THE IMPORTANCE OF MEDICAL RECORDS

Accurate and sufficiently detailed medical records are an essential component of good patient care. Their main purpose is to store clinical data for use in patient management and as a means of communication with other doctors and health-care professionals. Thus, the medical record of any patient should contain sufficient information to enable another doctor to carry on the management of the patient. This need is particularly obvious in situations such as in public hospitals where resident medical cover and nursing cover are arranged in shifts; in group practices where patients may see different doctors; and in after-hours deputising locum services where the only communication between the locum and the treating doctor is in writing.

Medical records are an important repository of personal information. They include records held in private doctors' surgeries, in private and public hospitals, in medical clinics in industry and in community health centres. Medical or health information is also held in a variety of state and federal government departments including those of Health, Veterans Affairs, Education and Defence, and Medicare Australia.

Medical records can also be important for clinical and epidemiological research, teaching and health administration, and in litigation. Requests for information about patients come not only from other doctors but also from insurers, employers, police, lawyers and government agencies for legal, financial or other reasons and can be properly complied with only via recourse to accurate medical records.

Most Australian doctors undertake full-time or part-time private clinical practice as general or specialist practitioners and are thus effectively running a small business. To successfully manage such an enterprise requires knowledge, some skill, and investment of time and energy. For larger medical groups, a practice manager may be employed to undertake some of this work or the task may be allocated to a medical member of the group who has the necessary skills and interest. This chapter is intended to give a broad overview of the tasks involved in establishing and managing a practice and to direct the reader to more detailed sources of information and professional help. It does not attempt to address the management issues specific to the investigative branches of clinical medicine such as radiology, pathology, day procedure centres and the like.

IMPORTANCE OF GOOD PRACTICE MANAGEMENT

Good practice management may appear superficially to be based on self-interest, aimed to maximise income and improve quality of life. While this is of some relevance, good practice management is a prerequisite to good patient care and is in the best interests of patients, as in such a practice appointment systems work, patient records are not misplaced, investigation results are not overlooked, direct-billing errors to Medicare do not occur and patients are guided efficiently to the help and resources they need. As mentioned in Chapter 3, better patient outcomes are achieved where there is good communication and a good patient–doctor relationship is established.

Doctors have significant responsibilities in regard to certifying the death of a person and in regard to reporting particular types of death to the coroner. In the field of organ transplantation, specialist doctors have the responsibility for accurately diagnosing brain death. This chapter covers these responsibilities and provides advice about such matters, including the additional requirements to be met where a deceased person is to be cremated and the ethical use of tissues removed at autopsy.

RECENT DEVELOPMENTS IN THE DIAGNOSIS OF DEATH

Before the modern advances of intensive care and life-support systems, there was little conflict between the law and medicine on the issue of the diagnosis of death. At common law, a breathing person with a circulation was alive; conversely, a person with irreversible cessation of cardiac and respiratory function was dead. In the USA in 1968, an ad hoc committee at Harvard Medical School developed guidelines for the withdrawal of circulatory and respiratory support in patients diagnosed with ‘irreversible coma’ or ‘brain death’. The authors emphasised that the primary purpose of the guidelines was to assist decision making in regard to withdrawal of futile treatment; organ donation was seen as a secondary aspect. As part of the response to developments in organ transplantation, by the mid-1970s there was widespread acceptance by doctors, lawyers and theologians, if not by the public, that the death of the brain was equivalent to the death of a person.

Fundamental to a proper doctor–patient relationship is the assurance that information provided by the patient to the treating doctor will remain strictly confidential. Doctors must be free to ask their patients any questions necessary for diagnosis and treatment, and patients must be willing to trust doctors by giving full answers. Maintaining such trust has a wider social benefit of ensuring that medical practice serves to promote and maintain the health of the community. The basis of this trust lies in one of the oldest ethical principles of medical practice stated in the Hippocratic Oath as:

This same obligation has since been repeated in the World Medical Association Declaration of Geneva as ‘I will respect the secrets confided in me, even after the patient has died’.

This ethical requirement for confidentiality, well understood by doctors, has been overlaid in Australia in recent years by the progressive introduction of privacy legislation at the federal level and in some states, which for doctors covers very much the same territory as this ethical requirement. As a result, doctors now need to understand the ethical and legal bases of their professional obligations in this regard. In this chapter, both bases are described and explained.

