‘They’ve Fallen and

Hit their Head… Now What…?’

Workshop

APM Ethics Committee Study Days

Telford, January 2016

Dr Craig Gannon

craiggannon@pah.org.uk

• Princess Alice Hospice, Esher, 1995-

– Medical Director, clinical ethics committee

• University of Surrey, Guildford, 2012-

– Visiting Reader, ex-university ethics committee

• Association of Palliative Medicine

– Ethics Committee, 2009 – on-going

• Publications / teaching

– Ethics in BMJ, JME, IJPN, CE, NE

• Royal College Physicians

– SCE Question Writer, Exam Board, Standard Setting Group

Jobbing Consultant

Not Philosopher, Lawyer...

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J7 to J14 of M25

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• Make your own mind up

– Workshop!

• The ethical issues following a head injury

– Three cases

• How make mind up not what is right action

– Enhances clarity of thought

• Better decisions

• Better communication

• Better engagement

Plan – Get You Thinking!

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Be Provocative…

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• Explore clinical, ethical, legal principles

– Generalisations... not case-by-case!

• Share my / our opinions

– No absolute right vs. wrong

– I’m not necessarily ethical!

• Healthcare isn’t always ethical!

– No perfect answers...!

– Realistic expectations…?

NO Answers… NOT Tell!

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Who Here is Already

an Expert in Ethics?

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• Our choices…

– Test of our behaviour / character

• Our opinion…

– View on others’ behaviour / character

Ethics is Everywhere:

… We’re Life-Long Learners!

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• Descriptive ethics –

– Observe; what do we see people decide?

• Normative ethics – Judge; what should people think is right?

• Applied ethics – Do; How to put moral knowledge into practice?

• Meta-ethics – Nature; what does 'right' even mean?

Gentle Reminder:

Classes of Ethics

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Normative Ethics Made Easy!

• Three key ways to test our care:

• Duty-based ethics (deontology)

– Do duty

• Consequentialism

– Get result

• Virtue ethics

– Match good character

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• Do right thing

– Whatever the outcome

• Only path matters

– Traditional

– Clear, follow rules

– Inflexible

• Risk jobs-worth doctor

– No DNACPR, so do CPR in T/C

– Not use CD drugs if not signed

– Never admit from out of area

Kant’s Duty-Based Ethics

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• Try for best results

– Whatever it takes

• Outcome only

– Modern / selfish

– Clear, results

– Presumptive

• Risk cavalier doctor

– ‘T/C’ just to get in hospice

– ‘Ca2+ normal’ when forgot

– Not admit out-of-area if no £

Consequentialism

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Lance Armstrong “wins” stage

Tour de France in 2004

• “Good” character

– Reflects “worthy”

• Balancing all needs

– Ideal vs. naïve…?

– How; subjective?

– Who; judges?

• Risk drippy doctor

– Too nice, not able to decide!

– No help when it’s difficult

– No help when it’s urgent

Virtue Ethics

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• Cannot ‘mix & match’ or unprincipled

– One principle you / everyone should follow…

– Choose one to use in workshop section…

• Duty-based ethics

– Follow rules… whatever outcome, even patient harm

• Consequentialism

– Get result… at any cost / break rules, even GMC / law

• Virtue ethics

– Do what a person of good character would do

Which Moral Philosophy

is Right for You at Work…?

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Different Ethical Approaches;

30 mph Speed Limit

• Duty-based ethics

– 30 mph maximum

– Law is law, full stop

• Consequentialism

– 33 mph usually

– Never “done” <34 mph

• Virtue ethics

– 30 mph normal max

– 35 mph if emergency

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Same Road… Same Principle

You Notice You're Speeding…?

• Duty-based ethics

– 30 mph maximum

– Law is law, full stop

• Consequentialism

– Hit brakes so 29 mph!

– No risk <30 mph

• Virtue ethics

– Carry on at 33 mph, take the fine; as not safe to hit brakes

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• Moral elasticity and moral multiplicity

– Bend / shift ethics to do what you want!

– Real world... increasingly “accepted”

– Play clever is the new ‘worthy’...?!

2016: Un-Virtuous Ethics:

…Morals, Only When Suits!!

