transfer?

Adverse events…… How many?

Why do they occur?

Risks of Transfer

Adverse events occur in about one-third of

cases.

Half the time this can be related to not

following advice from the receiving centre.

Of these events, 70% are probably

avoidable and 30% are related to technical

problems (Ligtenburg et al. 2005).

How to make things

better

• Essentially, why you are here today…….: – Training.

– Equipment safety.

– Publication of European Standards for ambulance vehicles, i.e. (CEN 1789) compliance

• Noncompliance will technically invalidate any EU ambulance's motor insurance policy.

– Each hospital must nominate a specialist with responsibility for critical care received during transfer.

• They would then be responsible for guidelines, training and equipment.

– Adverse events can then be fed back immediately so they can be acted upon.

• Negligence

“We must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour ...”

Lord Atkin in Donoghue v Stevenson (1932)

(Medical) Negligence

• GMC Fitness to Practice:

• Dr K took over the care of a patient who was being

cared for in theatre prior to transfer to another

hospital.

– she did not adequately monitor Mr CL

– left him with nursing staff on several occasions without

good reason

– but she did not leave adequate instructions with the

nursing staff for the patient’s care.

Medical Negligence

http://www.gmc-uk.org/static/documents/content/Krishnamurthy_Anon_Publishable_Minutes.pdf

Medical Negligence

• If a patient is not treated with the proper amount of care, resulting in an injury or death, medical negligence has been committed (by the physician or any the relating staff members).

• Requirements for proving negligence:

– Duty of Care

– Breach

– Causation

• In Dr K’s case, as well as not monitoring her patient and leaving her patient, she did not adequately complete documentation regarding Mr CL during the period he was in her care.

• The 2009 GMC Panel found that Dr K’s acts and omissions were not in the best interests of the patient and fell below the standard of professional performance expected of a second year Senior House Officer.

• The GMC suspended her registration

Medical Negligence

Doctors charged with manslaughter in the

course of medical practice, 1795–2005

Who should transfer?

• Is inexperience a defence?

Inexperience as a

defence?

• “In my view, the law requires the trainee or

learner to be judged by the same standard

as his more experienced colleagues. If it

did not, inexperience would frequently be

urged as a defence to an action for

professional negligence.”

• LJ Glidewell (Wilsher v Essex AHA 1987)

Inexperience as a

defence?

• Two SHOs were convicted of manslaughter by

gross negligence, following the death of 31yr old

Sean Phillips.

– He developed toxic shock syndrome, which the two

doctors were accused of failing to treat, and died four

days later.

• In 2008 a doctor was convicted of manslaughter

after her ICU patient died

– She failed to gain advice of seniors and gave

adrenaline after ignoring the advice of colleagues.

Staying out of trouble

• Effective communication with patients,

their families and other healthcare

providers

• Staying up-to-date clinically

• Realising and practising within the limits of

your skills, knowledge and experience.

• Utilise published guidelines

Guidelines

• In 1993 Professor Ian Kennedy

commented that:

“the role of protocols and guidelines will

become more and more important”.

• His words remain apt, although in England

and Wales clinical practice guidelines do

not yet constitute legally binding standards

of care, nor have they replaced expert

testimony.

Guidelines

• In the case of Early v Newham HA, the 13yr old claimant recovered consciousness while still paralysed from an unsuccessful attempt to intubate her in preparation for appendix surgery. – She panicked and was in great distress until she had

recovered.

• The anaesthetic SHO had followed the health authority’s written “Failed Intubation Procedure’’ correctly. – The guideline had been drawn up by the hospital’s

division of anaesthesia, which included eight consultant anaesthetists

Guidelines

• The claimant sued the health authority, claiming that the doctor was incompetent and negligent, and that the guidelines he followed were faulty and flawed.

• The claim failed. • Bennett QC concluded that the small risk of

transient consciousness was far outweighed by the avoidance of the far greater risk of injury due to hypoxia.

• He also found the guidelines to be reasonable in that ‘a reasonably competent medical authority would have adopted them for their use’.

“Where clinical guidelines have been

developed in a robust manner, which

reflects wide consultation and best

practice, then it is unlikely that a health

professional who follows such guidelines

would be held to be negligent for the

outcome of the treatment or process

used.”

Code of Ethics

• Professional responsibilities • duties and obligations

• Professional relationships • professional behaviour

• good communication

• Accountability

Resource Allocation

• Article 2 - Right to life

• “Treatment that could prolong life may

sometimes be withheld on the grounds of

scarce resources.”

• “The court is unlikely to interfere in a

particular case with a Health Authority's

decisions on allocation of resources.” • http://www.bma.org.uk/ethics/human_rights/HumanRightsAct.jsp?page=4

BENEFITS

RISKS

RISKS