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To understand our Constitution, a person must understand the theory of “Natural Rights.”  Natural rights are the rights that all humans possess merely by being born. This theory began with European philosophers in the 17th and 18th centuries, men like Thomas Hobbes, John Locke, and Thomas Paine.

These men believed that denying a person his natural rights would be absurd, like expecting a carnivore to give up meat. In his natural state, according to Hobbes, man’s life consists entirely of liberties and not at all of laws – “It followeth, that in such a condition, every man has the right to every thing; even to one another’s body. And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man… of living out the time, which Nature ordinarily allow men to live.”

This would lead inevitably to a situation known as the “war of all against all”, in which human beings kill, steal and enslave others in order to stay alive, due to their natural lust for “Gain”, “Safety” and “Reputation”. Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, since it would cause human life to be “solitary, poor, nasty, brutish, and short”. As such, if humans wish to live peacefully they must give up some of their natural rights and create moral obligations in order to establish political and civil society. This is one of the earliest formulations of the theory of government known as the social contract.

Like Hobbes, Locke was a major social contract thinker. He said that man’s natural rights are life, liberty, and property. He greatly influenced the American Revolutionary War with his writings of natural rights.
According to Locke there are three natural rights:

• Life- everyone is entitled to live once they are created.
• Liberty- everyone is entitled to do anything they want to so long as it doesn’t conflict with the first right.
• Estate- everyone is entitled to own all they create or gain through gift or trade so long as it doesn’t conflict with the first two rights.

According to Locke, the social contract is a contract between a being or beings of power and their people or followers. The King makes the laws to protect the 3 natural rights. The people may not agree on the laws, but they have to follow them. The people can be prosecuted and/or killed if they break these laws. If the King does not follow these rules, he can be overthrown.

Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They…consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

It is for these reasons that our Constitution was built upon the “Natural Rights” theory.

• Men are endowed by certain rights by their creator.
• Men constitute governments in order that they may protect those rights from others.
• That they grant powers to that government so that it may function.

Governments cannot grant rights, they can only deny rights and liberties from one group, while allowing others to retain them. In a future post, I will examine some of how this works, and why certain things cannot be rights under this theory.

Recently, a person came to this blog via a post by TOTWTYTR. The post s from December where 2 EMTs were accused of refusing to help a dying pregnant woman because they were on a break. People are screaming for them to be fired. I would have just placed a comment on the post itself, but it was an old post, and my comments are likely to be a little long.

In the current environment, there is a lot of talk about budget cuts, and much talk about how public sector employees are overpaid, get too many benefits, etc. but in all of this no one seems to notice how public sector employees are held to a higher standard. As an example, the woman who died was an employee of the coffee shop. If the situation had been reversed and the woman would have been off the clock, and the EMTs had wanted a cup of coffee, would people be calling for her to be fired for refusing to do her job while off the clock?

Currently in the State of Florida, and all across the nation, there is talk of cutting benefits. Florida is about to change the rules for the Florida Retirement System to cut retirement benefits in half, and to change the retirement age for high risk jobs from age 50 to age 65. Some departments are discussing cutting hours by not paying responders between the hours of midnight and 6 a.m. if the responder doesn’t have to actually respond to a call for assistance, even though the responders must remain at work ready to respond. Can you imagine a receptionist being required to sit at her desk, but not getting paid unless the phone actually rings?

As a firefighter and as a Paramedic, I am exposed to all sorts of things that a government office worker is not.

Let me tell you the story of Oviedo Firefighter Shane Kelly. Firefighter Kelly stopped to assist victims of an auto accident on the Florida Turnpike in 2002. Shane was off duty. He was killed in full view of his wife when a tractor trailer slammed into the accident vehicles.  There were 2 occupants of the truck that killed Firefighter Kelly, and there was enough confusion as to which of them was driving that neither of them was ever charged.

The Federal Government ruled that Sean Kelly was acting in his capacity as a private citizen when he was killed, and since his death was not a line of duty death, his widow was not entitled to any of the benefits of the LOD status. Imagine how you would feel as an EMT, Firefighter, or other responder if you knew that helping an injured person carries the same risk of injury or death whether you are on duty or off duty, except that if you are injured, not only are you NOT paid for your time and skill, but you are not insured for that potentially career ending injury. Who will feed your family? Care for your kids?

