Why EMS Needs Its Own Ethics

You arrive at the site of a single-vehicle MVA. A man in his 80s was driving, his wife in the passenger seat. You assess the man as emergent and requiring transport. The man seems unconcerned about himself but keeps asking about his wife, who is dead. What do you tell him?

     How you answer this true scenario will depend, to a large extent, on whether you're a physician or an EMT. For a physician in this country, telling the truth is considered a paramount virtue. The American Medical Association says in its Principles of Medical Ethics that "A physician shall...be honest in all professional interactions."¹ Thus, a physician would either have to respond honestly or try to dissuade the asking of the question. The NAEMT's EMT Code of Ethics has no requirement regarding honesty or truth-telling;² thus, the EMT following only this code would ethically be free to bend the truth in order to ensure a more compliant patient. In the above case, the EMT told the driver that his wife was receiving the best possible care and that they had to concentrate on taking care of him. Although no outright lie was told, the truth was avoided.

     A 1992 study found that ethical conflicts arose in 14.4% of paramedic responses.³ These included issues involving informed consent, treatment of minors, research, resuscitation limits, patient competence, resource allocation, confidentiality, truth-telling and training. The EMT Code of Ethics was published in 1978 and has not been updated since. The medical ethics landscape, however, has changed a great deal, and new challenges have arisen.

     One reason that ethics in EMS have not received a great deal of attention is because bioethicists and other architects of healthcare ethics assume certain similarities among healthcare professions. For example, when examining ethical issues and solutions for public health, the natural tendency has been to look at ethics in medicine. Yet there are large differences between the fields, such as whom they serve (individuals vs. populations) and the autonomy of the individual provider.^4,5 The same assumption has been made in regards to ethics for EMS. A recent CE training article in an industry journal simply adopted the theories and ideals of medical ethics.⁶ Such a perspective assumes that EMS providers are merely physician extenders and ignores that a different practice environment requires a different approach to ethical issues.

     The EMS profession may choose to adopt the principles of medical ethics--autonomy, beneficence, nonmaleficence and justice--but it is important for the profession to weigh whether a different set of principles may be more appropriate. After all, EMS and medicine have different scopes of practice and different levels of professional autonomy for deliberative ethical decision-making by the individual provider. These differences can be seen in how physicians and EMS providers define ethics and how they operationalize various ethical issues, such as disclosure, consent, decision-making, patient relationships, confidentiality and end-of-life limits to treatment. This article examines the different approaches EMS should take to these issues and calls on the profession to develop an updated code of ethics.

Defining Ethics
     A physician goes through four years of undergraduate education, four years of medical school and at least three years of residency before practicing. He has advanced academic degrees and has passed rigorous written examinations. The role of the physician is to cure, comfort and care. In the healthcare hierarchy, the physician is at the top (superceded only, in the reality of the modern healthcare system, by hospital administrators or health insurance guidelines). Physicians typically have a great deal of leeway for individual decision-making.

     EMS providers have much more variable training. They may be prehospital care providers, dispatchers, emergency department staff or support personnel.⁷ For the sake of brevity, this article focuses mainly on the first responder. These practitioners often have small leeway in decision-making, having to follow protocols, scopes of practice and highly structured chains of command. The goal of the EMS system is to assess, stabilize and transport the patient.

     As used in medicine, the term ethics has several broad definitions. First, as an area of philosophical scholarship, ethics is about examining how people make decisions regarding what's right and what's wrong.⁸ We use this definition when we speak about studying ethics or performing an ethical analysis. Second, ethics can also be viewed as guidelines for behavior--in our case, for a specific population.^8,9 Third, some people use the term broadly when examining controversial subjects such as abortion, cloning and withdrawal of life support.⁸

     For the EMS provider, ethics are defined by the U.S. Department of Transportation as personal standards governing how one should live.¹⁰ For the U.S. DOT, morality is about social standards, such as a code of conduct for a group.¹¹ Thus, the DOT actually reverses the meaning of ethics and morality as they are commonly used in bioethics (see Figure 1). This distinction is important because in communicating between professions, one must understand that the same word may have different meanings. Bioethicists tend to use the medical definitions as outlined above. The EMS provider should be aware that the definitions given by U.S. DOT are not the ones used by most healthcare professions.