The capacity to save lives through advances in treatments, especially the use of intensive care and life-support systems, is one of the ‘miracles of modern medicine’. However, these advances have created ethical and legal questions for the medical profession, legislators, the courts and the community. Some of these questions have been resolved by new legislation, for example the redefining of death to include brain death and the separate laws that give force to advance care directives. Other questions have been addressed by new ethical guidelines, for example in regard to the care of patients in post-coma unresponsiveness (previously known as the ‘vegetative state’). Further questions continue to confront the community, for example the ongoing debate about euthanasia. This chapter outlines the law and the professional and legal responsibilities of doctors in these areas, but does not enter into the wider social, ethical and philosophical debate surrounding euthanasia.

TREATMENT DECISIONS FOR NEWBORN INFANTS

Technological advances have created ethical dilemmas for parents and for doctors caring for extremely premature or severely malformed newborn infants [1–2]. In 1986 in F v F in the Supreme Court of Victoria, Mr Justice Vincent observed:

However, the law does recognise the responsibilities of parents, in conjunction with treating doctors, to decide whether medical intervention will commence or continue.

Legislation to guide the care of the mentally ill is society's means of resolving the conflict between an individual's right to liberty and the need to ensure care for those whose illness renders them incapable of making rational choices and places them at risk of causing harm to themselves or others. The state also has a duty to provide care for people who have lost the capacity to recognise their need for treatment. Society continues to struggle with achieving the right balance in this conflict, and responses have swung from excessive use of powers of constraint and treatment on the one hand to an overzealous and insufficiently discriminating grant of individual freedom on the other. The former can result in denial of human rights to freedom while the latter can result in inadequate treatment and protection of severely mentally ill people.

In most states, the provision of resources and the organisation of services for the mentally ill have been progressively changed in response to the National Mental Health Strategy agreed by state and Commonwealth governments in 1992. This strategy emphasised minimisation of institutional care, the concept of the least restrictive modes of treatment and care, provision of multidisciplinary community-based care designed to assist people with a mental disorder to live, work and participate in the community, and the ‘mainstreaming’ of psychiatric care (placing psychiatric hospitals in general hospital environments).

To practise medicine in Australia doctors are required by law to be registered with the relevant state or territory medical board. For convenience, in this chapter the term ‘medical board’ will be used for all the states and the territories, although the name of the first registration body established in Australia, in 1837, is the Medical Council of Tasmania. Also, in this chapter the term ‘state’ will apply to both states and the territories. The addresses and websites of the medical boards are provided in Table 8.1.

The requirements for registration are practically identical in each state. Via the process of ‘mutual recognition’ (explained later in this chapter), a doctor who is registered in one state has an automatic right to be registered in any other state, subject to completing certain procedural requirements and paying the relevant fee. Any conditions or limitations that apply to the registration in the original state will also apply in the second state.

The main purpose of registration is to protect the public. This is achieved through the powers granted to medical boards to:

• determine that applicants for registration possess recognised medical qualifications and are of good character

• investigate allegations of unprofessional conduct and discipline doctors found guilty

• suspend or place conditions upon the registration of doctors whose capacity to practise is impaired by illness, and

• in some states, place conditions upon the registration of doctors whose practice performance (competence) is found to be unsatisfactory.

These powers are mostly identical between the states, although some structural and procedural differences exist and there is considerable variation in how complaints made against doctors are handled (see also Chapter 9).

Doctors need sufficient knowledge of the legislation concerning births notification, reproductive technology, child protection and family law to ensure they fulfil any statutory duties relating to their medical practice in these areas. In addition doctors may be the first to recognise the possibility of child abuse and thus should be aware of the relevant laws in this area. In regard to reproductive technology and the treatment of infertility, this chapter is restricted to the legal and regulatory aspects and does not attempt to address the ethical and social issues surrounding this specialised area.

