Month: November 2015

Guilt trips

guilt image


Two registrars talk.


A. A chill goes down my spine whenever I hear about a doctor going to jail. What about you?

B. For medical negligence you mean? Not for other stuff.

A. Yes. For messing up badly. The missed septic arthritis, the overlooked peritonitis, mistaken identity leading to a wrong decision…

B. You feel the chill because you know it could be you? There but for the grace of god…

A. Exactly. When I was training I made mistakes, but as long as I wasn’t wilfully stupid I always thought I was protected, by NHS indemnity.

B. Indemnity, I think, covers costs, but does not protect you from personal culpability*. You sound worried. What have you done?

A. I was just thinking. All this Duty of Candour talk has focussed my mind on medical error. I wonder when error turns to negligence, and where negligence turns to prosecution.

B. Very rarely. I can think of only three or four cases in the last ten years. That’s vanishingly rare.

A. But I mean, under Duty of Candour every avoidable, significant harm that occurs in hospital is notifiable as an incident, and in theory each of those should lead to a formal communication to the patient, or their family, that such and such has occurred, it is being investigated, and they will be informed of the outcome. With that comes an apology too, it’s integral to the process. It’s law now, the Francis report led to a new regulation. Surely then, awareness of error will rise and the most serious instances – resulting in death – will lead to medical negligence claims and, in some cases, prosecutions. It’s a natural progression isn’t it? So we need to think about it. I just don’t know what determines if we end up in the dock or not.

B. I doubt you’ll find a clean definition – but I’m not a lawyer**. It depends, probably, on how far the family want to take it. And if the act or omission was such a breach of duty that a jury would be likely to convict. Presumably the ones who have gone to jail did more than make ‘routine’ or ‘understandable’ mistakes that many of us have made or could make – the type of error that makes up the bulk of avoidable harm incidents. The juries must have concluded that their actions were so below expectation, so bad, that they crossed a line. They had to be punished.

A. But we’ve all seen bad doctors. Lazy ones, intellectually slow ones, tired ones, uncaring ones… some are found out, re-assessed, thrown out of the profession, but since when did these faults become criminal?

B. When they result in a person’s death, obviously.

A. That’s what gets me. Imagine a lawyer, or a banker, a teacher, a scientist, or a builder… what happens if they are extremely bad at their jobs?

B. They lose their jobs.

A. Right! They do not go to jail. Only if they do something clearly, wilfully criminal do they get prosecuted. By which I mean – fraud, embezzlement, assault, abuse… criminal acts that we all recognise. More than being bad at their jobs. Something else – malevolent intent.

B. Traders go to jail for losing millions, and they may not have been driven by thoughts of personal gain either. They made incompetent decisions…

A. No. More than that. They tried to cover it up. They knew they were doing something dishonest. The doctors I have read about who went to jail did not act with malign intent. They didn’t want anyone to be harmed.

B. That is reflected in their charge. Manslaughter by gross negligence. The lesser charge accounts for situations where a person’s actions are not deliberate, but are criminally ill-judged.

A. The point I’m making is only we, those working in healthcare, exist in such jeopardy. When we make a mistake people may die; when the others I mentioned make a mistake, people lose money, or get a bad year of education, or a wonky wall. They lose their jobs… we lose our freedom.

B. Not often. And that jeopardy is accounted for… in our pay, in our status.

A. Nurses too? Nurses have gone to jail.

B. Perhaps not in pay, but in respect, yes. And with that status comes responsibility, to be good at what we do. To make sure we stay good. Becoming a poor doctor cannot be tolerated, you have to recognise it is happening and self-regulate. If you don’t, but you continue to expose yourself to medical situations that are by definition full of jeopardy – for the patient – and if you mess up and someone dies, then I suppose you should be prosecuted.

A. The picture you paint is of a consistently poor doctor who fails to sort themselves out, and whose career then culminates in some sort of accident. But the cases I’ve read about are different. They involve doctors who were said to be good, or at least acceptable, but who one day made a big error. The error led to a death, the death led to a prosecution, and the prosecution led to a court case. The story was told in front of a jury, the magnitude of the single event outweighed all the good reports and testimonials, and bang – guilty! Prison. One act, one omission, on one day, leads to a verdict that tarnishes all that has gone before.

B. You’re reading it from the doctors’ point of view. That’s your big error. It’s not primarily about them. There is a victim. We are not a priesthood, immune to criticism. We’re employees with special privileges, but special duties too. You’ve got to think about it in terms of justice. What does justice require when a child dies due to the poor decisions of a doctor? More than a sacking, I would maintain.