You must obey rules… I just want fair play

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I don’t obey rules, they’re just for fools

Decision-Making After

Head Injury in ‘Hospice’

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• On-call doctor for a hospice

– Live 25 minutes drive away

• Telephoned, “patient has fallen”

– Good details from on-site staff

– Possibly “serious” head injury; details on handout

– Patient “too woozy” to give view

• Need decision now as you are ‘lead clinician’

– Stay put for comfort and T/C or 999 / send to A&E?

– What influences your advice?

Decision-Making After

Head Injury in ‘Hospice’

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• In 3 groups, “quick” 15 minutes – 1 of 3 different scenarios on hand-outs

• Abbreviations – S/C, symptom control; ‘expected’ to get home

– T/C, terminal care; ‘imminently’ dying

– QoL, quality of life

– HCP, healthcare professional

– LPA, lasting power of attorney

– DNACPR, do not attempt resuscitation

– PPC, Preferred Priorities of Care

– ADRT, Advance Decision to Refuse Treatment

Decision-Making After

Head Injury in ‘Hospice’

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Why Do Some Decisions

Feel So Difficult...?

• Misplaced HCP fears create problem

– Not unique, any treatment = a treatment

– Explicit, but same issues at end of life

– Not more difficult patients / families

• Mustn’t abandon normal approach

– Our best advice (uncertainties)

– Individualised care (different views)

– Imperfect, but sufficient, as always…

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Paradox:

Everyone is on Same Side…

• No conflict…

– Need reassure / remind everyone (ourselves!)

• Be realistic…

– Decision as right as possible

– Satisfies all stakeholders:

• Patients / families / friends

• Professionals, organisations

• Media

• Courts

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When at Odds…

…Always Avoidable?

• HCP suboptimal practice

– Clinical, legal, ethics gaps

• Poor clinical decisions

– Don’t do it right

• Poor explanations

– Don’t explain it right

• Unhappy when told not for any food or fluids by unsure F1

• No ethical dilemmas:

• To offer / give treatment it must be:

– Required

– Acquired

– Desired

Our Duty for Any Treatment

…is Simple!

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1. Could treatment work?

– Predictable net gain

2. Is treatment available?

– Ambulance / in hospital

3. Is treatment wanted?

– Consent / no refusal

Our Duty… is Simple…!

“Required, Acquired and Desired”

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‘Yes’ X3 = Transfer!

Your Decision

After Head Injury…

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• Reassure

– Never wrong…

• Scare

– Never right!!!

Ethical Deliberation:

None or Many Answers…!

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• As in clinical practice, we won’t all agree

– Could it work?

– Is it available?

– Is it wanted?

Your Decision

Case 1, After Head Injury…

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• Could it work? No

– Clinical ‘triage’; no treatment indicated – no net gain

• Is it available? No

– Rationed; neurosurgery not on offer / paramedic “no”

• Is it wanted? No

– No is “sufficiently” in-line with patient…?

• Notes – clinical / patient first

– Over-rules “family”

– Your CEO may have a view if ignore lawyer…?!

– If consequentialist vs. virtue vs. duty-based

Case 1 Potential Answer…

T/C in Hospice

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• As in clinical practice, we won’t all agree…

– Could it work?

– Is it available?

– Is it wanted?

Your Decision

Case 2, After Head Injury…

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• Could it work? No

– Clinical triage; not fit to move / no indication; no net gain

• Is it available? No

– Ration; dying; no neurosurgery even if paramedic ‘yes’

• Is it wanted? N/A!

– Over-rule patient and family: clinically best in hospice

• Notes – clinical / patient first

– Scary… less certain! Even LPA (…in theory?)

– Defensive; fell from a hoist, your benefit vs. your guilt…?

– If consequentialist vs. virtue vs. duty-based

Case 2 Potential Answer…

T/C in Hospice!

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• As in clinical practice, we won’t all agree…

– Could it work?

– Is it available?

– Is it wanted?

Your Decision

Case 3, After Head Injury…

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• Could it work? Yes

– Potentially reversible pathology

• Is it available? Yes

– Active management would be offered in hospital, but…

• Is it wanted? No

– Clear Best Interests +/- valid and applicable ADRT

• Notes – clinical / patient first

– In theory… but send in practice (for her family)???

– Flaw in ADRT; was this foreseen, could mind changed?

– If consequentialist vs. virtue vs. duty-based

Case 3, Potential Answer…

T/C in Hospice?

