Name: Legal insights into emergency care
Uploaded: 2024-04-19T01:43:58.457Z
Description: In this insightful interview, Erica Thuijs, partner at Jackson MacDonald, an independent law firm in Western Australia, delves into the intricate legal considerations surrounding emergency care and patient autonomy.

Erica Edited2_1.vtt

Subtitles

{{00:00:05}}
That, it's actually to

{{00:00:06}}
protect patient autonomy.

{{00:00:08}}
So you go through a process

{{00:00:11}}
where you identify that this

{{00:00:12}}
person's a teenager and there

{{00:00:13}}
are certain decisions they can

{{00:00:15}}
make about their own health.

{{00:00:16}}
So, the reason it's called

{{00:00:17}}
Gillick Competency is because

{{00:00:18}}
of a case involving a Woman

{{00:00:22}}
with the surname Gillick

{{00:00:39}}
Okay We're gonna start by

{{00:00:41}}
just introducing yourself.

{{00:00:42}}
So to our audience, say

{{00:00:44}}
your name, who you are

{{00:00:45}}
and what you do for work.

{{00:01:07}}
So you have a very

{{00:01:08}}
different background.

{{00:01:09}}
Broad area of practice,

{{00:01:10}}
but yeah, a lot of personal

{{00:01:12}}
injury claims and a

{{00:01:13}}
medical focus in those.

{{00:01:14}}
At the end of the day,

{{00:01:16}}
they're all connected

{{00:01:16}}
between each other, I

{{00:01:17}}
guess, all these areas.

{{00:01:19}}
I mean, there are similarities

{{00:01:22}}
and a lot of differences,

{{00:01:23}}
but it's dealing with a

{{00:01:24}}
lot of medical evidence,

{{00:01:25}}
quantification of damages and

{{00:01:27}}
tort law most of the time.

{{00:01:28}}
Yeah.

{{00:01:29}}
So today in particular, we're

{{00:01:31}}
going to talk about the legal

{{00:01:32}}
insight into emergency care.

{{00:01:34}}
So being the partner

{{00:01:36}}
at Jackson McDonald,

{{00:01:38}}
can you share a key

{{00:01:39}}
legal consideration

{{00:01:40}}
and the challenges that

{{00:01:42}}
healthcare providers face

{{00:01:43}}
in addressing unlawful

{{00:01:45}}
detention within hospital

{{00:01:46}}
and emergency settings?

{{00:01:48}}
Yeah, so now I'm not a

{{00:01:50}}
doctor and I don't have

{{00:01:51}}
any medical qualifications

{{00:01:53}}
or personal experience of

{{00:01:54}}
working in the environment.

{{00:01:55}}
I can only speak to what

{{00:01:57}}
I've seen from claims and

{{00:01:58}}
discussions with others.

{{00:02:00}}
But the key issues that we see

{{00:02:02}}
arise from competing duties of

{{00:02:06}}
care, consent and competencies

{{00:02:09}}
when managing those challenges

{{00:02:10}}
in the emergency setting.

{{00:02:11}}
It's a time pressured setting

{{00:02:13}}
and you're dealing with

{{00:02:14}}
weighing up the duty of

{{00:02:15}}
care to the patient, duty

{{00:02:17}}
of care to staff and duty

{{00:02:18}}
of care to others who are

{{00:02:19}}
there in the emergency room.

{{00:02:21}}
And then you've also got

{{00:02:22}}
the issue of consent.

{{00:02:24}}
So if you're looking

{{00:02:25}}
to provide treatment to

{{00:02:26}}
someone, making sure that

{{00:02:27}}
they can consent, that

{{00:02:29}}
they have consented  and

{{00:02:30}}
when you're thinking about

{{00:02:32}}
consent, do they have

{{00:02:33}}
the capacity to consent?

