The court in Chester v Afshar made a radical departure from previous case law and ruled that failure to inform the patient of a material risk was a harm for which damages could be recovered even where that failure would not have affected the decision of the patient. More recent rulings naturally follow on from this decision, including the case of Montgomery v Lanarkshire Health Board and Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust. Here we will consider Chester v Afshar and Montgomery v Lanarkshire Health Board.
Informed consent has evolved from the paternalistic standard of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, where it was held that the standard for determining what informed consent was determined by a responsible body of medical opinion. The medical profession set the standards for the amount of information necessary.
The failure to provide information considered relevant by an individual patient does provide grounds for negligence where the patient would have sought a different surgeon (for example) in order to minimise the chances of a complication which was particularly important for that patient to avoid. This was the basis for causation in the case of Chappel v Hart. The claimant argued that she would have sought the most experienced surgeon possible in order to minimise the small risk of losing her voice after surgery on a pharyngeal pouch.
Therapeutic privilege is still protected to an extent, although like the case of Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust the exemption provided might be regarded as rather difficult for doctors to rely on. Where exactly does distress and anxiety naturally related to the weighing of such important decisions become "psychological harm"? Will doctors acting in good faith be protected?
Chester v Afshar marks a sea change in consent in British law. It changes the standard of consent to subjective from objective. The onus is now on doctors to find out what the patient considers important. Since it is essentially impossible for someone to know whether a fact is important prior to knowing that fact, this means that disclosure has to be complete in reality. Further, the courts created a new tort in order for these rights to be enforceable. The infringement of autonomy, regardless of any effect of health whatsoever, is a tort.
The subsequent development in Montgomery v Lanarkshire Health Board is not surprising. The policy-based decision to not warn all diabetics about the risk of shoulder dystocia was seen as an infringement of individual autonomy. This has wide-reaching consequences, of course. The initiatives to reduce the rate of Caesarean sections will probably founder. Obstetric care is unlikely to improve overall.
The neo-Liberal emphasis on individual choice has reached the law courts, and this does not sit easily with a national health service.
Monday, November 30, 2015
Sunday, July 12, 2015
Should we all drive Volvos?
Should we all drive Volvos?
Most people would agree that the most important factor in choosing a car if money were no object would be safety. If we assume that a Volvo is the safest car, then logically we should all drive Volvos if possible. Of course, safety comes at a cost. So should people be able to buy cheaper but less safe cars? Most people would say that this is a matter of informed choice for the individual. What if it were pronounced that Volvos were the only car that could be bought, in order to improve road safety. Many people would be priced out of the car market. It could be argued that people don't need cars - although this policy would exclude many people from various activities. It would disproportionately hit those in rural communities, who might well consider the small increased risk from a non-Volvo car worth the benefits of car ownership.
If we decide that car ownership should be widespread, the state might decide that those who cannot afford their own car should be provided with one. In that case, the poor would receive a Volvo at massive cost to the taxpayer. This would be problematic.
Let us replace the Volvo with "safe staffing levels" in healthcare. It is difficult to argue with the desirability of safe staffing levels on the wards of our hospitals. However, just as with the Volvo analogy, safe staffing levels come at a price. Simply stating that provision of safe staffing levels is a simple matter ignores all the issues that either the NHS budget would have to be expanded massively, or some people would have to be denied healthcare. Close a ward if staffing levels fall below the minimum? Where do the patients go?
Healthcare requires more than simplistic answers. Everyone likes motherhood and apple pie, but they have failed to solve the problems of the world.
Most people would agree that the most important factor in choosing a car if money were no object would be safety. If we assume that a Volvo is the safest car, then logically we should all drive Volvos if possible. Of course, safety comes at a cost. So should people be able to buy cheaper but less safe cars? Most people would say that this is a matter of informed choice for the individual. What if it were pronounced that Volvos were the only car that could be bought, in order to improve road safety. Many people would be priced out of the car market. It could be argued that people don't need cars - although this policy would exclude many people from various activities. It would disproportionately hit those in rural communities, who might well consider the small increased risk from a non-Volvo car worth the benefits of car ownership.
If we decide that car ownership should be widespread, the state might decide that those who cannot afford their own car should be provided with one. In that case, the poor would receive a Volvo at massive cost to the taxpayer. This would be problematic.
