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Updated: Oct 9 2022

Legal Principles

  • Introduction
    • The following principles are intended to be applied only to a variety of individual situations you may face on the USMLE
  • Capacity, Competence, and Consent
    • Capacity vs competence 
      • capacity is a medical term
      • competence is a legal term
    • Assessing capacity 
      • ability to receive and process the information
      • ability to express a choice
      • ability to understand the potential consequences of the decision
      • ability to rationalize their choice
    • Competent patients have the right to refuse medical information and medical treatment(s)
      • a feeding tube is a medical treatment
      • a competent person can refuse lifesaving hydration or nutrition 
    • Assume that the patient is competent unless 
      • history of suicide attempt
      • psychotic
      • patient cannot communicate
    • Obtain informed consent
      • patient must understand 
        • risks
        • benefits
        • alternatives
          • including no treatment 
      • patient must agree with plan of care without coercion 
      • exceptions
        • waiver by patient
        • patient lacks decision-making capacity 
        • therapeutic privilege
          • physician deprives an unconscious or confused patient of his autonomy in order to protect the patient's health (paternalism)
      • note that written consent can be revoked orally at any time 
      • components of informed consent include: 
        • patient makes and communicates a choice
        • patient is informed
          • information has not been withheld from the patient
        • decision remains stable over time
        • decision is consistent with patient's values and goals
        • decision is not result of delusions or hallucinations
          • temporally incapacitated patients, depending on mental state, may provide informed consent 
      • consent from a patient's spouse is not required treatment of a patient with capacity  
  • End-of-Life Issues
    • If the patient cannot make decisions, surrogate decision makers must use the following criteria:
      • subjective standard (advance directive of patient) 
        • living will = patient provides specific instructions to withhold or withdraw life-sustaining treatment
      • substituted judgment (what would the patient want) 
        • durable power of attorney = patient designates healthcare proxy to make decisions
        • supersedes living will if both exist 
      • "best interests" of the patient 
      • when no living will or durable power of attorney exists, the clinician is responsible for determining an appropriate surrogate decision maker from available family members 
        • the priority of next-of-kin for surrogate decision making is as follows:
          • legal guardian appointed by a court
          • spouse
          • adult children (> 18 yrs) parents adult siblings 
          • grandparents/grandchildren
          • friend of the patient
    • Euthanasia
      • passively allowing patient to die is acceptable
        • but do everything you can to relieve patient's suffering
      • active killing of the patient is not acceptable
    • When treatment should stop
      • physician thinks treatment is futile but family insists on treatment
        • continue treatment
      • after declaration of brain death but family insists on treatment
        • stop treatment
    • Code status 
      • refers to the level of interventions a patient would want should they undergo cardiopulmonary arrest
      • must be determined for any critically-ill patient admitted to the hospital on initial history
      • can include full code (all interventions), do not resuscitate (DNR, or no interventions), or limited code (some interventions)
  • Confidentiality
    • Confidentiality between physician and patient is generally absolute      
      • exceptions
        • suspicion of child/elder abuse 
          • domestic violence is not an exception 
            • physicians should ensure patients have a safe place to go
        • communicable disease must be reported
        • gunshot or stabbing injuries must be reported to the police
        • the patient is a harm to others or self
          • Tarasoff decision held that doctors have a duty to warn of imminent harm to others 
        • no alternative means exists to warn others
        • patient waves right to privacy
          • e.g. for insurance purposes
  • Minors
    • Minors cannot give informed consent unless emancipated through:
      • marriage
      • a parent  
      • military service
      • living alone
    • A minor's refusal of treatment can be overruled by a parent 
    • Parents cannot withhold life- or limb-saving treatment from their children, but can refuse other treatments 
    • Examples
      • 17-year-old girl whose parents cannot be contacted
        • physician may treat a threat to health under in locum parentis
      • 17-year-old girl living on her own
        • patient can choose whether or not to give consent
      • 17-year-old girl who is requests birth control 
        • provide access even in absence of parental consent
      • 17-year old girl who requests treatment for an STI
        • notification of parents is not required 
      • 16-year-old girl refuses but mother consents
        • treat
      • 16-year-old girl consents but mother refuses
        • do not treat
  • Other Principles
    • Avoid going to court
    • Use trained medical interpreters when possible  
    • Committed mentally ill patients retain their rights
    • Never abandon a patient
      • transferring a patient to another physician's care is rarely (if ever) a correct answer on the USMLE If a treatment (such as abortion, birth control, etc) is against a physician's personal beliefs - that physician does not have to provide that treatment; however, they are responsible for referring their patient to a provider who is willing and able to provide such care 
    • Disclose all errors, regardless of harm   
      • consulting risk management alone is rarely (if ever) a correct answer on USMLE
    • Directive counseling should be performed when patients need guidance to make a choice that is clearly superior 
  • Child and Elder Abuse
    • If suspected abuse is occurring, physicians are mandated reporters and MUST report
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