LEGAL OBLIGATIONS AND RESPONSIBILITIES OF THE MEDICAL PRACTITIONER

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1 Br. J. Anaesth. (1987), 59, LEGAL OBLIGATIONS AND RESPONSIBILITIES OF THE MEDICAL PRACTITIONER J. D. FINCH The purpose of this article is to present a brief review of legal basics as they affect medical practice. To many medical practitioners the law seems a threat. The law, as practised by lawyers who are its professional operators, may easily be seen as a threat to clinical independence and autonomy. It therefore comes to be seen as an undesirable activity which should keep to its own province and leave the professionals alone. What may the law or lawyers say usefully about the professional and expert responsibilities which are the very essence of the job of the trained and skilled anaesthetist? Is it necessary to conduct anaesthetic practice, and indeed medical practice generally, in a defensive manner? These are important questions. They are particularly pressing at a time when subscriptions to the defence societies are increasing at a tremendous rate. The newspapers and the journals seem to be publishing an increasing number of accounts of damages and awards made against professionals, those assisting them, and (if relevant) the employing Health Authorities. This is occurring at a time when techniques and technology are advancing at such a rate as to place upon the professional an ever-increasing burden in respect of maintenance of knowledge and standards. To quote the words of former Master of the Rolls, Lord Denning, in a statement applicable to this field of professional responsibility: "It is all very worrying". It is not surprising, therefore, that the law appears directly in the guise of an advancing threat. Ironically, and disturbingly, this threat appears to increase in direct proportion to advances in techniques and technology and in corresponding patient care. J. D. FINCH, B_A., B.C.L.(OXON.), Faculty of Law, University of Leicester, Leicester. As the training of medical professionals makes increasing demands on time, both of those who train and those who receive such training, a corresponding decrease may occur in the provision of opportunities to study aspects of practice or future practice other than those which are purely clinical. A considerable effort therefore needs to be made (and in a number of schools is being made) to incorporate to medical education and training certain broader aspects of practice aimed at producing more rounded and better informed practitioners. This includes primarily social and psychological aspects to the practitioner's role. What is frequently forgotten by anaesthetists is that the broadest (and in many senses the most important) contextual aspect to medical practice consists of the legal parameters of the great responsibilities which are exercised. The legal context of the exercise of responsibilities and duties both limits and enables. This information is a vital clue in answering whether or not the law is, or is not, seeking to interfere with professional and clinical responsibility. The law limits, because it says that certain things may not be done or will not be tolerated. It does this by both the criminal law and the civil law. The criminal law consists of rules imposing penalties, while the civil law consists of principles of compensation. Concepts of fault are common to both aspects, although they work differently. On the other hand, the law enables. In setting down limitations and restrictions on what is to be permitted or tolerated, the law is creating a broad framework and a framework alone. Once the broad parameters of duty and responsibility are set down, either by statute or regulations, or more usually by the common law (see below), the law leaves well alone. Where the law stops, professional and clinical judgement and responsibility begin. Thus the law affecting the exercise of professional responsibility and judgement is a para-

2 LEGAL OBLIGATIONS AND RESPONSIBILITIES 871 mount factor in medical practice. Its particular stipulations and prohibitions may change from time to time, not least in response to advances or changes in clinical practice itself, but its prohibiting and enabling force is permanent. Why is it important for practitioners and would-be practitioners to have a "feel" for the law which affects their practice? What is the point, it may be asked, of knowing anything about the law if professional responsibility is exercised with care and in good faith? If practitioners act for all their professional lives in a manner which is both professionally and legally acceptable, what possible advantage is there in the slightest knowledge of the broadly-set legal duties which have always been complied with? One response may be to say that a knowledge of the law affecting professional medical practice is a luxury which only time taken out of patient care and research will allow to be indulged. Moliere's character in Le Bourgeois Gentilhomme, Monsieur Jourdain, was distinguished for his ability to speak prose without knowing it! If professional medical compliance with what happen to be the vital legal parameters of practice were in reality to be nothing more distinguished than Monsieur Jourdain's mundane gift, a specific study of legal aspects of professional medical