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Clinical guidelines can operate legally as a sword, in that doctors can be criticised for not adhering to them, or as a shield to rebut criticism of inadequate treatment
The last few years have seen the rise of the clinical guideline, in particular those generated from central National Health Service (NHS) bodies such as the National Institute of Clinical Excellence (NICE). Some praise these nationwide emanations as promulgating the brave new world of robust evidence based medicine, others characterise (or caricature) them as dirigiste measures leading to “cookbook medicine” underscored by insidious rationing of the ingredients. This article, by a lawyer, does not seek to contribute to that debate. Its subject is very different. What legal effect do these guidelines have, as between doctor, patient and disciplinary body? More particularly, what is a clinician to do if he or she is seriously troubled about some specific recommendation in a guideline?
Clinical guidelines can operate legally in two principal ways, as a sword in that doctors can be criticised for not adhering to them, or as a shield in that doctors can rely upon them to rebut criticism of inadequate treatment. Though guidelines are plainly of considerable use in defending doctors*, I shall concentrate on their use as a sword, against doctors, because it raises far more difficult issues. Such issues can arise in either a claim by a disgruntled patient for clinical negligence or in disciplinary proceedings brought against the doctor before the General Medical Council (GMC).
LEGAL PRINCIPLES
Though there is no up-to-date case law on the effect of the NICE type guidance, the underlying legal principles are uncontroversial and can be shortly stated:
A guideline, however august its provenance, has no automatic legal effect. It is not a tramline or a statute. It will probably contain some express …
Footnotes
↵* For example, Early v. Newham HA [1994] 5 Med LR 214; all Newham anaesthetists (including 7–8 consultants) decide on failed intubation drill; decision minuted; very difficult to criticise later adherence to the drill as negligent.
↵† Quoted words from the more recent decision of the House of Lords in Bolitho v. City & Hackney H.A. [1998] AC 232.
↵‡ The archiving pros and cons of the metre high column of paperwork in the corner of the consulting room or loft versus electronic storage will not be canvassed here, though the automatic dating of the latter might assist those seeking to prove when it was that the particular paper was received by the clinician. §See the clinical meeting which assisted the hospital in Early, footnote* above.