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HomeMedico-Legal Analysis'Emergency medical treatment' and the legal position of COVID patients in ICU

'Emergency medical treatment' and the legal position of COVID patients in ICU

Whether COVID-19 patients in need of extended care in an intensive care unit qualify for ‘emergency medical treatment’ is answered
by considering the South African Constitution, the meaning of emergency medical treatment, and whether such patients are in an incurable chronic condition, writes Professor David McQuoid-Mason, of the University of KwaZulu-Natal's Centre for Socio-Legal Studies, writing in the SA Medical Journal. Considering ethical guidelines for the withholding and withdrawal of treatment may assist a court in determining whether a healthcare practitioner has acted with the degree of skill and care required of a reasonably competent practitioner in his or her branch of the profession.

The Constitution provides for the right of ‘access to healthcare services’. It further provides that the state must take ‘reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of this right. Therefore, the right of access to healthcare services is not absolute.

However, in the case of medical emergencies, the Constitution provides that nobody ‘may be refused emergency medical treatment’. There is no internal limitation regarding the availability of resources.

Such rights may still be subject to the external limitation provisions in the Constitution. However, children may be in a better position to demand healthcare services than adult patients requiring emergency medical treatment, because a ‘child’s best interests are of paramount importance in every matter concerning the child’.

In the light of Constitutional Court judgments, COVID-19 patients with comorbidities and a hopeless prognosis should not be singled out for the withholding or withdrawing of treatment. They should be treated like other patients with similar comorbidities and a hopeless prognosis.

‘Emergency medical treatment’ does not encompass ongoing chronic illnesses that are incurable and do not call for ‘immediate remedial treatment’. A chronic illness or disease is not defined as incurable.

Although the cure rate for COVID-19 patients on ventilators is low, some patients may recover after several days or weeks on a ventilator, so their condition is curable. However, the position is different if such patients suffer from comorbidities that make their prognosis hopeless and treatment futile. Life-support measures may then be withheld or withdrawn, as for other patients for whom treatment would be futile. There is no ethical or legal duty on healthcare practitioners to provide futile treatment.

In the case of COVID-19 patients requiring ventilation, if they are not immediately placed on a ventilator, the ‘harm’ of their dying may not be averted. Should the patient’s condition deteriorate and the prognosis become hopeless, such ventilator assistance may be withdrawn. Even if such a stay qualifies as ‘emergency medical treatment’, the constitutional right not to be refused such treatment may still be limited.

Ethical guidelines may assist the courts in determining whether healthcare practitioners acted with the necessary skill and care of reasonably competent practitioners in their field of practice. The Health Professions Council of South Africa (HPCSA) ethical guidelines on the withholding and withdrawal of treatment provide that healthcare practitioners may not discriminate against patients because of their ‘age, disability, race, colour, culture, beliefs, sexuality, gender, lifestyle, social or economic status or other irrational grounds’ when choosing the treatment, to ensure that they provide the general standard of care required. Decisions to withhold or withdraw life prolonging treatment must be made by the senior treating clinician, considering the views of the patient or ‘those close to the patient’.

When deciding whether to withhold or withdraw treatment, the practitioner must assess the patient’s condition and likely prognosis, while ‘taking account of current guidance on good clinical practice’. In such circumstances, practitioners should always consider obtaining a second opinion and should discuss with patients how their care can be managed if such a decision were to be made. They should mention the arrangements for providing ‘basic care and other appropriate treatment; and what might be [the patient’s] palliative or terminal care needs and how these would be met’.

The HPCSA guidelines recognise that sometimes it is permissible to withhold treatment ‘even if it is not in the best interest of the patient’, e.g. in the case of ‘continued care in special units such as critical care and chronic dialysis units for end stage kidney failure’. While healthcare institutions have ‘the right to limit life-sustaining interventions without the consent of a patient or surrogate by restricting admission to these units’, such restrictions ‘must be based on national admission criteria agreed upon by the expert professional bodies in the relevant speciality, as well as the HPCSA’. Such institutions must, however, provide ‘the appropriate palliative care and follow up when specialised care is withheld’.

The Critical Care Society of Southern Africa (CCSSA) has published guidelines dealing with the allocation of scarce resources for situations in which critically ill COVID-19 patients require ICU admission. These guidelines, or similar guidelines widely accepted by the medical profession, would qualify as ‘national admission criteria agreed upon by the expert professional bodies in the relevant speciality’, as required by the HPCSA ethical guidelines.

The following conclusions may be drawn regarding the triaging of COVID-19 patients requiring extended ICU ventilation:

• COVID-19 patients with comorbidities requiring ventilation should be treated the same as other patients with comorbidities, and may not be unfairly discriminated against on the basis of age, disability, race, colour, culture, beliefs, sexuality, gender, lifestyle, social or economic status or other irrational grounds.

• COVID-19 patients requiring extended ventilator care may qualify for emergency treatment, because they require ‘immediate medical treatment’ to ‘divert harm’, and their condition, which may become chronic, is not incurable.

• Even if such COVID-19 patients are classified as requiring emergency medical treatment’ such treatment may be limited – provided the limitation is ‘reasonable and justifiable’.

• For the limitation to be reasonable, it must be ‘of general application’ and not exclude ‘a significant segment of the population’, which could apply to COVID-19 patients requiring ventilation – given the extent of the pandemic in SA.

• Should ventilation treatment of COVID-19 patients be reasonably and justifiably withheld or withdrawn, healthcare establishments must still provide palliative care.

• While ethical guidelines are not law, they may be considered by the courts in determining whether healthcare practitioners have acted with the necessary skill and care.

• When deciding to withhold or withdraw ventilator treatment or COVID-19 patients, healthcare practitioners should follow the HPCSA and CCSSA (or similar national guidelines) widely accepted by the medical profession.

 

Study details

Do COVID-19 patients needing extended care in an intensive care unit fall under the ‘emergency medical treatment’ provisions of the South African Constitution?

DJ McQuoid-Mason

Published in SAMJ in January, 2021

Abstract

Whether COVID-19 patients in need of extended care in an intensive care unit qualify for ‘emergency medical treatment’ is answered by considering the Constitution, the meaning of emergency medical treatment, and whether such patients are in an incurable chronic condition. Considering ethical guidelines for the withholding and withdrawal of treatment may assist a court in determining whether a healthcare practitioner has acted with the degree of skill and care required of a reasonably competent practitioner in his or her branch of the profession.

 

[link url="http://www.samj.org.za/index.php/samj/article/view/13177/9636"]Full study in the SAMJ (Open access)[/link]

 

See also from the MedicalBrief Archives:

 

[link url="https://www.medicalbrief.co.za/archives/covid-19-national-guidelines-needed-to-support-medical-profession/"]MPS: COVID-19 national guidelines needed to support medical profession[/link]

 

[link url="https://www.medicalbrief.co.za/archives/sa-guidelines-for-triage-of-critically-ill-patients-in-covid-19-pandemic/"]SA guidelines for triage of critically ill patients in COVID-19 pandemic[/link]

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