{{00:02:36}}
And then when you're thinking

{{00:02:37}}
about managing behaviours

{{00:02:39}}
or managing care by using

{{00:02:41}}
detention or restraint,

{{00:02:43}}
either physical detention

{{00:02:44}}
or restraint, or some kind

{{00:02:46}}
of chemical restraint in

{{00:02:50}}
particular, there really

{{00:02:51}}
needs to be a focus on consent

{{00:02:53}}
and capacity and then an

{{00:02:56}}
understanding of the law

{{00:02:57}}
around those things, what

{{00:02:58}}
you can do, what you can't

{{00:03:00}}
do, the time you've got

{{00:03:01}}
to consider those things.

{{00:03:03}}
if you choose to detain

{{00:03:05}}
someone, if you can, if you

{{00:03:07}}
decide that you've got the

{{00:03:08}}
lawful ability to detain

{{00:03:10}}
someone or to restrain

{{00:03:11}}
them, to provide them

{{00:03:12}}
with care or to keep them

{{00:03:13}}
and them or others safe.

{{00:03:15}}
Then you have to think about

{{00:03:16}}
the documentation of that.

{{00:03:18}}
What the parameters of

{{00:03:21}}
the detention or restraint

{{00:03:22}}
are, how long you can do

{{00:03:24}}
it for, the methodology.

{{00:03:25}}
And if you decide that you

{{00:03:27}}
can't lawfully detain someone

{{00:03:29}}
or restrain someone, or

{{00:03:30}}
that you shouldn't do that,

{{00:03:31}}
what are your other options?

{{00:03:32}}
Should you be warning them?

{{00:03:33}}
Should you be letting them go?

{{00:03:35}}
should you be trying to work

{{00:03:37}}
through with them so that

{{00:03:38}}
you can reach a point where

{{00:03:41}}
they do consent, or you do

{{00:03:42}}
have a clear pathway forward.

{{00:03:44}}
So, lots of things

{{00:03:45}}
to think about.

{{00:03:45}}
I think consent is one of the

{{00:03:47}}
most important thing that,

{{00:03:49}}
You've been talking as well.

{{00:03:50}}
Yeah, absolutely.

{{00:03:52}}
And when we talk about

{{00:03:54}}
the Gillick competency

{{00:03:55}}
in emergency care Yes.

{{00:03:57}}
So, how does Gillick

{{00:03:59}}
competency impact

{{00:04:00}}
emergency care?

{{00:04:02}}
Yeah, so anyone who's over

{{00:04:04}}
the age of 18 is presumed

{{00:04:06}}
to have capacity to consent

{{00:04:08}}
and to make their own

{{00:04:08}}
decisions about their own

{{00:04:10}}
body and what happens to it.

{{00:04:12}}
But anyone under the age

{{00:04:13}}
of 18, you start with

{{00:04:15}}
the presumption that

{{00:04:15}}
they don't have capacity.

{{00:04:17}}
And then this concept of

{{00:04:18}}
Gillick Competency is that

{{00:04:19}}
mature minors, so usually

{{00:04:21}}
teenagers, have got the

{{00:04:23}}
ability to make decisions

{{00:04:25}}
about their bodies, but that's

{{00:04:27}}
a bit on a sliding scale.

{{00:04:28}}
It depends on the decision

{{00:04:29}}
you're asking them to

{{00:04:30}}
make, and it depends

{{00:04:31}}
on that individual.

{{00:04:33}}
So it's a really subjective

{{00:04:34}}
analysis, and in the

{{00:04:35}}
emergency setting you know,

{{00:04:37}}
emergency being the key

{{00:04:38}}
word, time is a real factor.

{{00:04:41}}
So having that time to be

{{00:04:43}}
able to assess whether someone

{{00:04:44}}
is Gillick competency or has

{{00:04:47}}
Gillick competency is a real

{{00:04:48}}
challenge in that setting.

{{00:04:50}}
Well, the Gillick

{{00:04:52}}
competency is like to

{{00:04:55}}
protect  the underage or?

{{00:04:58}}
Yeah.

{{00:04:59}}
So it's, it's a concept

{{00:05:00}}
that it's actually to

{{00:05:01}}
protect patient autonomy.