In Firefighter Kelly’s case, they rallied some politicians and were able to get an exception in his case, but there is no guarantee that the next accident victim will get the same exception. State law in Florida allows localities to each determine what constitutes line of death, and what does not. In a meeting with my employer’s attorney, where Firefighters were attempting to get a written policy on what would be considered Line of Duty injury for off the clock employees, we were told that such decisions for off duty personnel would be made on a case by case basis by Administration AFTER the fact. I made a comment along the lines of, “So you get to decide AFTER I am injured whether or not you will pay for it. Will that decision take factors like the cost of treatment and PR benefit to you into account?” That REALLY pissed off the attorney. (I call em like I see em.)

Not only will the employer retroactively decide whether or not the employee who stops to help is covered if injured, they will decide on a case by case basis who they will provide legal representation to if the employee is sued by a personal injury attorney. That policy marked the end of my stopping to help in emergencies, and until that policy changes, I will no longer help anyone while I am off the clock. After all, requiring me to do something while not paying me is called slavery.

Many will say that I should just get my own insurance, and to that I reply: How many of you who are not in EMS would pay money to be able to do uncompensated work that could get you injured, killed, or sued? Other considerations: DO off duty EMTS carry equipment? Gloves, pocket masks, defibrillators? If they do not, what can they do that any other bystander can do? Or should the employer provide those items?

If I am at an accident scene, how can I keep other vehicles from hitting me? Should I block the lanes with my personal car, like we do with our ambulances and fire apparatus? If I do, and a semi crashes into my car- will my employer pay for my car? Will my own insurance pay? After all, they will surely argue that they do not cover me for high risk activity like using it as emergency equipment. If my wife is in the car when it is struck, who pays for HER care?

All of this is viewed in light of the new era of budget cuts. Cutting pay, retirement, benefits, and other compensation, and you get what you pay for.

I was at a party yesterday, and a person there was complaining that the attorney general was wasting the taxpayer’s money on a lawsuit that “had no judicial merit.” I said that I wasn’t so sure, and that IMO the Obama health plan was unconstitutional. I asked him which part of the Constitution granted the Federal Government the power to force me to buy a product.

His reply was that the government already does this when they force you to buy car insurance. This was easy to rebut, because the Federal Government doesn’t force you to buy insurance, that is a state law, and that law still allows a driver to be self insured, doesn’t require you to have insurance if you don’t have a car, nor does it require that you buy insurance to operate a car upon your private property.

I told him that the Obama plan will not work, because it requires an insurance company to cover a preexisting condition, so people will have no reason to get insurance until they are sick, and since the “fine” for not having insurance is significantly less than the cost of insurance, they won’t. Thus, a person who gets sick will simply call and purchase the insurance while he is on his way to the hospital.

He responded with some talking point about the last 8 years, blah, blah, to which I responded that I didn’t like Bush, either, but that this discussion had nothing to do with the exPresident, and that we were talking about Obama. He then said that we can’t blame Obama until the first 2 years (HALF the term) are over. So I replied that we could then lay 9/11 and the recession of 2001 directly at the feet of Clinton, since that all happened during the first 2 years of the Bush Whitehouse. “That’s different,” he said.

I moved in for the kill. “So Bush is responsible for all 8 years he was in office, and the first two years of Obama.” His wife, who was standing there agreeing with me, then took him away.

Every supporter of Obama uses the exact same words and phrases in their arguments, almost as if they are reading from a script. It is obvious that they are not thinking about this on their own, that they are simply parroting lines that they have heard somewhere else. This makes them easy to debate, as they are not putting any thought into this.

Patient consent seems like a pretty easy subject when we are in school as a parafetus. In fact, many programs gloss over the subject, but in my experience no single issue gets medics in trouble as often as the subject of consent and refusals. What complicates things further is when a patient is forced to go to the hospital against his will, or a child has to go over the objections of a parent.

In order to explain how this happens, a little explanation about consent and mental capacity is in order. In order for patient care to happen, the patient must consent to this care. The law requires a medic to care for a person who for some reason is incapable of making an informed decision for themselves. Examples include unconscious or intoxicated adults, and children in the absence of their parent or guardian. This is called “implied consent.”

