Month: July 2017

Not in my name


A recent coroner’s report caught my attention (highlighted by HSJ’s Shaun Lintern via Twitter). A patient died from a ruptured aortic aneurysm, and during the investigation it was discovered that it had been seen on a CT scan four years earlier. However, the patient never came to hear of it, the GP was not informed, and no follow-up was arranged. The coroner now requires the Trust, through a letter to the Secretary of State for Health, to review its arrangements for flagging up ‘non- cancerous but significant and potentially life-threatening findings’ on scans.

The aspect that worried me was that the consultant, who had read the report and was intending to tell the patient in clinic 5 days later, never saw him. He was seen by a trainee, and the trainee either did not see the scan result or did not understand its significance. This made me think about clinical decisions being made in consultants’ names, but without consultants being aware of them. Does this really happen? Yes.

Consultants lead teams. In some clinics, 30 or 40, even 50 patients will be seen in a consultant’s name, but because the consultant is only able to see perhaps a third of those personally, the rest will be seen by trainees. Those trainees will have some specialist knowledge, but they may be three or four years out of med school. As trainees, they are supervised, but the level of supervision will vary.

During my training, I never saw a clinic where trainees discussed all of their patients with consultants. Rather, consultants relied on trainees to use their judgment and ask questions about challenging cases when they felt it was necessary. Then, as now, many patients were seen, investigated (and perhaps discharged) without the consultant having been directly involved in the decision. This is more common in bigger hospitals, where there are more trainees and larger clinics. It may sound alarming, but just as junior doctors see patients in the emergency department or on the wards, and make important decisions day after day, so they do in clinic too. (In fact, the terms ‘junior’ and ‘trainee’ sit uncomfortably with experienced professionals in their thirties.) Nevertheless, if a trainee misses the point entirely, or overlooks a subtle sign or important result, there is always the possibility that a dangerous conditions could slip through the net.

On the wards, every action and decision is made in a consultant’s name. I remember explaining to relatives, and on one occasion a coroner, why certain clinical decisions were taken by another – perhaps at night when I was not even in the building – but ‘in my name’. When pressed by both whether I thought those decisions were ‘right’, I had to pause. If it had been me on the ward at that time, I might have interpreted the information differently. I might have prescribed a different drug, or referred to another specialist sooner, but… it wasn’t me. It was a trainee, and they did what they thought was best. It wasn’t wrong, but it wasn’t necessarily, in retrospect, as right as it could have been. If there were errors in judgement, short of outright negligence or something amounting to an incident that requires reporting and the duty of candour, it will be dealt with through their educational supervisor. It would seem wrong to allow the full weight of responsibility to lie on the trainee’s shoulders. After all, I have to remember – a few years ago, that trainee could have been me.

So what is the consultant’s responsibility here? Are they truly responsible for the patient’s outcome, even though certain important decisions are not in their control.

Well someone has to be responsible. Consultants stay in one hospital for a whole career (usually), while trainees move on. In the case of the missed aneurysm there was a delay of four years before the error was noted. The trainee who may or may not have seen the result, or who failed to chase up the results of the scan, would have moved on. They are out of the frame. It was the consultant who had to explain what happened to the coroner. In that case, ‘the system’ took the blame (the way in which x-rays were reported and flagged). This is often the case, and in a blame-free culture that encourages reporting of error, it often has to be the case.

The system is often inefficient. The system may have intrinsic gaps which are unsafe. As doctors, we complain about the system all the time, but perhaps this is where our responsibility truly lies. To be open to the possibility that the system we are working is imperfect, and to accept of our role in improving it. That is why consultants must also be continual improvers of quality. It is not enough to moan. If weak areas are identified, we must engage in strengthening them. If we find gaps, we must close them. We must complain, escalate, and help to fix. That is the quality that should be scrutinized, rather than the (superhuman) ability to detect and personally manage every patient who passes through our service.



This private life

How far does the right to ‘private life’ go? Noel Conway, who has motor neurone disease, feels that his inability to arrange an assisted death without fear of his ‘assistant’ being prosecuted, is an intrusion on his right to private life. He is barred from taking steps to manage his death in the way he would like. Additionally, his team will argue that the current law results in someone with severe physical disability such as his being discriminate aganist. Thus, he proposes that two articles of the European Convention of Human Rights (ECHR), 8 and 12, are contravened by the 1961 Suicide Act.

Article 8 has been examined in relation to end of life issues several times over the last few years. Most recently, the Janet Tracey case touched on it from a quite different direction – was her right to private life infringed by medical staff who did not engage her in discussion about a DNACPR notice?

It is interesting to look at the Tracey judges’ reasoning in the light cast by Noel Conway’s situation – a legally dubious exercise I am sure, but possibly helpful in view of the fact that our legal process relies on precedent.