Ethical Principles
     Some ethical principles seem similar across all health professions. For example, the notion of nonmaleficence, or "do no harm," has been a principle of healthcare extending back to the days of the Hippocratic physicians. Other possibly universal notions include the idea of beneficence (providing helpful care to patients and protecting them from harm), autonomy (a limited patient right to self-governance) and justice (a distribution of scarce resources and treating like cases alike).¹² Together, these four principles of biomedical ethics are considered to be guidelines for moral deliberation. Yet how these principles are operationalized can differ by setting, situation and professional obligation.

     Among the issues dealt with differently in EMS are informed consent, capacity, privacy/confidentiality and end-of-life decision-making.⁷ Although the medical principles to be considered may be similar, how the issues are deliberated and resolved differs greatly. When updating their codes of ethics, EMS providers should consider these differences. The following list looks at variations between hospital/office physicians and EMS providers regarding some of these ethical issues.

Confidentiality
     An elderly man collapses in front of a local coffee house. While he is being assessed for a probable myocardial infarction, a woman runs up and says she's the man's caregiver, though she's not a family member. She has no documentation proving her claim. She demands to know the patient's condition.

     Both physicians and EMS providers must follow guidelines established by the Health Insurance Portability and Accountability Act for confidentiality of patient medical information. HIPAA requires that stringent measures be taken for preserving patient confidentiality, including limits on who can know the patient's information and have access to their records.¹³ In a physician's office or hospital, the law requires that patients acknowledge reception, in writing, of written copies of all privacy and confidentiality policies upon their first visit. In the EMS environment, HIPAA still applies, but compliance may be more difficult, especially if the patient is unconscious. In Reno, NV, EMS providers ensure compliance by leaving copies of their confidentiality policies with patients' family members, sitting on a floor or table, or with a police officer on the scene. Other services just mail them. No matter what method is used, the attempt to deliver the notice should be documented.

     In addition, the patient's medical information may need to be shared with a wide array of people, including family members at the scene, police and on the radio while in transport. EMS practitioners may need to have certain information reported to or by dispatch, such as a patient's HIV status, in order to protect themselves.¹⁴ Lay people often have scanners that enable them to hear public-safety radio conversations, potentially compromising patient privacy through inadvertent disclosure. Although HIPAA does permit the sharing of healthcare knowledge for purposes of treatment, the reality is that keeping information private is more difficult in the EMS environment.

     In the above scenario, a physician would be forbidden from giving any medical information to this woman. Medical information can be given only to a legally appointed or recognized decision-maker. A family member calling a hospital to see if a loved one is a patient cannot even be told if that person is in the hospital without that person's prior written permission.

     An EMS provider in the above case would be under similar legal restrictions. A copy of the privacy policies could be given to the woman, and you could request contact information for the nearest family member, but no medical information can be shared until the alleged caregiver can prove she's the patient's legal representative.

Consent
     A patient with early Alzheimer's has fallen and requires assessment and potential treatment. Sometimes the patient appears lucid, but more often he does not.

     When making treatment choices or even ordering tests, physicians must get the permission of a patient or the patient's legal surrogate decision-maker. The standard for permission to treat is called informed consent. Informed consent requires several precepts to be met: 1) The patient (or the patient's legal decision-maker) is competent and capacitated to make a choice; 2) The patient is given all necessary information a reasonable person would need to make a decision, including risks, benefits and alternatives; and 3) The patient is capable of deliberating and communicating their choice. Consent is a process that takes place within a developing relationship between a patient (or proxy) and a care provider.

