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Medical, Legal, Ethical
 
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Healthcare providers, in this case EMT's, are faced with some very difficult decisions in the course of their career.  Medical decisions about providing or withholding treatment, coupled with the legal ramifications of their action and the acceptance of their action (by on-lookers) on an ethical basis, would be enough to make "stronger men" curl up in the corner and, "let someone else do it."  But, just as in the previous chapter, education is the key.  Coupled with common sense (sometimes referred to as "good faith,") your education regarding the medical, legal and ethical issues you will face, will, most likely, keep you out of trouble.  The adage, "First, Do No Harm," meaning that whatever you do (or don't do) for your patient, do not make their situation/condition any worse, will serve you well throughout your career.  For the rest of this chapter, we'll do our best to give you a basis from which to make those decisions.


First, you should be aware of what's expected of you.  This is both a  legal and a medical issue, in as much as local laws will dictate the medical care that you are empowered to provide, and your Medical Director will further define that care by publishing written protocols (whether direct [on-line] or indirect [off-line].)  This is referred to as the "Scope of Practice."  In essence, if you are provided with the opportunity to "try" brain surgery, PASS.  Know the limitations of your position.  DO NOT operate beyond the scope of your practice.  Generally speaking, if you didn't learn how to perform a certain procedure in an EMT class, you are not empowered to perform that procedure.  On the other hand, DON'T "fall short" either.  Providing care up to and including the limit of your scope of practice is one of the  concepts covered by the "Standard of Care."  This is a set of rules which dictates a manner in which you MUST act.  In addition to "filling" your scope of practice (acting up and including the level to which you have been trained,) the Standard of Care, will dictate such things as, When you MUST respond, The acceptable order for completing certain tasks, When care can be withheld or withdrawn, and "Consent" issues.  We have no outrageous suggestions to make here.  All of the textbooks with which we have been involved over the years, have done a good job of discussing such issues as "Duty to Act," " Negligence," "Abandonment," "Consent," "Do-Not-Resuscitate Orders," and "Advanced Directives."  We will, however, give you our feelings regarding each of these important concepts.

As an EMT, and a member of a local organization charged with the legal responsibility for providing medical care in your community, you will have a Duty to Act and provide that care to the residents of your community.  Understand that not all organizations are charged with that responsibility.  It is important for you to know the legal responsibility of your organization.  If, indeed, you have legal responsibility, it is only during those times when you are considered "on duty"  that you assume the responsibility.  Although, we all have accepted a moral or ethical "duty to act" at those times when we are "on our own," because of our special training and expertise.  If, you are off-duty, and you decide to intervene and provide medical help, you are expected to act in a manner consistent with your Standard of Care, and responsible for all of the same issues (Negligence, Abandonment, etc.) as if you were on duty as a EMT.

Negligence is a failure to provide the level of care to which you are responsible.  Four elements must have occurred in order for the legal determination of "Negligence" to be reached.

  • There must have been a Duty to Act.

  • There must have been a Breech of that Duty, in whole or in part.

  • There must have been some Injury or Loss.`

            AND

  • There must be a reasonable connection between the Breech of Duty, and the Injury or Loss

The petitioner in this civil case must be able to prove all four elements by a preponderance of the evidence.  Simply stated, they have to have more evidence indicating that all four did occur, than you, your Organization and/or your Medical Director have, indicating that one or more did not occur.

Abandonment is leaving a patient, for whom you have an established duty to act, without the consent of the patient or arranging for transfer of patient care to another medical provider trained to the same level (or higher) as you.  Once you have an established duty to act, you can not leave, for any reason (short of protecting your own life,)  without that consent or transfer of patient care.

Consent is permission to treat the patient.  In it's absence, the EMT is at risk of being charged with the unlawful touching of another (in some States, referred to as "Battery,") a criminal charge.  Consent comes is several different "flavors."

  • A conscious, mentally competent patient is capable of "Expressed Consent," assuming that the patient is informed of the potential risks and the benefits of, and alternatives (if any) to, the needed treatment.  It can be offered verbally by the patient either in part or in whole, and can be withdrawn by the patient (in part or in whole) at any time during the treatment, assuming the patient remains conscious and competent.  In most areas, when a patient refuses to be treated, the squad is encouraged to have the patient sign a waiver of treatment, so stating that the proposed treatment, or any part of the treatment, is being refused.

  • When a patient is incapable of making an informed, competent decision, because they are either unconscious, incompetent, or under the influence of chemicals, drugs, or alcohol, most areas have legislation in force that provides for "Implied Consent."   For the unconscious patient, there is rarely any problem assuming Implied Consent has been obtained because in most areas the law assumes that an unconscious patient would consent to the treatment being offered, if they were conscious.  Even if the patient, while still conscious and competent refused treatment, then became unconscious, most laws assume that the patient "changed his/her mind" just before they became unconscious, they just didn't have enough time to tell you.  When dealing with patients that are conscious, but incompetent (due to any mental impairment) the situation is much different is some areas.  In order to act immediately, over and above their expressed, incompetent refusal for treatment, there must be some medical emergency (clear and present,)  and a reasonable indication that the patient is incompetent.  The definitions of  "medical emergency" and "reasonable indication" are what will ultimately cause problems for the EMT.  In the absence of this medical emergency it is probably best to try and obtain informed expressed consent from a guardian, family member, or caregiver.  Lacking that, seek documentation of the patient's incapacity to make an informed refusal for treatment, or alternatively have the patient placed in protective custody by the local police agency, who would then have the "responsibility" for providing medical attention to the patient, even over their objection.  If it hasn't already been done, discuss these possible situations with your Organization's administrators, and your Medical Director.  If it has already been done, review their findings and protocols regarding these types of patients.  Once again, KNOWLEDGE is the key to staying out of "the pickle barrel."

