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Scots law and its relevance to anaesthesia, critical care, and pain medicine

2018; Elsevier BV; Volume: 18; Issue: 6 Linguagem: Inglês

10.1016/j.bjae.2018.04.001

2058-5357

Stuart Edwardson, Rosaleen Baruah,

Cardiac, Anesthesia and Surgical Outcomes

Learning objectivesBy reading this article you should be able to:•Describe key differences in the structure of the legal system in Scotland compared to the rest of the UK, including case law determining tests of medical negligence in these jurisdictions.•Recognise the key features of the Adults with Incapacity Act (Scotland) 2000 relevant to the practice of anaesthesia, intensive care, and pain medicine, including the documentation used in clinical practice.•Describe the function of the Procurator Fiscal and Crown Office Service in Scotland in investigating deaths.•Describe the indications for, aims, and conduct of the Fatal Accident Inquiries in Scotland.Key points•Scots law has many similarities to the laws of the rest of the UK, but there are significant differences relevant to those practicing anaesthesia, critical care, and pain medicine.•The standard for medical negligence in Scots law was set in the landmark case of Hunter and Hanley•Treatment of adults who lack decision-making capacity occurs under the auspices of the Adults with Incapacity Act (Scotland) 2000.•Certain categories of death must be reported to the Crown Office and Procurator Fiscal Service.•Clinicians may be required to attend a Fatal Accident Inquiry and should be familiar with this process. By reading this article you should be able to:•Describe key differences in the structure of the legal system in Scotland compared to the rest of the UK, including case law determining tests of medical negligence in these jurisdictions.•Recognise the key features of the Adults with Incapacity Act (Scotland) 2000 relevant to the practice of anaesthesia, intensive care, and pain medicine, including the documentation used in clinical practice.•Describe the function of the Procurator Fiscal and Crown Office Service in Scotland in investigating deaths.•Describe the indications for, aims, and conduct of the Fatal Accident Inquiries in Scotland. •Scots law has many similarities to the laws of the rest of the UK, but there are significant differences relevant to those practicing anaesthesia, critical care, and pain medicine.•The standard for medical negligence in Scots law was set in the landmark case of Hunter and Hanley•Treatment of adults who lack decision-making capacity occurs under the auspices of the Adults with Incapacity Act (Scotland) 2000.•Certain categories of death must be reported to the Crown Office and Procurator Fiscal Service.•Clinicians may be required to attend a Fatal Accident Inquiry and should be familiar with this process. Scots law has many similarities to the laws of England, Wales, and Northern Ireland. It also has some significant differences that are relevant to those practising in anaesthesia, critical care, and pain medicine. This article compares the law in Scotland to the legal system in England and Wales. Responsibility for delivery of healthcare is devolved to the Scottish Government. Scotland has 14 geographically defined health boards (e.g. NHS Lothian and NHS Tayside), which are responsible for delivery of healthcare services in their respective areas. Seven Special NHS Boards, such as NHS 24 and the Scottish Ambulance Service, provide specialist services. Healthcare Improvement Scotland is the national public health body. Each NHS board is accountable to the ministers of the Scottish Government.1NHS Scotland. About NHS Scotland. Available from http://www.scot.nhs.uk/about-nhs-scotland [Accessed 29 September 2017]Google Scholar Three civil courts hold jurisdiction in Scotland: the sheriff courts, the Court of Session, and the Supreme Court of the United Kingdom. The Supreme Court is the final court of appeal in the UK, and to ensure familiarity with Scots law, two of the 12 justices in the Supreme Court are practitioners of Scots law. Civil courts deal with non-criminal matters, such as medical negligence. In the Scottish civil courts the party raising an action is known as the pursuer (‘claimant’ in the civil courts of England and Wales), and the party defending the action is known as the defender (‘defendant’ in civil courts of England and Wales). Scottish criminal cases are heard in the district courts, the sheriff courts, and the High Courts of Justiciary. The court in which a criminal case is heard depends on the severity of the charge, with charges such as murder and culpable homicide (the Scottish equivalent of manslaughter) being heard in