Abortion and conscientious objection - My letter to the General Medical Council and their reply

On 21 June this year I wrote to Mr Niall Dickson, Chief Executive of the General Medical Council, to point out that in the light of a recent court judgement, their guidance on doctors’ involvement in abortion was now out of step with the law.

I asked him if they intended to revise it.

After follow up letters and phone calls I eventually received a reply from Ms Sharon Burton, Head of Standards and Ethics Section, on 19 August.

She defended the current GMC guidance, arguing that the section I had queried was in the annex to the guidance and not the guidance itself; and that the court judgement I had referred to was the subject of an appeal to the Supreme Court.

I have published both letters below without further comment.

Doctors wishing not to be involved in abortion on conscience grounds, and concerned about their standing with the GMC and under the law, should be aware of this correspondence and of the fact that the scope of the conscience clause in the Abortion Act 1967 is a matter of some controversy.

                                     

My letter to the GMC (21 June 2013)

Dear Mr Dickson,

I’m writing to enquire whether the General Medical Council intends to revise its guidance on ‘Personal Beliefs and Medical Practice’ in the light of the recent Glasgow appeal court ruling on participation in abortion and, if so, what the timescales for the revision are.

You will be aware that two Roman Catholic midwives won a landmark legal battle in April to avoid taking any part in abortion procedures.

Mary Doogan, 58, and Concepta Wood, 52, had lost a previous case against NHS Greater Glasgow and Clyde (GGC) when the court ruled that their human rights had not been violated as they were not directly involved in terminations.

However appeal judges ruled their right to conscientious objection means they can refuse to delegate, supervise or support staff involved in abortions.

The judgment is significant and has relevance also to doctors.

As you will know the Abortion Act 1967 gives healthcare professionals the right to conscientiously object to ‘participate’ in abortion but the scope of the word ‘participate’ has been the matter of some legal dispute.

But Lady Dorrian, who heard the recent challenge with Lord Mackay of Drumadoon and Lord McEwan, said: ‘In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.’

She said the conscientious objection in the legislation is given ‘not because the acts in question were previously, or may have been, illegal’ but ‘because it is recognised that the process of abortion is felt by many people to be morally repugnant’.

She added: ‘It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’

In the earlier judgement Lady Smith had said that since the midwives were not covered by the conscience clause as ‘they (were) not being asked to play any direct role in bringing about terminations of pregnancy’.

But this has now been overturned.

The GMC guidance, which interestingly came into force earlier in the very week of the judgement, is at odds with this ruling. It currently reads:

‘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′

In para 33 of the Judgment the court makes clear that professional guidelines can be legally wrong and cannot overrule statute, it says:

‘Great respect should be given to the advice provided hitherto by the professional bodies, but prior practice does not necessarily dictate interpretation. Moreover, when the subject of the advice concerns a matter of law, there is always the possibility that the advice from the professional body is incorrect’.

Because this Judgment is from a Scottish Court (and Scotland is a different jurisdiction to England and Wales) it is not strictly binding on an English Court. However it will nonetheless have significant persuasive force in England.

The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and when Scottish Courts have adjudicated on such ‘cross border’ legislation in the past their decisions have been taken very seriously in England and Wales and vice versa.

We have been concerned for some time that the GMC was over-interpreting the law in a grey area in issuing its guidance. But this latest judgement has clarified the law in a way that now makes that virtually certain.

Christian Medical Fellowship has over 4,000 doctors and 1,000 medical students as members and the vast majority would have a moral objection to participation in abortion. Many other doctors share these views.

I trust that the GMC will move swiftly to review and revise their guidance so that doctors with a conscientious objection to abortion are clear where they now stand.

As I said above I would most grateful for an indication of your plans for review along with timescales so that I can keep our members informed about this important development which has practical implications for many of them.

Yours sincerely 

Peter Saunders

CEO

Christian Medical Fellowship

Reply from Sharon Burton, Head of Standards and Ethics Section, GMC (21 August 2013)

Dear Peter,

Thank you for your letter about the decision of the court in the case of Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36.

