Jo Samanta

LASTING POWERS OF ATTORNEY FOR HEALTHCARE UNDER THE MENTAL CAPACITY ACT 2005: ENHANCED PROSPECTIVE SELF-DETERMINATION FOR FUTURE INCAPACITY OR A SIMULACRUM?

The principle of autonomy for competent treatment decision-making is now the bedrock of English medical law. The competent person has the right to chose treatment from a range of clinically appropriate options, and the right to refuse medical treatment, no matter how irrational that decision might be. What is less clear is how a person’s self-determined choice can be extended to apply in circumstances where that person temporarily or permanently lacks capacity to make a contemporaneous healthcare decision. Such events seem likely to assume greater importance due to demographic shifts towards an ageing population, as well as technological innovations in medicine that offer prolonged life-support. One possible solution is for an individual to have anticipated the most critical decisions that might have to be made in the event that she loses capacity, and to have set out a scheme of prior instructions to determine what should happen if she is no longer able to exercise contemporaneous choice. The rationale behind advance refusals of healthcare is to enable the individual to avoid receiving specified and anticipated medical treatment (given in her supposed best interests) in the event of her future incapacity and where such treatment

Evidence‐based medicine: A clinical governance tool for rationalising or rationing health care?

Purpose – The purpose of this article is to provide a viewpoint on a controversial aspect of evidence‐based medicine (EBM) and its application to clinical decision making and healthcare policy. To draw attention to the potential for using EBM as a rationalising tool, as opposed to rationalising treatment options, and to discuss how legitimacy in the decision‐making process may be secured.Design/methodology/approach – A range of academic commentary and case law is reviewed. A model for the legitimacy of due process is suggested through the application of the framework for the “accountability for reasonableness”.Findings – Provides information about sources indicating their relevance and where they can be found. Emphasises that NHS organisations and trusts need to enhance the legitimacy of due process through clinical governance.Research limitations/implications – Presents a viewpoint designed to stimulate debate, which is based on a critical evaluation of the literature as well as contemporary quality init...

NICE guidelines and law: clinical governance implications for trusts

Clinical guidelines from National Institute of Clinical Excellence (NICE) have been developed by a rigorous process using the highest‐level evidence base. Their objectives are to reduce the variations in clinical care and end the postcode lottery of healthcare delivery. They are backed strongly by the governments agenda, are expected to be implemented and to be monitored, and this is to be monitored by CHAI. Up until now, clinical guidelines have had a secondary status to expert witness testimony in determining the standard of care in law in medical litigation. However, guidelines from NICE may have a more influential role in determining the standard of care in law by setting the standard of expected clinical practice. Trusts need to be sensitive to this as part of their risk management strategy. Trusts should facilitate the implementation of guidelines from NICE and audit their use through the framework of clinical governance. In the rare event that a trust should decide to positively diverge from such guidelines, it should do so only through a mechanism of due process that is required in public law for the accountability of the reasonableness of such a decision.

Equality for followers of South Asian religions in end-of-life care

Significant minority populations confer richness and diversity to British society. Responsive end-of-life care is a universal need that has ascended the public agenda following myriad reports of inadequate provision. Nevertheless, the potential exists for unwitting discrimination when caring for terminally ill patients on the basis of their religion or faith. Recent implementation of the Equality Act 2010, together with the government and professional initiatives, promises to positively impact upon this area of contemporary relevance and concern, although the extent to which facilitative policies can truly enhance patient care will depend upon how these are translated into care at the bedside. The contributions of health professionals will be central in meeting the challenges and seizing the opportunities for meeting the religion and faith interests of patients of South Asian descent.

Do not attempt resuscitation orders: the role of clinical governance

Purpose – The purpose of this paper is to provide a viewpoint on decision making in do not attempt resuscitation (DNAR) orders from the perspective of a competent patient who requests cardiopulmonary resuscitation (CPR) when their clinical prognosis is poor. This issue will be examined from the position of patient autonomy and self determination.Design/methodology/approach – The literature is reviewed including academic commentary, case law and statute.Findings – The paper finds that factors such as futility and quality of life that engage in DNAR considerations should be gauged from the patients perspective. There is a definite argument for supporting a competent patients positive autonomous choice for CPR. This should feature clearly within the framework of clinical governance.Research limitations/implications – Presents a viewpoint designed to stimulate debate based on a contemporary perspective of patient autonomy.Practical implications – End‐of‐life care is assuming a greater importance as evidence...