the High Court.2Clark B.C. Keegan G. Scottish legal system.3rd ed. Dundee University Press, Dundee2012Google Scholar The standard for medical negligence in Scots law remains Hunter v Hanley.3Bolam v Friern Hospital Management Committee [1957] 1 WLR 582Google Scholar This 1955 landmark legal case involved the pursuer, Mrs Hunter, bringing an action for professional negligence against the defender, Dr Hanley. Mrs Hunter received an i.m. injection of penicillin into her buttock; the needle snapped during the injection and could not be retrieved. She alleged that Dr Hanley was negligent, as he ought to have known to use a needle appropriate for the site of injection. The determination by Lord Clyde set out the test for medical negligence in Scots law. To succeed in a negligence action in medical diagnosis or treatment, it must be established that the doctor is guilty of a failure that no doctor of ordinary skill would make if acting with ordinary care. Lord Clyde was clear that deviation from standard practice did not in itself constitute negligence and that it would be ‘disastrous’ for a deviation to be perceived as such, as ‘all inducement to progress in medical science would be destroyed’. To establish liability for negligence, three elements must be proved by the pursuer:(i)there is usual and normal practice;(ii)the defender did not adopt that practice;(iii)the course that the defender adopted is one that no medical practitioner of ordinary skill would undertake if acting with ordinary care. The relevant case law establishing the standard for medical negligence in English law is Bolam v Friern Hospital Management Committee.3Bolam v Friern Hospital Management Committee [1957] 1 WLR 582Google Scholar The court held that a medical practitioner should not be found guilty of negligence if he or she acts ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. Two recent BJA Education articles have discussed consent to medical treatment and its relevance to anaesthesia, critical care, and pain medicine in adults and children.4Williams C.A. Perkins R. Consent issues for children: a law unto themselves?.Contin Educ Anaesth Crit Care Pain. 2011; 11: 99-103Abstract Full Text Full Text PDF Scopus (5) Google Scholar, 5Orr T. Baruah R. Consent in anaesthesia, critical care and pain medicine.BJA Educ. 2018; 18: 5Abstract Full Text Full Text PDF Scopus (6) Google Scholar It is worthy of note that in Scots law, the charges of battery or trespass to the person do not exist, and treatment in non-emergency settings without consent may lead instead to a charge of assault.6Earle M. Consent.in: Medical law essentials. Dundee University Press, Dundee2007: 93-110Google Scholar The Act of Parliament dealing with medical decision-making capacity in adults in Scotland is the Adults with Incapacity (Scotland) Act 2000.7Scottish Government. Adults with Incapacity (Scotland) 2000. Available from https://www.legislation.gov.uk/asp/2000/4/contents [Accessed 17 October 2017]Google Scholar Guidance for practitioners caring for patients who may have diminished capacity is provided in an accompanying Code of Practice.8Scottish Government. Adults with Incapacity (Scotland) Act 2000: A Code of Practice. Available from http://www.gov.scot/Publications/2010/10/20153801/0 [Accessed 17 October 2017]Google Scholar The Act is intended to provide a framework to safeguard the medical and financial welfare of adults (defined as those aged 16 yr or older) who lack decision-making capacity because of mental disorder or inability to communicate. This inability may be acute and time limited, as may be the case in a patient admitted to the ICU and rendered unable to communicate because of critical illness, or may be lifelong in the case of patients with permanent disabilities. In Scots law, there is a presumption that adults are legally capable of making decisions for themselves [presumption of capacity also applies to the Mental Capacity Act (2005) in England and Wales]. This presumption of capacity may be overturned if there is evidence of loss of capacity. This is defined in Section 1 of the Act as being incapable of:(i)acting; or(ii)making decisions; or(iii)communicating decisions; or(iv)understanding decisions; or(v)retaining the memory of decisions. This incapacity must be resulting from a mental disorder or inability to communicate because of physical disability. If this inability to communicate can be overcome with human or mechanical aids, it does not constitute incapacity for the purposes of the Act. The general principles of the Act are laid out in Section 1. This states that an intervention carried out under the Act:(i)should achieve a benefit not otherwise achievable;(ii)is the