Tragic choices in intensive care during the COVID-19 pandemic: on fairness, consistency and community

Tragic choices arise during the COVID-19 pandemic when the limited resources made available in acute medical settings cannot be accessed by all patients who need them. In these circumstances, healthcare rationing is unavoidable. It is important in any healthcare rationing process that the interests of the community are recognised, and that decision-making upholds these interests through a fair and consistent process of decision-making. Responding to recent calls (1) to safeguard individuals' legal rights in decision-making in intensive care, and (2) for new authoritative national guidance for decision-making, this paper seeks to clarify what consistency and fairness demand in healthcare rationing during the COVID-19 pandemic, from both a legal and ethical standpoint. The paper begins with a brief review of UK law concerning healthcare resource allocation, considering how community interests and individual rights have been marshalled in judicial deliberation about the use of limited health resources within the National Health Service (NHS). It is then argued that an important distinction needs to be drawn between procedural and outcome consistency, and that a procedurally consistent decision-making process ought to be favoured. Congruent with the position that UK courts have adopted for resource allocation decision-making in the NHS more generally, specific requirements for a procedural framework and substantive triage criteria to be applied within that framework during the COVID-19 pandemic are considered in detail.

View. The Dutch Critical Care Triage Guideline on Covid-19: Not Necessarily Discriminatory

Recently, the Dutch Medical Doctors Association (Federatie Medisch Specialisten en de Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst) drafted the 'Covid-19 triage guideline ICU admission' that has age cut-offs that deprioritise or exclude the elderly. Such an age limit for intensive care unit (ICU) admission in case of a national emergency seems discriminatory, and thus, is it inappropriate to use, or not? The question is whether age in itself can be considered as an acceptable selection criterion.

[Human Resources for Intensive Care Medicine in Portugal in the Post-COVID Era]

N/a.

Availability of Internationally Controlled Essential Medicines in the COVID-19 Pandemic

Section 2 of the 2019 World Health Organization Model List of Essential Medicines includes opioid analgesics formulations commonly used for the control of pain and respiratory distress, as well as sedative and anxiolytic substances such as midazolam and diazepam. These medicines, essential to palliative care, are regulated under the international drug control conventions overseen by United Nations specialized agencies and treaty bodies and under national drug control laws. Those national laws and regulations directly affect bedside availability of Internationally Controlled Essential Medicines (ICEMs). The complex interaction between national regulatory systems and global supply chains (now impacted by COVID-19 pandemic) directly affects bedside availability of ICEMs and patient care. Despite decades of global civil society advocacy in the United Nations system, ICEMs have remained chronically unavailable, inaccessible, and unaffordable in low- and-middle-income countries, and there are recent reports of shortages in high-income countries as well. The most prevalent symptoms in COVID-19 are breathlessness, cough, drowsiness, anxiety, agitation, and delirium. Frequently used medicines include opioids such as morphine or fentanyl and midazolam, all of them listed as ICEMs. This paper describes the issues related to the lack of availability and limited access to ICEMs during the COVID-19 pandemic in both intensive and palliative care patients in countries of all income levels and makes recommendations for improving access.

Consent for critical care research after death from COVID-19: Arguments for a waiver

Pandemics challenge clinicians and scientists in many ways, especially when the virus is novel and disease expression becomes variable or unpredictable. Under such circumstances, research becomes critical to inform clinical care and protect future patients. Given that severely ill patients admitted to intensive care units are at high risk of mortality, establishing the cause of death at a histopathological level could prove invaluable in contributing to the understanding of COVID-19. Postmortem examination including autopsies would be optimal. However, in the context of high contagion and limited personal protective equipment, full autopsies are not being conducted in South Africa (SA). A compromise would require tissue biopsies and samples to be taken immediately after death to obtain diagnostic information, which could potentially guide care of future patients, or generate hypotheses for finding needed solutions. In the absence of an advance written directive (including a will or medical record) providing consent for postmortem research, proxy consent is the next best option. However, obtaining consent from distraught family members, under circumstances of legally mandated lockdown when strict infection control measures limit visitors in hospitals, is challenging. Their extreme vulnerability and emotional distress make full understanding of the rationale and consent process difficult either before or upon death of a family member. While it is morally distressing to convey a message of death telephonically, it is inhumane to request consent for urgent research in the same conversation. Careful balancing of the principles of autonomy, non-maleficence and justice becomes an ethical imperative. Under such circumstances, a waiver of consent, preferably followed by deferred proxy consent, granted by a research ethics committee in keeping with national ethics guidance and legislation, would fulfil the basic premise of care and research: first do no harm. This article examines the SA research ethics framework, guidance and legislation to justify support for a waiver of consent followed by deferred proxy consent, when possible, in urgent research after death to inform current and future care to contain the pandemic in the public interest.

