Medico-Legal - Following clinical guidance

Show clinical judgment if straying from guidelines, suggests MDDUS adviser Dr Des Watson.

A clinical guideline is especially helpful when the clinician is not familiar with a subject area (Photograph: Jason Heath Lancy)
A clinical guideline is especially helpful when the clinician is not familiar with a subject area (Photograph: Jason Heath Lancy)

Everywhere you look in clinical practice there are guidelines or protocols or algorithms - call them what you will. Surely if doctors followed these guidelines to the letter, especially the ones that emanate from well-respected clinically based bodies, such as the royal colleges, all would be well.

The doctor would be guaranteed a warm glow of professional pride in a job well done. Patients would be healthier and happier, employers and contractors would be delighted, GMC subscriptions would fall and clinical negligence lawyers might have to resort to challenging speeding tickets.

If only things were that straightforward.

Consider speeding as an analogy. If everyone followed the guidance, there would be no speeding tickets. But how many doctors can say that they have never knowingly exceeded the speed limit?

Take the example of the doctor called to a critically ill patient where time is of the essence and other help is further away. It is three in the morning, the roads are deserted and visibility is good. Which doctor will be criticised - the one who speeds to the patient in status asthmaticus or the one who obeys every speed limit (including the advisory 20mph limit past the local school) and arrives to find a brain-damaged patient?

Of course, the speed limit is law rather than guidance and the doctor on an emergency call is still breaking the law even if there is good clinical justification. But the comparison is useful in understanding when guidelines should be followed and when they should not.

Most of the time, guidelines and protocols, especially the authoritative and evidence-based ones, are helpful. This is especially so when the clinician is not fully familiar with the subject area.

A GP would probably expect criticism if he or she failed to follow the two-week-wait guidance on referral for an unfamiliar cancer type, such as head and neck cancer.

This might be the equivalent of whizzing past the school just when the parents are collecting their children because the doctor was late for an afternoon of golf.

Doctors who breach this sort of guidance without justification might find themselves facing negligence claims (if the breach of duty of care caused harm) or disciplinary or regulatory sanction. But what about other guidelines?

The Bolam test
It is vital to remember that the standard applied in the field of clinical negligence is the Bolam test. It says that doctors do not breach their duty of care if it can be shown their actions conform to those of a responsible body of professional opinion.

The Bolam test is relevant when a doctor deviates from guidance. Indeed, the concept that the actions of doctors must be capable of support by a responsible body of opinion may mean that the only appropriate course of action is to depart from the guidance.

Remember that guidelines are only as good as the evidence on which they are based. Some protocols are developed on no more evidence than a meeting of experts who produce a guideline based on a consensus of their own plans and prejudices.

Curiously, these can sometimes be the most helpful type because they are often applicable to a broad range of patients in lots of different circumstances.

At the other end of the spectrum are the guidelines based on a meta-analysis of randomised and blinded controlled trials. These are helpful for managing patients who exactly fit the entry criteria of the trials, but how applicable are they to similar situations? This is where the Bolam test is useful.

The best course of action
If a patient does not fit the entry criteria for a guideline (or fits the entry criteria for two different guidelines that advise different management), how are doctors to choose? What if one of the guidelines suggests something that the doctor believes could be bad for a patient in certain circumstances?

The answer is clear: do what your professional skills say is the correct course of action and document in the patient's records what you have done and why you have exerted the most careful judgment in an individual case.

Although courts and regulators will often see departure from guidance initially as evidence of poor practice, once the evidence is subjected to expert scrutiny, the question is not 'did the doctor follow the guideline?' but 'were the doctor's actions those of an ordinarily competent practitioner?'

  • Dr Watson is the head of professional services with the UK-wide medical defence organisation, MDDUS.

Further reading

  • Hurwitz B. The impact of guidelines on practice (2005). In: Haynes K, Thomas M. Clinical risk management in primary care. Oxford: Radcliffe 2005, 247-59.

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