least restrictive option (i.e. the action made or decision taken should be the minimum necessary to achieve the intended purpose);(iii)account is taken of past and present expressed wishes and feelings as far as this is practicable;(iv)there is consultation with another specified person as far as is reasonable and practicable. Specified persons include a guardian or welfare attorney. Unlike the Mental Capacity Act (2005), which applies to the rest of the UK, there is no specific reference to the term ‘best interests’ in the Adults with Incapacity (Scotland) Act. This term was specifically rejected during the drafting process by the Scots Law Commission in its ‘Report on Incapable Adults’, as it was felt the term ‘best interests’ was too vague and did not give due weight to the views of the adult.9Report on Incapable Adults Scottish law commission.1995https://www.scotlawcom.gov.uk/files/5013/2758/0994/rep151_1.pdfDate accessed: December 10, 2017Google Scholar The Act gives a ‘general authority’ to healthcare practitioners to treat a patient who is incapable of consenting to treatment provided that a certificate of incapacity has been completed (Fig. 1), and provided that the treatment falls within the general principles of the Act. Medical treatment is defined as ‘any procedure or treatment designed to safeguard or promote physical or mental health’. If the patient is known to have appointed a proxy decision maker who has been granted power of attorney to make decisions regarding welfare, this general authority does not apply and the practitioner issuing the certificate must seek the consent of the welfare power of attorney before commencing treatment, where it is reasonable and practicable to do so. In an emergency, common law authority to provide treatment for the emergency preservation of life remains in place and completion of a certificate is not required to render this emergency treatment lawful.Fig 1Certificate of incapacity under Section 47 of the Adults with Incapacity (Scotland) Act 2000 with accompanying guidance flowchart (contains public sector information licensed under the Open Government Licence v3.0).View Large Image Figure ViewerDownload Hi-res image Download (PPT) The general authority to treat under the auspices of the Adults with Incapacity Act does not cover treatment covered under the Mental Health (Care and Treatment) (Scotland) Act 2003, for example electroconvulsive therapy, and such treatment would need to be authorised under the latter Act. In England and Wales, provisions within the Mental Capacity Act (2005) allow patients aged 18 yr or older, with the capacity to do so, to decide what medical treatments they would not accept in the event they were to lose such capacity. This decision must be in writing and be signed by the patient and a witness. The specific treatments being refused must be named. An advanced decision is not applicable to life-sustaining treatment unless this has been specifically stated in the statement.10Mental Capacity Act (2005) s24. Available from: http://www.legislation.gov.uk/ukpga/2005/9/part/1/crossheading/advance-decisions-to-refuse-treatment [Accessed 10 December 2017]Google Scholar The Adults with Incapacity (Scotland) Act 2000 states that past and present wishes of a patient must be taken into account when making decisions on behalf of a person who has lost decision-making capacity, and although there is no specific provision within the Act for a statement of advanced decisions, and no conditions regarding the form the statement must take as there is in the Mental Capacity Act (2005), such a statement of wishes should be taken into account when making such treatment decisions. There is a legal duty placed on healthcare professionals by the Mental Capacity Act (2005) to act upon a valid advanced decision. There is no corresponding legal duty to act upon an advanced directive in Scotland, but if such a directive were to be used as evidence of past and present wishes of a patient in court, it is highly likely the court would rule that the directive should be followed. An advanced directive does not give the patient the power to demand treatment, only refuse it. The Crown Office and Procurator Fiscal Service (COPFS) in Scotland is a Ministerial Department of the Scottish Government. It is an independent public prosecution service headed by the Lord Advocate who is assisted by a team of lawyers (the Procurators Fiscal). It is responsible for the investigation and prosecution of criminal offences in Scotland, alongside the investigation of sudden or suspicious deaths [including the decision to call a Fatal Accident Inquiry (FAI)]. This latter role is filled by the Coroner throughout the