NOTIFICATION OF BIRTHS (INCLUDING STILLBIRTHS)

It is a legal requirement of the births, deaths and marriages registration Acts of the states and territories that the name, sex, parentage and date and place of birth of all newborn children be provided to the respective registrars of birth. The Acts place the onus of notification primarily on the chief executive officer of a hospital where a child is born in a hospital and on the doctor or midwife if the child is born elsewhere. In addition, the parents are identified as having a responsibility to register a birth. The general principles in regard to notification of births are the same in each jurisdiction, but there are differences in the period of grace before notification. The relevant legislation and the time frames for notification of live and still births are summarised in Table 20.1.

This imposing book has grown to full maturity, following its childhood and adolescence as two precursors published respectively in 1994 and 1997. The successive alterations in the title are a reflection of its maturation and growth. Law and Ethics in Medicine for Doctors in Victoria, published in 1994, grew from its conception as an innovative professional practice program, a short course to help young doctors in the transition from hospital training to independent medical practice, developed by three of the authors of the current book, Drs Breen, Cordner and Plueckhahn. It was a concise description of aspects of law and ethics that related to medical practice. They were presented as ‘add ons’ to be accessed and applied when they became necessary. Ethics, Law and Medical Practice, published in 1997, recognised by its title and its emphasis that ethics and law influenced many aspects of medicine and the book integrated these facets more comprehensively into the context of medical practice. The title of the current book, Good Medical Practice: Professionalism, Ethics and Law, gives a clue to its much more ambitious scope. It recognises that good medical practice requires the knowledge and application of law and ethics and that there is a range of additional components that have come to be depicted by the term ‘professionalism’. It is also significant that a fourth author has been added to the three well-qualified authors of the two earlier volumes.

The discomfit the medical profession has with the legal concept of negligence was succinctly expressed by Justice Michael Kirby in 1995 when he wrote:

He went on to add:

Many have argued that the current system of the use of civil action by way of claims for negligence should be replaced by a no-fault compensation scheme [2–4] as exists in New Zealand and some Scandinavian countries. Others have pointed out how fraught is the concept of independent experts judging the cause of a poor or unexpected outcome after the event and have decried the gradual change in the notion of what represents negligent conduct [6–7]. These issues are not addressed in this chapter.

This chapter is designed to assist doctors in conducting medico-legal examinations and preparing medico-legal reports, and to advise doctors about appearing in court as ordinary or as expert witnesses. Problems that may arise at medico-legal examinations are first identified and advice is provided about the content and scope of medico-legal reports. After briefly describing the adversarial system used in Australian courts, the chapter is then structured around the usual sequence by which a doctor becomes aware that he or she may be required in court. Lastly, the matter of jury duty for doctors is touched upon.

MEDICO-LEGAL REPORTS

Treating doctors' reports

For doctors who are primarily in clinical practice, the most common involvement with the legal system will come via a request for a medico-legal report about a current or past patient, most often in the context of an insurance or workers compensation claim. The request should be accompanied by an original signed authority from the patient to release the medical information and by a letter from the solicitor describing what is requested.

In preparing medico-legal reports in regard to the diagnosis, care and treatment of a patient, doctors should take care to answer the questions asked of them and should strive to make the report factual, objective, complete and to the point. Material in the patient's records that is irrelevant to the request should not be included in the report.

Prior to the mid-1980s, the only agencies with statutory powers to handle complaints against doctors were the state and territory medical boards. Medical boards were obliged under the relevant medical Acts to investigate the complaints and determine whether a complaint constituted unprofessional conduct under the Act. Complaints were sometimes also made to state branches of the Australian Medical Association (AMA), to medical colleges and to the state health departments, but these organisations did not have disciplinary powers.

During the 1980s there was dissatisfaction with the health complaints processes in several states, especially in regard to their fragmented nature, difficulties in access, difficulties in knowing where to complain and the recognition that complainants' needs were not always met when the complaints were determined by the medical board according to the terms of the legislation. In New South Wales, the response to this dissatisfaction was the establishment in 1984 of a Health Complaints Unit within the Health Department, and in Victoria by the passing in 1987 of the Health Services (Conciliation and Review) Act. This Act established the office of the Health Services Commissioner, who was charged with receiving complaints from users of health services about providers and given the power to conciliate them confidentially.

In 1991 in Queensland the Health Rights Commission Act 1991 established the Office of the Health Rights Commissioner.

