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Ethics and law for
the paramedic
Vince Clarke, Graham Harris and Steve Cowland
In this chapter:
Introduction
Why is this relevant?
Ethics
Law
Professional regulation
Accountability and clinical negligence
Capacity and consent
Confidentiality and data protection
Conclusion
Chapter key points
References and suggested reading
Introduction
The role of the ambulance clinician has undergone enormous development since the early 1990s, with the term ‘paramedic’ now being synonymous with front-line pre-hospital health care. As a protected title, anyone wishing to call themselves a ‘paramedic’ must first be registered with the Health Professions Council (HPC) and must adhere to the professional and ethical standards they prescribe.
Why is this relevant?
In addition to adhering to the expectations of the HPC, paramedics are also required to work within the legal parameters dictated by legislation. All areas of paramedic practice, notably
4 Foundations for paramedic practice
the gaining of consent, drug administration and issues of confidentiality, must be undertaken within the legal framework of the territory in which the paramedic practices. Paramedics often meet people in extremely difficult and distressing personal circumstances and at critical times in their lives. Patients and families can be vulnerable during these mo- ments, so it is crucial that ambulance clinicians have an understanding of the key legal and ethical issues that may impact on their decision making. Without an understanding of the ethical principles, legislation or legal precedents that apply to their practice, paramedics may potentially be at risk of incurring fitness to practise investigations, civil litigation, or, in extreme cases, criminal charges. No text can prepare the reader for all eventualities, but a discussion of the key legal and ethical issues is vital for safe, competent and professional practice.
Definitions
Practice is a noun, a thing. Practise is a verb, a doing word. For example: ‘The only thing George did not like about skills practice was practising his cannulation.’
Ethics
Ethics can be considered a ‘moral code’, and as such can be very subjective. There are many textbooks devoted to ethical principles and theories, including an array of those that focus on medical ethics. Such texts often contain ethical scenarios for the reader to dissect, dis- cuss and consider. Examples of subject matter for this type of scenario could include termi- nation of pregnancy, resource allocation, assisted suicide, end of life issues, organ donation or ‘saviour siblings’ to name but a few. The difficulty with such ethical dilemmas from the perspective of the paramedic is that they tend to be focused on situations that occur in non- emergency environments within health care and can, therefore, be viewed as not relevant to the paramedic. However, with the expansion of the role of the paramedic to include alternative treatment pathways, and an increasing tendency to refer patients to areas other than emer- gency departments, a deeper understanding of ethical decision making should be considered a must for paramedics who are now at the front line of out-of-hospital rather than pre-hospital care. The role of the paramedic often demands rapid decision-making capability where it could be argued that ethical considerations are put aside for clinical decisions to be made. There are generally very clear clinical guidelines for paramedics to follow, but there are rarely considered ethical decision-making processes that accompany them. The principles of ethics proposed by Beauchamp and Childress (2001) are a good start- ing point for the paramedic. Their four principles approach provides paramedics with the basic tools to enable them to consider ethics in their practice (see Box 1.1). By giving some consideration to each of the four principles, paramedics can weigh up their deci- sions and ensure that they are in the best interests of the patient while being ethically sound.
