Wednesday, 27 March 2013

The GMC’s new guidance on ‘Personal Beliefs and Medical Practice’ – how effectively does it address our concerns?

The General Medical Council published its new guidance on ‘Personal Beliefs and Medical Practice’ (PBMP) earlier this week.

This was one of ten supplementary documents accompanying its core Guidance ‘Good Medical Practice’ – all of which were released on the same day.

Last year I outlined a number of issues of concern in the PBMP consultation draft so I was keen to see how well these had been addressed in the final version.

It was not an easy question to answer as the whole document has been substantially rewritten to the extent that the original draft is now barely recognisable within it.

The original draft had 15 numbered paragraphs in four main sections. In addition there were seven endnotes running to four pages dealing with issues as diverse as male circumcision, abortion, blood transfusion and cremation forms.

The final version has 31 numbered paragraphs in nine sections and a new ‘legal annex’ summarising relevant legislation. The endnotes have gone with only one of the seven being moved in any substance to the main text. 

Of the 15 original paragraphs in the draft document only one has escaped the editor’s red pen. One has been removed completely and ten have had whole sentences or phrases added or removed along with other more minor changes.

The result is a document that is easier to read and more logically arranged which, in the main, attempts to provide principles rather than detailed advice about specific issues. It also more readily refers doctors to seek legal advice rather than trying to interpret and apply legislation.

Overall it is a big improvement and the legal errors in the first draft have been largely (although not I believe completely) dealt with.

The guidance recognises that ‘doctors have personal values that affect their day-to-day practice’ and asserts that the GMC doesn’t wish ‘to prevent doctors from practising in line with their beliefs and values’ provided that ‘they act in accordance with relevant legislation’ and ‘follow the guidance in Good Medical Practice’.

It also recognises that doctors ‘may choose to opt out of providing a particular procedure because of (their) beliefs and values’ as long as the legal rights of others are not breached. It also concedes that ‘it may… be appropriate to ask a patient about their personal beliefs’ and ‘to talk about your own personal beliefs’ in certain circumstances.

But how good is the new guidance?

In reviewing the draft last year I highlighted five main areas of concern and we addressed these in our official CMF submission.

How many of these recommendations have the GMC taken on board? Some, but not all.

My first concern was the lack of reference to whole person medicine. Although the draft guidance addressed in the prologue the importance of ‘adequately assessing the patient’s conditions, taking account of their history (including the symptoms, and psychological, spiritual, religious, social and cultural factors)’ there was very little if anything on the relationship between personal beliefs and health or of the importance of practising holistic care which addresses these issues in practice.

I was therefore pleased to see that the patient’s ‘views and values’ have been added as factors to take into account in history taking. This is an improvement in the direction of acknowledging that all patients have a worldview which should be taken into account in considering their treatment options. 

This is also helpfully acknowledged in the (now) clearer statement that ‘personal beliefs and cultural practices and central to the lives of doctors and patients’. 

My second concern was the further tightening of restrictions about discussing personal beliefs. The draft guidance said that:

‘During a patient consultation, you may talk about your own personal beliefs only if a patient asks you directly about them or if you have reason to believe the patient would welcome such a discussion (eg. The patient has a Bible or Quran with them or some other outward sign or symbol of their belief)’

We suggested that the guidance be amended to make it clear that patients may indicate they would welcome such a discussion in the course of giving a spiritual or religious history in response to sensitive questioning. Doctors should not have to rely solely on unlikely nonverbal clues (such as carrying a Bible or Quran!) to obtain this information. 

We were therefore pleased to see that the GMC had added into this section the need to take account of ‘spiritual, religious, social and cultural factors’ in ‘assessing a patient’s conditions and taking a history’ and removed the rather comical reference to the patient carrying a Bible or Quran. The wording has also been slightly changed in giving permission for a doctor ‘to talk about your own personal beliefs only if a patient asks you directly about them or indicates that they would welcome such a discussion’. 

It is hard to see how this wording will not invite some vexatious complaints but it could have been worse and at least grants some flexibility and freedom to tactful doctors. But surely it would have been sufficient simply to have said that any sharing of personal beliefs must be done with permission, sensitivity and respect and with the patient’s best interests foremost. Trust is after all best built through openness and compassion. I’ve written at more length on this section of the guidance here.

My third concern was that the draft guidance was not clear enough about doctors having a legal right to object conscientiously to some procedures.

