Legal and professional boundaries: a case study

Case study

Laura is 29 years old and has schizophrenia. She is also 30 weeks pregnant. Her partner (Simon) has called 999—she has not been taking her medication for several days as she wrongly believed it might cause harm to the baby. Since Laura stopped taking the medication, she has become increasingly irrational and aggressive towards her family, and as a result they contacted the ambulance service. Laura has pre-eclampsia and has been advised by a specialist that she will need to have a C-section in order to protect both her own health and that of the foetus. When the paramedic arrives, Simon is very concerned, as it appears that Laura might be in premature labour but is refusing to go to hospital or to allow him to call for anyone other than the paramedic. Laura lives with her partner Simon, and until the time of incident had been looking forward to the delivery of her unborn child.

Initial considerations

On initial discussion with the patient, it becomes apparent that there are multiple legal issues which may impact her. A brief assessment of her care needs identify that there is a need for an assessment of capacity to consent, baseline observations (in particular blood pressure monitoring) and also a need for rapid conveyance to hospital for further assessment from a midwife. The paramedic will need to examine capacity to consent, along with additional issues such as negligence, duty of care and rights of the foetus. Decisions will be weighed up based on these examinations. There are further legal and professional considerations that will impact Laura, but in the author's professional opinion the above concerns are key in this decision-making process.

When the paramedic meets Laura, given her presenting complaint, one of the primary key issues is to establish whether she has capacity to consent to her treatment. Buka (2008) identifies that consent is an important aspect both in ethical and legal treatment of a patient. Buka (2008) further suggests that consent refers to our ability to make informed choices within our lives.

Mason and Laurie (2013) suggest that a practitioner gaining consent is highly important, as it focuses on patient autonomy and patient rights. However, they do identify that sometimes the necessity of a situation may dictate that consent is not required. When looking at legal obligations relating to consent, Lord Goff emphasised in Re F (Mental Patient: Sterilisation) [1990: 72] that it is ‘the fundamental principle, now long established, that every person's body is inviolate.’ Therefore we, as healthcare professionals, should not proceed to violate the body against a person's will, as this may result in both civil and criminal offences amounting to assault and battery (Mason and Laurie, 2013).

At this stage it is important to consider the Mental Capacity Act 2005 (c.9)—an Act of Parliament and form of legal statute—and its principle that all patients should be assumed to have capacity to consent unless proven otherwise. This should be considered with another aspect, which states that a patient cannot be judged to not have capacity to consent simply based upon their diagnosis of a specific condition, or behaviour, e.g. schizophrenia Mental Capacity Act 2005 (c.9). This means that it would be illegal to automatically assume that Laura does not have capacity to consent based on these grounds. An example of this is the case of Re: C (Adult: Refusal of Treatment) [1994], where a hospital patient was ruled to have capacity to refuse treatment, despite having paranoid schizophrenia. In this case the hospital stated that schizophrenia was an ‘all pervasive illness,’ and that because of this the patient's decision was impaired. However, through extensive professional assessment it was found that the patient was able to give ‘measured and generally sensible,’ answers and demonstrate thought processes despite his mental illness. Given the nature of the incident and history of behaviour, it is important to determine whether Laura has the right to refuse to her treatment and subsequent hospital admission.

As a healthcare professional, in this situation the paramedic is required to perform a standard assessment of her mental capacity to determine an appropriate case of action. The assessment used is taken from the Mental Capacity Act 2005 (c.9) and is a standard national test incorporating the following points:

To ascertain Laura's capacity to consent, the case of Re: T (Adult: Refusal of Treatment) [1992] suggests that consent must be fully informed, voluntary, and given by a person capable and competent of giving it. During this scenario the paramedic advises Laura of the need for transportation and treatment. They advise her of the risks, benefits and implications of both going to hospital and remaining at home in order to seek and ascertain her fully informed consent. Laura is deemed to not have capacity to consent to this particular treatment plan as she continually repeats that there is no risk to her or the foetus.

When prompted, in further attempts to ascertain her capacity, Laura will not acknowledge that there are any risks and continually states that she will be fine and does not need further assessment. This means that by the above mental capacity assessment, Laura presents as being unable to retain the information given to her and weigh it up, and is therefore unable to communicate an appropriate decision. While Laura is unable to make a decision regarding her initial treatment, the Mental Capacity Act 2005 (c.9) reminds us that whereas a patient may be unable to make one decision, they may still be able to make others, owing to the level of their impairment.