Firstly, do DNACPR decisions have anything at all to do with assisted dying (AD)? I would say yes, insofar as discussions and decisions around CPR relate to what goes on in the last hours or minutes of life. They relate to patients wishes as regards dignity, and how their body is physically handled. They reflect a patient’s attitude to mortality, and whether they feel ready to die without final, heroic measures (of course, we know that the CPR decision does not ultimately rest in the patient’s hands, but their view on it remains of paramount importance).

The judges* in the Tracey case thought so too, for they invoked the case of Diane Pretty (see below), confirming that from a legal perspective there is a degree of overlap,


The judges begin by setting out the case against the medics (embodied in this instance by the ‘secretary of state’ [SoS]);

The claim as now advanced against the Secretary of State is that he breached Mrs Tracey’s article 8 rights by failing to publish national guidance to ensure (i) that the process of making DNACPR decisions is sufficiently clear, accessible and foreseeable and (ii) that persons in the position of Mrs Tracey have the right (a) to be involved in discussions and decisions about DNACPR and (b) to be given information to enable them so to be involved, including the right to seek a second opinion.

The Tracey case was about consultation, what was said (or not said), rather than about what was done or not done. So in this regard, extrapolating to Noel  Conway’s situation is of limited value. However, the judges are sympathetic to the barrister who is presenting the case against the SoS;

Mr Havers QC submits that article 8 is engaged by a DNACPR decision because it concerns how an individual chooses to pass the closing days and moments of her life and how she manages her death: see Pretty v UK (2002)


It is a decision which concerns a patient’s personal autonomy, integrity, dignity and quality of life.

They seem to accept that Article 8 is highly relevant to end of life scenarios.


Then the view of the opposing barrister Mr Sachdeva, is explored,

He submits that it is not sufficient to say that article 8 is engaged simply because the decision which is under consideration impacts on the physical integrity and autonomy of an individual. But he has been unable to identify the criteria by which to determine whether article 8 is engaged by the withholding of medical treatment. 

But this is rejected in a powerful paragraph from the judges,

In [our] judgment, however, none of Mr Sachdeva’s submissions justifies the conclusion that article 8 is not engaged by a decision to impose a DNACPR notice.  A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.  If there were any doubt as to that, it has been settled by the decision in Pretty.


We know that Diane Pretty failed in her attempts to prove that a right to choose death was not the same as a right to private life – she took it to the House of Lords and the European Court of Human Rights.

As A.C. Grayling summaries in this article,

– –  Mrs Pretty’s lawyers based their arguments on the most important rights in the [European Human Rights] Convention: the right to life, the right to be protected from inhumane treatment, and the rights to privacy and freedom of thought and belief. They argued that these rights give Mrs Pretty the right to choose when and how to die. The grounds they put forward were, first, that a right to life includes a right to die; second, that if Mrs Pretty is denied the chance to end her life before it becomes intolerable she would in effect thereby be subject to inhumane treatment; and third, that her rights to privacy and freedom of belief give her the autonomy to decide what to do with her own life.

The judges disagreed with all these arguments, saying that they ‘stand the whole purpose of the Convention on its head’ on the grounds that the Convention’s provisions aim at protecting and sustaining life, and that because ‘death is the antithesis of life’ the Convention accords no right to die nor to choose when and how to die.  – –


Back to Tracey; other cases involving successful applications that Article 8 was contravened are covered, including one in which a DNACPR decision was made and diamorphine given [Glass v UK (2004)], and a case where an abortion was requested by a woman who suffered from such bad myopia that she did not think she could cope with the pregnancy. The judges recall that in this case,

The [European Court of Human Rights] also reiterates that “private life” is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world.

Article 8 is therefore seen to extend to aspects of personal identity that are clearly relevant to a person approaching the end of their life.


Evidence from The Equality and Human Rights Commission is then reviewed, which emphasises that any decisions based on the quality or value of life must be led by patients,

Mr Wolfe QC, for The Equality and Human Rights Commission, emphasises the difference between (i) medical issues (such as whether CPR might work) which are matters for the clinicians to decide and (ii) questions relating to the welfare of the patient in the widest sense (including social and psychological issues) which are essentially for the patient to decide. It is for the patient and not for others to say that a life which the patient would regard as worthwhile is not worth living…


Later, the Tracey judges bring the NHS constitution into the argument; it says,

 “You have the right to be involved in discussions and decisions about your health and care, including your end of life care, and to be given information to enable you to do this.  Where appropriate, this right includes your family and carers.”


Finally, in the ‘OVERALL CONCLUSION’ , they refer to,

…autonomy, integrity, dignity and quality of life of the patient.  It is accordingly critical to good patient care. The duty to consult is of course part of a clinical process.  That process is individual to each patient albeit that it is informed by good clinical practice.


