The January issue of Guidelines in Practice saw the start of a series of articles entitled 'Guidelines and the Law' by Dr Brian Hurwitz, a much-needed and welcome overview of an important and complex topic. When using or writing guidelines in clinical practice, few of us consider in depth their legal implications.
The potential folly of this was brought home to me at a recent conference, when a barrister specialising in medical negligence cases introduced his lecture by stating that, in future, the use of guidelines would be seen ever more frequently in medical negligence court cases.
Dr Hurwitz, in his introduction, comments on two specific reasons why this may indeed be the case:
- The Government is encouraging increased use of clinical guidelines via NICE
- The GMC is advising us to use guidelines as part of good medical practice.
None of us can have been in any doubt that guidelines are being used more in all aspects of life, not just medicine.
The idea that clinicians are now being directed to use guidelines rather than choosing to do so, and that there are associated legal consequences, should encourage us to look carefully at our own practice. Although we might not need to have legal issues at the forefront of our minds, we should at least have knowledge of the relevant issues.
Surely, I hear you say, guidelines are there to help us in our clinical decision making. If we are using them just as a guide to help us, why should there be any legal consequence attached to them?
Dr Hurwitz points out that courts may use them as examples of a standard of care. Under these circumstances the picture looks very different, for those using guidelines and for those producing them. Not only will we need to be able to justify in a court why we did or did not follow guidelines, we will also have to justify on what basis we advised others, when producing them.
The series of articles promises both to provide us with an overview of the topic, and to deal with some of the specific concerns we might have.
Perhaps the issue that might concern us most is the question of sword or shield. In court, will following or deviating from guidelines be used as a sword against us, or as a shield in our defence?
Common sense suggests that which of these applies will depend on whether or not we can justify our actions in terms of a reasonable standard of care. Dr Hurwitz's series deals with this fundaental underlying principle in medical negligence cases in more detail (see part 3 in this issue).
When I use guidelines I think of the analogy of organising a difficult mountain expedition. The goal is to reach the summit successfully and safely (i.e. the successful management of a clinical problem). We might feel that we are able to succeed without help, but we would be likely to use a guide, particularly if we were responsible for the safety of others.
If we were organising the expedition we would choose the guide carefully, looking at their experience and qualifications for the job. On the trip we would listen carefully to their advice and would hesitate before choosing to deviate from it. Where the advice was clear folly, we would not follow blindly, but question it and, if necessary, take an alternative course of action. We would want to be able to justify our decision if it were questioned at a later date.
This analogy may not be applicable to all clinical situations, but does help to put the general legal principles into context. I look forward to reading the rest of the series with interest.