We have, of course, been following this case with interest and have read the judgment with some care. We agree that the judgment gives a wider meaning to 'participate in terminations of pregnancy' than the determination in the Janaway case in 1989. However, we are not persuaded that this position is in conflict with the GMC's guidance in Personal Beliefs in Medical Practice (2013).

In that guidance we make clear that we do not wish to preclude doctors from practising in accordance with their values and beliefs, and we do not limit the exercise of conscientious objections, except where that would not be lawful; result in treating patients unfairly; deny patients access to treatment or cause them distress.

In our view, this guidance is consistent with the Doogan and Wood judgment - our guidance allows doctors to exercise a conscientious objection to any part of the procedure, where the objective is the termination of a pregnancy.

You refer to the brief reference to the Janaway judgment in the Legal Annex to our guidance. This section is not part of the guidance. As we state at the beginning of the Annex:

This annex is for reference only. It is not intended to be a comprehensive statement of the law or list of relevant legislation and case law, nor is it a substitute for up-to-date legal advice.

As we understand the current position, it is more than possible that Greater Glasgow and Clyde Health Board will appeal the decision of the Court of Session. In view of the terms of our guidance, and the caveats expressed in our legal annex, we do not think it is necessary to make any changes to our document at this stage.

Thank you for raising the issue with us. I hope this makes clear our position.

Yours sincerely

Sharon Burton

Head of Standards and Ethics Section

My letter to the General Medical Council over its guidance to doctors on conscientious objection to abortion

When two Glasgow midwives won the right to opt out of supervising abortions last April I suggested that the General Medical Council (GMC) needed to revise its professional guidance on the matter which now seemed to be at odds with the law.

At the time Niall Dickson (pictured), the GMC's chief executive, actually told the Guardian that the GMC would need to consider the implications of the judges' decision on its guidance. He is quoted as saying:

‘We will study the outcome of this ruling, which has just come out, to see if there are any implications for our guidance. We already have clear guidance which says that doctors should be open with employers and colleagues so they can practise in accordance with their beliefs without compromising patient care.’ 

As I have heard nothing further from the GMC about the matter, and almost two months have passed, I have today written to Mr Dickson to ask what is happening. My letter is below:

Dear Mr Dickson,

I’m writing to enquire whether the General Medical Council intends to revise its guidance on ‘Personal Beliefs and Medical Practice’ in the light of the recent Glasgow appeal court ruling on participation in abortion and, if so, what the timescales for the revision are.

You will be aware that two Roman Catholic midwives won a landmark legal battle in April to avoid taking any part in abortion procedures.

Mary Doogan, 58, and Concepta Wood, 52, had lost a previous case against NHS Greater Glasgow and Clyde (GGC) when the court ruled that their human rights had not been violated as they were not directly involved in terminations.

However appeal judges ruled their right to conscientious objection means they can refuse to delegate, supervise or support staff involved in abortions.

The judgment is significant and has relevance also to doctors (full judgement here).

As you will know the Abortion Act 1967 gives healthcare professionals the right to conscientiously object to ‘participate’ in abortion but the scope of the word ‘participate’ has been the matter of some legal dispute.

But Lady Dorrian, who heard the recent challenge with Lord Mackay of Drumadoon and Lord McEwan, said: ‘In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.’

She said the conscientious objection in the legislation is given ‘not because the acts in question were previously, or may have been, illegal’ but ‘because it is recognised that the process of abortion is felt by many people to be morally repugnant’.

She added: ‘It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’

In the earlier judgement Lady Smith had said that since the midwives were not covered by the conscience clause as ‘they (were) not being asked to play any direct role in bringing about terminations of pregnancy’.

But this has now been overturned.

The GMC guidance, which interestingly came into force earlier in the very week of the judgement, is at odds with this ruling. It currently reads:

‘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′

In para 33 of the Judgment the court makes clear that professional guidelines can be legally wrong and cannot overrule statute, it says:

‘Great respect should be given to the advice provided hitherto by the professional bodies, but prior practice does not necessarily dictate interpretation. Moreover, when the subject of the advice concerns a matter of law, there is always the possibility that the advice from the professional body is incorrect’.