We are all interested in how Noel Conway’s case at the High Court goes. In a way, we are all judges, as many of ‘know’, or think we know, what is right already. (This brief and very confident ‘anti-‘ piece in the Spectator is an example; it seems so straighforward to the author!) I worry that this case will go the way of others (most recently that of Tony Nicklinson), with judges concluding that the societal implications of legalising AD are too great, and that parliament, as the natural forum for discussing societal change, must decide. If that is the case, we are unlikely to move forward in the short term.

However, I think this reading of the Tracey judgment shows that Article 8 is intimately relevant to how people wish to be treated as they move towards of the end of their lives.



* Lord Justice Ryder and Lord Justice Longmore – their separate comments are presented here as though co-written by ‘the judges’.



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Think like me

Last week I delivered a lecture about resuscitation decisions. Part of it was a scenario, carefully thought out with my co-presenting colleague. We described a lady in the 80s, living in a residential home, with a degree of heart failure and some other co-morbidities, who had been admitted with pneumonia. There were markers of severity indicating a 20% risk of death. In this scenario she deteriorated overnight, and was found ‘barely conscious’ and in respiratory failure.

We asked the audience to put up their hands if they thought the patient should have a ‘do not attempt resuscitation’ (DNACPR) notice. I was amazed to see only around 15% of the audience put their hand up. Then we asked if they would consider a ceiling of care, for instance non-invasive ventilation or, all the way to intensive care and mechanical ventilation. Most felt that non-invasive ventilation on HDU would be the appropriate limit of intervention. But I couldn’t get over the small number who would have started to discuss resuscitation status at this stage. Why didn’t they think like me?

This scenario was deliberately “grey”. We didn’t want to make it obvious that the patient was dying, for instance with terminal cancer or end-stage heart failure. But we wanted to describe a patient who was not improving. In my mind, having considered the case carefully before the lecture, the fact that she was to deteriorating despite antibiotics meant that if her heart did suddenly stop, the chance of surviving would be very small indeed. Advanced life support might temporarily restart the heart, but would not reverse the problem, which was pneumonia. It seems clear to me. Why not to my colleagues?

Could it be that I was wrong?

Probably not, in terms of the evidence base around prognosis and resuscitation. My colleague and I had reviewed the studies. We could show that a successful outcome was unlikely. So I came away asking myself, why the discrepancy?

I had had the benefit of thinking about this case in detail, for a few days. Those who had just heard the scenario were like doctors in the acute medical units, who are presented with a new patient’s details and required to make big decisions a few minutes later. It doesn’t feel comfortable, or right. Perhaps that was the issue. How can you make what seems like a ‘life limiting’ when you’ve only spent 10 minutes with the patient?

Or perhaps they judged that the hypothetical patient had more of a chance than I did. Perhaps, if the heart was restarted (assuming too that they would then be admitted to ITU for ongoing ventilatory support), continued antibiotics would overcome the infection and she would recover. That seemed like wishful thinking… but who would criticise a doctor for grasping at that possibility, however small?

Or perhaps, I reflected, I have developed too gloomy outlook. I am too ‘realistic’. So interested have I become in identifying futility and ensuring that patients do not undergo CPR needlessly, I am unable to recognise therapeutic opportunities anymore. How else could my opinion different from the majority so starkly?

But I know that this is not the case. I am careful always to make sure that I have not overlooked an opportunity for improvement, or cure. So is the problem me or them?

The answer can only be – neither. They are good doctors; I think I’m a good doctor. We disagree. And in this disagreement is revealed the essence of uncertainty, the unknown quantity that doctors deal with every day. If a room of individuals interested enough in resuscitation to attend a lecture cannot agree on the right course of action, how can we expect patients or their family to offer a firm opinion, or agree with our suggestions?

This point was brought up by someone in the audience. He said that we should not be surprised when families disagree with our assessments, if a group of ‘experts’ cannot be certain of what the outcome is likely to be. And faced with disagreement, we must not allow ourselves to see them as opponents in a debate whom we must win over. However sure we are of our opinion (having had the benefit of dwelling over the results of investigations, the output of prognostic models, or just plain experience), to walk into a room and bring around an anxious family to that point of view is probably naïve. The situation is being revealed to them with the same suddenness that it was revealed to the colleagues on that lecture theatre. The natural instinct is to defer judgement; to assume that there is a chance of survival that should be pursued with active treatment. Only in the most clear-cut cases, where death is visibly progressing or an underlying disease has clearly reached its culmination, can we be fully didactic.

So at the end of it all, I remain confident that I can identify patients for whom CPR would be futile, but at the same time I realise, if I had not before, that opinions will frequently differ. For both doctors and families, time is needed for the facts to be explained, for their implications to sink in, and for the resulting reaction to mature. This cannot always be done in ten minutes, or on Day 1.


