When
I was studying for a Master of Laws degree, a term I became familiar with was
that of ‘duty’. In terms of the law it is ‘a legal requirement to carry out or
refrain from carrying out any act’. Healthcare professionals are familiar with
their ‘duty of care’’; that is, the legal obligation to take reasonable care to
avoid causing damage. If we fail, and that failure results in damage, then
there has been a breach of duty and we can be found liable. For a professional
to fail in his or her duty of care is therefore a powerful charge.
Imagine
my surprise, confusion and abject distrust, when I read that the Government,
that powerful body of august and learned individuals charged with making the
laws of our land, has decided in its wisdom that henceforth a new statutory
duty will be included within the NHS Constitution for GPs to ‘make every
contact count’. By this, the Department of Health wishes to ensure that we are
mandated to ensure that patients are leading healthy lifestyles on each and
every occasion we meet.
GPs
have been labouring away at this on an opportunistic basis for years without it
being made a statutory duty. How many patients have not been nagged to reduce
weight, stop smoking, drink less alcohol, eat healthier food, work fewer hours,
and take more exercise? I bet the majority of my patients are surprised if I
don’t say something about at least one of these issues every time they appear
in my consulting room. It is what we do when trying to make people better.
However,
making such activity a duty raises it to a whole new level. No longer will it
be something we do as caring professionals. From now on, it will be a legal
duty and to stray from that path means a breach of duty and the possibility of
legal action.
So
let us imagine a familiar scenario. Mr X, an office manager in his 50s, who
smokes, is overweight, is stressed with running a workforce and meeting targets,
has no time in the long working day for exercise, and winds down with an
alcoholic drink or three, appears in the surgery for the first time in years,
emotionally distraught because he has been made redundant. He is depressed and
anxious because his family’s well-being is at stake, the mortgage cannot be
paid and the house may be re-possessed. What he needs help with at that moment
is coping with his emotional breakdown. What he does not need is a lecture on
his errant lifestyle. That can come later. However, if he then goes on to have
a heart attack, precipitated by the stress, but no doubt fuelled by his unhealthy
habits, the doctor now becomes potentially liable in law for the harm that he
has befallen.
Making
it a professional standard of care is one thing; making such advice a statutory
duty is open to abuse. Let us hope, for our collective sanity, that the courts
see it as unreasonable and unenforceable.
(First
published in the Scunthorpe Telegraph,
Thursday, 28th February 2013)