A. Justice. Don’t confuse justice with satisfaction. And you are saying that this larger thing, justice, must have a focus, a name.

B. Yes. But that is not unique to medicine. It happens in all organisations. If a wrong has been done, someone must be seen to be accountable. The railways, construction, nuclear accidents…

A. The blame goes up in those organisations, not down to the factory floor. Because it’s the system that is often to blame. Blame rises to the people who allowed the set of circumstances to develop.

B. You can’t expect a senior manager, or the consultant in charge, or the chief exec, or the head of the NHS, or the secretary of state, to take the rap whenever a patient dies due to gross negligence. The blame has to settle on the person who did it. And usually you can identify a specific action or omission that led to a death, or to harm.

A. What if they were fatigued?

B. You would be hard pressed to show that their rota was non-compliant in this day and age.

A. So you’re saying, in effect, that it’s up to individual doctors to ensure that they do not get too tired and sloppy.

B. I guess I am.

A. And what would you advise them to do if they think they are getting too tired?

B. I… er… don’t know; do something. Get help. Escalate.

A. Remove themselves from the clinical environment?

B. If necessary, perhaps.

A. That is so naïve. Surely it would be more dangerous to walk out than to stay and do a sub-par job.

B. Agree. But I don’t buy the picture you paint of overtired doctors. None of the cases I’ve heard about have featured doctors worked unreasonable hours. It doesn’t really happen nowadays. Yes, when you and I were registrars we came in on Saturday morning and left Monday evening with no protected rest, the corridors used to sway before our eyes, the words refused to come into focus on the page… but not anymore.

A. But doing a sub-par job exposes you, and the patient, to risk. Don’t you see. Classic Catch 22.

B. If you’re tired, if there is too much going on to cope with, you should escalate. Make the call. Get your head together. Clinging on by your fingernails is not sufficient, because it’s not you that matters, it’s the lives of the patients that are going to spill out of your hands.

A. So what defence can a distracted, over-pressurised doctor make?

B. Well, perhaps this is the new world. Forget that umbrella of ‘NHS indemnity’ that we were once told about. Hearing about these doctors who have gone to jail serves to make the point. You asked me how I felt about these cases. Well I’ll tell you. They have made me afraid. You know when you’ve got something to check, some result, something to handover, some task that you still haven’t done even though it’s 6.45 and it is way past the hour when you’re due to leave in order to keep to those sacrosanct hours that should not be exceeded. When I am tempted to walk away I think about those doctors in jail. It makes me go back, and finish the job. Because any one of those jobs could, if omitted, lead to a deterioration, and a death.

A. You feel the chill like me then.

B. Yes.

A. Fear. Fear pure and simple. The cases act like a whip on your back. That’s a negative motivation.

B. So what? Sometimes we need a reminder of how important the job we do is. But you know what? It isn’t going to happen to you.

A. Why? How can you be so sure?

B. Because you asked the question. You’re conscious.




Comment: This piece is not about the right or wrongs of prosecuting negligent doctors, but the effect such cases have on other healthcare workers. However, implicit in the words of Dr A is the suggestion that doctors should not be sent to jail for negligence. Dr A always thought doctors were protected. I do not know why some cases come to court and some do not – probably it depends on the position taken by the family. To argue against prosecution is to argue against the law of the land, and not something I would like to attempt. I have sat on a jury in a criminal court (not a medical case, but a very serious crime) and I know that the detailed examination and subsequent deliberation are careful and thorough. If juries have found doctors guilty who are we to second guess their verdicts? The questions that this article poses are more limited – how does it make us feel, how does it change our behaviour?

Dr A responds with a sense of fear but analyses it critically. He feels that blame should not land solely on the doctors involved. There is usually a systemic failure, in his mind. Cases that have been described in the media have touched on such failures – delayed CT scans, poorly designed syringes… He feels that medicine is an exposed profession, wherein errors lead to death rather than inconvenience. Is it fair that those on the front line work with such jeopardy?

Dr B is more accepting on the inevitability of the law, she does not try to challenge the very idea of jailing doctors. And she too feels fear. In her case fear acts as a motivator when she is trying to decide whether to tie up loose ends on the ward. I think that is probably quite a common reaction. More common still, in my view, is a sense of horrified fascination that gradually, over a day or two, fades into nothing. It is too much to contemplate, too scary… so our subconscious ensures that we move on, bury it, and proceed with our fingers crossed. Hopefully, as Dr B says, the very fact that we have paused a moment to think about the ultimate sanction, that we are conscious of that risk, will guarantee that we do not fail.