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The dead of night

Doctor fatigue has featured heavily in the media this week. There are tragic stories of fatal car accidents, and a survey of anaesthetists has revealed that half have had accidents or near misses after night shifts.

As a consultant who works at night rarely now, I look back at the long nights and deep fatigue with a sense of achievement – I got through them without harming anyone, or myself. But the challenge, both physical and mental, was great. I will share some memories.

First night shift as a house officer in Bristol; I lay down in all my clothes, anticipating the first bleep with a mixture of excitement and fear. I thought I would never go to sleep. But nature insisted, I drifted off, and an hour later the bleep shrilled. It was 2.30AM. And oh the nausea! I leaned over, wondering whether to vomit onto the carpet tiles, suppressed the urge, gulped some water, then headed out to the wards. Ten minutes later I felt absolutely fine. I was wide awake, and ready. The first of so many awakenings.

For some it wasn’t that easy.

An SHO colleague went to do a blood gas. This involves passing a needle into the radial artery, watching the column of oxygen-rich haem rise into the syringe, then pressing down with some gauze to prevent a haematoma forming. As you press, you make conversation, or, if the patient is too ill to talk, you think of other things. This SHO fell asleep. She was found kneeling by the bed, as though in prayer, with one hand draped across the insentient patient’s abdomen, her head resting on its side by his hand.

Although we were not expected to sleep, and no provision was made for it, I quickly made the observation that as little as 45 minutes of shut-eye helped to make the next day a whole lot better. So I grabbed sleep where I could: on endoscopy trolleys (causing three months of neck pain), on couches in waiting rooms (too narrow, I fell onto the hard floor) and most controversially, on mattresses taken from unoccupied beds. Having lain down to sleep on the dusty floor of the doctors’ ward office only to come eye to eye with a cockroach, I stormed into an empty bay and dragged the thick, rubber-coated brick of foam off the bedframe.

“But that’s the MRSA bay!” called a nurse, “You can’t do that!”

“Watch me!”

During a spell in Sydney, where I worked 7 nights in a row on the ICU, I experienced strange personality changes. Generally placid, I found that fatigue led to disinhibition. In Circular Quay, waiting for a ferry to take me back to Neutral Bay after a long and sleepless night, I picked a magazine up from a kiosk and began to read it. It was 8AM. The owner of the kiosk walked around and said, “It’s not a bloody library.” His tone lit a fuse that had been dramatically shortened by the night, and I threw the magazine back at him, saying “Have it then!” That really wasn’t like me. The other personality change I noticed was emotional lability, leading to uncharacteristic crying during sentimental films; Finding Nemo, for instance.

To get through the deep trough that comes at 4AM, the time when our bodies crave sleep and threaten to shut down, I drank coffee, of course. In each hospital, I found the places where free drinks were available (hot water dispensers with large signs saying ‘PATIENTS ONLY’). As the night deepened, so did the layer of bargain granules in the plastic cups. By 4AM the ratio was close to 50:50. Once or twice, in a hurry and desperate for something to make me more alert on the way to an emergency, I poured dry granules straight into my mouth. Bitter.

The effect fatigue had on me during skilled tasks was interesting. Somehow, the importance of the situation beat the tiredness. I remember, during a long weekend (Saturday morning to Monday morning straight through, no protected sleep… followed by a routine Monday with ward round and clinic) how the corridor started to sway as I walked along it. The fluorescent tubes on the ceiling doubled up and shifted. I leaned against the wall and slapped my own cheek. It was important to be in control of my ocular muscles, because the task that awaited me was a central line insertion. This involved passing a thick needle into the vein that lies next to the carotid artery. By the time I held the needle in my latex covered fingers, sweating in the surgical gown, with a bright light shining down on the iodine-stained skin, I was all there.

The terrible stories of doctors dying in car accidents are not surprising. My methods of staying awake in the car were typical. Driving back from Kent to London, along the dreary A2, I played music at maximum volume, I bit the back of my hand until it hurt enough to squeeze adrenaline from my glands, and I hung my head out of the window, forcing my face into wind and rain like an unintelligent dog. I was lucky.

Back in my flat, the last vestiges of coordination left me, and I could be relied on to break dishes or drop glasses in the kitchen. A costly habit.

However practiced you are at jumping out of sleep into action, or pushing through the 4AM barrier, it is never easy. The body hates it, and rebels. The brain lags behind, and your true personality becomes obscured. Unfortunately, disease does not wear a watch. But however bad or long the night, the sun will rise, the windows will brighten, and your friends will appear, ready to take the problems from you.  

[Advice on fatigue from Association of Anaesthetists of Great Britain and Ireland here]



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