Tag Archives: patients

The doctor/patient relationship: revolution or evolution

A few weeks ago, the theme of the British Medical Journal concerned the ‘patient revolution’, complete with a rather Stakhanovite image of empowerment on the front page. The so-called patient revolution was the main feature in the editor’s column, the first editorial1 and an article by Ray Moynihan2. Let me say at once that I am entirely signed up to doctrines of patient autonomy, patient-centred care and involving service users and citizens in the decision-making apparatus of healthcare. And yet, and yet – there was something rather censorious about these articles. The articles implied that doctors are a bunch of remote, self-serving, pompous, Lancelot Spratt-type characters. There was an insinuation that doctors habitually ride rough shod over patients’ sensitivities, that patients are not involved in decision-making, that doctors override patient autonomy and that the idea of involving the public in decision-making is totally novel. What nonsense! I was a member of the Maternity Services Liaison Committee in my days as a gynaecologist back in Leeds – some 25 years ago. And let me tell you, the members of the committee were no shrinking violets.

In my current role as a National Institute for Health Research Collaborations for Leadership in Applied Health Research and Care director, service users and members of the public interact with researchers and care providers at every stage of the process – from deciding on priorities, to advising on the design of new services. I am certainly not holding myself up as a paragon of virtue; heavy user consultation is a feature of the entire research landscape. Indeed, it is not just a feature but a requirement for access to National Institute for Health Research funding. Medical students have extensive education on communication with patients, and on medical ethics. Here in Birmingham we have a ‘mini medical school’ which is an educational resource for the general public, and in which I lead a discussion group on medical ethics. I believe I created the first medical ethics course at the University of Leeds, in collaboration with Jennifer Jackson, from the Department of Philosophy, and that was now 25 years ago.

Fiona Godlee tried to defend her war metaphors in the context of patient engagement/empowerment but I wasn’t convinced by the argument. A friend of mine recently started the process of converting to Judaism. I met her a few years later and asked her if she was now Jewish. She turned to me and said: “Richard, it is a journey, not an arrival.” In my opinion, that is a far more apt metaphor for the ongoing relationship between our caring profession and those for whom we care.

References
1. Godlee F. BMJ 2013;346:f3153
2. Moynihan R, BMJ 2013;346:f2789

Who will look after the patients when all the doctors have been locked up?

Professionals, doctors included, live in an increasingly regulated environment: not only is performance monitored on a regular basis, but doctors are subject to individual sanction. They may be scrutinised by the complaints procedure in the health service, they may be taken to the regulator (the General Medical Council), and they may be sued in the civilian courts under tort. On top of all this, they are subject to criminal prosecution.

Criminal prosecution implies a criminal act, and of course doctors should not be immune from prosecution for criminality, including crime perpetrated in the workplace. There was a famous case where a French anaesthetist sought revenge on a colleague by misconnecting the gas pipes in the operating theatre. The idea was that his colleague would be sanctioned for harm to a patient, but the ruse backfired and the guilty anaesthetist was quite properly locked up.

But what about acts of misjudgement? That is, acts where there is no question of criminal intent. The law, of course, does not require criminal intent for a deed to be punishable. For example, a drunk driver may still go to jail for running over a pedestrian even though he never set out to cause harm. The point here is that, by driving under the influence of alcohol, others were placed in harm’s way. The equivalent in healthcare would be criminal negligence – negligence so gross that harm could be foreseen, even if the specific harm that materialised was not intended. Thus, a doctor who operates drunk, or against the clock, can properly be found criminally negligent if a patient suffers. Things get more tricky, however, when there is no such turpitude – when there was simply a terrible mistake. It is quite difficult to argue this point in abstract so let us take a real example. I have heard of two cases where criminal prosecutions were started against a doctor when a patient, having been declared fit in accident and emergency, then died from heart attack on the way home. Yet, the diagnosis of heart attack is notoriously tricky in many cases. While it might seem to a lay person that there is a prima facie case of criminal negligence in such a scenario, this is most unlikely to withstand scrutiny. In cases above, prosecutions were not brought in the end. Nevertheless, doctors were suspended and lived under a cloud for many years. Having a criminal case hanging over you is no joke.