* This document from the NHS litigation authority describes the extent and limits of NHS indemnity. I don’t know the ins and outs of it, nor what protections it offers in Gross Negligence cases.

** The definition, on the Crown Prosecution Service website, of ‘Gross Negligence Manslaughter’ is as follows:

“This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:

The test involves the following stages:

a) the existence of a duty of care to the deceased; b) a breach of that duty of care which; c) causes (or significantly contributes) to the death of the victim; and d) the breach should be characterised as gross negligence, and therefore a crime.”


3AM, eternal

3AM picutre

A NHS Trust was found to have transgressed a patient’s human rights this week. A young man with severe learning disabilities, Carl Winspear, was made ‘Not For Resuscitation’ at 3 o’clock in the morning without a discussion taking place with his mother. He did not have mental capacity to be involved in the decision, and it was subsequently rescinded before his unavoidable death from pneumonia. I do not know if Carl did actually receive CPR when he died, probably not – perhaps a further DNACPR was made after appropriate discussion in the morning. It appears that the initial decision was ‘medically’ right but ‘ethically’ wrong.

The fact that the decision was made at 3 o’clock in the morning suggests to me that the patient was deteriorating. If so the decision was urgent, and the doctor would have been acting in the patient’s best interests to protect him from a futile procedure. To ignore or overlook the patient’s resuscitation status would have been a dereliction of duty. Yet, at the same time, the doctor denied him a human right. If the doctor had called the patient’s mother and discussed it no such transgression would have occurred. The question we must ask ourselves as doctors now is – 1] would we have had that conversation, and, 2] how would we have conducted that conversation?

The first instinct might be that such a conversation should not take place at 3 o’clock in the morning. We have to get over this! The nature of the decision, and the fact that we are contemplating another person’s imminent death, surely blows away any reservations we might have about disturbing people or inconveniencing people. Perhaps they won’t be able to take it in, having been woken at such a time? Well I’ve had a few such conversations in the early hours, and they can.

The next question is how do we start the discussion? Here we can get into difficulties. Is it an open question, “What do you think we should do?”, or is it a one-way communication, “I’m sorry to say your son/father/husband is deteriorating… we think that we should record in the notes that he should not have resuscitation, he is so weak now it would definitely not work.” Or a mixture of the two. Making it sound right, making it sound humane, but ensuring that the information is shared and a genuine exchange of opinions takes place, is a great challenge.

It takes experience, it takes confidence, and it takes a degree of strength. If the conversation begins with a completely open question then the person on the other end of the line, if they are not prepared for it, will respond to their own perfectly understandable instincts – they will want their relative to live for longer. So they may say, “Yes of course, do anything, if his heart stops… resuscitate.” If this happens you have a long way to go to bring them back to the consensus that you hoped for in the first place. Because that is why you rang, isn’t it – to get your medical DNACPR decision ratified by the patient’s next of kin? This is the error – the fait accompli. However sure we are about the medical ‘rightness’, recent judgments tell us that we have to remain open to having that opinion modified. Often, the relative will have anticipated the conversation, although perhaps they would have preferred to have had it in the light of day, outside an emergency situation. But we all know that such conversations do not take place soon enough.

Is this conversation just a politeness? ‘…back to the consensus that you hoped for…’ I wrote in the paragraph above. If we know the answer we want before we pick up the phone (that the patient should be DNACPR), why pretend to ask a question? Are we really interested in the opinion of the relative, when we know that from a medical point of view resuscitation is entirely inappropriate?

The reason we ask their opinion is because the Mental Capacity Act requires us to, for we cannot make a complete decision without knowing as much as possible about the wider aspects of the life in our hands.

GMC guidance, which quite neatly summarises the Mental Capacity Act, says:

‘If a patient lacks capacity to make a decision about future CPR, you should consult any legal proxy who has authority to make the decision for the patient (i.e. someone with legal power of attorney for medical treatment – my note). If there is no legal proxy with relevant authority, you must discuss the issue with those close to the patient…’


‘If they do not have legal authority to make the decision, you should be clear that their role is to advise you and the healthcare team about the patient. You must not give them the impression that it is their responsibility to decide whether CPR will be of overall benefit to the patient.’


