Practising Realistic Medicine: Chief Medical Officer for Scotland annual report

Chapter 3 - Understanding And Managing Medico-Legal Risk

How does the Montgomery determination and
learning from dissatisfaction support the
practice of Realistic Medicine?

One perceived barrier to practising Realistic Medicine is the worry that professionals will be criticised for not offering all available treatments and doing all that can possibly be done for each and every patient. Apparent criticism may come from many sources in the form of complaints, external inspection or clinical reviews and litigation. Facing personal criticism can be difficult and distressing, as the overwhelming majority of healthcare workers continually strive to deliver good care and treatment. However, despite best intentions, things can and will go wrong.

Many doctors are understandably wary of missing a diagnosis and this can result in the practice of “defensive” rather than Realistic Medicine. We know that over investigation and treatment can cause harm as well as being wasteful of NHS resources. Realistic Medicine encourages us to recommend investigations and treatments that add value, minimise waste and to personalise our approach to each patient, involving them fully in decision making. Key to practising Realistic Medicine is meaningful communication. In this chapter we will explore the “Montgomery” ruling further, its implications in relation to Realistic Medicine and share information provided by the Scottish Public Services Ombudsman regarding complaints investigated by them.

The medico-legal framework within which we work promotes good communication and shared decision making as being integral to how we should all practise as clinicians. This debate is not new and has been a topic of discussion in Scotland for at least 13 years since the Centre for Change and Innovation published their document “Talking Matters. Developing the Communication Skills of Doctors” ^[19] – a document that noted “Different patients require different approaches.” The complexities of being able to provide a tailored approach to each patient interaction are significant, given the rising demands on healthcare services, changing expectations and variation in processes across different areas.

The lawfulness of patients’ consent to medical treatment has been a consistent feature of clinical negligence cases. Before the UK Supreme Court decision in Montgomery v Lanarkshire Health Board in 2015 ^[20] , such lawfulness was effectively judged by reference to what medical experts determined were the appropriate material risks and possible complications to tell patients about. The Montgomery ruling states that healthcare professionals must make patients aware of risk, benefits and alternatives that a reasonable patient would think were material and that a reasonable doctor would be aware are relevant to that particular patient. This emphasises the importance of dialogue and a person-centred approach and a move away from the more paternalistic approach that has predominated before.

The new legal test requires courts to determine what the reasonable person would expect to be told; individual patients now have full autonomy regarding decisions about their health and bodily integrity, bringing the law into line with the modern practice of medicine, including professionally acceptable standards of communication between patients and health care professionals. It is therefore vital that in patient interactions we ascertain what matters most to them, discussing the various treatment options, their risk and their benefits, so they are able to make decisions about their care and treatment.

We asked Professor Emma Cave and Professor Margot Brazier, both internationally acclaimed scholars of medical and healthcare law to consider the implications of the Supreme Court decision for our work in Scotland on the implementation of Realistic Medicine. They jointly commented:

“Montgomery complements the Realistic Medicine focus of the CMO’s previous annual reports and the international “Choosing Wisely” campaign of the Academy of Medical Royal Colleges in a number of ways. It has renewed the focus on the process of consent, and requires that the emphasis of this is patient focused.”

“Accurate and consistent practitioner guidance is essential. The GMC is revising their guidelines and other bodies such as the Royal College of Surgeons have already promulgated guidance. That not all Royal Colleges have done so is in part a result of variations in the relevance of the case – at least insofar as it relates to disclosure – across the specialties. One challenge is to articulate the aspects of the judgment that affect all practitioners and those aspects that are relevant to particular specialties to ensure that healthcare professionals and patients are properly advised. Another is to respond to case law on informed consent that is testing the boundaries of Montgomery”.
Emma Cave/Margot Brazier

Professors Brazier and Cave have suggested that “Accurate and consistent practitioner guidance is essential…”, though as with so many aspects of medical practice, guidance is necessary but not sufficient. Supporting people to make decisions (which is perhaps a more appropriate way to approach the issues raised post-Montgomery than to focus on the challenges of “consenting” people), is complex and involves more than simply eliciting information preferences – there is often a need for sensitive exploration of the values, beliefs or life experiences that have personal significance or meaning.

Perhaps working towards a “request for treatment” from patients, rather than a focus on consent forms would help us to move towards a more person-centred decision making process. Mr Terry O’Kelly, a consultant general surgeon in Aberdeen recently wrote about this for the GMC.

“I am currently caring for two patients who have declined surgery for treatable bowel cancer. In both cases, understanding has been checked using a technique called teachback – asking the patient to recount information in their own words and discussions have been carefully recorded. I have also encouraged patients or a family member to record conversations on mobile devices; and one patient also wrote down their thoughts using a modified version of ‘request for treatment’ (treatment in this case being ‘watchful waiting’). Their decision and subsequent course might not be the one I would choose but I am very respectful of their wishes.

Clearly, these discussions take time and can require more than one consultation to allow for reflection. Assistance from other clinicians, such as specialist nurses, can also be very helpful and providing appropriate information is crucial. Fundamentally though, time must be made available and we have a responsibility to ensure it is. Would we expect any less if we or a family member was the patient?”

Mr Terry O’Kelly, GMC Blog on Consent: empowering my patients to make informed choices ^[21]

A task and finish committee is updating the GMC guidance and a key focus of this review will be to develop supporting materials and tools to help embed the principles of the guidance into practice. This is a key element in transforming the relationship between individuals and medical professionals.