While keeping Laura informed of her proposed treatment plan the paramedic advises that a patient with pre-eclampsia should have their blood pressure checked. They explain this situation to Laura and she repeats back that she knows that she has pre-eclampsia, and offers her arm out stating that she does not mind having her blood pressure taken. It appears that Laura is able to understand, retain, weigh up and communicate her consent to this simpler decision. The case of Re: C (Adult: Refusal of Treatment) [1994] suggests that while a person's judgement can be impaired from mental illness, they may still retain the ability to make some rational decisions, and therefore it is key to continue to monitor Laura's capacity to consent to further decisions throughout this scenario.

After discussion with Simon it is determined that no one holds lasting power of attorney over Laura's health. As Laura does not have capacity to refuse the plan to transport her to hospital, both legal and professional issues must dominate the decision-making process. If Laura were to have capacity to consent, and the pregnancy was uncomplicated, it might have been possible to refer to a midwife who could assess, assist and treat Laura appropriately in the community. However, as she does not have capacity to consent, and has complications which can only be dealt with in a sterile hospital environment, this does not appear advisable at this stage.

If Laura did have capacity to consent in this current situation, this may pose difficulties, as her refusal of treatment would directly conflict with the paramedic's professional obligations of acting within the best interests of the patient (Health and Care Professions Council (HCPC), 2012). The Mental Capacity Act 2005 (c.9.) states that if a patient lacks capacity to consent and is unable to be an autonomous individual, then the healthcare professional must act in their best interests. This particular statute is also in line with the HCPC (2012) standards, which state that paramedics must consider and act in the best interests of their patients at all times.

If Laura did not have a potentially time-critical threat to her health, and the health of the foetus, it might have been possible to consider using the Mental Health Act 2007 (c.12) to ensure that Laura was treated. Under section 3, Laura could have been detained and forced to take her medication. This would be particularly prudent, as this section gives guidance on forcing treatment if a person is a risk to the public. As Laura has been described as physically violent, this may be appropriate. Unfortunately, however, the Mental Health Act 2007 (c.12) can only ensure that Laura receives treatment for her schizophrenia, and therefore would perhaps be a consideration further down the line, rather than an immediate consideration in the community at this time.

There are a number of key issues which need to be considered when ascertaining what Laura's best interests are, these are the decision Laura would be likely to make if she had capacity to consent, the views of any relatives/care-givers, and Laura's past decisions/wishes. Although Lord Donaldson states in the Court of Appeal case of Re: T (Adult: Refusal of Treatment) [1992] that the next of kin cannot request or refuse treatment without lasting power of attorney. He does state that it is desirable to request the family's input and may help to ascertain the patient's wishes if they were to have capacity to consent.

Mason and Laurie (2013) support the thought of acting in someone's best interests when they do not have capacity, by suggesting that in certain situations there is scope to act out of necessity, based on the assumption that if a patient were not in a delirious state they would not refuse treatment. It is important to note, however, that the law of necessity is generally poorly defined, but, as stated by Lord Goff in F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] with reference to the law of tort, i trefers to actions that can be taken by an individual, for example a healthcare professional, in order to help and assist and preserve the health of another individual without capacity to consent.

Foetal rights

Within this scenario it is also important to consider the rights of the foetus. Maclean (1999) identifies that it is well established in English law that a foetus has no rights until it has been born alive, at which point, if required, it can then retrospectively apply rights. An example of this is the Congenital Disabilities (Civil Liability) Act 1976 (c.28), which states that if a child is born with disabilities that were caused, and could have been avoided, during the mother's pregnancy, or the birth, then the child, once born alive, can take civil action regarding the in-utero process against a person if they were liable in tort.

Although the foetus essentially has no rights until it is born alive, there is a contradiction which comes in the form of the Infant Life (Preservation) Act 1929 (c.34). This statute provides that where a foetus has reached the stage of development where it is considered to be able to live independently, it is an offence to wilfully cause it harm or destruction unless preserving the life of the mother. It is important to remember, however, that the Act refers to wilfully causing harm, rather than just a result of failure to act.

Referring back to the case of Laura, she is now at 30 weeks pregnant, and therefore the foetus (being greater than 28 weeks gestation) is considered able to live independently from the mother. It is because of this that further weight is given to the importance of transporting Laura to hospital, as the foetus would be considered able to live independently. Unfortunately, however, there would be limited scope to use this Act to force treatment or transport upon Laura, as any decisions taken by her to not attend hospital could be argued to be an inaction, rather than a direct wilful action to harm the foetus.

What to do?

Transporting Laura to hospital would enable the paramedic to abide by their professional obligations, as the HCPC (2012) advises that if an area of medical expertise is beyond the scope of practice of a paramedic, they must work in partnership and refer their patient to an appropriate practitioner who can provide the relevant care. Given the nature and severity of Laura's condition, this would not be something that a paramedic could appropriately and fully treat in the home of the patient. This thought process of conveying Laura to hospital is supported by her diagnosis of severe pre-eclampsia, as previous case law has suggested that given the potential prognosis, treatment against the mother's wishes can be given.