     For a physician dealing with the above case, unless the situation is emergent, a bioethicist would recommend that the patient be assessed for competency and capacity to make decisions. The physician would be encouraged to speak with the patient during a moment of lucidity to determine what the patient wants to do, gain consent, and learn and chart whom the legal decision-maker should be. Such a process should ideally lead to a written informed consent or chart note signed by all present at the discussion.

     Although all attempts to secure written consent should be made, EMS situations do not often allow such a luxury. The patient may not be conscious, a legal decision-maker may not be available, and time may not allow for a proxy to be located. Thus, all the requirements for truly informed consent may not be met. In EMS, permission may fall under presumed consent (sometimes called implied consent). That is, the patient is presumed to consent for treatment because the average person in that situation would do so.¹⁵ There is often no time available for careful deliberation or for forming a trusting patient-provider relationship; thus consent is neither informed nor explicit. The above patient should be assessed, and if the exam reveals a potential injury, the patient should be transported.

Decision-making
     A 58-year-old female is having difficulty breathing. After a lifetime of smoking, she figures her time is up and she probably has lung cancer. She indicates she does not want chemotherapy or other cancer treatments, but instead is ready to die. The immediate problem is difficulty getting a good oxygen sat.

     In a physician's office or hospital, patient decision-making can take place over a period of time. Patients may be given a diagnosis, a cause and a prognosis. They will be offered treatment options, along with a list of risks and benefits to each. Often, several conversations take place, and the patient will have time for moral deliberation.

     For a physician, the first priority would be to stabilize the patient's breathing and then discuss decisions regarding diagnostic tests and potential treatments later. This discussion is likely to take place over several meetings, as more information is acquired. The physician will engage the patient in a conversation about her values, possible courses of treatment and end-of-life care.

     In the EMS environment, the first priority is also establishing an airway. But often, little to no time exists for detailed deliberative decision-making. Decisions must frequently be made quickly. Because EMS providers often have lower levels of education than physicians, as well as less time for consulting colleagues and the professional literature when providing care, and because legal liability lies with the medical director and the service, EMS decision-making tends to be strongly protocol-driven.

     While an EMS provider would continue a dialogue with the patient, the big interest would be to assist her breathing and provide transport if necessary. The consent conversation would be short and specific to the immediate problem of shortness of breath.

Disclosure (Truthfulness)
     The opening scenario to this article described a case where the EMS provider bent the truth. In my conversations with EMS providers, many say lying is a useful tool to calm patients, to keep them focused away from bad news or situations, and to permit the EMS provider to offer the best care. For example, if a victim of a car wreck or house fire asks about a loved one who died, the EMS provider may bend the truth ("We're doing everything we can for him/her.") or tell a lie of omission ("We need to focus on you right now."). The goal is to stabilize and treat the patient--something a sudden grief reaction or pleas to tend to the other person may inhibit. Ironically, lying enables the EMS provider to form a caring, trusting bond with the patient much faster than if he told the truth.

Limits to Treatment
     A 67-year-old male patient's home healthcare provider calls in alarm because her patient has fallen unconscious. He was just discharged from the hospital last week. The home provider has the patient's advance directive and a copy of a DNR order from his hospitalization. However, there is no prehospital advance directive (out-of-hospital DNR).

     In an office setting, patients and their providers can discuss and implement orders that limit treatment in the event of a terminal illness. Patients and family members can complete advance directives and appoint healthcare proxies. Physicians can write Do Not Resuscitate (DNR) orders. Time permits a process of conversing and discussing these issues so that a well-deliberated plan can be made. In the above case, a physician seeing the patient's advance directive would be able to write an immediate DNR order and withhold resuscitation treatment.