practice would be trivial and probably worthless. However, there is a world of difference between the mundane and the professionally responsible. Professionalism, it is argued, carries with it both the moral and practical responsibilities of knowing the limits of the law. To know those limits is to know those situations where the law reserves the right to condemn a clinical practice as wrong. Equally, to know in broad terms the restrictions which the law lays claim to impose on clinical practice is to see in sharp relief the genuine freedom with which professional autonomy and clinical judgement can be exercised. It is therefore with an eye to both the enabling and the restricting objectives of legal regulation of medical practice that the following introduction to legal basics is offered. DUTIES OF CARE AND THE CONCEPT OF NEGLIGENCE A familiar beginning to any discussion of legal aspects of professional medical responsibility is the apparently unpleasant topic of negligence. The concept of negligence in the law of the United Kingdom includes three essential elements: duty of care; breach of that duty; damage, harm or injury resulting from that breach. These three elements will be discussed and their particular relevance to the practice of anaesthesia and to medical practice in general indicated. "Duty of Care" If two people enter into a contractual agreement, the duties which each owes the other may be reasonably clear. They may be expressed, or they may be implied. At all events, the parties to the agreement have had a direct say in the consequences of what they have arranged, and thenceforth in the legal relationship which is to exist between them until such time as the duties and responsibilities consequent upon their agreement are fulfilled or discharged. While a careless regard to contractual obligations may lead to damages for breach of contract, carelessness in the "fullblown" sense of Negligence can exist in its own right. Negligence forms an integral and vitally important part of the law of tort. The word "tort" is (in common with other legal words) derived from the original Norman French. In French, the word simply means "wrong", but the law has to be more specific these days than merely telling someone that they have done wrong. Another source of common legal words and expressions is Latin, and it is from the Latin that the word "trespass" is derived. Trespass is a corrupted derivation of the original "transgressio". To transgress is to do wrong, although the law of trespass is (as will be explained) much more complex these days. In The Lord's Prayer, requesting forgiveness for trespasses (normally) goes wider than merely seeking indulgence for having walked across one's neighbour's garden. So, in order to establish a case of negligence, all the elements of that tort have to be proved. The first element, duty of care, gives rise to relatively little difficulty. Certain comments, however, ought to be made which distinguish the duty in tort from a duty in contract. It is a commonplace to say that a caring relationship exists between a practitioner and a patient. The duty to take care is in a broad sense a professional and ethical duty. It consists in part in a duty to do things in a caring way, but the law is, and has to be, more specific than this. The concept "duty of care" is in essence a link by means of which a necessary legal connection is established between the parties to a relationship, in this case doctor and patient. So far as concerns

3 872 BRITISH JOURNAL OF ANAESTHESIA the law of contract, people make that link between themselves and by themselves, and the law attaches certain consequences to what they have done. The legal relationship between medical practitioner and patient in the independent health care sector is a contractual relationship. Expressed, or more usually implied, terms of the relationship into which they have entered will form the basis for the resolution of any dispute between them and, even in the absence of a dispute, the basis of the differing responsibilities which each owes the other (in simple terms, in the duty to treat, and the duty to pay for the treatment). An implied term of any contractual relationship for the delivery of personal health care is that such delivery will be pursued with proper caution and with an eye to the avoidance of harm. The duty of care in tort, which forms this first vital element of the law of negligence in the law of tort, can normally be formulated in much the same way. So why make the distinction between tort and contract in this regard? The difference can be explained by distinguishing between a duty to take care in treatment which aims towards cure, and a duty which is undertaken to effect a cure. So far as the latter is concerned, there is nothing in law to prevent a practitioner from undertaking by way of contract to guarantee a specific result. It may well be an unwise practitioner who would do this, but that is the way the law stands at any rate. On the other hand, so far as the avoidance of negligence in tort is concerned, the duty never approaches an obligation to effect a cure or to effect a particular result in the health or physical condition of the patient. The difference in incidence of duties in tort and contract may be illustrated by a story from the United