Vitamin C: ascerbic ethical discussions

The issue of a patient's rights to demand treatment has recently been raised by a dramatic case in which a patient made a remarkable recovery following the use of an unconventional treatment that the hospital staff initially refused to administer. The normal position in such cases is that the relatives can take part in a clinical decision but the medical staff are bound to make it according to a clinical assessment of the best interests of the patient. That assessment is only required to take into account what would be regarded as acceptable regimens of treatment for the patient's condition. There is no ethical or legal basis for the patient's relatives being able to demand any treatment that the clinical team do not consider indicated nor to demand a highly unconventional treatment The case therefore poses a problem. When should we allow ourselves to be persuaded to step outside the bounds of accepted medical practice at the urging of relatives or patients? There are plausible arguments that a demonstration of efficacy in a particular patient or some reputable evidence of probability of efficacy would both be good enough grounds. In addition, one could argue that where the patient's predicted clinical course is terminal, then desperate measures of unproven efficacy can be tried in that the balance of harm and benefit cannot be further worsened. The implication of the actual events in the case in question is that a certain humility in the light of the incompleteness of medical knowledge is always appropriate and an objective weighing of the facts of the case, free from prejudicial theoretical commitments, is needed in the face of medical uncertainty.     

Reallocating liability to medical staff review committee members: a response to the hospital corporate liability doctrine

Under the doctrine of hospital corporate liability, the hospital governing board bears the responsibility for detecting the incompetence of its staff physicians. Since hospital governing boards are generally composed of lay community members, they lack the expertise to evaluate the clinical competence of their staff. Therefore, they must delegate their screening responsibilities to medical staff review committees. After analyzing the development of hospital corporate liability doctrine, this Note examines the respective policing capabilities of review committees and the governing board. The Note contends that the board should not be held liable for aspects of the policing process which it is incapable of controlling. The Note concludes that, given their superior ability to evaluate clinical competency, staff review committees should shoulder the responsibility for the clinical aspects of staff evaluation, leaving remaining aspects to the hospital governing board. The Note proposes that courts should recognize a cause of action for negligence against medical staff review committee members in order to upgrade the effective policing of the medical profession.     

Reconciling Quinlan and Saikewicz: decision making for the terminally ill incompetent

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals--sometimes with the assistance of the patient's family--on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. The two cases have been interpreted by many in the medical profession as representing conflicting viewpoints--one supportive of traditional medical decision making and the other distrustful of it. It is the thesis of this Article that Quinlan and Saikewicz are in fundamental agreement and can be reconciled by the next state supreme court that rules on this question. Both courts enunciate a constitutional right to refuse life-sustaining treatment, based on the right to privacy. They agree that incompetents should be afforded the opportunity to exercise this right, and that certain state interests can overcome it. They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed. It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decision-making process that remain to be resolved.     

Teaching "street law" to the criminally insane

A course in "Street Law" was taught to forensic patients by law students, following a format used by Georgetown University Law Center. Although the course has been taught to high school students and inmates of correctional facilities, this was the first time it has been extended to mental patients found not guilty of crimes by reason of insanity. An outstanding feature of the course was marked enthusiasm shown by patients who, through long institutionalization, had become apathetic, indifferent, and despairing. Their readiness and ability to learn brought to mind a couple of old sayings often heard around mental hospitals, "I may be crazy but I'm not stupid," and "Sometimes you can't tell the patients from the staff." The staff of at least one ward has picked up "teaching and learning to use as a central theme in treatment of patients, not abandoning traditional methods, but shifting the emphasis from therapy to teaching as a way of getting the patient's interest in his own rehabilitation. Judges, reviewing cases for release, have looked quizzical when the patients' active participation in a "law course" has been used as evidence of satisfactory progress.     

Doctors and hospitals: an antitrust perspective on traditional relationships

Under new pressures for cost containment, hospitals are increasingly asserting interests that conflict with those of physicians. Professor Havighurst argues that legal rules under which practitioners have challenged denials of hospital admitting privileges should be clarified in order that hospitals can more effectively carry out their new cost-containment and other responsibilities. He invokes antitrust law's "essential-facilities" doctrine to protect those abused by their competitors on a hospital staff, but he contends that, if a hospital participates in decisionmaking as an independent actor--even though it acts in concert with its physicians--, antitrust courts should lower the level of scrutiny to a point at which most challenges can be dismissed summarily. He analogizes restraints imposed by hospitals on competition between health professionals to vertical restraints of other kinds, and draws conclusions critical of doctrine traditionally applicable to the latter.     