{{00:05:03}}
So you go through a process

{{00:05:06}}
where you identify that this

{{00:05:07}}
person's a teenager and there

{{00:05:08}}
are certain decisions they can

{{00:05:10}}
make about their own health.

{{00:05:11}}
So, the reason it's called

{{00:05:12}}
Gillick Competency is because

{{00:05:13}}
of a case involving a  woman

{{00:05:17}}
with the surname Gillick,

{{00:05:18}}
and that case focuses around

{{00:05:20}}
whether or not a teenage

{{00:05:22}}
girl is able to seek medical

{{00:05:25}}
care, a prescription for

{{00:05:26}}
conception, a contraception,

{{00:05:27}}
without parental consent.

{{00:05:30}}
A teenage girl did, and then

{{00:05:31}}
her mother found out, and the

{{00:05:33}}
mother sued the hospital for

{{00:05:34}}
providing her with that care.

{{00:05:36}}
So, if the teenager

{{00:05:38}}
can't make a decision,

{{00:05:39}}
it should be the parent.

{{00:05:40}}
Yes, so if you go through

{{00:05:42}}
the process and you determine

{{00:05:43}}
that the teen has the ability,

{{00:05:46}}
they are Gillick competent,

{{00:05:47}}
and they can consent to

{{00:05:49}}
that specific decision, that

{{00:05:50}}
care decision that you're

{{00:05:51}}
asking them to make or the

{{00:05:54}}
refusal of treatment then you

{{00:05:57}}
don't have to look further.

{{00:05:58}}
You don't have to look

{{00:05:59}}
to a parent or another

{{00:06:00}}
substitute decision maker,

{{00:06:01}}
but if they don't have the

{{00:06:03}}
capacity, then you should

{{00:06:04}}
be looking to a parent or

{{00:06:05}}
another decision maker to

{{00:06:07}}
make that decision for them.

{{00:06:10}}
There are certain

{{00:06:11}}
circumstances under the

{{00:06:12}}
law where you're able to,

{{00:06:14}}
without reference to the

{{00:06:16}}
individual themselves,

{{00:06:17}}
no matter what their age

{{00:06:18}}
is, refer to alternative

{{00:06:21}}
decision makers for health.

{{00:06:22}}
So yes, it is a particular

{{00:06:24}}
issue for Gillick competency

{{00:06:25}}
because you have to think

{{00:06:26}}
a little bit more about it.

{{00:06:29}}
But it is an evaluation that

{{00:06:30}}
you have to make all the time.

{{00:06:32}}
And talking about   legal

{{00:06:36}}
safeguards in emergency care.

{{00:06:37}}
So What legal safeguards

{{00:06:40}}
should health care

{{00:06:40}}
providers implement to

{{00:06:41}}
comply with detention laws

{{00:06:43}}
and maintaining ethical

{{00:06:45}}
standards in emergency care?

{{00:06:47}}
Yeah, so, I think having

{{00:06:50}}
really clear clinical

{{00:06:51}}
governance frameworks and

{{00:06:53}}
practices, you know, your

{{00:06:54}}
policies, procedures,

{{00:06:56}}
a clear culture around

{{00:06:57}}
documentation as well.

{{00:06:59}}
I think, you know,

{{00:07:00}}
documentation is important,

{{00:07:02}}
not just from a defensive

{{00:07:03}}
decision perspective, but

{{00:07:05}}
also because  if you've

{{00:07:07}}
got the appropriate forms

{{00:07:08}}
and you're asking people

{{00:07:09}}
to actually turn their

{{00:07:10}}
mind to writing something

{{00:07:11}}
down, it can encourage more

{{00:07:14}}
thought around the decision

{{00:07:16}}
making process as well.

{{00:07:18}}
When you're talking

{{00:07:19}}
about detaining someone,

{{00:07:21}}
it's a really serious

{{00:07:22}}
decision because it's an

{{00:07:23}}
infringement on personal

{{00:07:24}}
autonomy, and that's a

{{00:07:25}}
really prime human right.

