A simple-minded, very basic tutorial.

The law is a complex thing. Even some lawyer struggle with the concepts of common law (or at least struggle with reading Holmes). However, the law is for all of us, not just lawyers and judges. I've had to address issues about common law so often that I thought it would be wise to put a brief tutorial here where it's easy to access. And before you criticize the errors below, remember that Bacon said "we are more likely to reach the truth through error than through confusion."

First, here is a diagram to ponder as you read this:

Due process for SAR

Once upon a time, I had to act as investigator for a potential disciplinary action for a search and rescue organization. Actually, this has happened several times, and I've had a chance to participate in developing a couple of "discipline with due process" procedures for SAR organizations. Please see the ER-NCRC policy in this regard; this final draft has some useful footnotes for those faced with similar needs.

As it turns out, I had to essentially act as judge, jury and executioner, given the structure of the due process provisions of this organization. I rendered what was, in essence, a legal opinion, even if offered by a non-lawyer, non-judge. So I tried to follow the legal model of presenting findings of law, and findings of fact.

A question came up afterwards: what state law did I research, PA or VA? And the answer, surprisingly to many I would suspect, is: neither.

This is old hat to many of you, and anyone with a legal background will laugh at my oversimplification, but as most people dealing with such situations don't have a legal background, I think the following might be useful for everyone as a very, very, simple legal primer.

Law and laws, common and uncommon

There are many different kinds of law and of laws. Not all law is laws. Some is just LAW without every being written into A law. This is called "common law." More about that later.

Sometimes laws conflict. In that case, there is a fairly straightforward "pecking order" among laws. We should start at the top of the pecking order and work down.

The highest law of the land is the U.S. Constitution. If something is prohibited in the Constitution, it's "unconstitutional" which is about as illegal (or "unlawful" as those in the know prefer to say") as it can get. If a law, ANY law, conflicts with the Constitution, the Constitution wins, hands down. An amusing corollary of that comes from the fact that the Postal Service is written into the constitution. It's unconstitutional to impede a postal carrier. Q. Who has to yield right of way at an intersection, a fire truck with lights and siren, an ambulance with lights and siren, a police vehicle with lights and siren, the Presidential motorcade, or a post office truck? A. Everyone has to yield right-of-way to the postal truck.

The next layer down is called "legislative law." Basically, if Congress (one of the three main branches of government) passes a law, it's now the law of the land (Federal law) and everyone has to do what it says or else. (Well, there has to be some enforcement mechanism or there's no "or else" but that's a story for another time and place.) If a legislative law conflicts with the Constitution, though, the Constitution wins. Who decides? The second of the three branches of government: the Federal court system, up to and including the Supreme Court.

The third layer down in this legal cake is called "regulatory law." Congress can make laws that direct that something be done, but leave the details to someone else. The "someone else" is the third branch of government, the executive branch, headed by the President. The various departments and bureaus of the government make up regulations to carry out Congress's intent. These regulations have the force of law, and can be enforced as well. However, if a court finds that a regulation actually conflicts with legislative law, the court can strike down the regulation. And, a court can also find a regulation unconstitutional- regulations have to yield to everything above them, both legislative law and the Constitution.

In France and certain European countries, this is all the law there is. If it's not written down, it's not law. These countries said to have "civil code" or "Code Napoleon" law (since he's the one who imposed it), and there are remnants of this in Louisiana, which used to be French.

But, for England and Wales and Scotland, and countries whose legal tradition derives from them, there's a LOT more: common law. "Common law" is nearly synonymous with "case law" or "precedent." Basically, there are a lot of things that people should or shouldn't do that aren't specifically found in legislative or regulatory law. And, over the centuries (almost a thousand years of tradition), courts have handed down decisions about what is right and what is wrong. Sometimes a court hands down a decision that is biased, confused, or just plain wrong. But over the centuries, a kind of Darwinian selection process has eliminated those bad decisions and replaced them with better decisions. So, after a long process, we've got a whole bunch of really good, well-refined ideas about what is good and bad. This is the common law.

Three parenthetical notes about common law.

1. First, courts can only decide on cases that are brought before them. So if no cases involving a particular situation are ever brought before them, they can't really create much common law. A good example is "medical restraint." In the Emergency Department, it's common for drunk patients to say [slur the speech a little as you read this, and add a strong odor of alcohol and unwashed body] "You can't keep me! It's kidnapping! I'll sue your ass for kidnapping, the whole lot of you!" Turns out there is good case law on cases such as when the ED actually let someone go and that person walked in front of a bus and got killed. The people in the ED were found negligent for not keeping the patient in the ED until sober. When someone's ability to make decisions is impaired, for example by alcohol or hypothermia, and you are caring for the patient, you have a responsibility to make decisions for that person.