The perils of medico-legal advocacy in ICU conflicts at the end of life: A qualitative study of what happens when advocacy and best interests collide

An unexplored aspect of conflicts and conflict resolution in the ICU at EOL is the role of advocacy in both medicine and law.

GOAL

Qualitative study to explore perspectives of SDM/patient lawyers on issues of advocacy at EOL to better understand conflicts and resolution processes.

METHODS

Purposive sampling with criterion and snowball techniques were used to recruit 11 experienced lawyers for semi-structured interviews. Interviews explored respondents' beliefs, views, and experiences with conflicts; were audio-recorded, coded inductively and iteratively following interpretive analysis. Recurring themes were identified using NVivo Qualitative Software.

RESULTS

We interviewed 11 participants and achieved conceptual saturation. Participants identified insufficient advocacy and overaggressive advocacy as major contributors to the initiation of ICU conflicts and the inhibition of resolution processes before and after the legal system is engaged. These breakdowns in advocacy contribute to challenges when conflicts arise, leading to prolongation of conflict-resolution processes and to outcomes that sometimes reflect the goals of legal advocacy rather than patient-centred goals.

CONCLUSION

This study explores legal perspective of conflict at EOL and how these perspectives can be used to inform the development of better approaches to conflict resolution.

Legal Aspects of Withdrawal of Therapy

The ability of intensive care to replace or support vital organ function has resulted in some patients surviving for long periods of time without improvement or a terminal event. In patients with no realistic chance of survival, decisions to withdraw or withhold life-sustaining therapies are commonly made.

Withdrawal of life support at the patient's request is lawful at common law and, in some states of Australia, by legal statute. In the intensive care setting though, it is more common for therapy to be withdrawn because the therapy is of no perceived benefit or not in the patient's best interests. However, in Australia there is little case law and very little legislation to direct the decision of whether to withdraw life-sustaining therapy on the grounds of futility or the patient's best interests.

The legislation that does exist in Australia, as well as law from other jurisdictions, largely places responsibility for the decision to withdraw therapy on the doctor in charge of the patient's care. However much weight is frequently placed on the wishes of the family.

Disagreements between family and clinicians over decisions to withdraw therapy are unusual and generally resolve over time. However if disagreement persists, it may be advisable to apply to the courts for a declaratory judgement, given the tenuous legal basis of withdrawal of life-sustaining therapy in Australia and the uncertainty over the courts’ view of the role of the patient's family in the decision-making process.

Non-readmission decisions in the intensive care unit under French rules: A nationwide survey of practices

PURPOSE

We investigated, using a multicentre survey of practices in France, the practices of ICU physicians concerning the decision not to readmit to the ICU, in light of current legislation.

MATERIALS AND METHODS

Multicentre survey of practices among French ICU physicians via electronic questionnaire in January 2016. Questions related to respondents' practices regarding re-admission of patients to the ICU and how these decisions were made. Criteria were evaluated by the health care professionals as regards importance for non-readmission.

RESULTS

In total, 167 physicians agreed to participate, of whom 165 (99%) actually returned a completed questionnaire from 58 ICUs. Forty-five percent were aged <35 years, 74% were full-time physicians. The findings show that decisions for non-readmission are taken at the end of the patient's stay (87%), using a collegial decision-making procedure (89% of cases); 93% reported that this decision was noted in the patient's medical file. While 73% indicated that the family/relatives were informed of non-readmission decisions, only 29% reported informing the patient, and 91% considered that non-readmission decisions are an integral part of the French legislative framework.