6 Foundations for paramedic practice
Table 1.1 Criminal law versus civil law Criminal law Civil law Purpose To protect society by maintaining law and order
To uphold the rights of individuals and to settle disputes Participants The case is brought by the Crown Prosecution Service on behalf of the State, and is represented as the crown versus the defendant, e.g. R vs. Shipman
The case is brought by one individual or organization against another individual or organization, e.g. Kent vs. London Ambulance Service NHS Trust
Standard of proof To be found guilty , it has to be shown beyond reasonable doubt that the defendant committed the alleged crime
To be found liable , it has to be shown that, on the balance of probabilities , it is more likely than not that the respondent is responsible for the alleged act Findings The defendant can be found guilty or not guilty (or in Scotland a third possibility of ‘not proven’)
The respondent can be found liable or not liable
Outcomes A guilty verdict will result in some sort of punishment, such as prison, a fine, or a community service order being imposed
A liable verdict should result in the situation being ‘put right’. This may mean an apology, a change to policy or the awarding of compensation to the claimant
The legal system in place within the UK can be broadly divided into two main branches: criminal law and civil law. Table 1.1 details the differences and similarities between these two areas. Paramedics are subject to the same legislation as any other individual in the UK, and are specifically named in practice notes for particular legislation such as the Mental Capacity Act
In practice, the majority of legislation that impacts on the day-to-day work of the paramedic is dealt with by the paramedic’s employing authority. Health and safety, data protection, drugs regulation, medical equipment safety, and human rights are all areas that are legislated and put in place by employers. Paramedics as individuals are more likely to fall foul of the civil side of the law if they either lack competence or engage in behaviour which could be considered as misconduct. This will be discussed under the heading of professional regulation. A third branch of the legal system is that of the coroner’s inquest. Threats of ‘explain it to the coroner’ have historically been used to encourage student paramedics to do the right thing when treating patients and when completing records, often portraying the coroner as someone to be feared. This is simply not the case. The role of the coroner in relation to deceased individuals is to establish facts. There are four main facts that the coroner must establish:
the identity of the deceased;
the place of death;
the time of death;
how the deceased came by their death.
Coroners are usually lawyers with specialist training, with only about 25 per cent being med- ical doctors with a legal qualification. The coroner’s inquest follows an inquisitorial process which aims only to establish the facts, as opposed to criminal and civil cases which follow
Ethics and law for the paramedic 7
an adversarial process with one side trying to prove that their case is more just than their opponents. Paramedics may be called upon to provide written witness statements of fact to the coroner and any patient report records that they have completed may also be subjected to scrutiny. In some cases where further clarification is needed, the paramedic may be required to give evidence at a coroner’s inquest. Once the paramedic has answered any of the coroner’s questions, the coroner may invite any interested parties to question the paramedic. This means that relatives of the deceased, or their representatives, may ask the paramedic questions. This can be a difficult and uncomfortable experience for the paramedic concerned, but it often goes a long way to giving bereaved relatives a greater understanding of what happened to their loved one. In order to make such experiences as pain free as possible, it is vital that the paramedic thoroughly documents all details for all the calls that they attend.
Professional regulation
The paramedic profession, currently along with fourteen other allied health professions, is regulated by the Health Professions Council (HPC). The HPC was brought into existence by the Health Professions Order 2001 (the Order) which sets out the roles and responsibilities of the HPC. The HPC’s overarching objective is the protection of the public, which it achieves in four main ways:
the maintaining of a register of health professionals, including paramedics;
the approval of education programmes leading to eligibility to apply for registration;
the assessment of continuing professional development (CPD);
the hearing of Fitness to Practise complaints.
The term ‘paramedic’ is a protected title, meaning that it can only be used by those whose name appears on the register maintained by the Health Professions Council; there are over 15,000 registered paramedics in the United Kingdom. Use of the protected title by someone whose name does not appear on the HPC register is a criminal offence. In order to gain entry to the HPC register, an individual must demonstrate that they have achieved the threshold requirements of the profession – the HPC Standards of Proficiency for Paramedics (HPC 2007), generally by completing a programme of study approved by the Education Committee of the HPC. To remain on the register the paramedic must demonstrate CPD activities and adhere to the HPC Standards of Conduct, Performance and Ethics (HPC 2008). The implications of failing to do so will be addressed later in this chapter.
Stop and think
Have you ever heard a paramedic say ‘What does the HPC do for me?’ before going on to complain that ‘I pay out each year and I don’t get anything in return’? Comparisons may then be made between the HPC, trade unions and the College of Paramedics. This is a relatively common viewpoint of paramedics who do not fully understand the role of the HPC. The HPC is a regulatory body in place to protect the public and give the public confidence in all of the professions it regulates. The paramedic’s registration fee allows this to happen. Trade Unions represent the interests of their members and offer assistance and representation to individ- uals as well as groups, and the College of Paramedics is a professional body which furthers the interests of the profession as a whole, for example by producing curriculum guidance.