But as far as "kidnapping" cases? Not much case law. Think about it. If you are a lawyer, and someone says "I was really, really drunk last night, and they wouldn't let me out of the ED until either I was sober or someone sober came to get me. I want to sue for kidnapping!" what will you say? Especially since you're only likely to get paid if you win the case?

2. Another note. Not all court decisions set precedent. In general, only appellate cases (ones that are appealed) get into the casebooks and become part of the common law.

3. A final note about the common law. Over the years and centuries, lawyers and judges have tried to make some sort of sense out of all of these decisions, and to organize them into legal principles. These are the principles that are taught in law schools, usually through analysis of specific classic cases.

Fractal law

Now that this is all making a lot of sense (I hope) it's time to throw in a monkey wrench.

It turns out that every single U.S. state and territory has its own constitutional law, legislative law, and regulatory law; and individual jurisdictions within states can have their own, as well. In general, Federal law preempts state law, state law preempts local ordinances, in fairly strict pecking order. And, the common law is not something that is written down in official form anywhere.

Please see the above GIF file which illustrates this "fractal" nature of law in the U.S. Federal law is in the center (the "three- layer cake"). The state and local law-cakes are clustered around the Federal law. To keep things simpler, I only show six states/territories instead of 60+. The common law permeates all the cracks between the letters, at all levels. Note also that some states have law that is very similar to Federal law, others such as Louisiana are much different.

Say you're interested in a particular topic, say, negligence for search and rescue in Virginia. You find an appellate decision in Virginia that pretty sort of applies to your SAR (negligence for fire-rescue rescues). But you also find an appellate decision in Colorado that does apply directly to SAR negligence. Which one is more applicable? Well, you can get lots of legal advice from lawyers, but until the court actually decides, you really, really don't know. So court decisions from within your own jurisdiction can set a strong precedent, but cases from other jurisdictions can be persuasive, too, especially if they apply to the case at hand better than your own cases.

If that wasn't enough, think about this. There are many situations that are simply not covered by existing laws, whether constitutional, legislative, regulatory, OR common law. And, unless there is reason enough for courts or legislatures to "fix" things, they may stay uncovered. Particularly if "fixing" the problem is a big hassle, and nobody cares enough about it to force the issue.

"Illegal cave rescues? We do it all the time."

Here is an example. Once, Keith Conover, and Jack Grandey, both members of AMRG at the time (Jack subsequently moved to North Carolina), and also staff with the Wilderness EMS Institute and Eastern Region, National Cave Rescue Commission, decided there was a legal problem and tried to do something about it.

Medicine is regulated by the states. By the Constitution, the Federal government isn't really allowed to control medicine in the states.

A recent rescue in Crossroads Cave, in Bath County, Virginia, had stretched cave rescue resources in the region to the max. A crew of a hundred responded from the ER-NCRC "weeklong" training class in West Virginia. By the time we arrived, all of the local resources were exhausted and had to come out of the cave. The patient needed medical care badly. We had a doctor from Pennsylvania, a doctor and a nurse from North Carolina, and medics from Ohio, Pennsylvania, West Virginia, and Maryland, all of whom were cave-rescue trained but none of whom were licensed in Virginia. Did we just stand there because Virginia regulatory law forbids us to practice in the state? No we did NOT. In the first case, nobody cared about legalities at that point. And, on reflection, we realized that what we were doing was not only lawful-if, after responding to the rescue, we refused to render medical care, we would be guilty of the common-law "sin" of abandonment. And, the common- law "doctrine of necessity" made our caring for the patient, to the best of our ability, lawful, and in a way that made common law completely overwhelm the Virginia regulatory law.