CONCLUSION

This study shows that decisions not to re-admit a patient to the ICU need to be formally materialized, and anticipated by involving the patient and family in the discussions, as well as the other healthcare providers that usually care for the patient. The optimal time to undertake these conversations is likely best decided on a case-by-case basis according to each patient's individual characteristics.

Knowledge of the law about withholding or withdrawing life-sustaining treatment by intensivists and other specialists

OBJECTIVE

Decisions about withholding or withdrawing life-sustaining treatment (WWLST) from adults who lack capacity are an integral part of intensive care (IC) practice. We compare the knowledge, attitudes and practice of intensivists in relation to the law about WWLST with six other specialties most often involved in end-of-life care.

DESIGN, SETTING AND PARTICIPANTS

We used a cross-sectional postal survey of medical specialists in the three most populous Australian states, and analysed responses from 867 medical specialists from the seven specialties most likely to be involved in WWLST decisions in the acute-care setting (emergency, geriatric, palliative, renal and respiratory medicine, medical oncology and IC).

MAIN OUTCOME MEASURES

Attitudes to, and knowledge and practice of, the law relating to end-of-life care.

RESULTS

Of 2702 surveys sent to eligible practitioners, 867 completed questionnaires were returned. There was an overall response rate of 32% and an IC response rate also of 32% (125/388). Intensivists performed better than average in legal knowledge but important knowledge gaps remain. Intensivists had a more negative attitude to the role of law in this area than other specialty groups but reported being seen as a leading source of information about legal issues by other medical specialists and nurses. Intensivists also reported being the specialists most frequently making decisions about end-of-life treatment.

CONCLUSIONS

Improved legal knowledge and open engagement with the law can help manage the risk of harm to patients and protect intensivists from liability. IC guidelines and continuing professional development are important strategies to address these issues.

How to protect incompetent clinical research subjects involved in critical care or emergency settings

Clinical research is an essential component of medical activity, and this is also true in intensive care. Adequate information and consent are universally considered necessary for the protection of research subjects. However, in emergency situations, the majority of critical patients are unable to consent and a valid legal representative is often unavailable. The situation is even more complex in Italy, where the relevant legislation fails to specify how investigators should manage research in emergency or critical care setting when it involves incompetent patients who do not have an appointed legal representative. While special measures for the protection of incompetent subjects during emergency research are necessary, not allowing such research at all dooms critically ill patients to receive non-evidence-based treatments without the prospect of improvement. The recently-issued EU Regulation n. 536/2014 will probably help shed light on this situation. Indeed, it specifically addresses the issue of "research in emergency situations" and introduces detailed rules aimed at protecting patients while allowing research. In this article, we argue that obtaining informed consent during emergency research on incompetent subjects in unrealistic, and that in most cases substituted judgment on the part of a proxy carries major flaws. Strict criteria in evaluating the risk-benefit ratio of proposed intervention and a careful evaluation of the trial by a local or national Research Ethics Committee are perhaps the most practicable solution.

Informed consent in paediatric critical care research--a South African perspective

BACKGROUND

Medical care of critically ill and injured infants and children globally should be based on best research evidence to ensure safe, efficacious treatment. In South Africa and other low and middle-income countries, research is needed to optimise care and ensure rational, equitable allocation of scare paediatric critical care resources. Ethical oversight is essential for safe, appropriate research conduct. Informed consent by the parent or legal guardian is usually required for child research participation, but obtaining consent may be challenging in paediatric critical care research. Local regulations may also impede important research if overly restrictive. By narratively synthesising and contextualising the results of a comprehensive literature review, this paper describes ethical principles and regulations; potential barriers to obtaining prospective informed consent; and consent options in the context of paediatric critical care research in South Africa.