Understanding the decision-making environment for people in minimally conscious state

ABSTRACT Patients in minimally conscious state (MCS) show minimal, fluctuating but definitive signs of awareness of themselves and their environments. They may exhibit behaviours ranging from the ability to track objects or people with their eyes, to the making of simple choices which requires the ability to recognise objects and follow simple commands. While patients with MCS have higher chances of further recovery than people in vegetative states, this is not guaranteed and their prognosis is fundamentally uncertain. Therefore, patients with MCS need regular input from healthcare professionals to monitor their progress (or non-progress) and to address their needs for rehabilitation, for the provision of an appropriate environment and equipment. These requirements form a backdrop to the potentially huge variety of ethical-legal dilemmas that may be faced by their families, caregivers and ultimately, the courts. This paper analyses the decision-making environment for people with MCS using data obtained through four focus groups which included the input of 29 senior decision makers in the area. The results of the focus group study are presented and further explored with attention on recurrent and strong themes such as lack of expertise, resource issues, and the influence of families and friends of people with MCS.

A Grounded Theory Analysis of a Focus Group Study

Decisions about whether to reassess the clinical condition of patients in a minimally conscious state are a cornerstone of clinical care and management. The outcome of clinical reassessment determines whether efforts to rehabilitate should be escalated, maintained, or targeted more specifically to achieve optimal outcomes. The results of reassessment also underpin decisions to withhold or withdraw life-sustaining treatment from this patient group. Actual decisions about whether to reassess tend to be taken by members of multidisciplinary teams. For this reason, focus groups were chosen to ascertain the views and perceptions of senior decision-makers as to whether minimally conscious patients should have a fundamental “right” to be reassessed. Constructivist grounded theory was used to analyze the data. The results reveal that a range of factors will influence whether these patients are reassessed clinically. This case study discusses why focus groups using a grounded theory analysis were chosen to address the research question. A description is provided of the coding process that was used to develop theory from the focus group data. This case study will help researchers to understand how these methodologies are carried out as well as to identify the types of insight that can be gained from their use.

TRACEY AND RESPECT FOR AUTONOMY: WILL THE PROMISE BE DELIVERED?

The central issue of the Court of Appeal decision in R (Tracey) v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822 concerned whether competent adults should be involved in the decision-making process for Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) decisions. These are sensitive decisions made on the basis that cardio-pulmonary resuscitation would be futile, or that efforts to resuscitate would not be in the best clinical interests of the person concerned. The Court held that patient involvement in DNACPR decisions should be the presumption, even if clinicians sincerely believed that resuscitation would be futile, unless that involvement would cause actual psychological or physical harm. This case commentary explores the potential implications of this decision in the context of contemporary healthcare.

Quackery or quality: the ethicolegal basis for a legislative framework for medical innovation

Innovative therapy is a matter of recent public interest, particularly following Lord Saatchis Medical Innovation Bill. The purpose of the Bill is to encourage responsible innovation in medical treatment. We argue for the need to achieve a balance between the risks of medical innovation and patient safety considerations. We make the case for statutory regulation of medical innovation on the basis of responsible innovation, choice and patient-centred care. At the heart of regulation of medical innovation is care delivered by a process which is accountable, transparent and allows full consideration of all relevant matters. This paper proposes a two-stage test (to assess applicability of medical innovation as well as suitability for the choice of intervention to be undertaken). It is suggested that this model would provide safeguards for patients as well as define limits for doctors in the context of innovative therapy. Implementation and application of such therapy must be underpinned by due process and governance oversight, which could be provided through context-specific professional peer review. A combination of these ethicolegal principles would permit responsible medical innovation and maximise benefit in terms of therapy and patient-centred care.

Clinical practice guidelines and risk management: a medicolegal perspective

Clinical guidelines are systematically developed statements created to assist clinicians in making decisions about the treatment and management of specific conditions. They are linked to the medical evidence base and aim to reduce unnecessary variations in treatment processes, thereby maintaining consistently high quality clinical care. Healthcare risk management is concerned with preventing harm to patients and this goal can be facilitated by clinical guidelines which enhance the quality of care. This paper explores the relationship between clinical guidelines and risk management from a medicolegal perspective.