Promoting work-related activities in a high secure setting: exploration of staff and patients’ views

Introduction: Adults diagnosed with mental disorders, in particular those who have a history of offending, have low employment rates. Here we explore staff and patients’ views on the importance of work and vocational activities offered at a high secure hospital. Method: Two hundred seventy-six patients and 106 staff were approached; 54.3% of the patients and 58% of staff completed the questionnaire. Results: Educational achievement in patients was low but nearly two-thirds of patients had been engaged in some form of work prior to admission. Staff and patients felt that vocational opportunities offered in the hospital should more closely resemble ‘real work’ and they broadly agreed on the areas of activities of potential benefit. Staff felt more strongly than patients that patients lose work-related skills during admission. Both groups recognised the importance of work for mental health and in preventing reoffending. Conclusion: Detention in such settings provides an opportunity for patients to maintain as well as expand on skills aiding their future reintegration into work settings.     

Medicare program; clarifying policies related to the responsibilities of Medicare-participating hospitals in treating individuals with emergency medical conditions. Final rule

This final rule clarifies policies relating to the responsibilities of Medicare-participating hospitals in treating individuals with emergency medical conditions who present to a hospital under the provisions of the Emergency Medical Treatment and Labor Act (EMTALA). The final rule responds to public comments received on a May 9, 2002 proposed rule (67 FR 31404) that both reiterated the agency's interpretations under EMTALA and proposed clarifying changes relating to the implementation of the EMTALA provisions. These reiterations and clarifying changes related to, among other areas, seeking prior authorization from insurers for services, emergency patients presenting at off-campus outpatient clinics that do not routinely provide emergency services, the applicability of the EMTALA provisions to hospital inpatients and outpatients, the circumstances under which physicians must serve on hospital medical staff "on-call" lists, and the responsibilities of hospital-owned ambulances. These reiterations and clarifying changes are needed to ensure uniform and consistent application of policy and to avoid any misunderstanding of EMTALA requirements by individuals, physicians, or hospital employees.     

Proposed changes to the hospital-medical staff relationship to improve quality of care

Medical staff attorney Snelson answers the Colloquium's charge, "What exactly has to change in the hospital-medical staff relationship for health care quality to be improved?" Her response emphasizes the logic of having clinicians vested with authority to establish policies concerning the clinical decision-making. The article discusses the cases defining the medical staff bylaws as contractual in nature, and the problem of hospital attorneys demanding unilateral amendments to bylaws. Bylaw clauses that would chill medical opinion and communication or denigrate clinical recommendations are discussed. Ms. Snelson advocates for the inclusion of the medical staff organization in exclusive contract and other clinical decision-making, and includes sample bylaw language enacting her recommendations.     

The need to know versus the right to know: privacy of patient medical data in an information-based society

"Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret."(1) "Safeguards to privacy in individual health care information are imperative to preserve the health care delivery relationship and the integrity of the patient record."(2) As early as the fourth and fifth centuries B.C., Hippocrates contemplated the importance of medical information to the care and treatment of patients. His oath suggests that privacy of a patient's medical information creates the foundation upon which a patient reposes trust in his or her physician. While defining the earliest version of the physician-patient privilege, the oath does not envision the extent of modern day access to healthcare information. A patient's relationship with the modern healthcare delivery system often includes a team of physicians, nurses, and other clinical support personnel. This relationship extends beyond direct caregivers and may include healthcare administrators, payor organizations, and persons unfamiliar with a patient's identity, such as researchers and public health officials. Accessing a patient's medical information links these participants to the patient's healthcare delivery relationship. The Hippocratic Oath does not contemplate such broad access, nor does it contemplate the emerging privacy crisis resulting from the application of computer technology to medical record storage and retrieval. The combination of broad access, individual privacy rights, and computer technology requires a rethinking of measures designed to protect the realities of the modern medical information society.     