States. One day, a businessman was playing golf with a friend of his who was a plastic surgeon. Their conversation ranged from this to that, and at one stage happened on the subject of skin. The businessman told his golfing friend that his son had for some time been suffering from an acute but increasingly chronic condition of the skin on the palm of his right hand. The surgeon, who happened to be an expert in such matters, undertook to see the boy at a private consultation. Following observations made at this consultation, and tests following it, he felt so confident at the prospective exercise of his own clinical abilities that he told the businessman "I will guarantee the cure of your son's skin condition". An operation followed during which skin was grafted from the boy's chest to the palm of his right hand. The skin graft took exceedingly well, and both boy and businessman father were delighted. A substantial sum of money changed hands, and seemed well worth the cost. When the boy reached puberty, however, things took a wrong turn. The chest hair which began to show signs of growth on the boy showed signs of growth also on the palm of his right hand. Neither boy nor father found this turn of events amusing; they sued the surgeon, and won substantial damages against him. In this example, the obligation which the surgeon undertook was an obligation to effect a cure. Had his obligation been not to effect a result, but simply to aim by the exercise of reasonable care at a given desirable result, the situation would have been entirely different. The boy's action would have failed. The duty of care, therefore, serves as a legal concept by which to tie together, or form obligations between (Latin "ligare", to tie or bind) those whose legal relationship the law is scrutinizing. So, far from interfering with a clinical or therapeutic relationship, the law is, at this point in the formulation of its concept of legal obligations between doctor and patient, simply making more specific, and with a specific aim in view, that which is already obvious in point of fact. DUTY OF CARE AND STANDARD OF CARE Discussion sometimes takes place, even in legal textbooks and in the decisions arrived at by judges in the determination of disputes in court, on "high" and "low" duties of care. These references are potentially highly misleading. Duty of care is neither high, nor low. It is a linking concept, as explained above. On the other hand, what may be high or low is the standard of care which the legal relationship between the parties (established by the concept of duty) envisages as suitable to discharge the obligations following from that relationship. It is therefore with the concept of " standard of care" that we deal next, and centrally in this brief survey of legal aspects of practice. It is in the context of a discussion of standards of care in medical, and indeed any professional practice, that the suspicion may arise of legal interference with professional autonomy. It is hoped that the following explanation may help to dispel this common suspicion.

4 LEGAL OBLIGATIONS AND RESPONSIBILITIES 873 The standard of care expected by the law of medical practitioners in general and of anaesthetists in particular is the standard reasonably to be expected of a skilled and competent practitioner of that art. It is not, on the one hand, the standard which happens to be observed by any single member of the particular discipline involved. That would have the obvious consequence of putting any given medical practice outside the law. Nor, on the other hand, does the law formulate its demand in terms of the best or something which aims at the best. It is precisely here that a vital distinction has to be made; that distinction should be made between the obligation of basic duty, and the obligation (or professional ethic) of aspiring towards excellence in practice. The law does not demand excellence. It demands competence. A famous formulation of the standard of care expected of ordinary people in doing ordinary things consists in the invocation of the "man on the Clapham omnibus". The man on the Clapham omnibus has alternatively been portrayed as "the man who reads the magazines at home and pushes the lawnmower in his shirt-sleeves". He is distinguished by his lack of distinction; he is a very ordinary person. Medical practitioners, by contrast, are not distinguished by their "ordinariness". They are distinguished by their professional education and training, by a particular skill and competence, and by the pursuit of a particular professional ethic. How "special" does the law then make the standard of care which they have to display if they are to avoid an accusation of negligence? It is precisely here that the law has to be, and indeed is, immensely careful to steer an acceptable middle course between interference with properly exercised clinical autonomy and, by contrast, casting the broad parameters of professional legal responsibility to the wind. It is essential at the outset to realize that it is not the law, indeed lawyers, who are "interfering" when any criticism is offered of a given medical practice which becomes the subject of a dispute. It is here that a vital distinction has to be drawn between the objectives of the criminal law and those of the civil law of compensation. No-one