{{00:07:28}}
So, you have to be aware

{{00:07:29}}
of the laws around it, so

{{00:07:31}}
educating people about the

{{00:07:33}}
law, and in particular,

{{00:07:34}}
understanding that it is

{{00:07:37}}
rare that the law permits

{{00:07:39}}
detention or restraint.

{{00:07:41}}
There are only, there are

{{00:07:42}}
only a few laws around

{{00:07:43}}
Australia, legal frameworks

{{00:07:45}}
that Actually say you are

{{00:07:47}}
allowed to detain someone

{{00:07:48}}
in these circumstances.

{{00:07:50}}
There's the criminal law and

{{00:07:51}}
police powers and limited

{{00:07:55}}
rights of citizens arrest.

{{00:07:56}}
And under the Mental

{{00:07:57}}
Health Act as well.

{{00:07:59}}
The grey area is when there's

{{00:08:00}}
no mental health reason to

{{00:08:02}}
detain or restrain someone and

{{00:08:04}}
you can't follow that process.

{{00:08:06}}
But there might be other

{{00:08:07}}
reasons that you need to

{{00:08:09}}
and so making sure that you

{{00:08:10}}
understand when you fall

{{00:08:12}}
into the grey area and when

{{00:08:13}}
it's really important to

{{00:08:16}}
have a step by step process.

{{00:08:18}}
Either you've trained

{{00:08:19}}
your staff really well

{{00:08:20}}
so they know what that is

{{00:08:21}}
or you've got some other

{{00:08:23}}
mechanism for guiding

{{00:08:24}}
them through that process.

{{00:08:26}}
You know, escalating it

{{00:08:27}}
to a more experienced

{{00:08:28}}
practitioner, getting a

{{00:08:30}}
second opinion, those kinds

{{00:08:32}}
of things are important.

{{00:08:33}}
Because, when it's about

{{00:08:35}}
detention, it's like, if

{{00:08:36}}
the patient says, I want

{{00:08:38}}
to go, if you're detaining

{{00:08:39}}
someone, say you can't.

{{00:08:40}}
Exactly.

{{00:08:41}}
Yeah.

{{00:08:42}}
And  look, it, if you are

{{00:08:44}}
physically detaining someone

{{00:08:47}}
that involves, you know,

{{00:08:49}}
it's, it's not just asking

{{00:08:50}}
them and telling them, can

{{00:08:51}}
you sit in this room and

{{00:08:52}}
locking the door on them and,

{{00:08:53}}
and not letting them leave.

{{00:08:54}}
I mean, usually.

{{00:08:56}}
They are not going to

{{00:08:57}}
appreciate being detained

{{00:08:58}}
and it will involve security.

{{00:09:00}}
It will involve holding

{{00:09:01}}
people down using

{{00:09:02}}
mechanical restraints.

{{00:09:03}}
So shackles on  you know,

{{00:09:04}}
or straps and then using

{{00:09:06}}
chemical restraints and

{{00:09:07}}
using a sedative  using

{{00:09:08}}
psychotropic medication

{{00:09:10}}
to control their behavior.

{{00:09:12}}
So it's a really violent act.

{{00:09:13}}
And I think that  that really

{{00:09:16}}
needs to be weighed against

{{00:09:19}}
the risks if you don't do

{{00:09:21}}
it and there are only, you

{{00:09:22}}
know, some circumstances

{{00:09:24}}
where the risks are going to

{{00:09:28}}
outweigh the real detriment

{{00:09:30}}
of detaining someone.

{{00:09:32}}
Probably it's also

{{00:09:34}}
the way you do it.

{{00:09:36}}
Like, sometimes you can,

{{00:09:37}}
like, communication and

{{00:09:38}}
trust between the patient

{{00:09:40}}
and the doctor can help.

{{00:09:42}}
Absolutely.

{{00:09:43}}
I mean, and detention

{{00:09:45}}
should be the last resort.

{{00:09:46}}
And, and, you know, in the

{{00:09:48}}
emergency setting, again.

{{00:09:49}}
Time is, time is

{{00:09:51}}
really important.

{{00:09:52}}
I mean, you know, in

{{00:09:53}}
stroke analysis, time

{{00:09:54}}
is brain is the saying.

