Medical Ethics and Professionalism Part 2

RICHARD L. ELLIOTT, MD, PHD, FAPAD I R E C T O R , M ED I C A L ET H I C S A N D P R O F E SS I O N A L I S M

P R O F ESS O R , C O M M U N I T Y M E D I C I N EM ER C E R U N I V E R S I T Y S C H O O L O F M E D I C I N E

A D J U N C T P R O F E SS O RM E R C E R U N I V E R SI T Y SC H O O L O F L AW

Medical Ethics and Professionalism

Part 2

Follow-up on Health Care Delivery

Abortion and the ACA – kff.org

Abortion excluded from 10 Essential Health Benefits

Federal funds may be used for abortion if related to rape or incest or if mother’s life is in danger

HR7 limits tax credits to plans offering abortion

Some states permit riders for private insurance plans that cover abortions, some do not (Utah)

50% women legally residing in U.S. will have access to plans that permit abortions

30-35% women will have access only to plans that restrict abortions to rape/incest/danger to mother

Residency slots in Georgia

According to AAMC, there will be a shortage of 45,000 primary care physicians, 46,000 specialists by 2020

Georgia HB 922Almost $7 million requested to support new

residency positions, fellowships, other training positions

Cost per resident per year $150,000-200,000

Uninsured with and without Medicaid expansion

The Uninsured After Implementation Of The Affordable Care Act: A Demographic And Geographic Analysis

http://healthaffairs.org/blog/2013/06/06/the-uninsured-after-implementation-of-the-affordable-care-act-a-demographic-and-geographic-analysis/

Georgia 1.8 million pre-ACA uninsured1.54 million uninsured with Medicaid opt-out 924,000 uninsured with Medicaid expansion

Death Panels

Medicare payment for end-of-life counselingPatient-Centered Outcomes Research

InstituteIndependent Payment Advisory Board

www.kaiserhealthnews.org

Goals

What is medical ethics?Medical ethics and professionalism at MUSMExpectations for Community Medicine IWhat is an ethical dilemma?What are the principles of medical ethics?How to analyze an ethical problemIntroduction to informed consent and

confidentialityIntroduction to surrogate decisionmakingIntroduction to professionalism

Optional review after lecture

When the Patient is Incompetent

Karen Ann Quinlan1954-8521 yo, Valium and

ETOHPVS, ventilatorParents sued to

remove ventilator1976 New Jersey

Supreme Court decided on right to privacy

“Right to die”

When the Patient is Incompetent

Nancy Cruzan1983 MVAPVS, feeding tube1987 parents sued to

remove tubeCourt liberty interest

in being free from unwanted intrusions

Loosely “right to die”Patient Self-

Determination Act 1990

Patient Self-Determination Act

1990 after CruzanWritten notice upon admission to the health

care facility of decision-making rights The right to accept or refuse medical

treatment The right to make an advance health care

directive Facilities must ask whether the patient

has an advance health care directive Facilities must educate staff about

advance health care directives.

When the Patient is Incompetent

Guardian Probate court Guardian of person or estate or both

Advance directive Specifies what is to be done in the event patient is unable

to make a decision Durable Power of Attorney for Health Care

Who will make decision Living Will

Specifies particular decisions, e.g., ventilators Georgia Advance Directive for Health Care includes both

Power of Attorney and Living Will provisions (posted on ethics site, First Year)

Georgia Advance Directive for Health Care

GUIDANCE FOR HEALTH CARE AGENT When making health care decisions for me, my health care

agent should think about what action would be consistent with past conversations we have had, my treatment preferences as expressed in PART TWO (if I have filled out PART TWO), my religious and other beliefs and values, and how I have handled medical and other important issues in the past. If what I would decide is still unclear, then

My health care agent should make decisions for me that my health care agent believes are in my best interest, considering the benefits, burdens, and risks of my current circumstances and treatment options.

Substituted Judgment v Best Interests

Substituted judgment – for persons who have been competent to express a choice but who presently lack capacity Dementia Delirium Severe mental illness

Best interests standard – for persons never competent to have decided Children Mentally retarded/developmentally disabled

Georgia Advance Directive for Health Care

PART TWO will be effective if I am in any of the following conditions: A terminal condition, which means I have an incurable

or irreversible condition that will result in my death in a

relatively short period of time, and/or; A state of permanent unconsciousness, which means I

am in an incurable or irreversible condition in which I am

not aware of myself or my environment and I show no behavioral response to my environment.