is an expert in fulfilling the obligations laid down by the criminal law. Either a crime has been committed by a given action, or it has not, and there is an end to the matter. True, judicial interpretations especially at Appeal Court level have to be made of the many refinements which are required of basic concepts of the criminal law, but the core of criminality is certain, and requires no expert intervention to demonstrate it. While expert opinion is, or should be, irrelevant to the question of fact whether a crime has or has not been committed, expert medical opinion is of the very essence when it comes to considering questions in tort as to the requisite standard of care. Once the initial link of duty of care has been established between practitioner and patient, the standards incident to that duty become a proper matter of scrutiny both for the profession itself and for the law. Most disputed cases never reach the court stage; they are either settled or dropped before that stage is reached. Nevertheless, the attitudes demonstrated by courts in the handling of disputes involving medical liability and responsibility are guides to the nature and extent of obligations inherent in situations which never reach that much-feared litigation. THE ROLE OF THE MEDICAL EXPERT WITNESS The setting of acceptable standards for any profession, be it medical or otherwise, could never be left to that profession alone to the exclusion of any other criterion. To allow that to happen would, both logically and practically, be to put the activities of that profession beyond the reach of legal regulation or legal cognisance. On reflection, that would not be a Utopia, but its very antithesis. This introduces the concepts of the medical expert witness in questions of the fulfilment or otherwise of standards of medical care rightly accepted as proper by a substantial body of professional opinion. Medical expert witnesses are special. Witnesses in "ordinary" cases relate to fact alone. For instance, a witness called to give evidence in the case of an ordinary traffic accident action could be a witness as to the vehicle's estimated speed, or as to the state of its brakes, or as to any other relevant fact. That witness might have opinions as to whether the speed, vehicle condition, etc., were evidence of negligence and of an insufficient standard of care. Be that as it may, such opinion would be immaterial to the business before the court. Medical expert witnesses are witnesses to something more than bare facts. They are called precisely in order to express a considered, expert and therefore respected professional opinion on the matter in hand. Such, for instance, would be an opinion not just as to whether or not such and

5 874 BRITISH JOURNAL OF ANAESTHESIA such a doctor did such and such an act, but whether or not that act displayed a standard of care, skill or competence professionally accepted as proper within the relevant branch of practice. More than one medical expert witness may be called by the same side to a dispute in order to testify as to the same or an associated question of acceptable standards of care and practice. On the basis of hearing medical expert evidence for both sides to a dispute in court, it is the judges' task to "determine" the dispute in hand. Pity though it might seem in some cases, a judge in court cannot simply pull his wig back over his head and tell all parties concerned that he has had a fascinating day listening to both sides and prefers not to rule in favour of one side or the other. Practising and academic lawyers have a habit of referring to the ending of disputes by way of the word "solution". On reflection, the decision one way or the other may be anything but a solution to the losing side. It may, indeed, be the very beginning of professional and financial problems which have in turn to be resolved. The term "determination" is more realistic to describe the type of situation which arises when even medical experts disagree on the acceptability of the practice. To this explanation there is, however, one immensely important caveat. This consists in the principle, long enshrined in general terms in the common law but specifically delineated in the 1983 House of Lords decision in the case of Maynard v. West Midlands Regional Health Authority, that adherence to a particular school of thought is, in itself, no basis for a finding of negligence merely because other schools of thought or practices are testified to as acceptable by medical expert witnesses for the opposing side. The necessity for the existence of such a principle is of course obvious. To put the matter in what is probably a quite inapposite way, there is more than one way to skin a rabbit. Equally, there may be two or more ways of aiming at a particular therapeutic result without either or any such approach demonstrating carelessness in any regard. As senior judges have more than once remarked, medicine is an inexact science. It is this "inexactitude" which gives reason and justification to alternative approaches to the same desired end. It is this inexactitude, put in the most felicitous and complimentary way, which affords the practice of any branch of the medical art (or science) a protection in the field of legal practice more extensive than that enjoyed by any other