{{00:09:56}}
So, I mean, while you wouldn't

{{00:09:57}}
necessarily be looking

{{00:09:58}}
about it in that particular

{{00:10:00}}
setting, in the emergency

{{00:10:01}}
setting you're having to

{{00:10:02}}
make speedy decisions.

{{00:10:04}}
And so I think people

{{00:10:05}}
sometimes feel like they

{{00:10:06}}
don't have the time to

{{00:10:09}}
understand what the patient's

{{00:10:10}}
going through, to give them

{{00:10:11}}
the information they need

{{00:10:12}}
to make the decision that

{{00:10:14}}
the doctor thinks is right.

{{00:10:16}}
I think ultimately though

{{00:10:18}}
It's important to remember

{{00:10:19}}
that people who are competent

{{00:10:22}}
and have capacity to make

{{00:10:23}}
decisions for themselves, that

{{00:10:25}}
doesn't mean that they have

{{00:10:26}}
to make reasonable decisions

{{00:10:28}}
or decisions that the

{{00:10:29}}
doctor thinks is reasonable.

{{00:10:32}}
Capacity means being able

{{00:10:34}}
to reason and make reasoned

{{00:10:38}}
decisions, even if those

{{00:10:39}}
decisions are bad or unwise

{{00:10:40}}
or put someone at risk.

{{00:10:42}}
So  yeah, that's a very.

{{00:10:48}}
It's really difficult.

{{00:10:48}}
And look, I don't blame

{{00:10:50}}
practitioners who think that

{{00:10:54}}
their duty of care requires

{{00:10:55}}
them to do everything

{{00:10:56}}
possible to keep someone safe.

{{00:10:58}}
But it's important to

{{00:10:59}}
balance that with personal

{{00:11:01}}
freedom, personal autonomy

{{00:11:03}}
and an understanding and

{{00:11:05}}
an empathy that what you

{{00:11:06}}
think might be best for the

{{00:11:07}}
patient is not necessarily

{{00:11:09}}
what is best for them.

{{00:11:10}}
You can only look at

{{00:11:11}}
it through one lens.

{{00:11:13}}
And I really feel for

{{00:11:14}}
practitioners who are put

{{00:11:15}}
in that difficult situation

{{00:11:17}}
because it might mean

{{00:11:18}}
someone going off and,

{{00:11:20}}
and they do suffer harm if

{{00:11:22}}
they, if they leave and you

{{00:11:24}}
don't exercise the power to

{{00:11:28}}
detain or restrain someone.

{{00:11:29}}
And then you have to live

{{00:11:31}}
with that decision or work

{{00:11:32}}
through that decision.

{{00:11:33}}
And that's really difficult,

{{00:11:34}}
but it doesn't necessarily

{{00:11:37}}
outweigh personal autonomy.

{{00:11:40}}
And  about the legal

{{00:11:41}}
training for this

{{00:11:43}}
emergency preparedness.

{{00:11:45}}
So it's important, as you

{{00:11:47}}
said, you know, you're

{{00:11:48}}
going to have this  type of

{{00:11:50}}
situation where you might

{{00:11:52}}
detain, you might not detain.

{{00:11:53}}
How you, we can train

{{00:11:55}}
practitioners in the

{{00:11:56}}
best possible way to

{{00:11:57}}
get prepared for this.

{{00:11:59}}
Yeah, I mean there's a few

{{00:12:01}}
different things that you can

{{00:12:02}}
do and it applies to everyone

{{00:12:03}}
in the emergency setting.

{{00:12:05}}
So we're not just talking

{{00:12:06}}
about medical practitioners

{{00:12:07}}
but also about the

{{00:12:08}}
administrative staff,

{{00:12:10}}
nursing staff, patient care

{{00:12:12}}
assistants, security staff.

{{00:12:14}}
Making sure, I think the focus

{{00:12:16}}
needs to be a human rights

{{00:12:17}}
and patient centred focus.

{{00:12:19}}
So that every decision they

{{00:12:20}}
make has that at the focus.