Managing medical staff disability issues: liability of private hospitals under ADA Titles I and III

This Article examines the extent to which private hospital are liable for discrimination against medical staff members with disabilities, under the Americans with Disabilities Act ("ADA"). Specifically, the discussion focuses on the ways in which Title I, covering employment relationships, and Title III, covering places of public accommodation, apply to hospitals and their medical staff physicians. With respect to Title I, the author focuses on possible liability with respect to independent contractor physicians who have staff privileges at a hospital. The focus with respect to Title III involves claims filed by physicians against hospitals as places of public accommodation. The author concludes that the courts have applied the ADA in a manner broader than intended by Congress, and that private hospitals should assume that both Title I and Title III are applicable to staff privilege decisions. Therefore, any action that adversely affects a disabled physician should be supported by well-documented, objective evidence of a nondiscriminatory reason for that action.     

Psychiatric patients and AIDS: the forensic clinician perspective

A survey was completed by American Academy of Forensic Sciences (AAFS) Psychiatry and Behavioral Science members regarding their opinions on acquired immunodeficiency syndrome, (AIDS)-related issues. A considerable range of opinions was found, probably reflecting such differences in society. There was general agreement that psychiatric hospitals should not be allowed to refuse AIDS patients and that education about AIDS is useful for psychiatric patients. There was also support for notifying the public health department, known sexual contacts, and hospital staff about human-immunodeficiency virus (HIV)-seropositive patients.     

Contract program for veterans with alcohol and drug dependence disorders--VA. Final rule

This document amends 38 CFR part 17 by adopting as a final rule the proposal to modify eligibility criteria for veterans participating by contract in the Department of Veterans Affairs' programs of alcohol and drug dependence or abuse treatment and rehabilitation in residential and nonresidential facilities. Previous regulations stipulated that, prior to participation in contract care under this programs, veterans were to be provided hospital care in facilities over which the Secretary has direct jurisdiction. It was proposed to change the regulations to stipulate that, prior to participation in contract care, veterans must have been or must be receiving care (regardless of whether it was or is hospital care) by professional staff over whom the Secretary has jurisdiction (regardless of whether it is direct jurisdiction). The elimination of the requirement of "hospital care" is necessary to address changed clinical practices and continue the intended program. In the past, substance abuse treatment generally was provided in a hospital setting. Now, much substance abuse treatment also is provided in an ambulatory care or residential setting. Further, this document changes "direct jurisdiction of the Secretary" to "jurisdiction of the Secretary" to allow for continuation of any cases in which the VA has had involvement (including, among other things, fee basic care) and thereby help ensure that a complete course of treatment is provided.     

Joint Commission completes transition to functional standards

The Joint Commission's new emphasis on performance-based standards led it to identify functions it believed were likely to have the most significant impact on patient outcomes. Carrying out these functions requires an interdisciplinary team approach to patient care. Thus, the old strategy of handing out one manual chapter to each department head and asking him or her to implement the standards in that chapter will not work in 1995. Rather, providers will have to allocate already stretched human and financial resources to redesign their methods of assessing and improving patient outcomes in order to comply with yet another major revision of the Accreditation Manual for Hospitals. To ensure an adequate understanding of and compliance with Joint Commission standards, organizations should make the entire CAMH "required reading" for its leadership and make it available in strategic areas of the hospital for review by all employees. While the Joint Commission recognizes that its new functional approach will take some time to implement, all providers that want to ensure that they remain accredited should begin now to orient their leadership, staff, and employees to the new functional standards in the CAMH and the ways in which those standards affect patient outcomes.     

Staff physicians, interns and residents, and hospital volunteers: are they protected from employment discrimination?

Traditional notions of the employment relationship between a hospital and its volunteers, residents, interns, and physicians having staff privileges are not decisive in determining whether the worker is protected from unlawful employment discrimination. Instead, hospital executives and attorneys must look to the totality of the circumstances of the work relationship in order to make this determination. Hospital volunteers are usually not protected by Title VII, but under some circumstances they may be; residents and interns are probably always protected; and physicians seeking staff privileges probably are protected, if the denial of staff privileges interferes with the physician's employment relationship with his or her direct employer, or if the granting of staff privileges to those who served in the hospital's residency program is a well-established routine practice, regularly followed by the hospital.     