Ethics and law for the paramedic 9
health professional if a case is established and current impairment is found. Such action may involve removing the paramedic from the HPC register. Other action may include suspension from the register or restricting the individual’s work or publicly cautioning him or her. Those prospective paramedics who are trying to join the register will not incur any penalties from the HPC during education, but will be unable to register if they do not reach the re- quirements of the HPC relating to the standards of conduct, performance and ethics that they have to reach in order to apply to be registered with the HPC. The standards will form part of their educational programme and may be assessed in theory and in the practice environment, depending on the structure and content of the programme approved by the HPC. Clinical negligence is an area that is often associated with fitness to practise. As employees of NHS ambulance trusts, paramedics are covered by vicarious liability for their actions. An employer can also be held vicariously liable for an employee’s breach of a statutory duty. If the statute imposes a duty on the employee personally, as in the case of the Mental Capacity Act 2005, and makes no reference to the employer, vicarious liability still applies ( Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34). If vicarious liability is imposed on an employer, both the employer and employee are held jointly liable, technically enabling the employer to claim a contribution from the employee in respect of any financial loss incurred (Civil Liability (Contribution) Act 1978), however, in practice this does not happen. The NHS Litigation Authority generally deals with claims of negligence relating to NHS staff or organizations. Those paramedics who work privately would be well advised to ensure that they are fully covered with regard to negligence claims. For a claim in clinical negligence to be successful, three key elements need to be established;
duty of care;
breach of duty;
negative consequences as a direct result of the breach (causation).
The ambulance service itself has a duty of care from the point that it has established the location and identity of a patient, a duty which begins before the paramedic has even got to the scene ( Kent v Griffiths [2000] 2 All ER 474). A paramedic’s duty of care is often straightforward to establish and would begin when the paramedic enters into a patient–carer relationship with the patient by engaging in direct contact with them. A breach of this duty is when a paramedic has failed to carry out their duties to an expected level of care. In negligence claims this is an area where expert witnesses may be employed to determine if the paramedic had breached their duty by comparing their actions to those that a reasonable paramedic should have undertaken in the same circumstances. The final element, that of causation, is generally the most difficult to establish and it is on the basis of this that a case may or may not proceed to court. Establishing causation relies on proving a link between the breach and the resultant harm using the ‘but for’ test ( Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068); but for the breach, the harm would not have occurred ( Wilshire v Essex AHA [1988] 1 All ER 871, [1988] AC 1074 (HL))
Case Study 1.
What happened?
A patient complains to the HPC about the treatment of their relative who died following an acute asthma attack. The attending paramedic failed to identify that the patient was asthmatic, treating instead for a drugs overdose. No bronchodilating drugs were administered and the
10 Foundations for paramedic practice
patient suffered a cardiac arrest. The paramedic failed to maintain the patient’s airway and did not attempt intubation.
The employer’s perspective
An employer’s investigation found that the paramedic had failed to correctly diagnose the patient’s condition – a competency issue. The paramedic was given a period of update training and supervision in practice until his employer was satisfied that he was competent. He continued to work as a paramedic pending an HPC hearing.
The HPC perspective
When the case was heard by the HPC Conduct and Competence Panel it was found that there had, indeed, been a lack of competence at the time of the call. The paramedic had breached standards by not keeping their professional knowledge and skills up to date. However, when considering the issue of current impairment, it was found that the remedial plan put in place by the employer, and seen through by the paramedic, meant that the paramedic was currently able to practise without any impairment. No further action was taken.
The lesson to be learnt from this case study is that professionals need to demonstrate that they have reflected on their mishaps and developed themselves appropriately. It is not uncommon for competency cases brought before the HPC to result in a finding of no current impairment to practise even though the facts of the case have been established against the registrant.
Capacity and consent
All individuals have fundamental legal and ethical rights in determining what happens to their own bodies – the principle of autonomy. To respect a patient’s autonomy the paramedic has to obtain valid consent in the majority of healthcare encounters. Failure to do so may result in an accusation of assault or battery.