Afterwards, Keith and Jack went to a meeting of the Atlantic EMS Council, which is the cooperative EMS body between several states in the mid-Atlantic area, including both Pennsylvania and Virginia. The state EMS directors were there, as were top lawyers for the Department of Health for the various states. Keith and Jack made a presentation about what had happened, and explained that they wanted to find a way to make such operations "lawful" in terms of regulatory law as well as common law. All of the state EMS directors and lawyers agreed that (1) the medical personnel there had done the right thing, (2) if something similar happened again in the near future the medical personnel should do it again, and (3) they would add this problem to their list as #11. Eleven what? Eleven things that we have to do right now that are where the doctrine of necessity conflicts with regulatory and legislative law in the states and we have to change the state laws to make them correspond with reality. A classic example is medical flights and long- distance transports across state lines. According to regulatory law, as soon as one crosses a state line in a helicopter, fixed-wing aircraft, or ground ambulance, one is then required to practice under all of the laws, regulations, and EMS protocols in the new state. This is essentially unworkable, so the EMS services' home base provides medical direction and medical protocols until the patient arrives at the destination.

So how are they working on this? They have to have an interstate agreement, signed by at least the Secretary of Health, and more likely the Governor, for all the states. Will this happen quickly? Not bloody likely. And what about states outside the Atlantic EMS Council? Just use that doctrine of necessity again.

Does Federal law apply to commitment of suicidal patients under state law?

Most states have roughly similar laws about voluntary and involuntary psychiatric commitment. In PA, a voluntary is called a "201" and an involuntary is called a "302." We recently had a discussion about what to do about suicidal patients who need to be admitted to a medical bed rather than a locked psychiatric unit, for medical reasons (e.g., very sick after an overdose). According to state regulations, you're not supposed to use a "302" (involuntary) when the patient agrees to sign a "201" (voluntary). In both cases, the patient agrees to give 72 hours notice before being able to leave. However, the wording of section 201 seems to indicate it only applies to people committed to an actual psychiatric unit, not a medical bed. So what can you do? The answer is common-law medical restraint.

The one exception is perhaps for ICU or other very sick patients. It has been recommended that one not complete a "302" on someone who's likely to still be a medical admission in 72 hours, which is the maximum time span for a 302. In such a case, it's been suggested that common-law medical restraint be used until the patient is nearly stable enough to go to a psych unit. I've heard it's hard to get a good 302 hearing when a patient is still intubated or still comatose.

When there were questions about this at our hospital, I sent the following email:

Hi, all. I am not a lawyer nor do I play one on TV. But I have been assured by many competent attorneys (and judges) that there is a well- established common-law duty for all medical personnel, including physicians, to protect suicidal (and drunk or intoxicated) patients from harming themselves. This includes calling security and asking them to make sure the patient does not (1) commit suicide or otherwise harm himself in the hospital, and (2) does not elope. There is no common law requirement for medical personnel to physically place themselves in harm's way to restrain a patient, however.

If a patient is suicidal and is willing to sign a voluntary commitment, that is, according to regulation (although not statute), a bar to completing an involuntary psychiatric commitment. Nonetheless, even if a 201 is seen to only be valid in a closed psychiatric unit, the common law doctrine is still in force, and medical personnel, including both nurses and doctors, can and have been found liable for both plain and criminal negligence (and faced judgments in the millions) for not ordering security to restrain suicidal patients from leaving. There are some classic cases of suicidal patients being allowed to elope from the ED and committing suicide, and of drunks being discharged from the ED and staggering into traffic and being killed.

Even for borderline cases, the health professional's evaluation of a patient is pretty much absolute. There is a U.S. Supreme Court decision in 1982, Youngberg v. Romeo, where the court found restraints were found eminently justified to protect others or self, and the judgment of the health professional is supreme in making this decision.

This is totally irrespective of commitment status under state law, this is a Federal common law duty. All you have to do is write your reasoning in your note, and write an order that the patient must be restrained against her or his will. If the patient's lawyer challenges it, under Federal common law the patient must continue be restrained, but you can call a local magistrate to come to the hospital to meet with medical personnel and the patient and to enter an emergency legal judgment in the case, which is then placed on the patient's chart and defers any further legal action to release the patient. Magistrates hate to do this but it's part of their job. That's one of the reasons you won't find lawyers coming to the hospital often for this, they hate to piss off a magistrate with whom they must work on a regular basis.

Where to go for more

Related to all of this legal stuff, I have also provided a link to the WEMSI Legal FAQ document for your reading pleasure.

There are two cheap paperback "must read" books to learn more about these topics.

Karl Llewellyn, The Bramble Brush

Great book, easy to read. A classic.

Next is:

Oliver Wendell Holmes, The Common Law

This is the definitive book on the common law. However, it is not an easy read. Get a law dictionary to refer to (Black's is the standard) while reading.

Hope this missive will be of some use. When someone starts making comments that makes it clear that they don't understand the basics of the law, you might start by directing them to this page and then discussing it with them once they've done their homework.