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Doctors Who Harm Patients Face Tougher Sanctions

About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

The General Medical Council (“GMC”) has recently announced that it will be considering tougher sanctions for doctors who harm patients. It is clear that doctors owe their patients a duty of care in law, and patients must be able to trust doctors with their lives and health. Will the new measures being considered by the GMC renew trust in the regulatory body, or is it a step in the wrong direction that signifies the lack of trust in the medical profession?

The New Powers

Under the Medical Act 1983, the GMC has powers and responsibilities relating to medical education, registration and revalidation of doctors, and for giving guidance to doctors on matters of professional conduct, performance and ethics. The Act also sets out the GMC’s powers and responsibilities relating to doctors’ fitness to practice.

The new powers of the GMC would include the power to strike off, suspend and restrict the practice of doctors who had previously made mistakes, undertaken subsequent training to improve their practice, but shown no signs of improvement. The consultation also proposes that those who refuse to apologise to patients and relatives would be subject to harsher sanctions, and could be banned from practising. Furthermore, doctors who fail to raise concerns about a colleague's ability to practise safely could face harsher penalties than currently seen.

The Bolam Test 

It used to be the case that doctors were trusted more by the public, and, as a result of this they were accorded deferential treatment by the courts when it came to deciding whether or not they had breached their duty of care. One of the landmark cases for medical negligence was the decision in Bolam v Friern Hospital Management Committee [1957], which gave rise to the ‘Bolam test’. In Bolam the claimant underwent ECT (electroconvulsive therapy). Contrary to common practice, when the therapy was administered the claimant was not given any relaxant drugs, nor was he strapped down, because the defendant doctor did not believe in such protective measures. The claimant suffered serious physical injury as a result. The court held that the doctor should be liable for the injuries caused, and to this end the two-part Bolam test was formulated to determine whether a doctor has been negligent:

  1. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular act; and
  2. A doctor is not negligent if he is acting in accordance with such practice, merely because there is a body of opinion taking a contrary view.

In summary, the first part says that if there are differing opinions, but enough relevant skilled opinion to support the doctor’s actions, no breach has occurred, as his actions were reasonable. The second part has been interpreted as meaning that even when there is a minority in support of the defendant doctor, the judge must find in favour of the defendant. This is a misinterpretation, as in Bolam there were two equally supported bodies of opinion, not one that heavily outweighed the other.

The Bolam test became very controversial, as it was interpreted in a different manner to that originally intended. The test was even manipulated by doctors’ friends, as in Whitehouse v Jordan [1981], where a doctor wrongly persisted in using forceps in delivering a baby, when a Caesarian section was called for. His friends provided the body of opinion deemed by the courts to be sufficient to warrant a finding in favour of the defendant.

The House of Lords in Bolitho v City and Hackney Health Authority [1997] established that in cases of medical negligence, the body of professional opinion must be able to stand up to logical scrutiny. This addition of a ‘scrutiny’ limb closed the loophole arising out of the Bolam test. This was a significant change because the judiciary was being more interventionist than ever before, but, as I will now explain, significant changes also occurred in the 41 years between the judgments of Bolam and Bolitho

Expansion of the Bolam Test

The case of Sidaway v Bethlem Royal Hospital And The Maudesley Hospital Health
 Authority [1985] concerned the failure of a doctor to disclose information of the risks associated with a procedure. The procedure was carried out perfectly competently, but an almost-inevitable side-effect occurred, leaving the claimant paralysed. It was claimed that the claimant’s consent to the procedure would never have been forthcoming had the claimant known of the risks. Bolam was applied, with a majority in the House of Lords saying that if the defendant can provide a body of professional opinion that agree that they too would have withheld the information, the claim would fail. Lord Scarman, in his strong dissent, stated his belief that the application of the Bolam test would not be appropriate in such a situation. Despite this, four Law Lords disagreed and medical negligence was found. This extended the Bolam test so far as to include an issue that is not necessarily medical: the disclosure of information, demonstrating the height of medical paternalism.