Adult consent
For consent to be valid, a patient has to have the appropriate information and must be able to comprehend the procedure, treatment, intervention and so forth, being proposed by the paramedic. This means that the patient must be able to understand not only the procedure or treatment to be carried out, but also the consequences of such actions. This will allow the indi- vidual to consider the pros and cons of such situations and provide what is termed ‘informed consent’. The depth to which the paramedic must discuss these details will be determined by several factors. One may be the severity of the presenting condition and the timescale in which the proposed intervention must take place. The vast majority of invasive pre-hospital interven- tions are undertaken in circumstances where they are necessary to prevent rapid deterioration of a patient’s condition. In such circumstances it would not be realistic, or expected, for the paramedic to discuss all possible issues surrounding a procedure. The Department of Health (2001a) advises that consent must be given voluntarily without duress or undue influence from health professionals, relatives or friends. In order for the patient
12 Foundations for paramedic practice
permanently. The attorney will have been appointed by the donor at a time when they did have capacity and may, in some cases, share their powers with another. LPAs should be treated as the proxy of the donor, with all relevant information that would have been communicated to the donor now being communicated to the LPA. Any decisions made by an attorney who holds the appropriate documentation must be treated as the wishes of the donor concerned.
The Court of Protection and court-appointed deputies. The paramedic may need to know
when and how to make an application to the Court and certainly should have an under- standing of the powers of the Court of Protection.
Independent Mental Capacity Advocates (IMCA). This service is independent and is for
people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no one else (other than paid staff) to support or represent them or to be consulted.
The paramedic, in the course of a lifetime career, is likely to come across many difficult and complex situations. Therefore, it is essential the paramedic has an understanding of the above powers or bodies. It is strongly recommended that any ambulance clinician in difficult circum- stances and having problems with the issue of capacity should ask for advice from their ambu- lance NHS Trust or employer through the normal emergency channels within their service. In the time-critical situation the paramedic should always take the best interests approach to patient care. As long as the paramedic can justify that their actions were, in their professional opinion, in the best interests of the patient, there can be little comeback.
Link to Chapter 2
for the theory and value of communication in patient and colleague encounters. Link to Chapter 7 where common conditions are explained and signs and symptoms are explored, which will be useful for the paramedic to establish competence. The Mental Health Acts of 1983 and 2007 are discussed in more detail and useful web addresses provided.
Case Study 1.
What happened?
A paramedic solo responder attends an elderly patient who is resident at a nursing home. The patient is presenting with mild abdominal pain that they have been experiencing for a number of weeks. The paramedic finds that the patient’s observations are normal and suggests that an appointment be made for the patient’s own GP to attend. The carers at the nursing home insist that the patient is taken to hospital and say that they have spoken to the patient’s son who also wants the patient taken to hospital. The patient is able to understand and retain the information given to her and appears content to await a GP visit, but is anxious not to upset the staff at the home.
The ethical perspective
The patient has demonstrated capacity, and therefore is able to give or refuse consent to treatment. Undue influence from the nursing staff and her son may impact on the decision,
Ethics and law for the paramedic 13
so that it is not entirely autonomous. Similarly, it is not the paramedic’s job to convince the patient either way. The paramedic should ensure that sufficient information is given to the patient to allow her to come to her own decision-enabling autonomy. The principle of justice may be considered by the paramedic; would calling an ambulance to convey this patient remove the resource from others who may need it more or would leaving an unwell patient at the nursing home divert the attentions of the nursing staff away from their other patients? Nonmaleficence may also be considered; would conveying this patient to hospital expose them to potential risks from infection or bed sores which would not develop if she were to remain at the nursing home? What course of action would be the most beneficial for the patient? A consideration of beneficence may mean that that the paramedic considers contacting an out of hours service rather than waiting for the patient’s own GP.
The legal perspective
As the patient has demonstrated capacity, the paramedic cannot remove her to hospital against her will, regardless of the wishes of the patient’s family or the nursing staff; to do so would constitute an assault.
Child consent
The Department of Health (2009) explains that before examining, treating or caring for a child the paramedic must seek consent. Young people aged 16 and 17 are presumed to have the competence to give consent for themselves. Younger children who understand fully what is involved in the proposed procedure can also give consent, although it is better if their parents are involved in the decision at the time it is being made. In other cases, someone with parental responsibility must give consent on the child’s behalf, unless they cannot be reached in an emergency. If a ‘competent child’ consents to treatment, a parent cannot override that consent. Legally, a parent can consent if a competent child refuses, but it is likely that taking such a serious step will be rare. Generally, the complexities surrounding child consent tend to be reserved for debate in the hospital or primary care environment around issues such as immunization or organ transplan- tation. It is highly unlikely that paramedics will ever have to deal with a child, or their parent, who refuses a proposed life-saving intervention. If in doubt, adopt the best interests approach.