‘The doctor [ ] and the patient’s carer, make[s] an assessment of the patient’s condition taking into account the patient’s medical history [ ] and carer’s knowledge and experience of the condition.

The doctor uses specialist knowledge, experience and clinical judgement, together with any evidence about the patient’s views (including advance statements, decisions or directives), to identify which investigations or treatments are clinically appropriate and are likely to result in overall benefit for the patient.’

The opportunity to modify that ‘obvious’, sure-fire medical decision must be respected – that’s the MCA, the law. I suspect that such modifications are rare, but trying to have the conversation signals an awareness that there is more to the final phase of a patient’s life than the physical ability of their heart and lungs to sustain a cardiac arrest and subsequent resuscitation attempt. There is a social and emotional context that only the task-oriented, over-scientific doctor would regard as irrelevant.

Unfortunately ‘task-oriented, over-scientific’ describes rather well how many doctors feel at 3AM. The backlog of work and the burden of prioritisation may lead you to overlook the subtleties. A rapid decision is required, the ‘right’ answer is clear, the form needs to be filled out because without it the ward staff will make the call if his heart stops… the pressure of circumstances is substantial. Yet in just such circumstances are human rights over-trodden. So perhaps the conversation is less about allowing your medical opinion about DNACPR to be modified, and more to ensure that you are not blundering into a complex, emotionally charged, or wholly surprising situation for the relatives.

Yet, I can imagine a situation where a completed but un-discussed DNACPR decision might be appropriate. If the patient is deteriorating rapidly, dying before your eyes, it must be permissible to make that decision and sign the form even if you have not had the time, or been physically able, to have the conversation. A genuinely futile CPR attempt performed for want of a conversation seems like an unbalanced state of affairs to me.

It is in these situations that I find myself making the DNACPR decision, but writing very carefully in the notes the reasons why. It might be half a page long. It will include my opinion that the patient is deteriorating and likely to die in the next few hours, possible less, and that my knowledge of the patient’s comorbidities or frailty lead me to feel absolutely confident that resuscitation would bring only harm, and no benefit. Then I will write that I have been unable to contact the next of kin, or for other reasons have been unable even to make an attempt at that time. I leave the situation hoping that my justification proves robust should a complaint arise after the death of the patient. Making good notes in parallel with Do Not Resuscitate forms (which are a mere administrative sign) is a habit that we must develop. In the Janet Tracy case it was remarked by the judge that there was no collateral evidence to support the doctor’s assertion that communication with the patient had taken place. By sitting down at a desk and formulating our thoughts, even if the 3AM mental fog slows us down, we provide a narrative that tells, days or weeks or months later, other interested parties such as the relatives, a coroner or a judge brackets (should it go that far), what we were thinking and why we thought we were right. DNACPR forms on their own are cryptic and appear bureaucratic, the very tendencies we must avoid when dealing with people at the end of life.

Decisions, decisions – informed consent in the 21st century

consent pic


Obtaining consent for medical procedures has become more nuanced, and potentially more demanding for doctors. The Supreme Court has decided that information given during the consent process should include any ‘material risk’ that a ‘reasonable person’ in that patient’s situation would want to know about. Quoting from the Nadine Montgomery judgement,

“The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The essential change is that the explanations about complications and benefits should no longer be based on what a ‘responsible body of medical opinion’ would agree is appropriate (AKA the Bolam test), but on what the reasonable patient should be aware of, based on their particular situation and concerns.

It is no longer about being open about complications that occur more than 1 in a 100 or 1 in a 1000 times (traditional and oft quoted thresholds during my training), but about qualitative impact. If the risk of something bad happening is 1 in 100,000, but for that patient the bad thing is likely to have a massive impact (e.g. loss of vision in the right eye when they are already blind in the left), it should be mentioned during the consent process. Doctors should not wait to be asked, but should explore their patients’ sense of what is important to them. But nor should doctors off-load every tiny risk in an indigestible and incomprehensible list, as that is not likely to increase their patients’ general understanding.

So, in the post-Montgomery consent era, doctors must tread a fine line between creating an atmosphere of transparency and a fog of defensive detail.

For most of us the Montgomery ruling hasn’t really changed the way we do consent. Good doctors have always had patient-specific, patient-centred conversations. It does serve to remind us that there is more to consent than dishing out statistics – it is a personalised process that must be tailored to the individual. However, the pressure of time does not allow a luxurious approach to taking consent, and for procedures that are high volume and low risk (for instance endoscopy, my own specialty) the process can be very routine indeed.