DISCUSSION

Voluntary prospective informed consent from a parent or legal guardian is a statutory requirement for child research participation in South Africa. However, parents of critically ill or injured children might be incapable of or unwilling to provide the level of consent required to uphold the ethical principle of autonomy. In emergency care research it may not be practical to obtain consent when urgent action is required. Therapeutic misconceptions and sociocultural and language issues are also barriers to obtaining valid consent. Alternative consent options for paediatric critical care research include a waiver or deferred consent for minimal risk and/or emergency research, whilst prospective informed consent is appropriate for randomised trials of novel therapies or devices. We propose that parents or legal guardians of critically ill or injured children should only be approached to consent for their child's participation in clinical research when it is ethically justifiable and in the best interests of both child participant and parent. Where appropriate, alternatives to prospective informed consent should be considered to ensure that important paediatric critical care research can be undertaken in South Africa, whilst being cognisant of research risk. This document could provide a basis for debate on consent options in paediatric critical care research and contribute to efforts to advocate for South African law reform.

Legal preparedness: care of the critically ill and injured during pandemics and disasters: CHEST consensus statement

BACKGROUND

Significant legal challenges arise when health-care resources become scarce and population-based approaches to care are implemented during severe disasters and pandemics. Recent emergencies highlight the serious legal, economic, and health impacts that can be associated with responding in austere conditions and the critical importance of comprehensive, collaborative health response system planning. This article discusses legal suggestions developed by the American College of Chest Physicians (CHEST) Task Force for Mass Critical Care to support planning and response efforts for mass casualty incidents involving critically ill or injured patients. The suggestions in this chapter are important for all of those involved in a pandemic or disaster with multiple critically ill or injured patients, including front-line clinicians, hospital administrators, and public health or government officials.

METHODS

Following the CHEST Guidelines Oversight Committee's methodology, the Legal Panel developed 35 key questions for which specific literature searches were then conducted. The literature in this field is not suitable to provide support for evidence-based recommendations. Therefore, the panel developed expert opinion-based suggestions using a modified Delphi process resulting in seven final suggestions.

RESULTS

Acceptance is widespread for the health-care community's duty to appropriately plan for and respond to severe disasters and pandemics. Hospitals, public health entities, and clinicians have an obligation to develop comprehensive, vetted plans for mass casualty incidents involving critically ill or injured patients. Such plans should address processes for evacuation and limited appeals and reviews of care decisions. To legitimize responses, deter independent actions, and trigger liability protections, mass critical care (MCC) plans should be formally activated when facilities and practitioners shift to providing MCC. Adherence to official MCC plans should contribute to protecting hospitals and practitioners who act in good faith from liability. Finally, to address anticipated staffing shortages during severe and prolonged disasters and pandemics, governments should develop approaches to formally expand the availability of qualified health-care workers, such as through using official foreign medical teams.

CONCLUSIONS

As a fundamental element of health-care and public health emergency planning and preparedness, the law underlies critical aspects of disaster and pandemic responses. Effective responses require comprehensive advance planning efforts that include assessments of complex legal issues and authorities. Recent disasters have shown that although law is a critical response tool, it can also be used to hold health-care stakeholders who fail to appropriately plan for or respond to disasters and pandemics accountable for resulting patient or staff harm. Claims of liability from harms allegedly suffered during disasters and pandemics cannot be avoided altogether. However, appropriate planning and legal protections can help facilitate sound, consistent decision-making and support response participation among health-care entities and practitioners.

[Forensic risk in emergency medicine]

Activities in the emergency departments increase in all countries for many reasons: medical, social, economic, etc. In the same time, it is logical to observe an increase in claims; this is confirmed by the insurance companies. In this review, we describe the typology of claims according to the Reason model, also named Swiss cheese model. Thus weseparate the risk situations, the taking risk and the lack of information. When the three factors are associated, claims occur. Then it is easy to propose a method of prevention based on the compliance to the recommandations of good pratices written by the scientific societies.

[Management in the intensive care unit: between indications, constraints and contradictions]

A patient with a pervasive developmental disorder was treated in the intensive care room for over a year; the freedom to come and go is an inalienable human right. How can the gap between legislative framework and the world of psychotic deficit be filled? The apparent contradiction between appropriate psychiatric care and the clinical condition of a patient with severe TED and intellectual deficit and the recommendations of the High Authority of Health is addressed. Narrative account in this context.