Like the draft, the final version confirms, in the legal annex, that ‘the Human Fertilisation and Embryology Act 1990 prevents any duty being placed on an individual to participate in any activity governed by the Act’. So far, so good.

However it is much more vague, and I think legally inaccurate (I am currently seeking advice on this) about abortion. The 'Legal Annex’ now reads as follows:

'In England, Wales and Scotland the right to refuse to participate in terminations of pregnancy (other than where the termination is necessary to save the life of, or prevent grave injury to, the pregnant woman), is protected by law under section 4(1) of the Act. This right is limited to refusal to participate in the procedure(s) itself and not to pre- or post-treatment care, advice or management, see the Janaway case: Janaway v Salford Area Health Authority [1989] 1AC 537'

Does Section 4(1) of the Abortion Act really not exempt doctors from 'participating' in 'pre or post management care, advice or management'? This is actually still a grey area legally and not nearly as clear cut as the GMC implies.

I believe the GMC’s analysis is rather an over-reading of the Janaway case which defined ‘participation’ as ‘actually taking part in treatment designed to terminate a pregnancy’. If so this is quite serious as the GMC is then misleading doctors about what the law actually says (For a thorough explanation of the current law on conscientious objection to abortion see ‘Conscientious objection to abortion - ethics, polemic and law’ by Charles Foster in the CMF journal Triple Helix).

My fourth concern was the implication that doctors who have a conscientious objection to a particular procedure have a duty to make arrangements for patients to be seen by another colleague who doesn't share their objection. Many doctors would regard such action as unethical complicity. To put this in context, if euthanasia became legal, how would you feel about being struck off for refusing to ‘make arrangements’ for patients requesting euthanasia to see colleagues who would do the deed? I suspect none too pleased!

But Section 13 says, with respect to procedures one has a conscientious objection to, that:

'If it’s not practical for a patient to arrange to see another doctor, you must make sure that arrangements are made – without delay – for another suitably qualified colleague to advise, treat or refer the patient. You must bear in mind the patient’s vulnerability and act promptly to make sure they are not denied appropriate treatment or services.'

The use of the word 'must', according to paragraph 5 of 'Good Medical Practice' implies that this is an overriding duty or principle. But on what basis is the GMC saying this? It is not at all clear that this is a legal obligation, so on what basis is the duty or principle absolute? There is of course nothing to stop the GMC recommending this course – in which case I would have expected them to have used the word ‘should’ rather than 'must'. But again the GMC may be overstretching itself here and could be vulnerable to judicial review.

My fifth concern was the implication in the draft guidance that doctors had no right to conscientious objection in the case of ‘providing gender reassignment’ or ‘prescribing contraceptives to unmarried people’.

We challenged the GMC on both of these, saying that they were misrepresenting the provisions of the Equality Act 2010.

I was therefore pleased to see that the GMC had completely back tracked in the case of ‘gender reassignment’ (see more detail on this here) but concerned to see that they were still arguing that doctors could not prescribe contraceptives for married people but refuse to prescribe for the unmarried. I don’t expect this issue will affect many doctors, but there will be some and being ‘unmarried’ is not actually a protected characteristic under the Equality Act. In other words this might also be open to a legal challenge.

Overall the guidance is not too bad and could have been considerably worse. It was clearly worth responding to the consultation as our responses, and those of others, have had a considerable impact on the final draft. This is important as it is the standard against which doctors will be judged.

There are however some assertions in the guidance that are still, I believe, less legally clear than the GMC has implied. These deserve further exploration and possibly even legal challenge.

In this era of increasing hostility to Christian faith and values Christian doctors will undoubtedly face more vexatious complaints from patients and colleagues who feel they should be silent about their faith convictions or be forced to provide services to which they have a conscientious objection.

In the main they will find this new GMC guidance on ‘Personal Beliefs and Medical Practice’ more of a help than a hindrance.

But the real test will be to see how the new guidance is applied by the GMC in individual cases.

I suspect the bigger threat will come from some of the new legislation introduced over recent years and the way it has been misinterpreted (or over-interpreted) by NHS Trusts and medical institutions (see here).

We need to count the cost and be prepared for conflict, whilst working hard with patients and colleagues to defuse potential conflicts and find ways forward that enable conscientious objection to be respected.

Reasonable accommodation of those who wish to conscientiously object is far better than forcing them to do things they believe are profoundly wrong.

1 comment:

  1. Thanks for such wonderful post on "The GMC’s new guidance on ‘Personal Beliefs and Medical Practice"


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