Patient refusal
In the paramedic’s role, consent tends not to be so much of an issue as does refusal to consent. Competent adult patients may refuse treatment (DH 2009); however, any refusal of treatment must be an informed refusal. The only exception to this rule is where treatment is for a mental disorder/illness and the patient is detained under the Mental Health Acts (DH 1983, 2007). If a patient is not competent, then a paramedic may treat the patient if it is in their best interests. This may include the wishes of the patient when they were competent. People close to the patient may be able to give more information and help the paramedic make a balanced, well- informed decision in such circumstances. Patients may make decisions relating to their future care either verbally or in writing. In cases relating to life sustaining treatment any decisions must be in writing and independently witnessed. The MCA introduced ‘advance decisions’ which take the place of advanced directives or living wills which may have preceded them. Advance decisions can only refuse consent to certain treatments or interventions in given circumstances, they cannot demand interventions.
Ethics and law for the paramedic 15
and you should check that people who ask for information are entitled to it.’ The UK Ambulance Service Clinical Practice Guidelines (JRCALC 2006) provide guidance concerning the ethical issue of confidentiality. Practitioners should ensure that information regarding their patient is recorded clearly and precisely so that the patient’s care pathway is processed without error. In order to protect patient information the guidelines provide five essential steps to ensure compliance with the relevant standards of confidentiality (see Box 1.3).
Box 1.3 Five essential steps to ensure compliance with standards of
confidentiality (JRCALC 2006)
1 record patient information concisely and accurately; 2 keep patient information physically secure; 3 follow guidance before disclosing any patient information; 4 conform to best practice; 5 anonymize information where possible.
The principles outlined in Box 1.3 need to be supported by ambulance service policies and procedures that incorporate the ethos of the Data Protection Act 1998, which describes the processes for obtaining, recording, holding, using and sharing information. The issue of confidentiality is one that requires careful management by paramedics. When dealing with the public, healthcare professionals and other professional bodies, there is a potential for information to be leaked about patients and their treatment. It is easy at the scene of an emergency call to declare information about a patient that may be overheard by members of the public. Patient records present another risk to patient confidentiality. Forms completed by paramedics with respect to patient treatment and details must be recorded as accurately as possible and be protected from viewing by those not entitled to do so. Safe storage and disposal of these forms is also a requirement of the Data Protection Act 1998 and various ambulance service policies and procedures should reflect this requirement.
Case Study 1.
What happened?
You are in the ambulance station mess room with six colleagues when a paramedic arrives back from a call. They proceed to tell the staff in the mess room about the call that they have just attended. They say that they went to Kipling Rise where they treated a 14-year-old girl called Mary for severe abdominal pain. They diagnosed an ectopic pregnancy and took the girl straight to the emergency department of the hospital where she was transferred to theatre and underwent an emergency operation. The paramedic is very pleased that he correctly diagnosed the presentation. You notice that one of your other colleagues is very quiet and looks angry. It transpires that this colleague is the uncle of Mary and this is the first he has heard of his niece either being unwell or being sexually active.
Has confidentiality been breached?
Patient confidentiality has definitely been breached in this case. From the information disclosed – name, age and address – the patient could be easily identified.
16 Foundations for paramedic practice
How could this have been avoided?
Mess room discussions and de-briefs are an important element of personal and professional development and should be encouraged, as long as confidentiality is respected. There is no breach if there is no disclosure of identifiable data. This case could just as easily been discussed as a purely clinical presentation with no reference to the patient’s name or address. Identifiable data does not only include names and addresses; if the identity of a patient can be determined by the information disclosed, perhaps due to the unique nature of the presentation within a hospital, then confidentiality can be considered to have been breached.
Stop and think
Have you observed colleagues try to maintain patient confidentiality in public places during an emergency? Think about the strategies you can use to try and maintain confidential- ity in emergency situations. Also think about the possible consequences of ignoring the importance of trying to maintain confidentiality.