Because this Judgment is from a Scottish Court (and Scotland is a different jurisdiction to England and Wales) it is not strictly binding on an English Court. However it will nonetheless have significant persuasive force in England.

The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and when Scottish Courts have adjudicated on such ‘cross border’ legislation in the past their decisions have been taken very seriously in England and Wales and vice versa.

We have been concerned for some time that the GMC was over-interpreting the law in a grey area in issuing its guidance. But this latest judgement has clarified the law in a way that now makes that virtually certain.

Christian Medical Fellowship has over 4,000 doctors and 1,000 medical students as members and the vast majority would have a moral objection to participation in abortion. Many other doctors share these views and will want to know where they now stand with the GMC.

As I said above I would most grateful for an indication of your plans for review of your guidance along with timescales so that I can keep our members informed about this important development which has practical implications for many of them.

Yours sincerely

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.

GMC backs down on requiring doctors to provide 'gender reassignment' as lobby group brings 98 patient complaints

The General Medical Council has backed down on requiring doctors to provide 'gender reassignment' just as a lobby group has brought forward 98 patient complaints. 

Last April I posted a controversial blog titled ‘The GMC needs to explain why it is forcing doctors to provide sex change operations’

The blog was prompted by new draft guidance issued by the General Medical Council which implied that doctors who refused to provide ‘gender reassignment’ risked being struck off the medical register.

The draft guidance, ‘Personal beliefs and medical practice’ allowed doctors to opt out of providing procedures or treatments to which they had a conscientious objection provided that they made sure that ‘the patient has enough information to arrange to see another doctor who does not hold the same objection as you’.

But it made an exception in the case of ‘providing gender reassignment’ (P5 footnote) for which it said doctors had no right not to be involved.

It justified this stance on the grounds that these ‘procedures’ are ‘only sought by a particular group of patients (and cannot therefore be subject to a conscientious objection)’ under the Equality Act 2010. 

Understandably the report generated some media interest at the time.

The GMC has now published its definitive guidance and has backtracked significantly apparently as a result of responses to its consultation.

In its consultation it asked specifically:

‘At paragraph 5, we explain that gender reassignment is only sought by a particular group of patients who have ‘protected characteristics’ as defined in the Equality Act. Gender reassignment cannot be withheld because of doctors’ personal beliefs, without breaching the Act. Is this guidance on gender reassignment clear? If no or not sure, please say why.’

In fact the statement was not only unclear but legally incorrect.  We made the following response in our official CMF submission:

‘Answer – No

a. The guidance is not clear on gender reassignment and appears not accurately to reflect the requirements of the law. We recommend that the confusing footnote to p5 on gender reassignment be removed.

b. In the footnote to paragraph 5 it states that doctors have no right to ‘opt out of providing’ ‘gender reassignment’ but it does not clearly define what ‘providing gender reassignment’ actually entails. Does it include just gender reassignment surgery and/or hormone treatment or does it also entail being part of the referral pathway?

c. The treatment of gender identity disorder (alternatively gender dysphoria) is extremely controversial and many doctors do not believe that surgery or hormone treatment is clinically appropriate or ethical in many (or even any) cases. To force such doctors to ‘provide’ such ‘treatment’ with no option to opt out is inappropriate.

d. The argument that provision of ‘gender reassignment’ is required is we believe a misapplication of the Equality Act 2010. The natural reading of the law is that doctors should not refuse to treat patients who have already undergone gender reassignment for conditions that they would treat other patients for (eg. Infections, heart disease).

e. It does not mean that doctors are required to provide ‘gender reassignment’ to those diagnosed with gender identity disorder. This interpretation would place doctors under an obligation to provide treatments that they regarded as unethical to the other eight groups protected under the Equality Act 2010 also and would undermine their professional status by making them servants of the state. It could also be open to legal challenge.’

