Will more reasonable expectations from patients cut back on litigation?

‘Realistic Medicine’ has legal implications, writes Claire Raftery

The days of “doctor knows best” may have gone, but does that mean the patient is always right? This is what Catherine Calderwood, Chief Medical Officer of Scotland, explores in her annual report.

Last week Dr Calderwood published her second annual report, Realising Realistic Medicine, which builds on her first report, Realistic Medicine, published in 2016. Realistic Medicine focuses on a move from a culture of “doctor knows best” to one where patients and doctors consider health and wellbeing together.

Doctors should help patients to better understand their health and care, while patients should share their treatment preferences and take part in decision-making about their health. Variation in care is something Dr Calderwood also intends to tackle, noting that it can lead to potentially harmful situations and a waste of available resources.

In her most recent report Dr Calderwood looks at implementing this new approach, calling for doctors and patients to have an open and honest conversation about the benefits and risks of procedures and medicine. She refers to the Supreme Court’s landmark decision in 2015, Montgomery v Lanarkshire Health Board, as evidence of a shift to a more personalised approach and shared decision making.

She suggests this will mean doctors must have more discussion with patients about the treatment options (including no treatment) and risks and benefits. While some have argued that this approach will raise

patient expectations and may even cause more litigation, Dr Calderwood disagrees.

Instead, this report suggests that approaching care in a more person-centred manner will improve patients’ experiences and outcomes. This could also reduce the number of complaints, and fewer complaints should mean less litigation.

But is that right? This approach to patient-centred care and informed consent gives the courts a more difficult task. They can no longer rely on expert evidence to establish whether a doctor acted in accordance with a practice accepted by a reasonable body of medical practitioners. With this new approach, judges must consider the doctor/patient discussions and assess whether the patient really gave informed consent to treatment. It is human nature that there will be differing standards of communications and interpretation of Realistic Medicine.

This lack of consistency means less certainty and may mean more litigation. Dr Calderwood envisages that a meaningful conversation between the doctor and patient may result in the patient deciding not to pursue active treatment.

She notes that people tend to overestimate the benefits of some treatments and underestimate the risk. What if a patient decides not to pursue active treatment?

The doctor must ensure that the patient is fully informed about the potential outcomes, even if that means death.

If they do not, they risk being sued by a patient who suggests they did not know – or did not understand – the consequences of their decisions.

Dr Calderwood is right to suggest such a radical patientfocused service, but it leaves the courts, not the clinicians, to determine the scope of the doctor-patient relationship. Claire Raftery is a senior associate with Clyde & Co