     EMS systems may be bound by law or policy to provide resuscitative care at such scenes unless it is physiologically futile--i.e., the patient displays "rigor mortis, decomposition, [is] burned beyond recognition or [has] other situations incompatible with life."¹⁶ However, 42 states have some form of out-of-hospital DNR order, sometimes called a prehospital advance directive (PHAD). In these circumstances, if a patient presents a PHAD, then EMS resuscitation efforts can be withheld or withdrawn. In many states the PHAD must be the original document and not a copy. Sometimes the EMS provider may be able to radio the medical director for a DNR order to be issued on scene. Although it is beyond the scope of an EMS provider's practice to withhold treatment, in reality, EMS providers sometimes do withhold resuscitation without a PHAD or medical director's order.¹⁷ In the above case, an EMS provider would be required to initiate resuscitation and transport.

Patient Population/Choice
     You are off duty, driving home on the freeway when you find traffic completely stopped. You see just ahead of you that an accident has occurred, and at least one person appears to have gone through his windshield. A person is running through the stopped traffic asking if anyone can provide medical care.

     Choice is a cornerstone of the physician-patient relationship: Physicians can choose their patients, and vice-versa. The exception is emergency situations. At work or on personal time, a physician must respond to patients in a medical emergency.¹⁸ Thus, a physician would be obligated to assess and treat the victim in the above scenario.

     Ethically, choosing whom to treat is important in having control over one's profession and as a consideration in deliberative decision-making. EMS providers have no choice whom to treat;⁷ likewise, a patient cannot choose a particular EMS provider. While on-duty, the EMS provider must give treatment to anyone who requests it unless doing so would compromise the provider's safety. However, unlike a physician, an off-duty EMS provider is not legally required to provide care except in Vermont and Minnesota.¹⁹ In other states, the EMS provider would have no requirement to help the victim in the above scenario.

     This issue of professional autonomy to treat becomes important in cases such as when an EMS provider arrives at a scene and no one complains of an injury. Is there technically a patient? Attorney W. Ann Maggiore suggests that in such a situation, legally, the EMS provider should conduct an examination to ensure there is no life-threatening injury. Ethically, the provider has a duty of beneficence, to protect a patient from harm, suggesting that a properly documented assessment would be appropriate.

Research
     A patient is bleeding out after a motor vehicle accident. Like most ambulances, the responding EMS providers do not stock human blood. The standard protocol is to give patients saline to increase fluid volume and to transport immediately. However, this community is participating in a research trial for a new artificial blood substitute. The patient has lost consciousness, and no one is around who can give consent for his participation.

     Consent for research is regulated by what is known as the "Common Rule" in Section 45 of the U.S. Code.²¹ The law requires that all competent and capacitated persons ideally give written consent after investigators inform potential subjects about their research, including all risks and benefits. The problem with emergency research is that time is often of the essence, the potential subject may be unable to give consent, and a legal representative may be unavailable. Thus, the Department of Health and Human Services and Food and Drug Administration wrote 45 CFR Part 46, which permits research in emergency settings when the patient's life is in jeopardy and informed consent cannot be obtained.²⁰

     Several trials have been performed under this exception. In 1987 in Minnesota, a blood substitute trial was conducted on patients requiring emergency transport. The trial was not a success, as 24 patients died after receiving the substitute, and only nine died after receiving saline.²¹

     The exception applies to EMS and emergency departments. Thus, for legal purposes of emergency medical research, there is no difference between physicians and EMS providers. However, most research is not done under an emergency waiver. The AMA Code of Ethics explicitly says that "A physician shall continue to study, apply, and advance scientific knowledge."¹ The EMT Code of Ethics does not offer any statements regarding participating in research or the pursuit of scientific knowledge.

Conclusion
     Although the tendency in healthcare ethics has been to adopt the medical ethics model for decision-making, this has often proven to be a poor model. Different focuses and philosophical foundations call for different frameworks for decision-making. In the same way, EMS providers should not be quick to adopt the bedside principles of biomedical ethics, but should recognize their unique role in the healthcare system and develop a tool that acknowledges those differences and provides true assistance in making choices at the gurneyside.