rest of the UK. The COPFS is organised into three geographic federations in the North, East, and West of Scotland. Within these federations, there is a network of 39 Procurator Fiscal offices, one for each Sheriff Court district.11Crown Office and Procurator Fiscal Service. Our role in investigating deaths. Available from http://www.copfs.gov.uk/investigating-deaths/our-role-in-investigating-deaths [Accessed 19 September 2017]Google Scholar Within the COPFS, the Scottish Fatalities Investigations Unit (SFIU) is responsible for investigating all sudden or unexplained deaths. There is a designated SFIU team for each of the three geographical federations. All deaths that fall into this category must be reported to the Procurator Fiscal by a medical practitioner (similar to reporting to the Coroner in the rest of the UK). See Table 1 for categories of death to be reported.Table 1Criteria for reporting deaths to the Procurator Fiscal in Scotland.11Crown Office and Procurator Fiscal Service. Our role in investigating deaths. Available from http://www.copfs.gov.uk/investigating-deaths/our-role-in-investigating-deaths [Accessed 19 September 2017]Google ScholarNatural cause of deathUnnatural cause of deathDeaths in legal custodyAny death where the cause cannot be identified by the medical practitioner to the best of his or her knowledge or beliefDeaths as a result of neglect/faultDeaths of children: if sudden or unexpected if arising from a concealed pregnancy if the child is on the Child Protection Register or being ‘looked after’ by a local authorityDeaths as a result of notifiable/communicable diseaseDeaths while under medical or dental care: if subject to complaint/concern by relatives if circumstances indicate fault or neglect from the medical team if circumstances indicate equipment failure may have contributed to the death deaths caused by the withdrawal of life-sustaining treatment to a patient in permanent vegetative stateDeaths while subject to compulsory treatment order under mental health legislationAny death not falling into the foregoing categories where circumstances surrounding the death may cause public anxietySuspicious deaths—i.e. where homicide cannot be ruled outDrug related deaths—including deaths resulting from adverse drug reactions reportable under the Medicines and Healthcare Products Regulatory Agency (MHRA) (Yellow Card Scheme)Accidental deaths (including those resulting from falls)Deaths resulting from an accident in the course of employmentDeaths of children from overlaying or suffocationDeaths where the circumstances indicate the possibility of suicideAny death of a person subject to legal custody. This includes deaths while in prison, detained in police offices, or in transport to and from police offices, prisons, or otherwise (e.g. transport from hospital to prison) Open table in a new tab Once notified of a death, the COPFS will take one of four specified actions:(i)Accept Medical Certificate of Confirmation of Death offered and take no further action This is likely to happen if the medical practitioner reporting is happy to issue a death certificate certifying the cause of death to the best of their knowledge. Certainty in this is not required.(ii)Consent to a hospital (non-fiscal) post-mortem examination This will occasionally happen if the fiscal and doctor agree death was attributable to natural causes, but more information is required in order to provide a more accurate death certification. Consent for the post-mortem examination must be obtained from the patient's relatives and cause of death intimated to the fiscal after post-mortem examination.(iii)Request a police report This does not necessarily indicate a suspected criminal case, but merely suggests that more information is required. This will invariably happen if a fiscal post-mortem is anticipated.(iv)Instruct a post-mortem examination This will happen if the medical practitioner is unable to certify the cause of death. This may only result in an external examination known as a ‘view and grant’, whereby a pathologist is given the patient's history, examines the body, and feels able to issue a death certificate without undertaking a full post-mortem examination. If a post-mortem examination of a death is undertaken by the procurator fiscal, the fiscal has legal responsibility for the body until a death certificate is issued. In the vast majority of cases, the body is released after post-mortem and a death certificate issued. Certain categories of deaths in Scotland require full investigation in the form of an FAI. FAIs are public inquiries held in accordance with the Fatal Accident and Sudden Death (Scotland) Act 2016, and are presided over by a sheriff, a