profession. However, it must be said that the great majority of cases do not reach the level of litigation. Primarily because carelessness is often so obvious to everyone, including medical expert opinion, it is clear that it would be futile to try to argue a way out of it. Arguments may still rage over the extent and amount of compensation paid as a result of clear liability, but that is a different issue. Errors of Judgement and Legal Blame There was never more protective a judge, where matters of allegations against medical practitioners are concerned, than the former Master of the Rolls, Lord Denning. In the celebrated case of Whitehouse v. Jordan (1980), Lord Denning said: "We must say, and say firmly, that in a professional man an error of judgement is not negligence". For that he was sharply criticized when the case went on final appeal to the House of Lords. It was a case in which a woman whose child had been born with severe brain damage sued a then senior registrar obstetrician (later a consultant), alleging that he had pulled too hard and too long on Kiellands forceps and in so doing had caused the brain damage which was the subject of the complaint. The trial judge (High Court judge) awarded damages to include interest. The Court of Appeal reversed his decision, and in the course of doing so Lord Denning uttered the statement just quoted. Although the House of Lords for legal reasons agreed with the Court of Appeal, and therefore refused the mother and her child damages, it was made clear by their Lordships in the House of Lords that the expression "error of judgement" in the present context is wholly ambiguous. It may or may not be a careless or negligent error of judgement, according to circumstances and received medical opinion. To say, in answer to an allegation that such and such an action was negligent, that it was merely an "error of judgement" is merely to restate the original problem in a more obscure form, and not to solve it. It is not semantics, but rather the input of informed medical expert opinion and the ultimate determination of the court on that basis which will give an answer to the question, whether or not such and such a practice was negligent and therefore the proper basis of a compensation award to the victim.

6 LEGAL OBLIGATIONS AND RESPONSIBILITIES 875 A practice "rightly accepted as proper" A most important rider must be added to what has just been explained. If the professionalization of any branch of medical practice is not to involve exclusivity of judgement of the legal as distinct from the professional consequences of a given action, the law must always reserve to itself the right to step in if it considers that a particular practice is unacceptable. The law has very rarely done this in the field of medical practice. Nevertheless, the law's prerogative to do this must exist if it is to retain ultimate control over the broadly stated regulatory parameters within which professional judgement can hold sway. It is for this reason that the then Lord Justice Donaldson (now Lord Denning's successor as Master of the Rolls) said, in the case of Sidaway v. Bethlem Royal Hospital and the Maudsley Hospital Health Authority, when the case was in the Court of Appeal in 1983, that it is necessary not only to look at what is accepted within any particular profession, but more particularly at what is "rightly" considered as acceptable and proper by that profession by an established body of opinion within it. It so happens that the Sidaway case involved a question of negligence, but a question of negligence of a very different order from those which have been under discussion so far. In particular, no allegation whatever was involved of carelessness in the neurosurgical operation which caused the paralysis of which Mrs Sidaway complained to the courts. It was a case which involved the different and vexed question of "informed consent". Informed Consent and the Disclosure of Risks Every anaesthetist will be familiar with the common practice of getting consent from a patient who is in prospect of submitting to an anaesthetic procedure. The signature follows, or should in proper practice follow, an adequate explanation in broad terms of what is intended to be done. In the normal case of further surgical procedures following anaesthesia, both explanation and signature as evidence of consent will, respectively, be broad enough to refer to the surgical aspects of treatment also. Desirable as it is, the practice of getting the patient to acknowledge consent by signature of a form is legally rather odd. Odd, not in the sense of its being done in the context of proposed anaesthetic, surgical and exploratory procedures, but in the sense of its not being done in most if not all other cases of medical treatment. A signed consent form is not a consent in itself but merely evidence of a consent. The substance of the matter is that the patient has, on the basis of an explanation in broad terms of what is proposed, consented to the prospect of that being done. The existence of a consent form is just that a form. It is evidence, but only evidence, of the fact or substance of a past consent. Provided that past consent is not withdrawn, it can be assumed to be a continuing consent, and treatment may lawfully be given upon its basis. Any withdrawal or