To be determined by personal and second physician

Georgia Advance Directive for Health Care

Try to extend my life for as long as possible, using all medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive. If I am unable to take nutrition or fluids by mouth, then I want to receive nutrition or fluids by tube or other medical means, OR;

Allow my natural death to occur. I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me. I do not want to receive nutrition or fluids by tube or other medical means except as needed to provide pain medication, OR;

Georgia Advance Directive for Health Care

I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me, except as follows:

[Initial each statement that you want to apply to option (C).] If I am unable to take nutrition by mouth, I want to receive nutrition by tube or

other medical means. If I am unable to take fluids by mouth, I want to receive fluids by tube or other

medical means. If I need assistance to breathe, I want to have a ventilator used. If my heart or pulse has stopped, I want to have cardiopulmonary resuscitation (CPR) used.

Default Surrogate Decisionmakers I

§ 31-9-2. Persons authorized to consent to surgical or medical treatment

(a) any one of the following persons is empowered to consent: (1) Any [competent] adult, for himself or herself, whether by living

will, advance directive for health care, or otherwise; (1.1) Any person authorized to give such consent for the adult under

an advance directive for health care or durable power of attorney for

health care (2) In the absence or unavailability of a living spouse, any parent,

whether an adult or a minor, for his or her minor child; (3) Any married person, whether an adult or a minor, for himself or

herself and for his or her spouse;

Default Surrogate Decisionmakers II

(4) Any person temporarily standing in loco parentis, whether formally

serving or not, for the minor under his or her care; and any guardian, for his or

her ward; (5) Any female, regardless of age or marital status, for herself when

given in connection with pregnancy, or the prevention thereof, or childbirth;

or (6) Others (A) Any adult child for his or her parents; (B) Any parent for his or her adult child; (C) Any adult for his or her brother or sister; or (D) Any grandparent for his or her grandchild. (E) Grandchild (F) Niece, nephew, aunt, or uncle Treatment which the patient would have wanted had the patient

understood the circumstances under which such treatment or procedures are provided.

Medical Consent in Minors

Under the age of 18 may consent to: Treatment for drug abuse HIV testing Prevention of pregnancy Treatment during pregnancy and childbirth Treatment for STD Abortion with parental notification

Informed Consent

Not just a piece of paperInformed consent is a means of engaging a

patient in important health care decisionsThere is therapeutic value to true informed

consent

Exceptions to Informed Consent

Emergency exceptions to informed consent Consent is implied in emergency when patient is lacks

capacity and surrogate unavailableTherapeutic privilege

Confidentiality

What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself Hippocrates

Confidentiality

Confidentiality is the obligation on the physician not to reveal what has been learned during the course of treatment

Privilege is the right of a patient, established only by statute, whereby a patient may prevent his physician from testifying. Privilege is a legal right belonging only to the patient and not to the physician.

Health Insurance Portability and Accountability Act (HIPAA) 1996

Title II: Preventing Health Care Fraud and Abuse; Administrative Simplification; Medical Liability Reform Intent to restrict release of information to only that

necessary to achieve the purpose Patients are guaranteed access to their medical records

and may amend Not “psychotherapy” notes

What about disclosing information to a family member in an emergency? Consent not required if disclosure necessary for

treatment Notification of family may be necessary for treatment

Subpoena Duces Tecum

Immediate response: Reply, don’t comply

Check with patientGet legal advice if

neededRelease minimum

information necessary

Breaking Confidentiality

Reporting child abuse or neglectAbuse of seniorsAbuse of disabledResidents of long term care facilitiesReporting HIV to stateNotifying sexual partners of HIV“Tarasoff” warnings

“protective privilege ends where the public peril begins”

Review

Four principles of medical ethicsThree elements of informed consentEthical principle - basis for informed consentKaren Ann QuinlanNancy CruzanTatiana Tarasoff

What does it mean to be professional?

As a preclinical student? Prepared On time Respectful

As a clinical student? Appearance Prepared On time Respectful

Nurses Extra duty

Some Characteristics of a “Professional”

Self-regulatingSpecialized education, training, knowledge

CompetenceBehaviors

Dress Timeliness Preparedness Courtesy Hard working

On Entering a Profession

An oath is taken pledging to uphold the standards of that profession

The Oath of Geneva AT THE TIME OF BEING ADMITTED AS A MEMBER OF THE MEDICAL PROFESSION: I SOLEMNLY PLEDGE myself to consecrate my life to the service of humanity; I WILL GIVE to my teachers the respect and gratitude which is their due; I WILL PRACTICE my profession with conscience and dignity; THE HEALTH OF MY PATIENT will be my first consideration; I WILL RESPECT the secrets which are confided in me, even after a patient has died; I WILL REMAIN by all means in my power, the honor and the noble traditions of the medical profession; MY COLLEAGUES will be my brothers and sisters; I WILL NOT PERMIT considerations of religion, nationality, race, party politics or social understanding to intervene between my duty and my patient; I WILL MAINTAIN the utmost respect for human life from its beginning, even under threat, and I will not use my medical knowledge contrary to the laws of humanity; I MAKE THESE PROMISES solemnly, freely and upon my honor.