judge who ordinarily sits in the Sheriff Court.12Inquiries into Fatal Accidents and Sudden Deaths, etc (Scotland) Act 2016. Available from https://www.legislation.gov.uk/asp/2016/2/contents [Accessed 17 October 2017]Google Scholar The FAI system is broadly similar to the coronial system in England and Wales. Deaths in custody and deaths in the workplace require a mandatory FAI. Any death thought to be unexplained, unexpected, or potentially preventable may be the subject of a discretionary FAI. The inquiry is inquisitorial, not adversarial; it is not a trial or fault-finding process, but a fact-finding process. There is no jury present in the FAI, and the sheriff hears all evidence given to the inquiry and uses it to make a judgment known as a determination. The purpose of the determination, in accordance with the Fatal Accident and Sudden Death (Scotland) Act is to establish:(i)where and when the death and any accident resulting in the death took place;(ii)the cause or causes of such death and any accident resulting in the death;(iii)the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;(iv)the defects, if any, in any system of working which contributed to the death or any accident resulting in the death;(v)any other facts which are relevant to the circumstances of the death. The determination concludes with recommendations based on the results of the inquiry. Persons or organisations to whom these recommendations are addressed, are obliged to make a written response to the Scottish Courts and Tribunal Service, detailing what has or will be done in the light of these recommendations.Clinical scenarioGordon Ewing was a 44 yr old man who presented for elective open reduction and fixation of a fractured fifth phalanx, which had healed suboptimally 6 weeks previously, following an initial open procedure under general anaesthesia. During prolonged induction of anaesthesia, an unsecured Cook airway exchange catheter migrated distally, perforating the right main bronchus and the intercostal muscles before becoming wedged into the soft tissues of the chest wall. Insufflation of oxygen at 15 L min−1 through the catheter caused widespread surgical emphysema and bilateral pneumothoraces, leading to a hypoxic cardiac arrest resulting in Mr Ewing's death.The transcript from the fatal accident inquiry following Mr Ewing's death (https://www.scotcourts.gov.uk/search-judgments/judgment?id=328e86a6-8980-69d2-b500-ff0000d74aa7) demonstrates the key aims of such an inquiry; to identify reasonable precautions that might have presented death and any accident resulting in the death. In this particular case, the sheriff determined that multiple factors involving team working and communication, task fixation, and unfamiliarity with infrequently-used equipment contributed to the eventual outcome. The determination was sent to the Royal College of Anaesthetists for further action as the college would deem appropriate.The inquiry took place over a 10-day period, 3 yr after the incident. The consultant in charge of the case gave evidence over a period of 3 days. It is worthy of note that the sheriff acknowledges the ‘traumatic nature’ of this incident on the clinicians, the ‘difficult and anxious circumstances’ that surround giving evidence in such circumstances, and commended them on the ‘open and straightforward and…unreservedly frank’ nature in which they gave their evidence.The findings of this Fatal Accident Inquiry (FAI) are now reflected in the Difficult Airway Society guidelines for management of unanticipated difficult intubation in adults (https://www.das.uk.com/guidelines/das_intubation_guidelines), which mandates a ‘stop and think’ period in which waking the patient must be actively considered. This demonstrates the role of an FAI in improving patient safety. Gordon Ewing was a 44 yr old man who presented for elective open reduction and fixation of a fractured fifth phalanx, which had healed suboptimally 6 weeks previously, following an initial open procedure under general anaesthesia. During prolonged induction of anaesthesia, an unsecured Cook airway exchange catheter migrated distally, perforating the right main bronchus and the intercostal muscles before becoming wedged into the soft tissues of the chest wall. Insufflation of oxygen at 15 L min−1 through the catheter caused widespread surgical emphysema and bilateral pneumothoraces, leading to a hypoxic cardiac arrest resulting in Mr Ewing's death. The transcript from the fatal accident inquiry following Mr Ewing's death (https://www.scotcourts.gov.uk/search-judgments/judgment?id=328e86a6-8980-69d2-b500-ff0000d74aa7) demonstrates the key aims of such an inquiry; to identify reasonable precautions