A good example to refer to here is the case of Re: T (Adult: Refusal of Treatment) [1992]. In this case the mother (the patient) had initially refused a blood transfusion due to religious grounds. Subsequently, this patient became unconscious and her prognosis was considered poor unless she received said blood transfusion. Given that T was now unconscious, she was deemed to lack capacity to consent, and previous discussions/decisions from the patient were deemed to have been dominated by her mother and not made as fully informed and autonomous decisions. In this case the court acted within what was shown to be the best interests of the patient in order to preserve life and allowed a blood transfusion to take place.

It is important to note that although this case applies to Laura indirectly, in the sense that both T and Laura lack capacity to consent, forced transport to hospital—which would be likely to end in forced C-section—could be considered a greater trespass on the body than a blood transfusion.

This case can be weighed against the case of Re: S (Adult: Refusal of Medical Treatment) [1992], in which a mother who was deemed to have capacity to consent and refused a C-section was ordered by the court to undergo one. Although this was done under emergency circumstances, and therefore the law reports show little background evidence to explain Sir Stephen Brown's decision, the case law does demonstrate that the preservation of the life of both the mother and the foetus is paramount if both are at risk. At this point, it is important to consider the weight of survival of the foetus versus survival of the mother. Mason and Laurie (2013) identify that under English law we cannot force treatment on the mother for the benefit of just the foetus. They further state that the life of the mother is always paramount over the life of the foetus.

Negligence

When considering the best treatment plan for Laura, the paramedic would also be required to consider the law of negligence and duty of care. Duty of care was described in the case of Donoghue v Stevenson [1932] under the ‘neighbour test.’ This test, according to Lord Atkin identified that one must take reasonable care to avoid something that can be predicted to cause possible harm to their neighbour. Lord Atkin further described in this case that a neighbour would constitute anyone who could be directly affected by the action itself being performed.

In the case of Laura, the paramedic can be assumed to hold a duty of care over the patient, as any actions they take would influence the potential outcome of Laura's health. This means that their actions towards Laura must be to protect her from reasonably foreseeable harm. This again falls into line with the paramedic's HCPC (2014) professional obligations to prevent harm when formulating management plans.

As previously described, under the Infant Life (Preservation) Act 1929 (c.34), the paramedic also has a duty of care to the foetus and must ensure that reasonably foreseeable harm does not come to it. Unfortunately, having a duty of care to both Laura and the foetus may present difficulties, as what may be right for one, may not be for the other, and therefore legally the mother's health must take priority (Mason and Laurie 2013).

When considering how not to act in a negligent way towards Laura, the paramedic must consider McNair in Bolam v Friern Management Committee (1957). This particular case law drew upon previous laws stating that one was not negligent if the reasonable man would commit the same actions. Bolam v Friern Management Committee (1957), however, stated that when considering medical law and ethics, the ordinary reasonable man does not apply, and instead a professional must be judged upon what a group of similarly qualified people would do in the same circumstance. This therefore suggests that in the case of Laura, the paramedic would be legally required to consider the views of their colleagues and what actions they might put in place if faced with the same situation.

Herring (2012) reminds us that it is important that duty of care and negligence are considered as under the structure of the English legal system, therefore negligence may be considered under civil or criminal law. Herring (2012) goes on to suggest that in order to succeed in litigation, the claimant must prove that the healthcare professional had a duty of care, that they breached that duty of care, and that the claimant suffered loss as a result of that breach. As previously established, in the current case the paramedic has a duty of care towards Laura, and therefore in order to not breach this, they must ensure that she does not suffer reasonably foreseeable loss. An example of loss would be if the paramedic were to not convey Laura to an appropriate healthcare facility, despite her lack of capacity to refuse the decision, and she were to lose her child as a result.

Conclusions

There are many professional and legal obligations which may apply to the case of Laura. In their professional capacity, paramedics are required to consider these obligations, where appropriate, with all patients. In the case of Laura, this article has focused on the issues of capacity to consent, rights of the foetus, negligence and duty of care. However, there are other legal and professional implications such as confidentiality and protection of the public, which would also have been a consideration in this case. Taking into account the obligations above, it would seem necessary in this situation to insist upon Laura's transport to an appropriate receiving healthcare facility, as she lacks the capacity to make that decision herself and therefore that option, in the author's professional opinion, would be in her best interests. It is important to consider that although these legal and professional boundaries need to be applied in similar circumstances, this outcome would not necessarily apply to every similar case, and legal and professional boundaries need to be judged on a case-by-case basis.

Key Points