“Consecrate My Life”

I SOLEMNLY PLEDGE myself to consecrate my life to the service of humanity

“Respect and Gratitude”

I WILL GIVE to my teachers the respect and gratitude which is their due

“Conscience and Dignity”

I WILL PRACTICE my profession with conscience and dignity

“My First Consideration”

THE HEALTH OF MY PATIENT will be my first consideration

“Confided in Me”

I WILL RESPECT the secrets which are confided in me, even after a patient has died

“Traditions”

I WILL REMAIN by all means in my power, the honor and the noble traditions of the medical profession

“Brothers and Sisters”

MY COLLEAGUES will be my brothers and sisters

No Other Considerations

I WILL NOT PERMIT considerations of religion, nationality, race, party politics or social understanding to intervene between my duty and my patient

“Respect for Human Life”

I WILL MAINTAIN the utmost respect for human life from its beginning, even under threat, and I will not use my medical knowledge contrary to the laws of humanity

“Promises”

I MAKE THESE PROMISES solemnly, freely and upon my honor.

The Oath of Geneva

Challenges to professionalism – But what about . . .?

Consecrate My Life

I SOLEMNLY PLEDGE myself to consecrate my life to the service of humanity What does it mean to “consecrate?” Are you ready when you come to class/rounds? Do you do just the minimum work required (e.g., number of

patients)? Resident work hours – what to do when you’ve reached the

limit and patient continuity of care or a learning might be compromised?

Will you take responsibility for your continuing education, attending meetings, reading journals, obtaining consultations?

Respect Teachers

I WILL GIVE to my teachers the respect and gratitude which is their due An attending asks you to suture a deep facial wound.

You have little experience with this and express your concern. The attending tells you “Well, this is how you learn” and leaves.

Conscience

I WILL PRACTICE my profession with conscience and dignity A woman approaches you for advice about an elective

abortion, to which you are opposed for religious reasons. Should you refer her to a colleague who performs abortions?

Health of My Patient

THE HEALTH OF MY PATIENT will be my first consideration Your patient comes to you for an exam prior to

traveling to Greece for his wedding. You discover him to have TB and express your concern over his trip.

Brothers and Sisters

MY COLLEAGUES will be my brothers and sisters Another student has been coming to groups late, lives

by himself, and there is concern among other students over his drinking and use of antianxiety (Xanax), pain, and stimulant medications.

Secrets

I WILL RESPECT the secrets which are confided in me, even after a patient has died Your patient is going through a painful divorce and, during

his annual physical examination, tells you “Sometimes I think the only way to protect the kids from her is just to get her out of picture entirely, if you know what I mean.”

Respect for Life

I WILL MAINTAIN the utmost respect for human life from its beginning, even under threat, and I will not use my medical knowledge contrary to the laws of humanity Patient Rights groups strongly support the “Death

with Dignity Act” in Oregon and seek to pass a similar law in Georgia. Your local legislator asks for your opinion.

Click icon to add pictureThreat to professionalismMangled care

Click icon to add pictureThreat to professionalismMedical Industry

Unprofessional Conduct and Board Action

235 MDs disciplined by board 1990-2003469 MDs controlled for school and year of

graduationDisciplined for:

Unprofessional conduct (74%) Incompetence Other

Papadakis et al. Disciplinary Action by Medical Boards and Prior Behavior in Medical School. NEJM 2005;353:2673-82

740 Board Violations by 235 Physicians

Use of drugs or alcohol 108Unprofessional conduct 82Conviction for a crime 46Negligence 42Prescribing/acquisition substances 39Violation of Board order/condition 32Sexual misconduct 29

Other – Failure to meet CME, fraud, billing, failure to maintain adequate records

Disciplined vs. Control Physicians

No gender differencesHighly significant differences (p< 0.05–

0.001) Medical school academic performance USMLE

Unprofessional conduct in school predicted subsequent disciplinary problems 39% of disciplined physicians displayed unprofessional

behaviors in school vs 19% of undisciplined physicians (disciplined physicians twice as likely to have records of unprofessional conduct during school)

P<0.001

Unprofessional Conduct in School

OR

Irresponsibility (>2) 8 Attendance, follow-up

Lack of self-improvement (>2) 3 Response to criticism

ImmaturityPoor initiative

Motivation, enthusiasmRelationships (students, nurses, faculty,

patients)

Lessons

Professionalism starts nowGood news – the two most significant

predictors are modifiable If you have problems with attendance, preparedness –

change! If you have a problem accepting criticism – learn!

