Controlling and Coercive Behaviour: Widening the Net
I read with interest the second Annual Report of the Chief Medical Officer for Scotland, Dr Catherine Calderwood, which was published at the end of February. The report is Dr Calderwood’s second since she took up the post in March 2015, her first report having caused something of a stir, not just in Scotland, but in England and Wales too.
Dr Calderwood is in favour of a move away from the “doctor knows best” culture and her first report urged clinicians to recognise the importance of fully involving patients in decisions about their care. Her second report follows in the same vein; named “Realising realistic medicine”, the vision of the report is that “by 2025, everyone who provides healthcare……..will demonstrate their professionalism through the approaches, behaviours and attitudes of realistic medicine”. The second report examines how realistic medicine might be realised in practical terms.
As a clinical negligence lawyer, clients frequently tell me that communication (or lack of it) is the root cause of the problem they have experienced. Clients often use phrases like:
-“No one told me about that risk”
-“If I’d known that could happen, I would never have gone ahead”
-“The doctor didn’t discuss any other options”
-“I was told to just sign the form”
Dr Calderwood’s reports seek to change the paternalistic culture of medicine, and this is welcome news, to patients, clinicians and those of us practising in the medico-legal field. The concerning thing is that informed consent and shared decision making are not just “good practice”, nor should they be revolutionary concepts; they are already a legal necessity following the landmark judgement in the case of Montgomery (see my colleague Kirsty Allen and Sian Jones’ blog on this case).
Montgomery was not about the actual medical treatment given by the obstetric team who delivered Mrs Montgomery’s child (which was not in itself negligent). Instead, the case concerned Mrs Montgomery’s claim that she had not been fully informed and involved in the decision making process. Mrs Montgomery was of small stature and had a high-risk pregnancy due to her diabetes. Her obstetrician advised she was having a large baby but should deliver vaginally. Her obstetrician did not inform her that there was a 10% risk of shoulder dystocia, or offer a caesarean section. Mrs Montgomery argued that if she had been informed, she would have made the decision to have a caesarean section (in actual fact she had a traumatic vaginal delivery due to shoulder dystocia, and her child has cerebral palsy as a result).
Mrs Montgomery was successful and it is now law that there is a requirement to have shared-decision making between doctor and patient. A doctor cannot simply negate all of his or her professional duties by obtaining a signature on a consent form. There must be real communication; as the Supreme Court said in Montgomery: “even those doctors who have less skill or inclination for communication, or who are hurried, are obliged to pause and engage in the discussion that the law requires”.
As medical advances occur, enabling longer life expectancies, the importance of informed consent and shared decision making will become even more crucial. What might be the right approach for one patient may be completely wrong for another; some patients will want to press on with treatment options, and to put it prosaically, some may value quality of life over quantity. We need to be able to trust our doctors and the Chief Medical Officer’s reports appear to be a genuine attempt to re-engage the medical profession by highlighting the need for active change in practice to enable them to uphold their professional duties.
All this resonates very clearly with me because Kingsley Napley works alongside the Faculty of Medical Leadership and Management (FMLM) to promote understanding between doctors and lawyers. We hold an annual “Clinical Fellows’ Day” where the Clinical Fellows at FMLM attend our offices for presentations by lawyers, medics, and a roundtable discussion (doctors for the Fellows’ scheme are chosen because they have clear potential to develop as medical leaders of the future). The reports of Scotland’s Chief Medical Officer contain examples of the types of issues we discuss during that day, and it is useful for all of us to hear about the very real front-line challenges of practicing safe, efficient medicine in the NHS today, while still upholding the core duties of professionalism, shared-decision making and ensuring patient consent is truly informed. We hold our next Fellow’s event at the end of March and I will be making a note to share the George Bernard Shaw quote which features in Dr Calderwood’s first report, as it sums up so much of what she writes about and what we will discuss: “The single biggest problem in communication is the illusion that it has taken place”.
Skip to content Home About Us Insights Services Contact Accessibility