Acute care hospitals' accountability to provincial funders

Ontario's acute care hospitals are subject to a number of tools, including legislation and performance measurement for fiscal accountability and accountability for quality. Examination of accountability documents used in Ontario at the government, regional and acute care hospital levels reveals three trends: (a) the number of performance measures being used in the acute care hospital sector has increased significantly; (b) the focus of the health system has expanded from accountability for funding and service volumes to include accountability for quality and patient safety; and (c) the accountability requirements are misaligned at the different levels. These trends may affect the success of the accountability approach currently being used.

The future of decision-making in critical care after Cuthbertson v. Rasouli

PURPOSE

The Supreme Court of Canada (SCC) ruling on Cuthbertson v. Rasouli has implications for all acute healthcare providers. This well-publicized case involved a disagreement between healthcare providers and a patient's family regarding the principles surrounding withdrawal of life support, which the physicians involved considered no longer of medical benefit and outside the standard of care, and whether consent was required for such withdrawals. Our objective in writing this article is to clarify the implications of this ruling on the care of critically ill patients.

SOURCE

SCC ruling Cuthbertson v. Rasouli.

PRINCIPAL FINDINGS

The SCC ruled that consent must be obtained for all treatments that serve a "health-related purpose", including withdrawal of such treatments. The SCC did not fully consider what the standard of care should be. Health-related purpose is not sufficient in and of itself to mandate treatment, and clinicians must still ensure that their patients or decision-makers are aware of the possible medical benefits, risks, and expected outcomes of treatments. The provision of treatments that have no potential to provide medical benefit and carry only risks would still fall outside the standard of care. Nevertheless, due to their health-related purpose, physicians must seek consent for the discontinuation of these treatments.

CONCLUSION

The SCC ruled that due to the legal definition of "health-related purpose", which is distinct from medical benefit, consent is required to withdraw life-support and outlined the steps to be taken should conflict arise. The SCC decision did not directly address the role of medical standard of care in these situations. In order to ensure optimal decision-making and communication with patients and their families, it is critical for healthcare providers to have a clear understanding of the implications of this legal ruling on medical practice.

Who is the patient? Disclosure of information and consent in anesthesia and intensive care (informed consent)

Physicians have always strived to uphold all the ethical postulates of the medical profession in all aspects of the practice, however with the vast advances in science and technology, numerous ethical dilemmas regarding all aspects of life and ultimately death have emerged. Medical decisions however, are no longer in the sole jurisdiction of traditional Hippocratic medicine but are now deliberated and delivered by the patient and they are comprised of a number of additional determining aspects such as psychological, social, legal, religious, esthetic, administrative etc., which all together represent the complete best interest of the patient. This is the basic goal of the "Informed Consent". The widening of legal boundaries regarding professional liability may consequentially lead to a "defensive medicine" and a deterioration in the quality of healthcare. In the Republic of Croatia there a four types of liability and the hyperproduction of laws which regulate healthcare geometrically increase the hazards to which physicians are exposed to on a daily basis. When evaluating the Croatian informed consent for anesthesia, we can come to the conclusion that it is completely impractical and as such entirely unnecessary. Anesthesiologists should concentrate on an informed consent which would in brief explain all the necessary information a "reasonable" anesthesiologist would disclose to a "reasonable" patient so that a patient could undertake a diagnostic or therapeutic procedure unburdened and with complete confidence in the physicians who are involved in the treatment of the respective patient.

TRICARE; reimbursement of sole community hospitals and adjustment to reimbursement of critical access hospitals. Final rule

This Final Rule implements for Sole Community Hospitals (SCHs) the statutory provision at title 10, United States Code (U.S.C.), section 1079(j)(2) that TRICARE payment methods for institutional care be determined, to the extent practicable, in accordance with the same reimbursement rules as those that apply to payments to providers of services of the same type under Medicare. This Final Rule implements a reimbursement methodology similar to that applicable to Medicare beneficiaries for inpatient services provided by SCHs. It will be phased in over a several-year period. This Final Rule also provides for special reimbursement for labor/delivery and nursery services in SCHs and creates a possible General Temporary Military Contingency Payment Adjustment (GTMCPA) for inpatient services in SCHs and for Critical Access Hospitals (CAHs).