{{00:12:22}}
So educating around that

{{00:12:24}}
ethical decision making and

{{00:12:26}}
reminding people that whatever

{{00:12:28}}
decisions they're making has

{{00:12:29}}
to have that at the forefront.

{{00:12:30}}
Patient autonomy, not

{{00:12:32}}
self preservation of the

{{00:12:33}}
doctor or a paternalistic

{{00:12:36}}
imposition of what the medical

{{00:12:37}}
practitioner thinks is right.

{{00:12:39}}
So that's one of the

{{00:12:39}}
education pieces.

{{00:12:41}}
But then also because

{{00:12:42}}
decisions need to be made

{{00:12:44}}
quickly in a pressured

{{00:12:45}}
environment a lot of the

{{00:12:46}}
time making sure that it

{{00:12:48}}
is that the decision making

{{00:12:50}}
process is second nature to

{{00:12:52}}
people, so providing them

{{00:12:55}}
with a plan providing them

{{00:12:58}}
with documents providing

{{00:12:58}}
them with technology that

{{00:12:59}}
will help them work through

{{00:13:00}}
that in a timely fashion.

{{00:13:02}}
Definitely, I think

{{00:13:04}}
training would be one

{{00:13:04}}
of the most important

{{00:13:05}}
parts for the future.

{{00:13:06}}
Absolutely.

{{00:13:07}}
I don't, you know, and

{{00:13:08}}
it's not a one and done.

{{00:13:09}}
You have to continue

{{00:13:10}}
learning and.

{{00:13:11}}
Never finish.

{{00:13:11}}
Never finish learning.

{{00:13:13}}
We've got ongoing

{{00:13:14}}
obligations to continue

{{00:13:15}}
learning and training.

{{00:13:16}}
So that's what happened

{{00:13:18}}
when you decide that's all a

{{00:13:19}}
role that is so delicate in

{{00:13:20}}
the, in the society as well.

{{00:13:23}}
You hold a lot of power and

{{00:13:24}}
there's a lot of privilege

{{00:13:25}}
and responsibility.

{{00:13:28}}
Well, thank you

{{00:13:28}}
for  for your time.

{{00:13:29}}
That's all the

{{00:13:30}}
question I had for you.

{{00:13:31}}
No problem.

{{00:13:32}}
I hope our audience will

{{00:13:33}}
like take a lot out of this

{{00:13:35}}
discussion and yeah, I hope

{{00:13:37}}
the best for your future

{{00:13:39}}
and I look forward to see

{{00:13:41}}
where legal emergency care

{{00:13:44}}
will go in the future.

{{00:13:45}}
Yeah.

{{00:13:45}}
I think we've got a lot of

{{00:13:46}}
interesting things to come.

{{00:13:48}}
Thanks very much.

The Interface of Medicine and Law

Expert Insight

In this insightful interview, Erica Thuijs, partner at Jackson MacDonald, an independent law firm in Western Australia, delves into the intricate legal considerations surrounding emergency care and patient autonomy.

Medico Legal

Regulatory / Legal

Patient Centric

Legal and Compliance

thumbnail_Erica-Thuijs-Jackson-McDonald.jpg

xsmall_Erica-Thuijs-Jackson-McDonald.jpg

Erica-Thuijs-Jackson-McDonald.jpg

Erica Thuijs

Discover insights from other experts

Partner

Legal challenges in unlawful detention

Gillick competency in emergency care

Legal safeguards in emergency care

Patient rights in emergencies

Importance of ongoing legal training

medium_Emergency is a really challenging place to work because obviously you are dealing with imperfect information. (3).png

small_Emergency is a really challenging place to work because obviously you are dealing with imperfect information. (3).png

thumbnail_Emergency is a really challenging place to work because obviously you are dealing with imperfect information. (3).png

xsmall_Emergency is a really challenging place to work because obviously you are dealing with imperfect information. (3).png

Emergency is a really challenging place to work because obviously you are dealing with imperfect information. (3).png

Legal insights into emergency care

Legal & Ethical Issues