Health Law and Policy - Report Example

Health Law and Policy Number Introduction It is a fact that medicine and law go hand-in-hand as the need to safeguard the rights of the patient and the physician is paramount. Similarly, when a patient is brought under the care of a physician or a healthcare practitioner, there are legal and ethical principles which define and qualify the physician’s care. Particularly, the physician is bound by and owes the patient the duty of care. The flipside of this is that the physician may be held legally accountable in the event that the rights and welfare of the patient are infringed upon. This is not to mean that the physician has no rights for the patient is also not allowed to behave in a manner injurious to the physician and may be held legally liable if he behaves in such a manner and is established to be compos mentis. The relationship between the law and medicine is therefore discussed in the ensuing discourse, in light of the case that has been provided. What May Happen To the Paramedics From the presentations in the case, it is likely that the paramedics will be accused and charged of medical manslaughter. What would inform this step is the fact that the patient sustained her brain injury while in the custody and care of the paramedics. The party that is likely to press this charge is the patient’s family, a member of the public, a lawyer who has taken the matter pro bono or the administration of the healthcare institution in which the brain injury took place. The details that are provided concerning the stretcher’s overturning is scanty since it is not specified whether the patient is the one who shook the stretcher or it is the paramedics who placed the patient haphazardly on the stretcher and thereby causing her fall. If it is the paramedics who placed the patient haphazardly on the stretcher such that the patient fell from it and thereby occasioning the brain injury, then the paramedics may be legally liable. However, this problem is not a criminal matter or a criminal case, the manner in which the patient fell from the stretcher and got injured that notwithstanding. This is because even if the matter was occasioned by placing the patient haphazardly on the stretcher, there was no criminal intent on the side of the paramedics. According to Clarkson (1994), in order for a criminal case to hold, there ought to be both mens rea and actus reas. The haphazard placing of the patient on the stretcher which may have caused the patient’s fall and subsequent brain injury may serve as the actus reas. In this light, it will be assumed that the paramedics may have conspired to place the patient in the stretcher in a manner compromising enough to cause her fall in order to have mens rea. Nevertheless, this is unlikely to be the case since the paramedics did not share any acquaintances with the patient and this therefore diminishes any chances for conflicts of interests which may have informed the paramedics’ criminal intent. Again, the standpoint above is weakened by the fact that the point of interaction was spontaneous and that the paramedics’ action was largely informed by compassion and the need to help the 17 year old patient who was inebriated at the time. It is very unlikely that the same volunteering duo which had been compelled into action to save the drunkard patient from excessive bleeding would then conspire to have the same patient suffer greater harm. Instead, the paramedics may be sued for negligence. This may be because the paramedics seemed to have compelled an unwilling patient for treatment. According to Griffiths and Sanders (2013), this charge may be informed by the Health and Disability Commissioner Regulations 1996 (also known as the Code of Health and Disability Services Consumers’ Rights) which specifies the rights of consumers of health or medical services. Particularly, this code also makes it clear in Right number 2 that the consumer is entitled to the right to freedom from discrimination, coercion, exploitation and harassment. Secondly, it may be argued that the paramedics failed to take safety precautions for the patient, even if it was apparent that the patient was hysterical and in a drunken stupor. This charge may be supported by the fact that Right 4 of the same code stipulates that a consumer of medical services is entitled to: (I) treatment according to appropriate standards. According to Keown (2010) and Pengilley (2005), specifically, in this section of the Health and Disability Commissioner Regulations 1996, the consumer or patient has a right to services guided with reasonable care and skills. However, such a charge will be hard to sustain in the court of law since in the very Health and Disability Commissioner Regulations 1996 and in the same section 4, the provision continues that the patient or consumer has the right to services that comply with: (II) legal, ethical, professional and other significant standards; (III) consistency with the needs of the client or patient; (IV) manners that minimise potential harm and optimises the patient’s quality of life; and (V) consumer or the patient’s right to co-operate with services providers to guarantee continue of services and in the right quantity. According to Mello (2008), the provisions above instead vindicate the paramedics and their actions. The paramedics were within the law to compel the 17 year old patient to the stretcher so that she can receive treatment because of two factors: the patient falling short of the age of consent; and being drunk. The fact that the patient is drunk and resists medical attention from the volunteering paramedics underscores the fact that she is non compos mentis: not in the rational state of mind to make sound decisions. Thus, the practitioners are right to this extent to compel the patient to become subject to medical intervention. On the converse, it would have been unethical and even prosecutable for the volunteering paramedics to see the