 Legal and ethical issues
"The NHS Institute for Innovation and Improvement is a
new Venture which will provide an ambitious focus for new
ideas, technologies and practices to improve services to
patients, users and the public" (A guide to The NHS
Institute For Innovation and Improvement, National Health
Service website, United Kingdom, 2010).
"The Excellent Care for All Act is proposed legislation
that would improve quality, value and promote evidence-based
health care". (Ontario Ministry of Health and Long
Term Care website, Canada, 2010)
When I was a family physician in England some years ago,
and house calls were a common and accepted part of family
practice, I was called out one day to a patient's house to cut
her toenails. This unusual request came from the
patient's daughter. The patient was around 70 years old
and unable to cut her own toenails because of arthritis.
The daughter was around 50 years old, in relatively good
health and would have been quite able to cut her mother's
toenails. Fifty years earlier,the mother had no doubt
performed this service for her daughter. However, the
daughter felt the cutting her mother's toenails was beneath
her dignity and felt entitled to outsource this service to
someone else - namely, me.
Later, while practising in Canada, I saw a 22 year old man
on welfare benefits who requested a prescription for
Viagra. Ever happy to oblige, I gave him his
prescription as requested, but warned him that Viagra is quite
expensive. He came back a few days later quite angry and
complained that I hadn't told him that he would have to pay
for it. He had interpreted "quite expensive" as meaning
"quite expensive but the Government will pay for it".
They didn't.
Both of these incidents are aspects of what some
commentators have described as the "culture of
entitlement." This may well be a problem in the
post-peak medical world when services which people believe
they are entitled to may not be available due to a decreasing
availability of money, personnel and/or materials. It
would be politically unacceptable for any politician to tell
the public that services may deteriorate; instead, politicians
promise continuous improvement (see quotations above), which
raises people's expectations. When their expectations
are not met, even if those expectations are unrealistic,
people are more likely to be dissatisfied, to complain and to
litigate - and there will probably be plenty of post-peak
lawyers around to help people pursue their claims.
Situations where the usual standard of care cannot be met
raise legal issues. For example, it is the standard of
care in Western medicine that if a patient suffers a
myocardial infarction or a thromboembolic stroke, the treating
physician should consider giving thrombolytic drugs if there
are no contra-indications. But what if thrombolytic
drugs are not available due to manufacturing or transport
problems - is the treating physician liable for
malpractice?
The answer in most cases is "no." If resources are
not available to provide the ideal standard of care, the
physician should do his best with what resources are
available, and should not be held liable as a result.
However, this still does not excuse negligent treatment with
whatever resources are available.
An interesting fictional example illustrating both of these
problems can be found in James Howard Kunstler's post-peak
novel "World Made By Hand" (2008). In it, a dentist
performs a root canal filling using large doses of morphine
because local and general anesthetics are not available.
However, he fails to monitor the patient's condition
adequately, the patient suffers a respiratory arrest as a
result of the morphine, and dies. In this example, the
dentist would not be liable for failing to use a safer
anesthetic (because none was available) but would be liable
for negligently using the morphine.
In Kunstler's example there were no post-peak lawyers
around to bring a malpractice suit. Don't expect to be
so lucky in real life.
In order to avoid malpractice suits arising from
unrealistic expectations meeting limited resources, careful
record keeping will be very important. If the ideal
standard of care cannot be met for whatever reason, you should
document this fact, and the reason why the standard could not
be met, what efforts were made to obtain the appropriate
resources, and why the second-line resources were
chosen. You should also familiarise yourself with the
effects and side effects of unfamiliar or second-line
treatments before using them.
Clinical research into post-peak second line treatments
would be difficult because of the standard of care
issue. For example, if conventional
antibiotics become unavailable, some form of herbal
substitute may have to be used, which will probably not work
as well. However, it would be almost impossible to
conduct an ethical trial of a herbal antibiotic in real life
patients while the conventional pharmaceutical antibiotic was
still available, because it would not meet the current
standard of care and would probably put patients at
risk.
In a contracting economy and parallel contracting
healthcare system, one debate which needs to occur, but which
politicians and the public find it very difficult to engage
in, is: what level of risk is acceptable? Here's an
illustration of the kind of dilemma which arises:
A woman comes to her family physician with a
breast lump. The physician examines the lump and thinks
it is probably a harmless cyst. One way of managing this
would be to re-examine it in a month's time to see whether it
has gotten larger or smaller. However, to avoid any risk
of a malpractice suit he orders a mammogram just to make
sure. The radiologist reports that the
mammogram indicates that it is probably just a
harmless cyst, but covers himself by suggesting that an
ultrasound scan is performed, just to make sure. The
report on the ultrasound scan is that it is probably just a
harmless cyst, but a biopsy should be performed, just to make
sure. A biopsy is performed, and it does indeed turn out
to be just a harmless cyst.
So what could have been established clinically at very low
cost but slightly increased risk, ends up being established by
high-tech medicine at very high cost. A wealthy society
with abundant resources can probably afford to do this.
A debt-ridden society with diminishing resources
probably can't afford to do this. However, where there
is a mis-match between public expectations and reality
exacerbated by political rhetoric, confusion, dissatisfaction
and misallocation of resources are likely to result.
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