Let us replace the Volvo with "safe staffing levels" in healthcare. It is difficult to argue with the desirability of safe staffing levels on the wards of our hospitals. However, just as with the Volvo analogy, safe staffing levels come at a price. Simply stating that provision of safe staffing levels is a simple matter ignores all the issues that either the NHS budget would have to be expanded massively, or some people would have to be denied healthcare. Close a ward if staffing levels fall below the minimum? Where do the patients go?
Healthcare requires more than simplistic answers. Everyone likes motherhood and apple pie, but they have failed to solve the problems of the world.
Sunday, June 14, 2015
NMC protecting its members from complaints
I have heard disturbing reports of the Nursing and Midwifery Council (NMC) protecting its members from complaints. One member of the NMC has been threatening people on Twitter, actions that are surely incompatible with their position. Worse of all, when complaints have been made about this person, the NMC have claimed that they cannot investigate without the individual's PIN. It seems quite inconceivable that the person involved can avoid NMC investigation because the complainant does not know what her PIN is. It smacks of the sort of cronyism that ought to have been eradicated from professional regulatory bodies in the last century.
Wednesday, June 3, 2015
Psychoactive Substances Bill
The current government is trying to prevent the circumvention of legislation on controlled substances by invention of new compounds with rather broadly framed legislation against "psychoactive substances". Most of us consume psychoactive substances daily (unless we are members of the Church of Latter Day Saints, aka Mormons): we drink tea or coffee; smokers inhale nicotine; chocoholics are consuming a substance related to caffeine (theobromine). Thus food and drink which "(a) is ordinarily consumed [and] does not contain a prohibited ingredient" is specifically excluded.
There have been wild claims that this definition still prohibits scents and scented objects including flowers. The simplest answer to this objection is that, contrary to the perceptions of some, the courts are used to interpreting statutes with common sense. The more accurate answer is that the statute if interpreted properly, and read in its entirety, does not state anything of the sort. Clearly Parliament is not intending to ban flowers. Although all sorts of sensory experiences can affect our mood, positively or negatively, they do not do this by direct stimulation or depression of the central nervous system. So as Carl Gardner argues, the "by" in the following definition
For the purposes of this Act a substance produces a psychoactive effect in a
person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state
is crucial in clarifying the effect of the bill. I would suggest adding "directly" before "stimulating or depressing" may assist in clarifying. The government is not suggesting that any stimulating experience should be criminalised, like the dystopian regime in 'Equilibrium', nor will this bill achieve that.
There have been wild claims that this definition still prohibits scents and scented objects including flowers. The simplest answer to this objection is that, contrary to the perceptions of some, the courts are used to interpreting statutes with common sense. The more accurate answer is that the statute if interpreted properly, and read in its entirety, does not state anything of the sort. Clearly Parliament is not intending to ban flowers. Although all sorts of sensory experiences can affect our mood, positively or negatively, they do not do this by direct stimulation or depression of the central nervous system. So as Carl Gardner argues, the "by" in the following definition
For the purposes of this Act a substance produces a psychoactive effect in a
person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state
is crucial in clarifying the effect of the bill. I would suggest adding "directly" before "stimulating or depressing" may assist in clarifying. The government is not suggesting that any stimulating experience should be criminalised, like the dystopian regime in 'Equilibrium', nor will this bill achieve that.
Saturday, May 2, 2015
DNACPR
Talking about DNACPR orders, I'm reminded that my own father had a futile resuscitation attempt at the end of his life. He was found collapsed after breakfast on a hospital ward, he had been admitted with a chest infection complicating chronic lung problems caused by years of heavy smoking.
I wasn't there, I lived 2 hours away although by coincidence I was travelling down that day anyway. So I don't know if my father was aware of the resus attempts, but I hope he wasn't. My father was in a residential home with dementia and other medical problems. After my mum died, he didn't really want to live. He certainly wouldn't have wanted CPR.
As a former medic, maybe I should have thought about the issue of my father's resus status. It may have been partly that I would have assumed that a sensible doctor wouldn't have considered resuscitation. These issues should be discussed without worrying about upsetting relatives, although I think resuscitation status is a decision that the treating medical team are in the best position to decide, guided by input from the patient and/or relatives.
Universal CPR as a secular rite of passage is misguided and an unfortunate effect of medico-legal concerns. I applaud the efforts to allow a peaceful, natural death from physicians like Dr Gordon Caldwell @drcaldwell
I wasn't there, I lived 2 hours away although by coincidence I was travelling down that day anyway. So I don't know if my father was aware of the resus attempts, but I hope he wasn't. My father was in a residential home with dementia and other medical problems. After my mum died, he didn't really want to live. He certainly wouldn't have wanted CPR.