Smiling inward is deadly

GroupsPrepare as a professional

Read the cases

Analyze using case analysis format

Discuss with colleagues as you like

The principle of autonomy in medical ethics concerns the patient’s Right to determine what shall be done to her own

bodyA capacity determination is

A judgment about the patient’s ability to make a particular decision about her medical care

 When obtaining informed consent from a patient for a surgical procedure, the standard in Georgia for disclosure of risks includes material risks which are

Accepted by reasonably prudent physicians that would cause a reasonably prudent patient in similar circumstances to refuse the procedure

When a decision must be made about the medical care of an adult patient who has had, but who no longer has, decision-making capacity, the surrogate decision-maker should Use the “substituted judgment” standard to reach

a decision, i.e., what the patient would have decided if competent

Which three elements comprise valid, informed consent? Competence, relevant information, voluntary

 Which of the following is recognized as the primary ethical foundation for informed consent?

a. Principle of autonomy

The case of Tatiana Tarasoff in California led to the enunciation of which legal principle?

That there is a duty to protect identifiable third parties when a clinician knows, or, pursuant to the standards of the profession ought to know, that the patient presents an imminent threat of danger to that third party.

The Karen Ann Quinlan and Nancy Cruzan cases were both related to:

c. Right to die

Which law led to the requirement that hospitals ask about the presence of Advance Directives? Patient Self-Determination Act

 The Oath of Hippocrates includes which of the following?

b. A warning to keep secret knowledge learned from professional contacts as well as knowledge learned “in the daily commerce with men”

Review

Case analysis

Principles of Medical Ethics

Which of the following is NOT widely considered a principle of medical ethics? Autonomy Beneficence Respect Social justice Non-Malfeasance

HIPAA

HIPAA is an important piece of federal legislation covering: Privacy of health care information Treatment in emergency rooms The right to privacy in medical decisionmaking

Mandatory Disclosure

In which of the following cases is disclosure of information NOT required: Suspected child abuse New HIV patient Receipt of a subpoena for medical records to be used

at a divorce proceeding Previously undisclosed criminal history

Match case with the concept most closely identified with it

National attention on “right to die” and removal of life sustaining devices

Duty to protect third parties

Removal of feeding tube, Patient Self Determination Act

TarasoffNancy CruzanKaren Ann Quinlan

Autonomy

The principle of autonomy concerns the patient’s  Right to be treated with compassion Right to determine what shall be done with one’s

body Right to basic medical care Right to drive an automobile

Capacity (competence)

A capacity determination is A judgment about the patient’s ability to be a

good patient A judgment about the patient’s ability to make

good decisions in general A judgment about the patient’s ability to make

good medical decisions A judgment about the patient’s ability to make a

particular decision about her medical care

Which is the more acceptable view?

Providing the degree of information necessary for genuine informed consent is understood to require Disclosing what a reasonable physician would

disclose in the circumstances Disclosing information that a reasonable person

in those circumstances would judge relevant Both

Best Interests or Substituted Judgment?

When a decision must be made about the medical care of an adult patient who has had, but who no longer has, decisionmaking capacity, the surrogate decisionmaker should  Use the “best interest” standard to reach a

decision, i.e., what, in the opinion of the surrogate decisionmaker is in the best interests of the patient

Use the “substituted judgment” standard to reach a decision, i.e., what the patient would have decided if competent

Best Interests or Substituted Judgment?

When a decision must be made about the medical care of a patient who never had decisionmaking capacity, the surrogate decisionmaker should Use the “best interest” standard to reach a

decision, i.e., what, in the opinion of the surrogate decisionmaker is in the best interests of the patient

Use the “substituted judgment” standard to reach a decision, i.e., what the patient would have decided if competent

Neither a nor b

Informed Consent

Which of the following is NOT one of the three elements of a valid informed consent? Information Confidentiality Voluntariness Competence Witnessed

Minors and Medical Decisions

To which medical decisions may a minor in Georgia give consent? Drug abuse treatment STD Treatment of the minor’s child Pregnancy Prevention of pregnancy Abortion with parental notification (except emergency

or with court approval)