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A Brief on Patient Rights

Bill Robertson DHSc, NRP

Advocating for patients includes preserving their modesty during care.

Introduction

In the U.S., patients expect the basic right to participate in decisions about their own medical care. In the consumer world outside of healthcare, the customer has the ability to insist on their rights and to speak up for themselves when those rights are not afforded them. When a consumer becomes sick or injured, they often lack the capacity to do so. Therefore, in a clinical setting, the provider has an obligation to advocate for the consumer by making decisions and judgments that are in the patient’s best interest. However, the circumstances surrounding this ideology are not always clear. This article discusses some of the common principles of patient rights and advocacy in the realm of prehospital care.

Patient Rights

The world is diverse and the interpretations regarding the values on health and longevity are as equally assorted. In that regard, medical treatment decisions are personal. They are most often based on the patient’s values, beliefs, and culture. Consistently, the U.S. court system has upheld the rights of patients to make up their own minds regarding their healthcare.1 Additionally, successful lawsuits over the years have demonstrated that clinicians have not always acted in the best interest of the patient or in a manner recognized as a reasonable standard established by the principles of the healthcare profession. As a result, legislation has been established that dictates certain rights afforded patients in any number of circumstances. Prehospital providers are also subject to the rules of those laws. But it is not just the laws that determine standard patient rights. EMS providers are also held by certain ethical obligations based on the tenets of society. These tenets often determine right from wrong based on socially and professionally accepted standards within a culture. Some of the more important components of patient rights should be adequately understood by the prehospital clinician.

Advocacy

Patient advocacy is undoubtedly an essential part of the prehospital provider’s responsibilities. Even in contemporary EMS codes of conduct and ethics, doing what is in the patient’s best interest is a hallmark of patient care.2 However, the role of the prehospital clinician as an advocate for patient rights is not always clear. Traditional definitions of advocacy can be found in legal literature as a defensible human right.3 Nevertheless, laws alone are not always sufficient in addressing the dynamics of patient’s needs and desires. Ethical obligations toward advocacy are also an expectation of the prehospital clinician. Because of potential patient and family vulnerabilities within the hierarchical systems of healthcare, prehospital clinicians should act as a conduit between the patient’s comfort zone and the place of definitive care. In fact, prehospital providers are often the only qualified voice acting on behalf of the patient and can provide the only evidence of their circumstances. A 2001 Journal of Paediatrics and Child Health article identified varying degrees of advocacy used in healthcare. Most important was the act of interceding when it is in the patient’s best interest, especially when the patient is incapable of communication.3

When advocating for a patient, the EMS provider should act with prudence based on evidence that the decisions being made for the sake of the patient are both effective and appropriate. It is also important to clarify healthcare decisions with the patient in accordance with their basic human rights. With that in mind, the decisions a clinician makes with the goal of advocacy may not always be the same as the decisions a patient would make on their own behalf.

Autonomy

It is said that the decisions one makes are derived from personal culture, relationships, and values.4 The ability to make decisions based on these variables and others is an individual’s autonomy. Understanding autonomy is an important step in understanding advocacy. The principle of autonomy, in addition to other ethical principles, is a predominant focus in the American healthcare model. To understand autonomy in EMS, it is important to evaluate the various instances in which the prehospital clinician may or may not be required to advocate for their patients.

At least in the healthcare setting, the idea of patient autonomy is the foundation of informed consent.5 Informed consent is the act of providing the patient the appropriate information related to their conditions and interventions so they can make voluntary decisions about their ongoing care. Whenever possible, interventions performed by the clinician should be consistent with the patient’s particular beliefs or those of the individuals making decisions on the patient’s behalf.6

Informed consent also depends on the patient’s abilities to make competent and reasonable decisions based on their understanding of their conditions, as well as the risks and benefits of the available interventions. To that extent, a patient being informed and subsequently giving their consent is not always an indication of their ability to be autonomous. In fact, there are numerous reasons why a patient may not be truly and independently autonomous.

 

Within the healthcare paradigm, there exists a hierarchy and protocol-driven system of allowable and standard medical practices.5 These practices can often limit a patient’s autonomy. For instance, a patient in a state of significant pain is limited in the pain control options available to them based on several variables, such as the clinician’s certification level, the agency’s protocols, and the available medications. Another example of limited patient autonomy lies in their ability to choose the facility to which they wish to be transported. Often, the facility of their choice is not the most appropriate for their needs, or the facility will not accept the patient due to current volume. In yet another example, a patient may not fully understand the gravity or even the complexity of their particular illness or the recommended interventions. These are just a few examples of the institutional controls that the current health care paradigm has over an individual’s abilities to be truly autonomous.