that might have presented death and any accident resulting in the death. In this particular case, the sheriff determined that multiple factors involving team working and communication, task fixation, and unfamiliarity with infrequently-used equipment contributed to the eventual outcome. The determination was sent to the Royal College of Anaesthetists for further action as the college would deem appropriate. The inquiry took place over a 10-day period, 3 yr after the incident. The consultant in charge of the case gave evidence over a period of 3 days. It is worthy of note that the sheriff acknowledges the ‘traumatic nature’ of this incident on the clinicians, the ‘difficult and anxious circumstances’ that surround giving evidence in such circumstances, and commended them on the ‘open and straightforward and…unreservedly frank’ nature in which they gave their evidence. The findings of this Fatal Accident Inquiry (FAI) are now reflected in the Difficult Airway Society guidelines for management of unanticipated difficult intubation in adults (https://www.das.uk.com/guidelines/das_intubation_guidelines), which mandates a ‘stop and think’ period in which waking the patient must be actively considered. This demonstrates the role of an FAI in improving patient safety. If the procurator fiscal service is unable to determine the cause or circumstances surrounding a death under medical care, the Lord Advocate (the chief public prosecutor in Scotland) may instruct a discretionary FAI. Factors influencing this decision in the case of a death under medical care include factors relating to patient safety issues, as these deaths may have been avoidable.13Mawdlsey G. Fatal Accident Enquiries: raising awareness of their role in relation to the medical profession.J R Coll Phys Edinb. 2016; 46: 254-259Crossref PubMed Scopus (1) Google Scholar The sheriff presiding over the inquiry will usually hold several preliminary hearings to ensure the inquiry is ready to start. The sheriff will aim to hold the inquiry no later than 18–24 months after the death in question, but factors such as availability of witnesses can affect this. Before the start of the inquiry, the Sheriff will have determined basic demographic information about the deceased, and basic information about their death such as date, time, and place of death and any other relevant information such as medical records and post-mortem examination reports. The Sheriff will then determine what witnesses, including expert witnesses, should be called to give evidence to the inquiry. The inquiry is usually held in a Sheriff Court closest to the place of death. Doctors involved in the care of a patient whose death is being investigated in an FAI may be called to give evidence as factual witnesses. A doctor required to give evidence at an inquiry will receive a citation (court order) to attend, usually by post, and may well be asked to give a statement in advance of the inquiry to the fiscal, solicitors representing the family of the deceased, or other relevant parties. It is considered good practice to contact the legal office of the relevant health board and your medical defence organisation for guidance if you are called to give statements or evidence for the purposes of an FAI. Witnesses in the inquiry give evidence under oath or non-religious affirmation, and may be questioned by legal representatives of the procurator fiscal, the family of the deceased, representatives of other relevant bodies, or both. Giving evidence at an inquiry does not prevent criminal proceedings being taken against the person at a later date; however, a witness is not required to answer a question that may show they are guilty of an offence. The witness will be asked to confirm personal and professional details. They are likely to be asked about their recollection of details relevant to the death in question, which may involve reviewing medical notes and results. Clear, contemporaneous record keeping is clearly an advantage in this situation. It is possible for a witness to give evidence for several hours in a row, which may be a very stressful experience. Being aware of the process and aims of the FAI, and support from colleagues and family, can be useful in coping with this.14McCulloch J. Sykes M. Haut F. Accidents don’t happen any more: junior doctors experience of fatal accident inquiries in Scotland.Postgrad Med J. 2005; 81: 185-187Crossref PubMed Scopus (1) Google Scholar Practitioners of anaesthesia, critical care, and pain medicine need to be aware of relevant case law and legislation relating to their jurisdiction of practice. This article summarises the key points of Scots law for the practitioner working in Scotland.