Research aimed at understanding and preventing disease or at improving the diagnosis or treatment of disease is generally welcomed by society, especially where it is conducted primarily with altruistic motives. Such research may carry risks for the human subjects involved. Experience has shown that even well-motivated researchers may pursue their research inappropriately, to the detriment of the research subjects. To protect research participants, international and national codes of research ethics have been in place for nearly 50 years. In Australia, health and medical research is now overseen by nationally regulated research governance systems in place in hospitals and medical research institutes [1–2], a key element of which is prospective ethical review of research proposals by human research ethics committees (HRECs). This chapter summarises the ethical principles of human research, the governance of research, the expected standards of good research practice, the responsibilities of clinical researchers and the topic of research misconduct by doctors. Overlapping with research are clinical audit and quality assurance studies in which doctors are increasingly expected to participate and which can raise similar ethical issues.

CODES OF ETHICS IN CLINICAL RESEARCH

The stimulus for the development of an international code of medical ethics, specifically in regard to research, was the gross abrogation of accepted ethical standards involved in so-called medical research by some doctors in Nazi Germany before and during the Second World War.

The primary purpose of this book is to provide in a single accessible format information central to the professional, ethical and legal requirements of being a doctor. It covers a core curriculum for medical students who must obtain a grounding in the elements of what constitutes being a medical professional [1–2]. The same material is essential for doctors in training and for international medical graduates coming to work in Australia. This book should be a useful and readily accessible starting point for busy doctors looking for answers to issues as they arise in practice. This edition brings together updated material generally not found in textbooks of clinical medicine. Although most doctors are now equipped to seek information electronically, this can take time as information is not accessed readily or integrated at a single source, may not be relevant to the local setting and may not be quality controlled.

Since the 1997 edition of our book there have been significant developments in regard to the importance of professionalism. Medical boards here and overseas have focused attention on the breadth of professional skills needed for good medical practice; indeed the UK General Medical Council's primer for doctors is called just that, Good Medical Practice. More recently, medical indemnity organisations and health-care institutions have been active in promoting good professional attitudes and behaviour, under the banner of ‘risk management’, to reduce the risk of adverse outcomes.

A smaller version of this book was published in 1994 as Law and Ethics in Medicine for Doctors in Victoria and was well received in that state. It was produced to help meet the need for doctors to be more informed of the ethical and legal obligations of medical practice. Since then, national debate on topics such as consent, compensating patients for adverse events in medical practice, sexual misconduct by doctors and euthanasia has reinforced this need. In addition there are changes occurring in the delivery of health services, in education for health-care providers and in the regulation of the medical profession about which practising doctors need to be informed. Parallel with these changes is the gradual increase in interest and understanding by the community of its health-care needs and rights. Associated with this is the community's determination to have an appropriate say in matters such as the utilisation of health-care resources and the determination of medical professional standards, and its desire for individuals to be adequately informed and involved in decisions regarding their own health. This book does not directly address all these changes, but much of its content is informed by them as reflected in chapters referring to the increasing involvement of community members in the regulatory processes of the medical profession, the development of more accessible patient complaint-handling mechanisms and changes that are occurring to medical education and the selection of medical students.

This chapter sets out to define what is meant by the term ‘ethics’, briefly introduces the reader to current frameworks for ethical thinking, summarises the key ethical principles for good medical practice, and presents the codes of ethics that guide the medical profession. The chapter is intended to provide a foundation for the ethical dimensions of issues addressed in later chapters. Modern doctors are required to be cognisant of the needs and rights of the individual patient, aware of the rights of patients' relatives, carers and guardians, alert to issues such as cultural and language barriers, prudent in the use of health resources, familiar with complaints processes, and involved in maintenance of professional competence and their own health. As subsequent chapters will demonstrate, doctors who possess good communication skills, respect their patients, have a broad knowledge of ethics and the law relating to medical practice, and are willing to consult more experienced colleagues when needed will be well equipped to resolve most of the ethical dilemmas that they will encounter in the daily practice of their profession.

More detailed historical or theoretical studies of medical ethics or in-depth discussion of the application of medical ethics in specific subjects areas such as in-vitro fertilisation, human cloning, euthanasia and organ transplantation are beyond the scope of this book. A suggested reading list is provided at the end of this chapter for those seeking to commence a more detailed study of medical ethics.