The provider and patient alike need to understand that autonomy is a relative ideology that is significantly controlled by established structures and doctrines, available resources, clinician capabilities, and patient comprehension.7 Because autonomy in healthcare may be limited, the prehospital clinician must always be cautious that when allowing their patient to be autonomous that they are not also exposing themselves or their organization to potential litigation.

Refusal of Care

As a facet of patient’s rights and their autonomy to make their own healthcare decisions, patients also have the right to refuse care. Prompted by the patient rights movement of the 1980s and ’90s, the U.S. Supreme Court ruled that the Constitution of United States of America grants a competent person the right to refuse emergency medical treatment.8 This right is clear when providers effectively determine that a patient has the mental capacity to refuse care and that they do not pose a threat to themselves or others when doing so. This right becomes unclear with patients who don’t have the mental capacity or with those patients who might harm themselves.

Some laws dictate that a patient does not have the right to refuse care when certain cognitive and/or self-preservation criteria are not met.9 For instance, when a patient is under the influence of drugs or alcohol, that patient may not have the cognitive ability to make decisions about their healthcare that are in their own best interest. An elderly patient with dementia may not have the propensity to make informed decisions that would be consistent with that of a patient with normal mentation. It becomes the burden of the EMS provider to determine if the patient has the capacity to refuse medical care such that it reflects their values and normal decision-making abilities. If the patient lacks that capacity, legislation and ethics dictate that transportation for further evaluation is appropriate, and in many cases required.9

Incidentally, authors in one Utah study found that 2% of the approximately 5% of all EMS patients who refused care were subsequently hospitalized, and 0.2% died within a week of refusal.10 Granted, this number is a small percentage of refusals that occur nationally. In addition, the circumstances of the refusals and the deaths were not precisely determined. But it provides enough pause to remind providers that EMS medical control should always be involved with a refusal of care whenever the refusal could potentially jeopardize the patient’s health. This step in the process provides for the protection of the patient as well as the provider.9

Abandonment

If patient contact is made and the patient is not transported for further evaluation or treatment, the patient and the provider potentially become exposed to significant risks.11 The risk to the patient, of course, is that it creates a greater than necessary opportunity for their condition to worsen without the appropriate interventions. The risk to the provider is the potential for legal action based on claims of patient abandonment, which in its simplest context means a provider left a patient without delivering the appropriate interventions or failed to ensure continued treatment by another provider with equal or greater medical training.

According to the National Standard Curricula for Basic, Intermediate, and Paramedic training, EMS personnel receive the necessary advanced education to provide field impressions and to provide medical interventions when necessary. However, the latitude of the EMS provider in determining the need for transportation is not so well defined.12–14 With that in mind, the following represents the four types of patient encounters defined in a 2002 article in regard to transportation or the lack thereof:

  • The patient is evaluated, treated, and transported under informed consent;
  • The patient is informed but, despite recommendations, refuses transport;
  • The patient is transported under implied consent because the provider is acting in the patient’s best interest when the patient is perhaps unable to do so on their own, or
  • The patient is not transported but did not clearly refuse care.11

According to this model, it is the fourth patient that is recognized as placing the greatest burden of risk on EMS systems.11 Despite lacking authority to recommend against transport, many EMS providers do just that.11 For instance, when evaluating an individual involved in a minor vehicle collision, it is common practice for the EMS provider to determine that there is no injury and no need for further intervention or transportation. If the EMS provider expresses to the individual that an emergency does not exist, the patient may then refuse treatment based on the professional opinion of what they believe is a qualified medical expert. If that individual subsequently suffers a bad outcome as a result of following the provider’s advice, the provider has potentially opened themselves up to an accusation of abandonment as well as negligence.

Because such a scenario has great potential to occur, many agencies require that all patient contacts end in a transport or a signed refusal form and that all refusals be approved through online medical control. However, not all refusals are at the discretion of the provider. Oftentimes a refusal is made against medical advice, such as when a patient has a life-threatening illness or injury.

Assault and Battery

Although often used synonymously, assault and battery are considered distinct crimes. If a patient feels their rights were infringed on or that they were unable to express their autonomy regarding the ability to refuse transport, they may accuse the EMS professional of assault, battery, or both. Keep in mind that assault does not have to include physical harm, only the threat of physical harm, and battery does not have to insinuate that injury has occurred. For instance, making physical contact with an individual to place them on a stretcher could constitute battery in certain jurisdictions, especially if the individual did not give express consent to do so.15

This poses a challenge for the clinician, especially for the patient who should be transported but refuses. An example is a patient who is transported against their will. This patient can claim assault and battery. On the other hand, if they refuse transport and they subsequently suffer further damages as a result of their illness or injury, the provider could be accused of abandonment and negligence.