I was therefore most gratified to see that the GMC which issued its definitive guidance earlier this week had completely rewritten the section on gender reassignment.

The definitive guidance (para 8 page 2) now reads as follows:

‘You may choose to opt out of providing a particular procedure because of your personal beliefs and values, as long as this does not result in direct or indirect discrimination against, or harassment of, individual patients or groups of patients. This means you must not refuse to treat a particular patient or group of patients because of your personal beliefs or views about them.’

A footnote (footnote 3 page 2) now makes it clear that this does not mean that doctors must provide ‘gender reassignment’, but rather that they must not withhold treatments from transgender patients which they would provide to others (eg antibiotics, pain killers, infertility treatment etc):

‘For example, this means that you must not refuse to provide a patient with medical services because the patient is proposing to undergo, is undergoing, or has undergone gender reassignment. However, you may decide not to provide or refer any patients (including patients proposing to undergo gender reassignment) for particular services to which you hold a conscientious objection, for example, treatments that cause infertility.’

This now protects doctors who have a conscientious objection to providing gender reassignment ‘treatment’.

It seems that this change has come not a moment too soon.

According to Pulse magazine (and Gaystar News) transgender activists have assembled a list of 98 patient complaints after a survey of transgender patients about their experience of dealing with medical professionals which it submitted to the GMC earlier this month.

The regulator has confirmed that a meeting with a group of transgender rights activists has resulted in 39 cases warranting an initial investigation, although they are at a ‘very early stage’.

Campaigner Helen Belcher, a member of the UK Parliamentary Forum on Gender Identity, said 15 GPs may be investigated by the GMC as a result.

The complaints include reports of sexual abuse, humiliation, inappropriate diagnoses, and denial of treatment. Patients also complained their transgender status was brought up when they were seeking treatment for entirely unrelated health concerns.

It is interesting that news of this campaign hit the media on the very day that the GMC released their revised guidance.

Was this in anticipation of the possibility that the revised guidance might aid such a campaign? I wonder.

It appears however that given the GMC’s revised wording it will be much harder now for activists to target doctors who simply wish not to be involved in providing ‘gender reassignment’.

People who have been discriminated against, sexually abused, humiliated or denied medical treatment because they belong to a minority group deserve justice and protection. Doctors found guilty of such misdemeanours must be dealt with promptly and effectively.

But to force doctors to collude in ‘treatments’ which they consider to be inappropriate or unethical is another thing altogether.

If there are any cases of this latter kind in the dossier of cases these activists have presented to the GMC then I hope the GMC will give them short shrift.

‘Gender reassignment’ - through hormones and/or surgery -  is legal in this country but remains very controversial. Many doctors in this country, for a variety of reasons, do not wish to be part of providing this ‘treatment’, either through prescribing hormones, or acting as surgeons or anaesthetists or as part of the referral pathway or pre-operative assessment.

It is good that the GMC has now recognised that these doctors do actually have a legal and ethical right not to be involved, while still offering the same standard of medical care to transgender patients as they do to any other patients.

(A much fuller treatment of Gender Identity Disorder is available on the CMF website)

New GMC Guidance on ‘Personal Beliefs and Medical Practice’ still gives scope for sensitive faith discussions within the consultation

Are doctors allowed to discuss their personal beliefs with patients or enquire about their patients’ beliefs? 

If so, in what circumstances?

The General Medical Council’s long-awaited revised guidance on ‘Personal Beliefs and Medical Practice’, published yesterday, attempts to answer these questions.

It shows there is still scope for doctors to share their personal beliefs within the medical consultation provided certain ground rules are followed.

The guidance also welcomes sensitive exploration of a patient’s own beliefs, as part of history-taking, provided that they are relevant to the presenting medical problem.

The new guidance has been issued with nine other sets of guidance on a range of issues alongside the revision of the GMC’s core guidance to doctors, ‘Good Medical Practice’.