In the event that you have a patient with a medical condition that prevents them from understanding the refusal and its implications, implied consent is the ruler of the day. An unconscious patient gets transported under this doctrine. A patient with altered mental status is a little more difficult. Let me illustrate:

Last shift I was the duty EMS supervisor when one of my crews was dispatched to a fall. Just after arrival, they requested police response for a combative patient. I began driving that way, and within a couple of minutes they called and requested the supervisor.

When I arrived, they told me that the patient, an 80 year old man with a cardiac and stroke history, had fallen down and hit his head on the wall with enough force to go through the drywall and strike his head on the concrete block. The patient’s 30-something year old son called because the patient would not get up off the floor. All adults present are intoxicated. One of the crew on scene met me in the driveway and said the patient’s wife was agitated and wanted them out of the house, and had gone so far as to punch one of the crew members in the face. (Wow- an extra $1.50 an hour to be supervisor and deal with this kind of thing.)

I entered the house, and before I could say anything the wife starts yelling that she wants me to leave the house and telling me that she has a right to refuse. I introduced myself as the person in charge, and with every intention of smoothing things over and allowing the refusal, explained that there were certain rules that we must follow in order to accept a refusal, and that I wanted to ask a few questions. I began by asking the patient the standard “person, place and time” questions. He answered, but his speech was slurred, and he was argumentative about it, then asked me who I was and why I was in his house. Since I had just explained that, I told him that it was my feeling that he was impaired, and that we would be taking him to the hospital. He and his wife protested, and she accused me of practicing medicine without a license. I explained to them and to their family that he had no choice, so he punched me. The cops saw this and wanted to arrest him. He went to the hospital, I didn’t press charges.

So why did I think he was impaired? The cognitive symptoms of a traumatic brain injury (TBI) can include:

– confusion, disorientation, and difficulty focusing attention
– Loss of consciousness may occur but is not necessarily correlated with the severity of the concussion if it is brief.
– Post-traumatic amnesia, in which the person cannot remember events leading up to the injury or after it, or both, is a hallmark of concussion or even more serious brain injury.
– Confusion, another concussion hallmark, may be present immediately or may develop over several minutes. A patient may, for example, repeatedly ask the same questions, be slow to respond to questions or directions, have a vacant stare, or have slurred or incoherent speech.
– Many brain injury victims experience what is known as the lucid interval.

Since he had many of these symptoms, and it is impossible to tell if the symptoms were caused by his stroke history, intoxication, or his injury, and there were no sober (competent) adults to keep an eye on him, the best and only legal thing to do is to take him in for evaluation.

Now there are many here who will accuse me of violating his rights, and to them I leave you with this story:

There was a woman who called 911 because her husband was acting odd. When we arrived, he asked repetitive questions, became combative, repeatedly asked us to leave, and physically assaulted us when we carried him to the gurney. He had been acting much like the gentleman in the previous story. He died on the way to the hospital. His kids were 3 and 5 years old, and will grow up without a dad. Keep that in mind. Every patient deserves an advocate that will look out for them when the patient themselves cannot. In the prehospital setting, that person is the paramedic.

Determining competence is a three step legal process:

Can an individual retain and comprehend relevant information?
Can an individual believe information?
Can an individual use that information to make a choice?

Thus the capacity to refuse is determined by his competence. If a patient refuses and evidence exists indicating an impairment of the patient’s capacities, it is appropriate to conclude the patient may be found incompetent in a court of law. Impairment may be determined by the patients actions, information from bystanders and caregivers, and a good assessment of the scene and patient.

The key here is trying to determine if the patient understands the nature of his illness/injury, as well as the consequences of refusing treatment. To make this determination, we look for his cognition, judgment, understanding, stability, and vital signs. Just because the patient does not wish to be treated is not sufficient proof that their capacity to choose is impaired.

Capacity is a legal minefield. Choose wrongly and you can be sued for abandonment and negligence, or for false imprisonment. For this reason, documentation of your reasons for making the decision that you did is vital.

Now that we are on the path to “free” healthcare, maybe we should see what is in our future here in the good old US of A:

$9 per gallon gasoline in the land where Great Britain used to be.

Let’s take a break from bitching about the economy and have a little fun:

I called my friend Andy Sable, a gastroenterologist, to make an appointment for a colonoscopy. A few days later, in his office, Andy showed me a color diagram of the colon, a lengthy organ that appears to go all over the place, at one point passing briefly through Minneapolis. Then Andy explained the colonoscopy procedure to me in a thorough, reassuring and patient manner.