We appreciate that there may be barriers to healthcare professionals having more in depth discussions with patients and one that is presented to me frequently is the issue of time. Simply offering the standard treatment or investigation may be quicker, but not necessarily what is in the patients’ individual best interests. It is essential that in order to provide high quality, personalised care clinicians are in a position to make the time to have these important discussions. If we are able to move towards engaging in these conversations as a part of routine practice, it is likely this will in some circumstances save time where patients decide against investigations or treatments that they do not feel are right for them. We have heard from teams across Scotland about ways in which they have utilised time differently such as increasing GP appointment times so that issues can be more fully dealt with in one appointment or reallocating tasks which can be performed by other members of the team so that doctors have more time to discuss these important considerations with patients. We hope that as we launch our Realistic Medicine website we are able to spread learning from teams across Scotland of ways in which time can be utilised differently to enhance the care that we provide every day.

Another common topic of concern amongst clinicians is fear of complaints. Complaints about healthcare are an inescapable component of modern practice. From complaints we can learn and gain insights into how to improve our practice and service.

The Scottish Public Services Ombudsman ( SPSO) published a very helpful thematic review of complaints that they have investigated and have provided some guidance and advice to clinical staff on how to use learning from these complaints to make improvements. Communication failures are a common theme in complaints, not just the lack of communication but the nature, frequency and content. Patients and families often don’t feel informed, yet those caring for them believe they have communicated effectively.

The Ombudsman review ^[22] found that inadequate consent was the most common recurring issue in complaints they investigated. They have recommended that action should be taken to improve the process for consent including training. The report provides a self-assessment consent check-list for organisations and individuals to use to review their policy and procedures. Critically, it emphasises that organisational culture must support staff to involve people in shared decision making.

The SPSO report outlined some questions that can be used to begin to understand local systems and processes supporting improvements in the approaches used to support shared decision making and conversations about consent. Some of these are summarised below. We hope that these questions can stimulate discussions as to what might aid better conversations on consent.

• Is there a clear system or tool in place (e.g. a consent checklist) to guide clinicians through the consent process?
• Is there a quality assurance process in place to monitor use and effectiveness of this?
• Is there a system in place to prompt a further conversation with the patient when there is a change in the planned treatment, to discuss the change and seek the patient’s decision on whether to proceed?
• Are healthcare professionals prompted to ask about – and record – any specific concerns raised by the patient, together with any advice or options offered in view of the patient’s particular priorities (as required post-Montgomery)?
• Is there a quality assurance process in place to ensure that records of consent are sufficiently detailed to meet the Montgomery test?
• Does the consent process encompass a range of options, including the option of no treatment, and discuss the likely outcomes for each (i.e. not just discussing a single treatment)?

We encourage you to consider how these and other questions posed in the SPSO report can help with understanding the ways local systems and processes might be improved to support shared decision making and conversations in relation to consent.

As an organisation dealing with health complaints SPSO have a valuable role in enabling us to learn from errors and times when people have perceived care not to have gone well. Given the strong links between the SPSO report and the principles of Realistic Medicine, we asked Rosemary Agnew, the Scottish Public Services Ombudsman for her view on this relationship to Realistic Medicine.

Ombudsman’s Comment

In 2016-17 my office handled 1,433 complaints about health. Of these, 495 were the subject of detailed investigations: we upheld in part or full 260 (53%) of them and did not uphold 235 (47%). In the first half of the current year we completed 197 investigations of health complaints: 113 (57%) were upheld in full or part.

Significantly, from 1 April 2017 we changed the way we make recommendations. We now make recommendations in relation to three areas: individual remedy for injustice, learning and improvement, and complaint handling. The approach focusses both on remedying injustice and on learning leading to sustainable improvements.

Monitoring recommendations over time will highlight trends, enable benchmarking and inform how and where the SPSO can give learning and improvement support to public bodies.

Communication with patients is critical to the Realistic Medicine approach. From April to September 2017 the SPSO made 371 recommendations on health complaints and 56 related to failure in communication (across 35 cases). These were not just about lack of communication, but also about the nature, frequency and content. Patients and their families often don’t feel informed, yet those caring for them believe they have communicated effectively.

This suggests to me that equipping clinicians with the requisite communication skills is essential. Not only will this enable improved communication; it will enable more meaningful dialogue with patients about their care, and how they give consent. From a complaints perspective, having meaningful conversations, documenting them well and resolving issues as they arise – in other words taking an open and resolution-based approach – is more likely to make patients feel involved. It doesn’t automatically follow that there will be fewer complaints. But it does mean that if they are made we can all be clearer about what happened when and, if there were shortcomings, whether they were system-based, rather than down to individuals.

This is echoed in our “Informed Consent” report in which we highlighted cases where some aspect of the consent process had fallen short.

It is also worth remembering: effective communication is not the sole responsibility of health professionals. Board members, managers and other employees also need to be fully engaged in providing person-centred care and supported decision making with patients. Good communication and informed consent, are integral to the way their organisations deliver care to patients.

Rosemary Agnew
Scottish Public Services Ombudsman

Conclusion

Concerns have been expressed about how medico-legal considerations may inhibit practising Realistic Medicine. However, the legal and regulatory standards as they are currently understood and interpreted promote better conversations around treatment, consent and above all shared decision making in their interpretation of good care. This is critical to understanding and being reassured that proportionate personalised care based on what matters most to an individual and is feasible to provide within our NHS is how we should aim to practice now and into the future.