[Burnout in intensive care units]

Intensive care units are highly stressful for the patients but for the caregivers as well, including nurse-assistants, nurses and physicians. The psychological syndrome of work exhaustion more commonly named burnout threatens these caregivers. The aims of the present paper are to describe: a) the incidence of burnout in intensive care units; b) the factors favoring burnout and c) the impacts of burnout at the individual, at the unit and institutional level. We suggest some possible ways to decrease the incidence of burnout. Finally, since the problematic of burnout is not specific to intensive care, we sought to underline some possible consequences of the burnout of caregivers on health systems.

Medicare and Medicaid programs; reform of hospital and critical access hospital conditions of participation. Final rule

This final rule revises the requirements that hospitals and critical access hospitals (CAHs) must meet to participate in the Medicare and Medicaid programs. These changes are an integral part of our efforts to reduce procedural burdens on providers. This rule reflects the Centers for Medicare and Medicaid Services' (CMS) commitment to the general principles of the President's Executive Order 13563, released January 18, 2011, entitled "Improving Regulation and Regulatory Review.''

[Non invasive ventilation in the ICU for the neuromuscular patient: legal issues]

The legal frame in which chronic mechanical ventilation is placed in Switzerland and France is discussed in this article. Safety of the patients and responsibility of caregivers are considered. We also discuss the ethical and legal aspects of the end-of-life of these patients, particularly when they decide that mechanical ventilation must be interrupted because they do not more tolerate their poor quality of life, and when they deliberately decide to die.

Medicare and Medicaid programs: changes to the hospital and critical access hospital conditions of participation to ensure visitation rights for all patients. Final rule

This final rule will revise the Medicare conditions of participation for hospitals and critical access hospitals (CAHs) to provide visitation rights to Medicare and Medicaid patients. Specifically, Medicare- and Medicaid-participating hospitals and CAHs will be required to have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital or CAH may need to place on such rights as well as the reasons for the clinical restriction or limitation.

Laws can be unethical

ICU teams have the difficult emotional burden of continuing complex life-sustaining therapy beyond the limits of what is felt to be reasonable. Among the reasons leading to a delay in the withdrawal of intensive therapy is the unwillingness or unpreparedness of the team or family members, or inadequate laws. We all have the responsibility to promote a legal framework allowing end-of-life decisions that ensure the autonomy, dignity and integrity of all citizens, in addition to the humane practice of medicine.

The use of mobile computed tomography in intensive care: regulatory compliance and radiation protection

The use of mobile head computed tomography (CT) equipment in intensive care is of benefit to unstable patients with brain injury. However, ionising radiation in a ward environment presents difficulties due to the necessity to restrict the exposure to staff and members of the public according to regulation 8(1-2) of the Ionising Radiation Regulations 1999. The methodology for enabling the use of a mobile head CT unit in an open ward area is discussed and a practical solution given. This required the reduction in scatter doses through the installation of extra internal and external shielding, and a further reduction in annual scatter dose by restricting the use of the equipment based on a simulation of the annual ward workload.

A history of ethics and law in the intensive care unit

Because they provide potential benefit at great personal and public cost, the intensive care unit (ICU) and the interventions rendered therein have become symbols of both the promise and the limitations of medical technology. At the same time, the ICU has served as an arena in which many of the ethical and legal dilemmas created by that technology have been defined and debated. This article outlines major events in the history of ethics and law in the ICU, covering the evolution of ICUs, ethical principles, informed consent and the law, medical decision-making, cardiopulmonary resuscitation, withholding and withdrawing life-sustaining therapy, legal cases involving life support, advance directives, prognostication, and futility and the allocation of medical resources. Advancement of the ethical principle of respect for patient autonomy in ICUs increasingly is in conflict with physicians' concern about their own prerogatives and with the just distribution of medical resources.

[Informed consent for intensive care research in Switzerland: any solution?]

In this article, we describe several aspects of the problems linked with the informed consent for medical research in the particular environment of intensive care. The specific elements of this singular context are analysed in taking account the present laws in Europe as well as in Switzerland, including the future project of law under current discussion.

