By Charles Foster

The Supreme Court has recently, in An NHS Trust v Y decided that adherence to guidelines produced by various medical organisations will safeguard adequately against inappropriate withdrawal of life-sustaining treatment from patients in vegetative state/Minimally Conscious State. I have criticised that decision in detail in an article in the Journal of Medical Ethics (‘The rebirth of medical paternalism: An NHS Trust v Y’)  and do not reiterate my argument here.

But the decision highlights a far more general point: clinical guidelines have come to rule medicine. That is unfortunate and worrying. The law is supposed to rule medicine. The courts have meekly surrendered their sovereignty. Despite much talk about the centrality of patient autonomy (exemplified by cases such as Chester v Afshar and Montgomery v Lanarkshire Health Board) the mystical power of the white coat persists – provided that in the pocket of that white coat there is a copy of some reasonably authoritative guidelines. Compliance with guidelines gives an immunity similar to that enjoyed by diplomats.

Perhaps this is fair enough in the context of clinical negligence cases. There the Bolam test (which says that a doctor escapes liability if what she has done would be endorsed by a responsible body of medical opinion) persists – and should persist. Compliance with a relevant authoritative guideline is likely to be conclusive evidence that the Bolam test is satisfied. But it is much less obvious that guidelines should rule in cases with an ethical element – for instance cases concerning confidentiality, consent (other than clinical negligence cases involving allegations of inadequate provision of information), the withholding and withdrawal of treatment, and resource allocation.

This is not only because the ethical elements will be far less enlightened by any conceivable evidence base than will clinical elements. It is also because medical consensus about such elements, while of course worth noting, is unlikely (precisely because it is a medical consensus) to have taken all the material factors into account. Doctors are experts in diagnosis and treatment: they are not experts in human nature or the contrary complexity of relationship. Their very expertise is likely to make them more than usually inexpert in some domains. If one is an expert at seeing pathology, one becomes less good at seeing normality. It is a common observation in litigation about the withdrawal of life-sustaining treatment that the doctors see only detriments associated with continued existence: the family and the carers often see benefits invisible to the doctors. This is a dreadful indictment of medical education, of course, and  many have railed against it. But it is likely to become increasingly, and increasingly dangerously, true. It is a truism that doctors, schooled in nerdish reductionism, see not patients, but problems; not whole bodies but individual organ systems, parts of organs, or gene sequences.

Guidelines, too, lend even clinical decision-making a wholly spurious authority. How many meta-analyses, in assessing the quality of a particular paper, take into account the declared (let alone the undeclared) conflicts of interest? The contrary unpublished negative or neutral findings, sequestered in the clinical trials register or in the bottom drawers of laboratories? Or (apart from the assessment of this which is inherent in the very nature of a meta-analysis), the repeatability of each of the steps? The spuriousness is sometimes tolerable in clinical negligence cases: they are, after all, only about money. But in the ‘ethical’ cases more (often very much more) is at stake.

Doctors are paid to diagnose and heal. Judges are paid to judge. The judges should do what they are paid to do. They should not delegate their jobs to doctors. Yet that is what the evidence-based medicine revolution has done. Judges, being lawyers, are intoxicated by the word ‘evidence’, and often do not see (and are not invited to see) that the evidence used to generate a guideline is not the sort of evidence with which they themselves would be satisfied, and that holistic assessment of ethically charged medical situations is a type of assessment which they, the judges, are far better equipped than clinicians to undertake.

Paper: The rebirth of medical paternalism: An NHS Trust v Y

Author: Charles Foster

Affiliation: Faculty of Law, University of Oxford, Oxford, UK

Competing interests: Charles Foster was counsel for one of the intervenors, ‘Care Not Killing’, in the Supreme Court litigation of An NHS Trust v Y.