EMS Legal and Ethical Issues

Issues of Concern

Common law or case law is the interpretation of law or statutes by the courts, and usually a judge (no jury). These decisions guide the jurisdiction and the state when they are making their procedures and policies.[5]

When most people think of law or lawsuits or "suing" they are usually referring to tort law. This law covers civil liability or "wrongdoing." Specific words and wording in the world of law have very precise meanings, regardless of how they are used in common everyday conversation. For example, intention means one has the goal of harming and has been thought out (ie, battery and wrongful imprisonment); whereas negligence does not require intent to do any harm or forethought, it can be considered a "mistake" that can be cognitive, physical, or knowledgeable. This is the most concerning type of law and lawsuit in which EMS will be involved. For a person to make a claim of negligence by their EMS provider, they need to prove that there was a duty to the patient. This can be written, verbal, or implied. This means that there needs to be, for lack of a better term when talking about the law, a contract of care. This specific aspect is what is brought up when abandonment of care is discussed. Secondly, the patient must show or prove that the duty to care was breached or not done. The phrase most used is that "a reasonable, prudent provider of similar education and experience would have acted the same way." This is the definition of standard of care. The standard of care is dependent on each case and, if brought to court, is decided by the jury. Physicians who are medical directors of an agency or provide medical command could be named and involved in a lawsuit for the actions of EMS providers under their command/control.

Informed consent is very important when treating any EMS patient. Without consent, it is unlawful to touch anyone, regardless of profession. Consent can be obtained in numerous ways: verbal, written, or implied. Treating or touching (for example, giving a physical exam or placing an IV, among others) a patient without consent can lead to a claim for battery, which is the unlawful touching of a party without their consent). Most consent during emergency medical services is express consent; however, with the variability of pre-hospital medicine (location, safety, level of provider). Verbal or definitive consent is not always able to be obtained prior to treatment. In these cases, the EMS provider can treat the patient based on implied consent. This is the assumption that a patient who can not give consent due to unconsciousness, another nonverbal circumstance, severe injury, or severe medical illness would normally consent to emergency treatment if they could convey their wishes.

Minors, or patients younger than 18 years old, cannot provide consent to treatment. Legal guardians, usually parents, need to provide consent. If the minor's parent is unavailable and there is another adult that is taking responsibility, for example a school principal or camp counselor, for the child, they can provide consent until the legal guardian arrives. Some persons who are younger than 18 years old can provide self-consent and are considered emancipated from their guardians and make their own decisions. They are minors who are married, in any branch of armed services, have a history of pregnancy, or are legally emancipated.

An adult or an emancipated minor, and all people have the right to refuse medical treatment regardless of reason. These people have the right to self-control and what happens to their own body, even if it is detrimental. They can self-determine their lives. If a person does not want care and wants to refuse treatment, they have first to prove that they can understand the risks, benefits, and alternatives. There is a large legal difference between capacity and competence, which is a legal term. EMS providers need to show capacity, not competence. There are many ways to prove capacity that, from a medical and legal point of view, must be documented before refusal. If the refusing patient can understand the risks, understand alternatives, understand what can happen if they refuse, for example, death or disability, and reiterate this information to the EMS provider in their own words, the EMS provider may document, to the best of their ability, that the patient has or had the capacity to refuse.

Patient restraints are a difficult medico-legal topic since the patient most likely will not provide consent for restraints but may require them for their safety. If the patient does not have the capacity to understand their behavior, which may lead to further injury or harm, and they cannot prove that they understand, the use of restraints may be in the best interest of the patient until they can understand these risks. This happens after proper medical treatment and the underlying disease (for example, psychosis or drug abuse) has been addressed. 

Confidentiality

The federal HIPAA law extends to the prehospital realm and also the pre-hospital medical records and care. All reasonable care should be taken to maintain the confidentiality of the patient interaction and care, except when mandatory reporting is necessary. Mandatory reporting is usually needed in cases of child abuse, elder abuse, sexual assault, stabbings, and gunshots.

In any profession, especially medicine, ethics and the intent to do the best for the patient should be the overlying and paramount goal of all patient/provider interactions. Even though the National Association of Emergency Medical Technicians (NAEMT) has a set of ethical principles for EMS providers, one should look no further than the basics of human caring and rights by respecting patient autonomy and doing no harm.

Clinical Significance

The practice of EMS, as in any aspect of medicine, needs to be done with the utmost care with the best care provided to all patients at all times. Since this does not always occur, the legal system is available to encourage and maintain the best medical, ethical, and beneficial care for all patients who need emergency medical services.[6][7][8]