Ethics review: 'Living wills' and intensive care--an overview of the American experience

Withdrawal and limitation of life support in the intensive care unit is common, although how this decision is reached can be varied and arbitrary. Inevitably, the patient is unable to participate in this discussion because their capacity is limited by the nature of the illness and the effects of its treatment. Physicians often discuss these decisions with relatives in an attempt to respect the patient's wishes despite evidence suggesting that the relatives may not correctly reflect the patient's desires. Advance decisions, commonly known as 'living wills', have been proposed as a way of facilitating the maintenance of an individual's autonomy when they become incapacitated. Others have argued that legalising advance decisions is euthanasia by the back door. In October 2007 in England and Wales, advance decisions will become legally binding as part of the 2005 Mental Capacity Act. This has been the case in the USA for many years. The purpose of the present review is to examine the published literature regarding the effect of advance decisions in relation to the provision of adult critical care.

Advanced directives and treatment decisions in the intensive care unit

Prospective medical decision-making through the use of advanced directives is encouraged and frequently helpful in guiding treatment for the critically ill. It is important to recognize the attendant shortcomings when using such tools in clinical practice.

Legal issues in the practice of critical care medicine: a practical approach

The intensive care unit is characterized by severely ill patients who frequently succumb to their disease, despite complex modern therapies and the best efforts of dedicated care teams. Although critical care is not historically characterized as a high-risk medical specialty with respect to litigation, the urgency, complexity, and invasive nature of intensive care unit care clearly increases legal risk exposure. Physicians do not practice in a vacuum. Instead, the practice of medicine is increasingly affected by government regulation, societal pressures, and pubic expectations. Law governs the interactions among the government, institutions, and individuals. Therefore, at a time when the practice of medicine itself is becoming increasingly more complex, physicians and other healthcare providers also face increasing administrative and legal challenges. Therefore, it is imperative that physicians develop an understanding of basic substantive and procedural law; first, so that their practices can be more focused and rewarding and less a fear of the unknown; second, that we can work proactively to minimize our legal risk; third, so that we can better communicate with risk managers, attorneys, and insurers; and finally, so that we can better understand and participate in future legal, legislative, regulatory, and public policy development. Accordingly, this general overview briefly addresses the substantive law of medical malpractice, informed consent, the law relating to research in critical care, Emergency Medical Treatment and Active Labor Act, the False Claims Act, peer review, state board disciplinary issues, and the Health Insurance Portability and Accountability Act; in addition, relevant procedural considerations will be briefly summarized.

Nontherapeutic quality improvement: The conflict of organizational ethics and societal rule of law

OBJECTIVE

Critical care ethics focuses largely on patient autonomy. Cost containment is necessary but requires rationing and limitations on a patient's right to consume beneficial services. No laws address a process of autonomy rights limitation to consume resources in the intensive care unit. We analyzed the frictional interface between necessary cost containment as a quality improvement activity contrasted with individual autonomy in the context of the evolution of research ethics.

DATA SOURCES AND SYNTHESIS

Scholarly books, peer-reviewed articles, congressional record, legal sources, the World Wide Web, and the National Archives and Records Administration were evaluated in the context of current cost-containment-driven nontherapeutic quality improvement activities.

PRINCIPAL FINDINGS

Three generations in the evolution of human research ethics are identified: 1) Hippocrates to Nuremberg Code, 2) Nuremberg to Belmont, and 3) Belmont to present. Similar ethical lapses, which place the individual at risk without disclosure for the good of future patients, have arisen recurrently in the course of history and continue presently when nontherapeutic quality improvement activities are framed as a human research activity with essentially no ethical oversight. Consequently, fiduciary obligations of professionals and their employer-institutions to their mutual patients may be at odds, creating complex layers of conflicted decision making. Nonetheless, professional Hippocratic duty to "the patient" must be congruent with the organizational ethos of limited funding "stewardship" to produce meaningful patient care. Medicine's integrity is legally protected and mandated under the state interests (parens patria doctrine) of the common law.

CONCLUSION

When hospitals (society and its health insurance methods) fail to ration transparently under "cost-containment ethics," they threaten the ethical integrity of the medical profession.