variation of the original consent will, however, have the definite legal effect that treatment may not proceed precisely on the original basis envisaged, despite the fact of a consent form having been signed at some time past. It is the law of trespass which governs the rudiments of medical practice in this regard. The law of trespass depends essentially upon whether physical contact is or is not involved in what is proposed. An unconsented to and unwarranted physical contact amounts to a trespass, in the form of a battery. A battery involves unconsented and unwarranted physical contact. Assault involves the apprehension of the immediate infliction of such contact. Assault and battery may, for civil law purposes, be both involved in one and the same series of action. Even if some physical contact has been consented to, further procedures or treatment involving physical contact may still in certain circumstances constitute a battery. Subject to the certainly existing, although vaguely defined, bounds of the justification or defence of necessity at common law, it is an actionable battery to go beyond treatment A and on to treatment B when it is only treatment A to which the patient has consented. Sterilization, carried out without the prior consent of the patient, immediately following an abortion and performed under the same anaesthetic, may constitute a typical example. To avoid an action in trespass, or more specifically battery in the present instance, what is required of the practitioner or person acting on his or her behalf is a "broad terms" explanation to the patient in order to get such consent as will form a complete defence to an allegation of battery at common law. It follows as a corollary that the level of understanding in the patient may itself be only fairly rough and " broad " if such legal justification

7 876 BRITISH JOURNAL OF ANAESTHESIA for what otherwise would be a battery is to be established. The matter of "informed consent" is totally different. "Informed consent" is not in itself a term which has any particular impact. However, it happens to be a term which is extremely useful to distinguish the type of situation just discussed, in which a broad consent is required to avoid what would otherwise be a battery, from a situation in which there is no question but that such a broad consent has been obtained, yet nevertheless the patient complains that he or she did not receive an adequate explanation of risks inherent in even the most carefully performed procedure. Known risks in normally successful and troublefree procedures are typical examples. In Mrs Sidaway's case, the known risk was neurological in nature and was assessed in proportional terms as being a 1-2% risk. She underwent a delicate neurosurgical operation in which the risk of a sequela was of that magnitude. It was Mrs Sidaway's tragic misfortune to suffer a major sequela. It was in respect of that consequence that she sued her doctor, a distinguished neurosurgeon. So slowly grind the wheels of the legal process, however, that her case eventually reached the House of Lords in December 1984, the neurosurgeon having himself died in Mrs Sidaway eventually lost her case, and a very substantial (if not decisive) factor in her inability to establish her entitlement to damages compensation was the lack of cogent evidence which existed by that late stage. EDITOR'S NOTE: John Finch is Editor of the Personal and Medical Injuries Law Letter published 10 times a year by Legal Studies and Services Ltd, Bath House (3rd Floor), 56 Holborn Viaduct, London EC1A 2EX. Informed Consent in Practice It is not possible within the confines of this article to examine the function of a legal duty to volunteer information as to risks. It is the consequences of the fulfilment of that duty which are commonly referred to under the umbrellaterm "informed consent" on the part of the patient. However, medical practitioners who may fear that a standard of disclosure higher and more detailed than the mere " broad terms " explanation (which will suffice as a justification for what would otherwise be battery) would involve reciting the most complex clinical detail are fortunately mistaken in their fear. Specifically, the disclosure duty in relation to inherent risks is not simply, indeed at all, a duty to explain "more of the same" and in greater detail. It is, rather, a duty to go some way to canvass the social, financial, domestic, emotional and associated consequences which would be entailed in the materialization of a small but known risk in the case of the particular patient involved. It is duty not to recite merely clinical detail, but to treat the patient against a much broader background. In this instance, the law is attempting to set the context, social, financial, domestic and so forth, in which the acceptable and proper relationship between treater and treated is to be pursued. It is yet again a legal duty set in the most general of terms, within which particular approaches to its fulfilment may vary enormously according to the nature and incidence of the treatment and the particular people involved. Nonetheless, as is the case with all legal duties, it is a responsibility which needs to be understood if professional responsibility and clinical judgment are to proceed in an informed and unfearing manner.