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Key Issues

Across the Three Cases

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Legal

Policy Duty

Conscience

Patient / NoK Colleagues

• Could it work?

• If yes; it available?

• If both yes; is it wanted?

• If unclear, default is offer and give unless refusal:

– Competent refusal

– Valid and applicable ADRT / LPA refusal

• All other factors less influence, even if emotive

– Discretionary… ‘ethically’ no less important…?

– Consensus ideal, but not needed… the difficult bit…!

First do Clinical Questions… to

See if there’s a ‘Choice’

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• Get decision ‘just right’

– Not “we always send to be safe”!

– Not “we don’t send to hospital”!

– Not “we follow ACP”!

– Not “we do want family want”!

• All decisions, always ‘maybe’

– Acknowledge difficult

– May over-treat / may under-treat

– Not impossible… easy!!!!

No Blanket Approach:

Not Too Fast or Slow to Send!

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Goldilocks

• First step: will surgery help…?

– From evidence base: any predictable net gain?

– Only reasons for increased observations / investigations…

• Only if yes, then, is it available?

– Is HDU really on offer…?

– In this place / this context?

• Only then, is it wanted?

– Patient choice…

– If start here – it falls apart…!

Clinical Decision Making

Starts with Can Hospital Help...?

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Virtue Ethics: Not Lofty Ideal,

Just ‘Sits’ Between Two Vices

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Vice: Excess

Unethical practice

e.g. cavalier

Virtue

Best Practice e.g. courageous

Vice: Deficiency

Unethical practice

e.g. cowardly

Common-sense middle ground

Does Virtue Ethics

Apply to All Decisions…?

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Clinical Decisions Fail if Lacking

Professional Courage

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Vice: unethical If just follow rules / path least resistance; only do as

in notes

Vice: unethical If don’t consider rules / do it my way; a blanket

yes / no Aristotle (384 BC – 322 BC)

Need the Virtue of Courage:

…to Break Rules / Take Risks

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‘Virtues’ Aristotle

(384 BC – 322 BC)

Professionalism: Discerning: weigh pros / cons:

treat when appropriate

A considered

expert view

Conclusion: Ethics Means

No Blanket Decisions

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Chris Froome / Team Sky

Tour de France, 2015

Thank You

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Four Quadrant Approach Jonsen, Siegler & Winslade, 1992

1. Clinical issues 2. Patient preferences

Diagnosis / medical history

Goals of treatment?

What treatment options?

Probability of success / prognosis for each option

Best case / worst case / likely case

Does patient have capacity? Assess

Yes = consent, what do they want?

No = will it return / best interests;

Decide Best Interests – inform decision-making; prior expressed preferences or an

ADRT?

Consult stakeholders, is there a surrogate decision maker?

3. Quality of life 4. Contextual factors

What distress is the patient experiencing?

Multi dimensional: function / symptom /

existential

Difficult to define – person centred

Will treatment improve QoL / be acceptable

to the patient?

Religious, cultural, legal factors that need

to be taken into account?

Social / family influences... are there

conflicts of interest?

Resource limitations, or influence clinical

research / teaching?

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A Patient’s Right to Refuse

Medical Interventions...

Phew! I’m off… That was easy...

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• Even if they will die...?

• Even if it demands an action by HCPs...?

• Is ethical and legal guidance the same…?

• Are there ‘special’ cases?

Is the Right to Refuse

Treatment Absolute...?

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• Cannot force patients into treatment

– Since 1990’s case law clear

• High profile UK cases

• With / without capacity

– Since 2007, reinforced in statute

• Without capacity

• Mental Capacity Act, 2005

100% Legal Right to Refuse

Life-Prolonging Therapy

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• Any or no reason… even if irrational

– Agree to disagree, but cannot force care

– No harm required (unlike negligence)

– Risk battery, even if help

• Without prejudice

– All remaining best care must be offered

– Patient can change their mind

• Re B (2002) wanted discontinue ventilation

– Competent adult right to refuse medical treatment

– Deemed “unlawful trespass”

Legally Patients’ Right to Refuse

Absolute and Binding

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• Airedale NHS Trust v Bland [1993] HL, PVS

– Artificial hydration & nutrition are treatments

– Best practice into case law

• MCA 2005, since 2007

– Advance decision binding…if “valid & applicable”

– Statute – paradox, now harder to stop…???