Medical ethics is founded on the concept of informed consent. Autonomy does not exist without it. Physical actions on a patient are ‘battery’ if permission is not given, and permission to be touched can only be given if the patient is given the opportunity to make a reasoned decision. Yet how much reasoning should patients be expected to undertake?

Imagine Mrs X has a lung tumour which is, fortunately, resectable. She meets her surgeon, and he explains that the operation is complex but usually successful. There are risks, not only of death, but of long term debility. The patient has ‘little choice’ – her words. And it is true, she has no choice if she wants to be free of cancer. There are open conversations about the risks, but when they are described her eyes glaze over. The doctor senses this and does not persist in his attempt to describe the potential complications. She has made her mind up to have the surgery – it is obvious. Her informed consent may be somewhat shallow, though the ‘material risks’ associated with the operation are as potentially impactful for her than for any other patient. Yet, for her, the consent conversation is probably appropriate.

Or imagine Mr Y. He has been struggling with back pain for six months, and now the time has come to get seen by a surgeon. Yes, surgery is inevitable, and it will be delicate surgery on the spinal nerves. Paralysis is the big worry – a material risk in anybody’s book. The surgeon is clear about the risk of nerve damage, but also throws in a few more that the patient hadn’t considered. Impotence. For him this would be earth shattering. He can barely bring himself to think about. He wishes, actually, that it hadn’t been mentioned. He has to have the operation before the disc in his back does any more damage to his spinal cord… he has no choice. Mr Y goes home and worries. He fixates on the impotence. But it’s only 1 in a 1000, perhaps even less. On the day of the operation he is asked to sign the consent form. He holds back, pen in hand. He doesn’t want to. He doesn’t want to be impotent. The surgeon looks at him quizzicaly,

“Are you having second thoughts?”

“It’s the impotence. I didn’t realise, at the beginning, that it could happen.”

“I haven’t seen a case personally, it’s very rare. Very. Don’t focus on that.”

“You’ll be careful?”

“Of course.”

He signs. He feels under duress. Not from the surgeon, but from the situation. He needs a procedure, it has risks. The choice he has is – submit to surgery and risk bad things, or do nothing, risk nothing, and be left in pain. This is the reality of informed consent. It is developed in the context of vulnerability.

Last example: Miss Z, a biochemist, well versed in statistics and probability. She has come to hospital with a severe headache and needs a lumbar puncture (LP) to exclude a subarachnoid (brain) haemorrhage. She is in pain, but fully conscious. A young doctor asks her to sign a consent form before starting the procedure. He explains how the LP will be done, and mentions side effects or complications including infection, bleeding, severe or moderate headache, nerve damage, and failure. It is a rather miserable litany of negative possibilities. Miss Z presses the doctor on the precise incidence of these complications; they range from over 5% for headache to 1 in several tens of thousands for permanent nerve injury. Miss Z mulls over the information. The doctor, standing by the bed with a tray of equipment, waits. And waits. Miss Z decides.

“I don’t want it. You’ve put me off.”

The doctor has not faced this situation before. She says,

“But you have to have it, if we want to know whether you have had a bleed.”

“I’ll take my chances. The doctor said in casualty it was pretty unlikely anyway.”

“It might be unlikely, but if it is a bleed, and we don’t identify it, you could have another, larger bleed, in a few days.”

“It sounds like you’re trying to frighten me into it.”

“I’m not, it’s just important you know why we want to do it. It’s important.”

“I’ll take the chance. I don’t want another headache, or nerve damage.”

“Let me call my consultant.”

“Why, so she can talk me into it. Don’t worry, I’ve made my mind up.”

And the doctor nods and walks away. He doesn’t understand. Patients just don’t do that. They always agree. He meets a colleague in the corridor and tells her about it. “Totally got the wrong end of the stick,” he sneers. “I wish I hadn’t told her about the risks. She needs that LP.” His colleague says, wisely, “You think that. But it’s her body. Don’t cut yourself up over it. She’s perfectly capable of making a decision. And she has.”



The temptation to take a paternalistic or controlling approach is ever-present, for we doctors are usually quite sure about what is right for our patients. But we cannot hold back information out of concern that it will influence our patients’ decisions; it is supposed to influence their decisions, even if some of those decisions do not seem quite right to us. Our job is not to ensure that their decisions are identical to ours, but to ensure that they can make a real decision.


Thanks to Dr Katherine McCombe, consultant anaesthetist, whose excellent Grand Round on the subject of consent inspired this post.