In theory, such processes as requiring thorough documentation, signed refusal forms, and involvement of online medical control in refusal situations, as well as strong and decisive protocols, safeguard the prehospital provider from litigation related to charges of assault and battery. Other safeguards include involving family members, personal physicians, and return visits by EMS to check on the patient. However, in reality, significant gaps exist between the ideal of patient rights and actual clinical practice and those safeguards do not eliminate the gaps and risks clinicians take when not transporting a patient. A certain amount of liable burden is still left on the clinician.

Civil Law

When a healthcare provider intentionally acts outside their scope of practice or acts with obvious malicious intent, that provider may be subject to criminal prosecution. However, because more evidence is needed to find the accused at fault in criminal cases than in civil cases, civil prosecution is more common in the U.S.16 In a civil lawsuit against an EMS provider, the patient (plaintiff) initiates the complaint to seek a legal remedy from the court, usually in the form of monetary compensation.16

Patients alleging medical malpractice in the U.S. legal system must generally make the following four establishments to make a successful claim of medical malpractice:

  • There was a legal duty on the part of the EMS provider to provide care to the patient.
  • There was a breach of duty or a failure to provide appropriate care.
  • The breach had some relationship to the claimed injury.
  • Damages occurred from the injury.17

The burden of meeting the criteria for medical malpractice consists of multiple levels, which makes it difficult to obtain verdicts of malpractice. In fact, one study about EMS litigation reported that there is only one lawsuit for every 23,000 prehospital patient encounters, a number which includes unsuccessful suits.21 However, given the increasing trends of medical litigation, rising prehospital encounters, and the ever-growing responsibilities and autonomy of EMS providers, medical malpractice lawsuits are on the rise.22

In regard to civil rights, cases can be difficult to prove since discrimination or refusing a patient their rights does not always result in physical damages. Additionally, civil rights laws do not clearly define which characteristics fall under discriminatory protections.23 However, if certain protected civil rights have been violated by an EMS provider, the patient may have additional avenues for compensation.18 Although all civil rights cases are first required to be filed in state or federal courts, most are decided on civilly outside of the courtroom.23

Emancipation

One area of patient rights that is often misunderstood is the rights of minors. Most states require that EMS providers assess, treat, and transport individuals who are under the age of 18 unless a refusal of care has been signed by the minor’s legal parent or guardian.19 However, in some cases, a minor may be emancipated from their parents before reaching the age of majority, often 18. When a minor is emancipated, they have essentially been given permission from the courts to make their own decisions on all matters, including healthcare.19 Different states have different interpretations and qualifications for emancipation. For instance, a minor is emancipated in some states if they are active in the military, are married, or have a child of their own.20 The following are some important considerations for the EMS provider when responding to refusals of care made by minors claiming emancipated status:

  • Never withhold urgent care or transportation while confirming the emancipation status of a minor;
  • Be well versed in local emancipation laws as well as agency policies and procedures;
  • Document every detail of the correspondence with a minor, regardless of emancipation status, and
  • When in doubt, err on the side of treating as a minor but be prepared to apologize.

Conclusion

Patient rights vary between cultures and social norms. In the U.S., certain rights are guaranteed by federal and state laws while others are assumed through ethical tenets. One important patient right is that of autonomy or the patient’s ability to determine their own need for care after being adequately informed. EMS providers have an obligation to respect patient rights by maintaining constant communications with the patient and advocating for their best interest. Assuring that patient rights and autonomy are protected requires comprehensive policies as well as active and ongoing education for EMS providers.