Legally Refusal Still Binding After

Capacity is Lost

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• Can you think of any ‘special’ cases?!

– When might you say ‘no’...?

A Patient’s Right to Refuse

Ethically NOT Absolute…?

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• Turning off ventilator instant

• Removing an oesophageal stent invasive

• Turning off an ICD or pacemaker emotive

• Lack capacity just from ADRT nervous

Refusing a Patient’s Right to

Refuse the Special Cases?

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• Public health risk

– Enforce isolation, treatment e.g. Ebola

• Reasonable boundaries

– Personal hygiene... infested house?

• Ambivalent and “panicking” patient

– Re MB (1997); footling breech, agreed LSCS but refused

anaesthetic as needle phobic

– Ruled lack of capacity; panic from fear of needle!

Must Override Patient Refusal if

Greater Clinical Need...?

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• 34-year-old woman

• Jehovah witness

– ADRT; No Transfusion, even if life at risk

• RTA

– 999 to A&E; bleeding

• Retains capacity

– Refusing life-saving blood transfusion

• Can you give transfusion?

– What basis?

Case 1

Can You Refuse the Refusal?

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Why Can Decision-Making

Feel so Difficult…?

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Should I, or shouldn’t I...?

• 34-year-old woman

– 30/40 pregnant

• Jehovah witness

– Valid ADRT... even if life at risk

• RTA

– 999 to A&E; bleeding

• Retains capacity

– Refusing life-saving blood transfusion

• Can you give transfusion?

– What basis?

Case 2

Can You Refuse the Refusal?

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Key Issues for Both Cases

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Legal

Policy Duty

Conscience

Patient / NoK Colleagues

• Personal conscience

– Will vary

– Can you live with your decision?

• Professional duty

– Default is give, but “cannot” follow

– GMC / NMC may support either way…

• Unit policy

– Requirements will vary Trust to Trust...?

– May be disciplined

Key Issues for Both Cases

1 of 2

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• Legal requirements

– Don’t give (battery / trespass)

– Possibly give (best interests)

– Judge & jury will decide if innocent or guilty...?

– Statute / case law or may set new precedent

• Subsequent views of patient / next of kin

– May sue if do or don’t transfuse…

• Subsequent views of colleagues

– Whistle blow, refuse work with you, make life nightmare

Key Issues for Both Cases

2 of 2

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• Making DNACPR (omission)

• Turning off an ICD (act)

Acts vs. Omissions

Which is Easier for HCPs...?

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Act of omitting to remove

the scissors!

• Discontinuing a treatment

– Act / withdraw...

• Not starting a treatment

– Omission / withhold...

• Historically seen as different

– Common and comforting

– Convenient

– Arguably incorrect

Any Difference Between

Acts and Omissions?

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Act

Omission

• No professional bearing

– ‘Indistinguishable’ morally & legally » In Bland Law Lords decision, 1999

– “…act or omission…” » GMC, 2015

– Convicted arson, not for starting but as did nothing » Miller, R v [1983] HL

• Withholding is act of omission

– Same accountability / same responsibility

• Disease / therapy / time dictates if act / omission

– Already has NGT or doesn’t yet have NGT

No Clinical Distinction

Between Acts and Omissions

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• 72-year-old man

• Ca oesophagus and liver secondaries

• Slow decline; bed bound prognosis ~ 1-2 weeks

• PEG feeds on 24-hour regimen

– No net gain… possibly more harm than good?

– PEG working well, assumed life-prolonging

• Lacks capacity; no advocate, no ADRT / LPA

• Can we stop the feeds now?

An Act: Case 1

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• 72-year-old man

• Ca oesophagus and liver secondaries

• Slow decline; bed bound prognosis ~ 1-2 weeks

• PEG feeds on 12-hour regimen

– No net gain… possibly more harm than good?

– PEG blocked at end last feed, assumed life-prolonging

• Lacks capacity; no advocate, no ADRT / LPA

• Can we decide not replace PEG or restart feeds?

An Omission: Case 2

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• Carries weight in society

– May influence patient choice

– May influence a jury!

• Emotive differences need to be addressed

– Patients, families

– Colleagues – even if professionally irrelevant

Distinction Acts v. Omissions Still

Carries Impact

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