Dealing with children (minors,)  is much like dealing with incompetent adults, and many of the same guidelines apply.  Some areas, however, have made legal provision for "emancipated minors," and allow these individuals to give valid consent/refusal.  Know local protocol. In the presence of a medical emergency, the same actions should be taken and possible problems anticipated, as if you were dealing with an incompetent adult.

Forcible Restraint is a practice that we feel is best left to law enforcement personnel.  The "well-being" of the EMT is definitely jeopardized by such action, and we feel that it is probably best to wait until the scene is considered "safe" before entering.  More about "scene safety" later.  Local protocol, MAY, authorize you to forcibly restrain a patient that is in danger of doing harm to himself or you.  Look to your instructors (in your EMT class) for methods, suggestions, and protocol regarding this dangerous practice.  Keep in mind, regardless of authorization, that if the present danger is a risk to your well-being ONLY, and the patient is at no risk, your best action is probably to retreat from the scene, and again, wait until the situation improves.

Do-Not-Resuscitate Orders (DNR's) are an order written by a doctor, after consultation with either the patient or the patient's family, or both.  They state, in essence, that if the patient stops breathing, and the heart stops beating that heroic measures to continue the patient's life should NOT be employed.  Typically this refers to CPR, but might also include respirators, external pacers and the like. These orders are not, as has been interpreted by some, "do not treat orders."  Which means up until and including the time that the patient stops breathing, and the heart stops beating, all appropriate medical interventions should be employed in order to try and make this patient "better."  With the exception of this unusual "interpretation," DNR's are a fairly straight forward statement of intent to have certain measures withheld.  In some areas, the form of a DNR has been standardized, making it easily recognizable and removing any doubt that the responding provider might have about its authenticity.  Also, in some areas, the DNR has been created in the form of a medical bracelet, worn by the patient for whom the DNR has been written, again, removing any doubt about the "subject" of the DNR.  Patient education regarding "what to do if the patient stops breathing" has improved over the past few years, and the family is less likely, now, to call for an ambulance, making it less likely that you will be involved.  In some areas, DNR's are only valid in the hospital setting, again, making it unlikely that you will be involved.  DNR's generally have some type of "expiration date," meaning that they must be "renewed" by the issuing physician at regular intervals.

Advanced Directives ("Living Wills") are documents created by the patient (hopefully before he/she becomes a "patient,") sometimes with the help of a lawyer, which state, sometimes is very specific legal language, exactly what medical interventions the patient would like to have employed on their behalf should the necessity arise.  (Wheew!)  They are typically lengthy, written in legal language and confusing at best.  They explain, sometimes in "painful detail,"  what the patient would like to have done for them, if certain medical conditions present, at a time when the patient can not express their own wishes.  They are not to be interpreted in the field. The language is "medicolegal" at best and should be interpreted by a doctor.  In the absence of a DNR order at the scene, when presented with an advanced directive, the rescuer should accept the document and proceed with patient care according to local protocol (including the concepts of "consent.")  To do anything less, puts the EMT at risk of legal action.


Ethical Issues, and the questions that they present, are probably best addressed by common sense.  An EMT who acts in a professional manner, treating patients with the respect that they deserve, within the guidelines of the medical and legal limitations that have been created, will be well on his/her way to becoming the professional team member that every EMT Instructor would be proud to "claim" as their own.

Certain issues, however, need to be discussed. 

Confidentiality is a major issue.  And it goes beyond the typical interpretation of "what the patient says to the EMT is confidential."  The confidentiality of patient information needs to be protected at all times.  Talking about a patient's condition, or response to treatment, in ANY public setting is discouraged.  You have no idea who may be listening.  Talking about a patient's condition, or response to treatment, in the presence of an "unconscious" patent is discouraged.  You have no idea what the patient may be capable of "hearing" and/or "remembering."  In general, discussing anything that has to do with your patient, with anyone other than your conscious patient, is not a good idea.  At the scene of a request for medical aide, even the patient interview (the gathering of information regarding chief complaint, medical history, and personal information) should be conducted in  a quiet, relaxed one-on-one manner, where just the patient and the report writer are talking to one another.  Not from across the room, where everyone in the room will now be aware of "just what the real problem is."   Our suggestion is to forward "Requests for Information" about patients to the administrators of your Organization or to your Medical Director.  The only other "officials" outside the hospital setting, to whom you may have to report might include law enforcement personnel in the event that some law has been broken.  Even in this event, it's probably best to refer these individuals to your superiors.

Truth in report writing is part of professionalism.  No matter what you think the outcome might be, the report must be an accurate account of the events, and outcomes, that occurred as a result of your team's involvement with this patient.

Dealing with certain "reportable" events (such as rape, abuse, drug use, childbirth, and others) is dictated by local law and common sense.  It is best to look to your Instructors during your EMT course, and your superiors after the course, for guidance in such matters.  The legislation regarding the reporting of such incidents from one area to the next changes greatly.

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Last updated: 04/22/13.