It seems to me that the criminal code should not be invoked in the first instance, unless there is some reason to believe there was real criminal intent, or that the clinicians had risked a patient’s safety by working in a general way which put patients at risk. My proposal is that more contentious cases should first be pursued through regulatory or civil processes. Only if these expose negligence to a criminal degree should the prosecution service get involved.

Of course it is not just doctors and other clinicians who are in the firing line; professionals of all types may be prosecuted. A recent case applied to six seismologists from the National Commission for the Forecast and Prevention of Major Risks (Franco Barberi, Enzo Boschi, Gianmichele Calvi, Mauro Dolce, Claudio Eva and Giulio Selvaggi) and the vice director of Italy’s Civil Protection Agency (Bernadro Bernardis) who have been sentenced to six years in prison in a criminal court for failing to provide adequate warning about a potential earthquake. In the event, a large earthquake followed, resulting in approximately 300 deaths, 1,500 injuries and left over 65,000 homeless, and the judge found that some people’s lives might have been saved, had a stronger warning been given.1 In fact, the judge in this case gave a harsher sentence than the prosecutor had requested (four years).2 Here is a case which was prosecuted in the criminal courts and where the accused were found guilty. Such a case is at enormous risk of hindsight bias. Predicting earthquakes is extremely tricky. Finding the right form of words to convey this uncertain risk is also extremely difficult. I have to confess sympathy with the convicted seismologists. They are currently appealing their harsh sentences, and it will be interesting to see if the appeal judge agrees.

Returning to healthcare, criminal prosecutions have escalated since the 1990s but convictions seldom follow.3 Misdiagnosis, the most important medical ‘error’, and the most common cause of civil litigation4 seldom forms the basis of prosecution, less a successful prosecution.

Robert Francis’ report has been interpreted in the media as saying: “Hospital staff and managers should face prosecution if patients are harmed or killed as a result of poor care”5 and indeed the report says: “Non-compliance with a fundamental standard leading to death or serious harm of a patient should be capable of being prosecuted as a criminal offence, unless the provider or individual concerned can show that it was not reasonably practical to avoid this. Reliance might be placed for that purpose on effective implementation of the procedures devised by NICE, but this would offer no defence to those who had not followed such a procedure.”6

So if you don’t follow a process laid down by the National Institute for Health and Clinical Excellence (NICE), then the criminal law can be invoked. This seems a high standard indeed given evidence on uptake of guidelines.7,8 The recommendation will need to be thought through rather carefully, I think.

References
1. Nature (2011). Scientists on trial: At fault? 14 Sep 2011. Available at: http://www.nature.com/news/2011/110914/full/477264a.html [Accessed 7 Feb 2013].

2. Nature (2012b). Italian court finds seismologists guilty of manslaughter. 22 Oct 2012. Available at: http://www.nature.com/news/italian-court-finds-seismologists-guilty-of-manslaughter-1.11640 [Accessed 7 Feb 2013].

3. Ferner RE, McDowell E. Doctors charged with manslaughter in the course of medical practice, 1795 – 2005: a literature review. J R Soc Med. 2006;99:309-314

4. Ferner RE. Medication errors that have led to manslaughter charges. BMJ. 2000;321:1212-1216

5. Guardian. Mid Staff report calls for sweeping changes to improve patient safety. http://www.guardian.co.uk/society/2013/feb/06/mid-staffordshire-report-sweeing-changes (accessed 7 Feb 2013).

6. Francis R. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry Executive Summary. http://cdn.midstaffspublicinquiry.com/sites/default/files/report/Executive%20summary.pdf (accessed 7 Feb 2013).

7. Benning A, Dixon-Woods M, Nwulu U, Ghaleb M, Dawson J, Barber N, Franklin BD, Girling A, Hemming K, Carmalt M, Rudge G, Naicker T, Kotecha A, Derrington MC, Lilford R. Multiple component patient safety intervention in English hospitals: controlled evaluation of second phase. BMJ. 2011;342:d199.

8. Asch SM, Kerr EA, Keesey J, Adams JL, Setodji CM, Malik S, McGlynn EA. N Engl J Med 2006; 354:1147-1156