As a former medic, maybe I should have thought about the issue of my father's resus status. It may have been partly that I would have assumed that a sensible doctor wouldn't have considered resuscitation. These issues should be discussed without worrying about upsetting relatives, although I think resuscitation status is a decision that the treating medical team are in the best position to decide, guided by input from the patient and/or relatives.
Universal CPR as a secular rite of passage is misguided and an unfortunate effect of medico-legal concerns. I applaud the efforts to allow a peaceful, natural death from physicians like Dr Gordon Caldwell @drcaldwell
Thursday, April 30, 2015
The peculiar exceptionalism surrounding cardiopulmonary resuscitation
Recent decisions about 'do not attempt cardiopulmonary resuscitation' (DNACPR) orders have highlighted the peculiar exceptionalism around cardiopulmonary resuscitation (CPR).
What other intervention with such a low success rate, invasive nature, potential for causing suffering, and failure to improve the underlying medical condition(s) would not only not require consent, but require a quasi-consent process in order for doctors to decline to offer it when it is futile?
Imagine an operation that had the same characteristics as CPR. The law would rightly require that doctors carefully explain the harms and benefits of such a procedure carefully, otherwise the intervention would be deemed an assault (all the more so subsequent to the decisions in Chester v Afshar and Montgomery v Lanarkshire Health Board).
However, the conversation about CPR cannot as a matter of law result in the doctor being compelled to offer a medically contraindicated and futile procedure. It is merely required to ascertain the patient's wishes. They can be ignored. Further, the mere prospect of upsetting the patient (and family) unnecessarily is not enough for this discussion to be circumvented. There has to be the prospect of harm.
This is an unacceptable interference in the doctor-patient relationship, and undermines medical professionalism. It will relegate the discussion of CPR to a technical task defined by the courts, and has the potential for completely reversing the efforts being made to enable a comfortable natural death where appropriate.
Doctors like Knut cannot hold back the inevitable forces of nature. They cannot "play God" when the demise of a frail patient is imminent and thus CPR futile (and barbaric).
What other intervention with such a low success rate, invasive nature, potential for causing suffering, and failure to improve the underlying medical condition(s) would not only not require consent, but require a quasi-consent process in order for doctors to decline to offer it when it is futile?
Imagine an operation that had the same characteristics as CPR. The law would rightly require that doctors carefully explain the harms and benefits of such a procedure carefully, otherwise the intervention would be deemed an assault (all the more so subsequent to the decisions in Chester v Afshar and Montgomery v Lanarkshire Health Board).
However, the conversation about CPR cannot as a matter of law result in the doctor being compelled to offer a medically contraindicated and futile procedure. It is merely required to ascertain the patient's wishes. They can be ignored. Further, the mere prospect of upsetting the patient (and family) unnecessarily is not enough for this discussion to be circumvented. There has to be the prospect of harm.
This is an unacceptable interference in the doctor-patient relationship, and undermines medical professionalism. It will relegate the discussion of CPR to a technical task defined by the courts, and has the potential for completely reversing the efforts being made to enable a comfortable natural death where appropriate.
Doctors like Knut cannot hold back the inevitable forces of nature. They cannot "play God" when the demise of a frail patient is imminent and thus CPR futile (and barbaric).
Monday, April 20, 2015
Fitness to plead
Fitness to plead
The press seem to be rather confused over the issue of fitness to plead, which has been thrust into the limelight with the decision by the DPP to decline to prosecute Lord Janner on the basis that it would not be in the public interest.
If Lord Janner is not fit to plead, then it is arguably still in the public interest for this to go to court, where a judge can rule on this issue. Thereafter the jury would determine whether he actually committed the acts in question. If the jury found that he had, then he coud be placed on the sex offender's register and receive the disposals available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Someone who is unfit to plead is also unfit to stand trial, and so cannot be convicted. It follows that the person cannot be sentenced. There are a number of capacities required to be fit to plead, which revolve around being able to participate properly in the judicial process.
The DPP has clarified that the medical opinions suggest that Lord Janner's health is so poor that it would be unjust to subject him to any punishment or disposal. The result of a trial of the facts would be an absolute discharge. The medical experts have been instructed both by the defence and the police/Crown Prosecution Service. The fact that Lord Janner is still eligible to sit in the House of Lords is irrelevant. There are no mental state criteria defined for suitability to sit in the House of Lords. Peers can be suspended, but removing them involves an act of Parliament.
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