The relationship between healthcare professionals and their patients has always been consid- ered especially significant with regard to disclosure of information. Much of the information given to the paramedic is often of a sensitive nature and there is an expectation that this information will not be passed onto others without the consent of the individual concerned. The confidentiality model (see Figure 1.1) advocated by the Department of Health (2003a:
- may help to remind paramedics of their main responsibilities regarding patient confiden- tiality. This model will naturally involve paramedics in other aspects of quality monitoring, such as clinical audit, in order to establish ways to improve their own and others’ professional practice.
Link to Chapter 3
for a more in-depth discussion on clinical audit.
Link to Chapter 4
for ideas and strategies on how to reflect and subsequently improve professional practice and patient care.
It is rare that paramedics are the only healthcare professionals involved in the patient’s care; an inter-professional approach is the usual practice. It is necessary to disclose information to health and social care professionals when paramedic practitioners, for example, convey patients
18 Foundations for paramedic practice
Stop and think
Patients have a legal right to access their health records (Access to Health Records Act 1990). This must be considered when completing any patient report documentation and appropriate language and medical terminology should be used throughout.
Conclusion
It is accepted that the role of modern paramedics brings with it a number of important legal areas within their scope of practice. Paramedics need to be aware of the consequences of their actions and be able to maintain a professional, legal and ethical approach at all times. Understanding the law is particularly important as paramedic practice continues to develop and broaden in scope. The HPC seeks to provide a framework within which paramedics are able to practise to the highest standards and simultaneously maintain their accountability to patients, clients and other professionals. This chapter represents an overview of some of the most common legal and ethical issues facing the paramedic in the twenty-first century. Many of the areas require further investigation and wider reading in order to obtain a more comprehensive understanding of the issues covered in this chapter.
Chapter key points
Ethical dilemmas are part of everyday practice within the NHS.
There are differences between paramedic guidance and that of other
healthcare professionals.
Paramedic ethical dilemmas occur across the lifespan, due to the nature
of the role.
Paramedics require a good understanding of their ethical responsibilities
in relation to the role, in order to practise in a safe, competent and pro- fessional manner.
References and suggested reading
Beauchamp, T.L. and Childress, J.F. (2001) Principles of Biomedical Ethics , 5th edn. New York: Oxford University Press. DH (Department of Health) (1983) Mental Health Act. London: Department of Health. DH (2001a) Consent: What You Have a Right to Expect. A Guide for Adults. London: Department of Health. DH (2001b) The Health Professions Order. London: Department of Health. DH (2003a) Confidentiality: National Health Service Code of Practice. London: Department of Health. DH (2003b) Guidance for Access to Health Records Requests under the Data Protection Act 1998 , Version 2. London: Department of Health. DH (2007) Mental Health Act. London: Department of Health. DH (2009) Reference Guide to Consent for Examination on Treatment of Children , 2nd edn. London: Department of Health. Her Majesty’s Stationery Office (1998) Data Protection Act. London: HMSO.
Ethics and law for the paramedic 19
HPC (Health Professions Council) (2007) Standards of Proficiency for Paramedics. London: Health Professions Council. HPC (2008) Standards of Conduct, Performance and Ethics. Your Duties as a Registrant. London: Health Professions Council. HPC (2009) Guidance on Conduct and Ethics for Students. London: Health Professions Council. JRCALC (Joint Royal Colleges Ambulance Liaison Committee) (2006) United Kingdom Ambulance Service Clinical Practice Guidelines. London: Joint Royal Colleges Ambulance Liaison Committee/The Ambulance Service Association (ASA). Information Commissions Office (2002) Use and Disclosure of Health Data. Guidance on the Application of the Data Protection Act 1998. London: HMSO. Lord Chancellor (2007) Mental Capacity Act 2005 Code of Practice. Issued by the Lord Chancellor on 23 April 2007 in accordance with sections 42 and 43 of the Act. London: The Stationery Office. National Institute for Clinical Excellence (2004) Self-harm: The Short-term Physical and Psychological Management and Secondary Prevention of Self-harm in Primary and Secondary Care. Clinical Guideline 16. London: NICE. The Stationery Office (2005) The Mental Capacity Act. London: The Stationery Office.