References

  1. Annas GJ. The rights of patients: The basic ACLU guide to patient rights. Berlin, Germany; Springer Science & Business Media; 2012.
  2. National Association of Emergency Medical Technicians [Internet]. Clinton, Miss.: National Association of Emergency Medical Technicians; c2016. [updated 2013 June 14; cited 2015 Aug 15. Gillespie CB. Code of ethics and EMT oath; [about 3 screens]. Available from: https://www.naemt.org/about_us/emtoath.aspx.
  3. Spence K. Ethical advocacy based on caring: a model for neonatal and paediatric nurses. J Paediatr Child Health. 2011 Sep;47(9):642-5. doi: 10.1111/j.1440-1754.2011.02178.x.
  4. MacDonald C. Relational professional autonomy. Camb Q Healthc Ethics. 2002 Summer;11(3):282-9.
  5. Goering S. Postnatal reproductive autonomy: Promoting relational autonomy and self-trust in new parents. Bioethics. 2009 Jan;23(1):9-19. doi: 10.1111/j.1467-8519.2008.00678.x.
  6. Fry S, Johnstone M. Ethics in nursing practice: A guide to ethical decision making. 3rd ed. Hoboken, N.J.: Wiley-Blackwell; 2008.
  7. Dodds S. Choice and control in feminist bioethics. In: MacKenzie C, Stoljar N, editors. Relational autonomy: feminist perspectives on autonomy, agency and the social self. Oxford: Oxford University Press; 2000. 213–235 pp.
  8. Belding J. Patient refusal: What to do when medical treatment and transport are rejected. JEMS. 2006 May;31(5):116-8.
  9. Adams J, Verdile V, Arnold R Ayres RJ, Kosowsky J. Patient refusal of care in the out-of-hospital setting. Acad Emerg Med. 1996 Oct;3(10):948-51.
  10. Knight S, Olson LM, Cook LJ, Mann NC, Corneli HM, Dean JM. Against all advice: An analysis of out-of-hospital refusals of care. Ann Emerg Med. 2003 Nov;42(5):689-96.
  11. Larkin GL, Fowler RL. Essential ethics for EMS: Cardinal virtues and core principles. Emerg Med Clin North Am. 2002 Nov;20(4):887-911.
  12. U.S. Department of Transportation [Internet]. Washington, DC: National Highway Traffic Safety Administration. [about 2 screens]. Available from: http://www.ems.gov/educationstandards.htm.
  13. National Highway Traffic Safety Administration [Internet]. Contents of 1998 Emergency Medical Technician - Intermediate: National Standard Curriculum. Washington, D.C.: National Highway Traffic Safety Administration; [about 2 screens]. Available from: http://www.nhtsa.dot.gov/people/injury/ems/EMT-I/index.html.
  14. National Highway Traffic Safety Administration [Internet]. EMT-basic national standard curriculum. Washington, D.C.: National Highway Traffic Safety Administration; [about 2 screens]. Available from: http://www.nhtsa.gov/people/injury/ems/pub/emtbnsc.pdf.
  15. Cornell University Law School [Internet]. Ithaca, N.Y.: Cornell University Legal Information Institute. [cited 2015 Aug 17]. Assault and battery; [about 2 screens]. Available from: https://www.law.cornell.edu/wex/assault_and_battery.
  16. Bal BS. An introduction to medical malpractice in the United States. Clin Orthop Relat Res. 2009 Feb;467(2):339-47. doi: 10.1007/s11999-008-0636-2. Epub 2008 Nov 26.
  17. Gittler GJ, Goldstein EJ. The elements of medical malpractice: an overview. Clin Infect Dis. 1996 Nov;23(5):1152-5.
  18. Emtala.com [Internet]. Marquette, Mich.: Fosmire S. [updated 2009 Oct 10; cited 2015 Aug. 17.] Frequently Asked Questions about the Emergency Medical Treatment and Active Labor Act (EMTALA); [about 9 screens]. Available from: http://www.emtala.com/faq.htm
  19. Committee on Pediatric Emergency Medicine. Consent for emergency medical services for children and adolescents. Pediatrics. 2003 Mar;111(3):703-6.
  20. Journal of Emergency Medical Service [Internet]. Tulsa, Okla.: Pennwell Corp. c2016. [updated 2010 Jul 15; cited 2015 Aug 17]. When minors can legally consent to urgent medical care; [about 2 screens]. Available from: http://www.jems.com/articles/2010/07/when-minors-can-legally-consen.html.
  21. Wang HE, Rollin JF, Shah MN, Abo BN, Yealy DM. Tort claims and adverse events in emergency medical services. Ann Emerg Med. 2008 Sep;52(3):256-62. doi: 10.1016/j.annemergmed.2008.02.011. Epub 2008 Apr 14.
  22. Atack L, Maher J. Emergency medical and health providers' perceptions of key issues in prehospital patient safety. Prehosp Emerg Care. 2010 Jan-Mar;14(1):95-102. doi: 10.3109/10903120903349887.
  23. Schneider EM. The changing shape of federal civil pretrial practice: the disparate impact on civil rights and employment discrimination cases. University of Pennsylvania Law Review. 2010; 158.2: 517-570.

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Published: November 2, 2016
Revised: January 5, 2017