Notice regarding section 602 of the Veterans Health Care Act of 1992 inclusion of outpatient hospital facilities--PHS. Notice

Section 602 of Public Law 102-585, the "Veterans Health Care Act of 1992" (the "Act"), enacted section 340B of the Public Health Service Act ("PHS Act"), "Limitation on Prices of Drugs Purchased by Covered Entities." Section 340B provides that a manufacturer who sells covered outpatient drugs to eligible entities must sign a pharmaceutical pricing agreement (the "Agreement") with the Secretary, Department of Health and Human Services, in which the manufacturer agrees to charge a price for covered outpatient drugs that will not exceed the amount determined under a statutory formula. Section 340B(a)(4) lists the entities eligible to receive discount outpatient drug pricing (i.e., certain disproportionate share hospitals (DSHs) and PHS grantees). The definition of a disproportionate share hospital found in section 340B(a)(4)(L) provides criteria to determine which such hospitals are eligible to participate in the program. However, the definition does not include criteria to determine which outpatient facilities (including off-site or satellite clinics) working in conjunction with the eligible hospital would be considered part of the hospital for purposes of eligibility for section 340B drug discounts. The Office of Drug Pricing, which administers this program with PHS, is proposing certain procedures to determine which outpatient hospital facilities are included as part of an eligible disproportionate share hospital.     

Institutional Radiation Safety Committee--Nuclear Regulatory Commission. Final rule

The Nuclear Regulatory Commission (NRC) is amending its regulations regarding hospitals licensed to use radioactive byproduct material for human applications. Currently, such a license requires that the hospital have a Medical Isotopes Committee to review clinical aspects of the use of radioactive materials within the hospital. The amendment requires instead a Radiation Safety Committee with a simplified membership that will focus on the radiation safety of workers and the general public. The rule change acknowledges the Food and Drug Administration's role in regulating the safety and effectiveness of radioactive drugs with respect to the patient. The membership of the new Radiation Safety Committee will include the hospital management and the nursing staff in decisions affecting radiation safety at the hospital and will be easier for smaller hospitals to recruit.     

Motor accidents and blood samples in New South Wales

In the 12 months to June 2007, more than 26,000 people were injured in motor accidents on New South Wales roads. More than 400 people were killed. Alcohol was an important factor in a significant number of these accidents. The Road Transport (Safety and Traffic Management) Act 1999 (NSW) contains provisions for the mandatory taking of blood samples from drivers who have caused death while driving and who are suspected of having driven under the influence of drugs or alcohol. This article considers the law regarding the requirement of hospital staff to collect blood samples from drivers involved in motor vehicle accidents in New South Wales.     

In the wake of a negligent release law suit

Several staff members at a state psychiatric hospital were found negligent in a jury trial for having released a psychiatric patient who subsequently killed a member of the plaintiff's family. This study explored the impact of the law suit on the hospital staff members as individuals and on the functioning of the institution. Self-report measures revealed that both named defendants and nondefendant staff experienced symptoms of emotional disturbance associated with the litigation. Self-report measures suggest that the law suit was not instructive in any meaningful way regarding improved procedures for subsequent release decision making. Archival data indicate that the staff did release significantly fewer patients during the trial and follow-up period than prior to the litigation. Results are discussed in the context of Wexler's concept of therapeutic jurisprudence.This study was supported by a grant from the Research Grants Committee of the University of Alabama. The results are the opinions of the authors and do not reflect the opinions of the Research Grants Committee or the University of Alabama. We are indebted to Saleem Shah for his suggestions regarding methodology and particularly the need to investigate positive and instructive aspects of law suits.     

人格责任论对于刑事司法精神病鉴定的应用价值

目的探讨人格责任论和动机理论相结合的方法在精神障碍患者刑事责任能力鉴定中的价值。方法回顾性分析我机构2013年及2014年实施鉴定的101例精神障碍患者的刑事责任能力,分析指标包括:精神症状对人格基本特征的反映;作案动机;被鉴定人对违法行为的评价;刑事责任能力。结果不同的症状反映了人格整体性、一致性和特殊性的异常;当症状不同时,患者实施违法行为的动机也有现实和非现实的差异;人格整体性受损者不能正常和正确地评价违法行为,几乎全部人格一致性、特殊性受影响者能认识到行为的违法性;人格的完整性和一致性受影响者刑事责任能力不完全;人格特殊性受影响者为完全刑事责任能力。结论人格责任论与动机理论相结合应用于精神障碍患者的刑事责任能力鉴定,有实用的临床意义。以行为人作为行动者的同一性进行界定,辨别患者对行为是"不能控制"还是"不予控制",值得在精神病司法鉴定工作中推广应用。