Legal considerations of clinical guidelines
Authors: A. Parsons, A. Johnstone
Journal: Journal of the Royal Society of Medicine (2004)

Dr Walden1 expresses anxiety that the practice of medicine will be increasingly dictated by lawyers. Whilst we acknowledge that the NICE guidelines may be given some weight by the courts in determining legal issues in the healthcare sector, those guidelines are unlikely to be the determinative factor in all cases. In some instances, the consideration of NICE guidelines will be more likely to result in a favourable decision for healthcare providers than for the patient who is challenging the decision of a healthcare provider. Although much will depend upon the circumstances of the individual case, should circumstances now come before the courts similar to those in the well known case of Child B, it is likely that the court will be strongly influenced by the evidence-based approach adopted by NICE. In that case, which came before the court in 1995 (R v. Cambridgeshire ex parte B) the Court of Appeal upheld the decision of the Cambridgeshire Health Authority to refuse to fund very expensive medical treatment for a young child with leukaemia on the basis that the Authority was entitled to deploy its resources as best it could to the benefit of the patient community as a whole. The child had already received a substantial amount of treatment and there was dispute between the Authority and one of the main medical experts who had treated the child as to the chance that further treatment would successfully prolong the child's life. Legal commentators have speculated that there is now a real prospect of overturning the Court of Appeal's decision in the light of the Human Rights Act 1998 (enacted in October 2000), which provides that 'everyone's right to life shall be protected by law' and which has been interpreted as imposing a positive duty on public bodies to sustain life, even if the chance of survival is small. In our view, if relevant guidelines published by NICE and backed by corresponding evidence were to apply to a similar case, the courts would give significant consideration to that evidence and therefore probably take a similar view to the Court of Appeal in the case of Child B.

Dr Walden states that 'guidelines can never be fully up to date'; this does not obviate the need to maintain constant review over guidelines with particular reference to risk management matters. Guidelines will obviously only provide assistance in the manner intended if they are reviewed regularly to ensure that they are kept up to date. Legal input may also be helpful to ensure the guidelines comply with existing case authority.

Dr Walden's comments suggest that it is intended that guidance be dictatorial; we would suggest that guidance by its very nature can only be general. This approach is reflected in the evidential test which the courts apply to determine whether a healthcare professional who has allegedly breached his or her duty to the patient has in fact acted in a negligent manner. This test, known as the Bolam test, will always take into account the individual facts of each and every incident of alleged negligence, including any particular facts that apply to the patient who is the subject of the claim.