     This suggests EMS needs to revisit its 1978 code. The code should be updated to include not only new guidelines for behavior, such as truth-telling, but also include opinions on how the guidelines should be interpreted. The AMA's nine principles of medical ethics are short, but its Council on Ethical and Judicial Affairs offers 384 pages of professional opinions, annotations and interpretations for physicians. Thus, I would suggest EMS leaders take it upon themselves to convene an interdisciplinary committee to examine and update their Code of Ethics and offer written opinions to help EMS agencies to develop their policies and protocols.

Life vs. Law: When the Mandates Are at Odds
     By Jay Weaver

     In the world of EMS, as in all areas of healthcare, law and ethics sometimes collide. I witnessed such a conflict recently while working as a paramedic for the city of Boston.

     The patient was an 11-year-old girl. We found her at home late at night, gasping for air. She understood English, but the only other person in the house, her stepfather, did not. Unable to communicate the girl's history, he presented us with a stack of medical records nearly three inches thick.

     The papers revealed a heartbreaking tangle of medical and social issues. The patient had never known her father. Her mother had been murdered just two weeks before. Since the girl was related to her stepfather only through marriage, her mother's death had left her a ward of the state. She continued to live with her stepfather, but he had no legal authority to make medical decisions on her behalf.

     The story got worse. One year earlier, the girl had been diagnosed with lung cancer. It had metastasized to her brain, and the hospital suspended chemotherapy after a doctor declared her condition terminal. Since the girl was still a minor, and therefore too young to legally accept or reject care, an attorney for the state's social service agency had gone to court seeking clarification of her resuscitation status.

     The judge who'd inherited the case met with the girl privately. For more than an hour, he posed questions about life, sickness, medical procedures and death. During this conversation, the girl indicated that she didn't want to be resuscitated in the event of respiratory or cardiac arrest. Despite her young age, the judge felt that she was mature enough to understand the consequences of such a decision. On this basis, he issued an order prohibiting resuscitation.

     The night we were called to the girl's house, I found the judge's order attached to her medical documents. Its language was clear, and there could be no question that it applied to us. The judge had addressed it to "all healthcare providers, including EMS professionals."

     The girl was in severe respiratory distress, capable of saying just a few words at a time. We placed her on a stretcher and wheeled her to the ambulance, intending to administer bronchodilators as soon as we could set up a nebulizer. Just as we were about to lift her inside, she looked up at me and, with a terrified expression, whispered, "Please don't let me die."

     Then she stopped breathing.

     A pair of EMTs had been sent on the call with us. One of them reached for a bag-valve mask. He said, "You want me to ventilate her, right?"

     My partner deferred to me. "What does that court order mean?" he asked. "Is that the same thing as a Do Not Resuscitate order?"

     Being a lawyer as well as a paramedic, I knew it was not the same thing at all. Under the laws of most states, a Do Not Resuscitate (DNR) order can be rescinded by the patient at any time. A court order, on the other hand, can be rescinded only by the judge who issued it, or by a panel of judges in a court of appeals. I held in my hand a document that had been based on the wishes of a patient, but issued by a judge. We had a legal obligation to follow it.

     Still, I couldn't ignore the patient's plea. She was a little girl who, just moments before, had begged me not to let her die. It would be a simple matter to comply with her wish. I could ventilate her, and that would keep her alive.

     Unfortunately, it would also break the law.

     I took the bag-valve mask from the EMT and applied it to the girl's face. I ventilated her all the way to the hospital. She did not regain consciousness, but her heart kept beating, and she remained alive, just as she'd requested.

     In the emergency department, a nurse continued the ventilation while an administrator called the hospital's lawyer at home. Stop the resuscitation, the lawyer advised. You're breaking the law. A doctor ordered the nurse to stop. The girl's heart slowed. After a few minutes, it stopped entirely. The doctor pronounced her dead.

     Some time later, I asked a judge for an informal legal opinion on this matter. "Oh, you absolutely broke the law," he told me. "When you ventilated that girl, you were in contempt of court. The judge who wrote the order could have fined you or put you in jail. But no judge in this state would impose sanctions for doing what you did. It may have been illegal, but from a moral standpoint, it was the right thing to do."

