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Updated: May 12 2022

Legal Principles

  • The following principles are intended to be applied only to a variety of individual situations you may face on the USMLE
Capacity, Competence, and Consent
  • Capacity vs competence 
    • capacity is a medical term
    • competence is a legal term
  • Competent patients have the right to refuse medical information and medical treatment(s)
    • a feeding tube is a medical treatment
    • a competent person can refuse lifesaving hydration or nutrition 
  • Assume that the patient is competent unless
    • history of suicide attempt
    • psychotic
    • patient cannot communicate
  • Obtain informed consent
    • patient must understand 
      • risks
      • benefits
      • alternatives
        • including no treatment
    • patient must agree with plan of care without coercion
    • exceptions
      • emergencies 
      • waiver by patient
      • patient lacks decision-making capacity
      • therapeutic privilege
        • physician deprives an unconscious or confused patient of his autonomy in order to protect the patient's health (paternalism)
    • note that written consent can be revoked orally at any time
    • components of informed consent include:
      • patient makes and communicates a choice
      • patient is informed
        • information has not been withheld from the patient
      • decision remains stable over time
      • decision is consistent with patient's values and goals
      • decision is not result of delusions or hallucinations
      • consent implied in emergency situations without the healthcare proxy and patient unresponsive/confused 
    • consent from a patient's spouse is not required treatment of a patient with capacity
End-of-Life Issues
  • If the patient cannot make decisions, surrogate decision makers must use the following criteria:
    • subjective standard (advance directive of patient)
      • living will = patient provides specific instructions to withhold or withdraw life-sustaining treatment
    • substituted judgment (what would the patient want)
      • durable power of attorney = patient designates healthcare proxy to make decisions
      • supersedes living will if both exist
    • "best interests" of the patient
    • when no living will or durable power of attorney exists, the clinician is responsible for determining an appropriate surrogate decision maker from available family members
      • the priority of next-of-kin for surrogate decision making is as follows:
        • legal guardian appointed by a court
        • spouse
        • adult children (> 18 yrs)
        • parents
        • adult siblings 
        • grandparents/grandchildren
        • friend of the patient
  • Euthanasia
    • passively allowing patient to die is acceptable
      • but do everything you can to relieve patient's suffering
    • active killing of the patient is not acceptable
  • When treatment should stop
    • physician thinks treatment is futile but family insists on treatment
      • continue treatment
    • after declaration of brain death but family insists on treatment
      • stop treatment
  • Confidentiality between physician and patient is generally absolute  
    • exceptions
      • suspicion of child/elder abuse
      • gunshot or stabbing injuries must be reported to the police
      • communicable disease must be reported
      • the patient is a harm to others or self
        • tarasoff decision 
      • no alternative means exists to warn others
      • patient waves right to privacy 
        • e.g., for insurance purposes
  • Minors cannot give informed consent unless emancipated through:
    • marriage
    • a parent
    • military service
    • living alone
  • A minor's refusal of treatment can be overruled by a parent
  • Parents cannot withhold life- or limb-saving treatment from their children, but can refuse other treatments
  • Examples
    • 17-year-old girl whose parents cannot be contacted
      • physician may treat a threat to health under in locum parentis
    • 17-year-old girl living on her own
      • patient can choose whether or not to give consent
    • 17-year-old girl who is requests birth control
      • provide access even in absence of parental consent
    • 16-year-old girl refuses but mother consents
      • treat
    • 16-year-old girl consents but mother refuses
      • do not treat
Other Principles
  • Avoid going to court
  • Use trained medical interpreters when possible
  • Committed mentally ill patients retain their rights
  • Never abandon a patient
    • transferring a patient to another physician's care is rarely (if ever) a correct answer on the USMLE
    • If a treatment (such as abortion, birth control, etc) is against a physician's personal beliefs - that physician does not have to provide that treatment; however, they are responsible for referring their patient to a provider who is willing and able to provide such care 
  • Disclose all errors, regardless of harm
    • consulting risk management alone is rarely (if ever) a correct answer on USMLE
Child and Elder Abuse
  • If suspected abuse is occurring, physicians are mandated reporters and MUST report to Child Protective Services or Adult Protective Services 
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