patient in her injured state and leave her to fate. In the same light, the paramedics’ actions are consistent with the needs of the patient as is required in Part III of the rights mentioned in the Health and Disability Commissioner Regulations 1996. The patient was obviously going to bleed to death without the intervention of the volunteering paramedics and so, it is therefore in order that the paramedics were acting in a manner that would minimize the patient’s potential harm and uphold the patient’s quality of life (Devereux, 2007). Although there are those who may want to point at the Part V of the rights mentioned in the Health and Disability Commissioner Regulations 1996 to argue against the paramedics, yet it is important to consider the same provision with the fact that all laws have an exception. Because of this, it is obvious that the exceptions to this provision would be: being underage; and (or) not being in sound mind because of psychological illness, brain injury or being under the influence of alcohol or drugs. It is obvious that the patient was not of sound mind seeing that she was: heavily bleeding in her thigh; drunk; and physically resisting medical attention or intervention. In this case, the paramedics were legally, professionally and ethically right to compel the patient to be subjected under medical attention (Coney, 1994). There are other less serious matters that may also be raised against the paramedics to underscore their culpability. For instance, someone may argue that the paramedics were negligent because, they knew that they were attending to a drunkard and should have therefore sedated her. This kind of argument is misinformed since it is unlikely that the paramedics had sedatives with them. Similarly, it is arguable whether it would be legally proper to sedate an individual outside the confines of the premises of a healthcare institution. If by slight happenchance the paramedics are found negligent, the case under discussion becomes very interesting because the client’s brain injury supposedly happened outside the healthcare institution that the volunteering paramedics work for. Just as Sladden and Graydon (2009) divulge, ideally, the healthcare institution or the owner of this institution is supposed to assume vicarious liability. This is because even if the paramedics are working under voluntary terms, there is a written argument which denotes terms of engagement between the healthcare institution and the two volunteering paramedics. However, the prospects of the healthcare institution taking on vicarious liability will be significantly undermined by the fact that while under the care of the paramedics, the patient incurred a brain injury outside the confines of the healthcare institution. Vicarious liability is always assumed when it happens within the premises of an organisation (Paterson, 2009). What Could Happen To the Person Seeing that the patient incurred a brain injury, it is obvious that she will not be of sound mind to make her own decision. In this case, it becomes important to interpret the principles of medicine and healthcare in relation to higher good, and not in the patient-centred manner. This does not mean that the patient’s consent is dispensable. On the contrary, it is important that the medical team contacts the patient’s parents or guardians so as to have them give consent. The consent is to be signed against (Douglass, 2007). The need for informed consent is informed by the requirements of the law as can be seen in different legal provisions such as Health and Disability Commissioner Regulations 1996, Part II and V which safeguards against coercion and the patient’s right to co-operate with services providers to guarantee continue of services and in the right quantity, respectively. The same is also informed by ethical issues which underscore the right of the patient as an individual and thereby being autonomous and having the right over the body which she possesses. After medical intervention has been completed, it will be important to have the patient understand why medical intervention was inevitable such that her direct informed consent was not factored at first. After that informed consent has been obtained, it will be upon the medical team to attend to the patient’s wounded thigh and injured brain, according to the order of priority. At this point, the hospital’s administration may want to settle any legal issues that may have emanated from the contact between the patient and the two paramedics. It is very possible to make the patient understand the circumstances that occasioned her brain injury. Conversely, an absence of agreement between the healthcare institution and the patient may still be settled through means of alternative dispute resolution. The failure of the alternative dispute resolution may then culminate into litigation by the patient as the plaintiff. References Clarkson, H. (1994). Medical manslaughter in New Zealand. Lancet, 344 (8917), 269 Coney, S. (1994). Medical manslaughter in New Zealand. Lancet, 343 (3), 1091 Devereux, J.A. (2007). Medical Law in New Zealand. University of Queensland Law Journal, The, 26 (1), 203 - 205 Douglass, A. (2007). Medical Law in New Zealand. New Zealand Universities Law Review, 22 (3), 540 Griffiths, D. & Sanders, A. (2013). Bioethics, Medicine and the Criminal Law Medicine, Crime and Society. Cambridge Bioethics and Law, 2 (3), 175 Mello, M. M. (2008). Medical Law in New Zealand. Otago Law Review, 11 (4), 717 Keown, J. (2010). Medical Law in New Zealand. Medical Law Review, 18 (2), 256 Paterson, R. (2009). Medico-legal knowledge in New Zealand. The New Zealand Medical Journal, 122 (1300), 5 Pengilley, W. (2005). Medical practitioners and competition law in Australia and New Zealand. The New Zealand Medical Journal, 118 (1215), U1466 Sladden, N. and Graydon, S. (2009). Liability for medical malpractice--recent New Zealand developments. 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