     I think about that girl often. I present this case when lecturing to paramedic students. Asked what they would do in the same situation, they always say they would resuscitate her. Faced with the same choices again, I would too.

     For those of us in EMS, conscience sometimes trumps the law.

References

1. American Medical Association. Code of Ethics. www.ama-assn.org/ama/pub/category/2498.html.
2. NAEMT. EMT Code of Ethics. www.naemt.org/aboutNAEMT/EMTCodeOfEthics.htm.
3. Adams JG, Arnold R, Siminoff L, Wolfson AB. Ethical conflicts in the prehospital setting. Ann Emerg Med 21(10): 1,259-65, 1992.

4. Childress JF, et al. Public health ethics: Mapping the terrain. J Law, Med & Ethics 30(2): 170-78, 2002.
5. Klugman C. Public health principlism. Online J Health Ethics 1(1), 2007. https://ethicsjournal.umc.edu/ojs2/index.php/ojhe/article/view/61/76.
6. Van Vleet LM. Between black & white: The gray area of ethics in EMS. J Emerg Med Serv 31(10): 54-63, 2006.
7. Edwards SS, Edwards AB. No Time for Ethics? The Prehospital Environment. In Orlowski JP (ed), Ethics in Critical Care Medicine. Hagerstown, MD: University Publishing Group, 1999.
8. Fieser J, Dowden B. The Internet Encyclopedia of Philosophy. www.iep.utm.edu.
9. Gert B. Morality: A New Justification of the Moral Rules. New York: Oxford University Press, 1988.
10. U.S. Department of Transportation, National Highway Traffic Safety Administration. EMT-Parademic National Standard Curriculum. Washington, DC, 1998.

11. Gert B. Morality. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/morality-definition, 2005.
12. Beauchamp TL, Childress JF. Principles of Biomedical Ethics (5th ed.). New York: Oxford University Press, 2001.
13. Health Insurance Portability and Accountability Act, 1996.
14. Cross J. Dispatch and confidentiality. Emerg Med Serv 26(8): 28-35, 1997.
15. Iserson KV. Nonstandard advance directives: A pseudoethical dilemma. J Trauma Inj Infec Crit Care 44(1): 139-42, 1998.
16. Iserson KV. Bioethical Dilemmas in Emergency Medicine and Prehospital Care. In Monagle JF, Thomasma DC (eds.), Health Care Ethics Critical Issues for the 21st Century. Gaithersburg, MD: Aspen, 1998.
17. Johnson DR, Maggiore WA. Resuscitation decision-making by New Mexico emergency medical technicians. Amer J Emerg Med 11(2): 139-42, 1993.
18. Council on Ethical and Judicial Affairs. Code of Medical Ethics of the American Medical Association: Current Opinions with Annotations, 2006-07 edition. Chicago: American Medical Association, 2006.
19. Maggiore WA. What's your duty: When your legal obligation starts & where it ends. J Emerg Med Serv, www.jems.com/news/13265/.
20. Ellis GB, Lin MH. OPRR Reports: Informed Consent Requirements in Emergency Research. www.hhs.gov/ohrp/humansubjects/guidance/hsdc97-01.htm.
21. Guterman L. Guinea pigs in the ER. Chron Higher Educ 52(41): A14-18, Jun 16, 2006.

Craig M. Klugman, PhD, is assistant professor of bioethics in the School of Public Health and chair of the healthcare ethics program at the University of Nevada's Nevada Center for Ethics & Health Policy. His research is in the area of end-of-life issues and public bioethics. He also consults with his local EMS agency on bioethical issues.

Jay Weaver has been a Boston paramedic for more than 20 years. A graduate of Harvard University and Suffolk University Law School, he is also an attorney specializing in healthcare law. He serves on the adjunct faculty at Northeastern University and lectures frequently on prehospital law and ethics.