A doctor’s duty – MPS article in February Medical Chronicle

The Medical Protection Society’s recent Ethics for All conference examined the tightrope that doctors have to tread in navigating the ethical, legal and moral hazards of everyday practice. Dr Graham Howarth, Head of Medical Services (Africa), now examines the concept of care.

Patients have a right to expect they will be safe in your hands. This means you have a responsibility to provide care to an appropriate standard – avoiding any acts or omissions that could reasonably be foreseen to injure a patient in some way, whether directly, or indirectly.

Patient expectations

If a patient seeks treatment from a GP who makes no claim to any specialist skill or expertise, then they have a right to expect that it will be provided to a standard considered reasonable and appropriate for a GP. If, however, the doctor implies, directly or indirectly, that he or she can deliver a standard superior to a GP, commensurate with a specialist in that field, then the bar for a patient’s expectations of the quality and level of care will be raised.

If the treatment falls beyond your skills, training and experience, and you fail to make sure that the patient understands this when expressing their wishes, it becomes difficult to resist any allegation that you had fallen short in your duty of care

A registered specialist is expected to provide a standard of care that would be considered proper and acceptable by a reasonable body of their peers specialising in the same field.

Patients do not expect doctors to cut corners, give them bad advice, or to act other than in their best interests. However, a patient may impose constraints upon treatment they will agree to as part of the proper process of consent. For example, you might suggest referral to a specialist, but they decline, preferring to receive treatment from you.

Providing that the treatment is within the limits of your competence, and that the patient understands that a higher level of expertise might be held by a specialist, you are still fulfilling your duty of care to the patient. But if the treatment falls beyond your skills, training and experience, and you fail to make sure that the patient understands this when expressing their wishes, it becomes difficult to resist any allegation that you had fallen short in your duty of care if the patient is subsequently unhappy.

Keeping up to date

Guidelines, protocols and standards documents are produced by many different bodies, often differing in content and applicability. It is vitally important to keep up-to-date with current thinking, scientific and technological change, the correct application of clinical knowledge, as well as, protocols, codes of practice, current guidelines and standards.

Evidence-based medicine has played an important part in determining appropriate standards of care. However, evidence is not all of the same quality, nor easy to interpret. The important thing is being able to demonstrate that care complied with widely accepted practice, supported by a reasonable and responsible body of opinion which is evidence based, as far as possible.

Clinical records are vital to demonstrating the standard of care that has been given and are invaluable evidence when facing a complaint or claim

Clinical records are vital to demonstrating the standard of care that has been given and are invaluable evidence when facing a complaint or claim. We are all human and sometimes care is suboptimal or an error is made resulting in harm. Remedial treatment and compensation may be needed appropriate.

Challenges

What you can achieve will inevitably vary in relation to what the patient will allow you to do, and the way in which they want you to do it. For this reason, what may be sufficient to discharge your duty of care to a satisfactory standard on one occasion, may not be sufficient on another.

There may be many clinicians who are prevented from satisfying their duty of care because, for example, they do not have control over facilities or equipment. However, if you feel for any reason that you are prevented from meeting your duty of care to a patient, you should consider:

• Declining to provide treatment
• Postponing treatment until the deficiencies are remedied
• Limiting the treatment to that which can be provided safely and to an appropriate standard.

Scope

What may be sufficient to discharge your duty of care to a satisfactory standard on one occasion, may not be sufficient on another

The scope of one’s duty of care is surprisingly wide. Allegations of breach of duty may include the following, by way of example;

• Failure to conduct appropriate investigations 
• Failure to exercise a proper degree of skill and care in the provision of treatment 
• Failure to recognise that a particular procedure or treatment was beyond your training, skill and competence
• Failure to explain the nature, purpose, extent, risks and limitations of a particular treatment
• Delay /failure to refer the patient for further opinion or treatment
• Inadequate follow up arrangements
• Failure to make reasonable arrangements to prevent avoidable harm to the patient 
• Failure to ensure the suitability of facilities and staff 
• Failure to comply with recognised standards, codes of practice, regulations and other statutory requirements
• Failure to take account of the specific needs of an individual patient.

Falling short in one’s duty of care can present a variety of medicolegal challenges, including:

• Clinical negligence claim
• Complaint to the HPCSA
• Investigation at an inquest
• Criminal prosecution (in extreme cases).

Duty of care is an important professional and ethical responsibility, but in general the expectation is one of reasonableness, not of perfection. Your duty of care has an ethical, as well as a legal dimension, and goes back to the principles of being mindful of the needs and expectations of others, as well as obtaining the best indemnity available to protect your patients, and possibly your reputation, if something does go wrong.

Visit page 49 of the February edition of the Medical Chronicle to read the article in full >>