A Duty Too Far

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, 28^th February 2013)