Retreat From Bolam Paternalism

Over the past 29 years since Sidaway there has been a cultural shift that has brought with it a change in judicial attitudes toward the medical profession. There are two key reasons for this shift. Firstly, the rise of the human rights movement has shifted the focus onto patients’rights, which are now given more weight than ever before. This can be seen in the recent case of Janet Tracey, where the Court of Appeal ruled that a ‘do not resuscitate’ notice contravened patients’ human rights. The other key reason is the number of medical scandals not directly related to medical negligence that have occurred, including the case of Harold Shipman and the keeping of organs without permission for medical research. More recently, medical scandals have included a high rate of mortality in children’s heart surgery and failings by the Mid-Staffordshire NHS Trust.

These scandals have significantly increased oversight of doctors’ practices, arguably changing the culture of medical paternalism to one of medical scepticism. This culture of medical scepticism greatly increases the chances of defensive practice, and, as noted by Gilicker and Beswick, defensive practice is expensive, because it requires the administration of tests and treatments to exclude remote risks. The attempts by the courts to restrict liability for medical negligence in the time of medical paternalism can be seen to reflect concern about the proper allocation of scarce NHS resources; this concern appears to have been overridden by public opinion in recent times.

The dicta of Lord Steyn in Chester v Afshar [2004] outlines clearly the shift away from the level of paternalism shown in Sidaway:

In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.

Problems With Proposals 

Extensive guidelines are already in place to cover cases of malpractice, but the GMC insists the proposed changes would allow them to take action in a greater number of cases. Niall Dickson, the chief executive of the GMC, said:

There have been occasions when we have been prevented from taking action in cases because the doctor has been able to show that they have subsequently improved their practice.

There are a number of problems with this.

Take, for example, a doctor who makes a mistake, apologises to the patient and subsequently improves his practice. From the comments of Niall Dickson, the GMC would like discretionary powers to strike off a doctor in this situation, even though many doctors may disagree with such draconian repercussions in a situation where practice has improved.

Furthermore, introducing harsher sanctions for doctors who fail to report a colleague’s malpractice could create an unhealthy culture of mistrust among doctors. Doctors may be discouraged to seek the help of other medical professionals for fear of making a mistake and being suspended, or worse. Likewise, other doctors may be less willing to help in fear that they may put themselves at risk of repercussions at the hands of the GMC. Indeed, Clare Gerada, Medical Director of the NHS Practitioner Health Programme, said she was ‘concerned’ tougher sanctions in some cases could ‘traumatise and put in additional fear for the vast majority of doctors who go in every day to do a good job’.

Often in the aftermath of a scandal, such as that previously witnessed at Mid-Staffordshire, regulatory bodies make extensive and unnecessary changes in a knee-jerk reaction. The GMC, in trying to restore trust in the medical profession, will, if these proposals are implemented, be doing the exact opposite. They will irreversibly condemn the UK to a culture of medical scepticism, causing further damage where strengthening is needed.

With staff and service cuts as a result of austerity measures, and increasing privatisation of the NHS, patients are being treated in an 'undignified and emotionally abusive manner, leaving trust in the profession at an all-time low. The GMC is trying to address this with their new proposed sanctions against doctors; but it is not the doctors who are at fault here. Only when patient welfare, and not profit, is put back at the heart of the NHS will trust be restored in medical professionals and our health system as a whole.

Further Reading

BBC News, Doctors who harm patients face tougher sanctions’’ 

The Guardian (Online), Doctors who fail to apologise for errors could be struck off under new rules 

Steve Sweeney, "Waste of money" and "poor care" - NHS privatisation failures exposed across the East of England 

Brazier & Miola, “Bye-Bye Bolam: A Medical Litigation Revolution?”(2000) 8 Med LR 85

Giliker and Beckwith, ‘Tort’(Sweet & Maxwell 4 ed., 2011)

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Tagged: Medical Law & Ethics, Tort Law

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