All of these documents have been subject to a consultation process and I was particularly struck by how much the text has changed from the consultation draft (see below) presumably as a result of people’s feedback (See my previous articles here and here).

The new (2013) edition of ‘Personal Beliefs and Medical Practice’ comes into effect on 22 April and replaces the first (2008) edition. It also deals with the issue of conscientious objection which I will come back to in a later blog.

Like its forerunner, the new 2013 version recognises that:

‘personal beliefs and cultural practices are central in the lives of doctors and patients, and that all doctors have personal values that affect their day-to-day practice’

This helpfully give short shrift to the myth, held by some hard-line secularists, that only people who subscribe to a specific religious faith have ‘beliefs’ and ‘values’ and that atheists, by contrast, live their lives in a way that is belief and value free.  The reality is very different. Everyone has a worldview – a set of basic beliefs about the nature of reality – that profoundly affects how they think and act. This is a good starting point.

Also, like the 2008 original, the new 2013 version underlines the fact that personal beliefs need to be expressed in a way that is sensitive and appropriate.

‘You must not express your personal beliefs (including political, religious or moral beliefs) to patients in ways that exploit their vulnerability or that are likely to cause them distress.’

This is foundational. All doctors are, to some extent, in a position of power over their patients who often come to them at times of great need and crisis. I can’t see anyone wanting to disagree with this.  

Absent this time, however, is any explicit statement that knowing about a patient’s beliefs can be an important in addressing their clinical problems. The following statement from the original 2008 edition has now been removed:

‘For some patients, acknowledging their beliefs or religious practices may be an important aspect of a holistic approach to their care. Discussing personal beliefs may, when approached sensitively, help you to work in partnership with patients to address their particular treatment needs. You must respect patients’ right to hold religious or other beliefs and should take those beliefs into account where they may be relevant to treatment options.’

There is however additional text this time which partially compensates for this omission by stressing the importance of spiritual factors in history-taking:

‘In assessing a patient’s conditions and taking a history, you should take account of spiritual, religious, social and cultural factors, as well as their clinical history and symptoms (see Good medical practice paragraph 15a). It may therefore be appropriate to ask a patient about their personal beliefs.’

The 2008 guidance made it clear that ‘if patients do not wish to discuss their personal beliefs with you, you must respect their wishes’ and enlarged on this at some length:

‘You should not normally discuss your personal beliefs with patients unless those beliefs are directly relevant to the patient’s care. You must not impose your beliefs on patients, or cause distress by the inappropriate or insensitive expression of religious, political or other beliefs or views. Equally, you must not put pressure on patients to discuss or justify their beliefs (or the absence of them).’

These last two sentences in this paragraph are reproduced almost verbatim in the 2013 guidance, but more care is taken to unpack the first sentence giving still, I think, scope for mutually welcomed discussion of personal beliefs:

‘During a consultation, you should keep the discussion relevant to the patient’s care and treatment. If you disclose any personal information to a patient, including talking to a patient about personal beliefs, you must be very careful not to breach the professional boundary that exists between you… You may talk about your own personal beliefs only if a patient asks you directly about them, or indicates they would welcome such a discussion. You must not impose your beliefs and values on patients, or cause distress by the inappropriate or insensitive expression of them.’

So the key question is – ‘Has the patient either raised the issue or indicated that they would welcome such a discussion?’ I don’t imagine any GP with good interpersonal skills will have much difficulty reading verbal and/or non-verbal cues to determine a clear answer to that in any given case.

Christian doctors recognise that people’s beliefs and life choices do impact health significantly and there is a growing literature that recognises a positive correlation between Christian faith and health. 

They will therefore not wish to exclude the possibility of discussing personal beliefs and values with patients provided this is welcomed, is relevant to the consultation and can be done with sensitivity, permission and respect.

They will rather see it in the context of building a relationship, practising holistic care, or as part of the normal social intercourse that may take place within any other professional/client or tradesman/customer interaction.

In other words, if you can talk to a taxi driver, hairdresser or builder about politics, morality or religion, then why should you be prevented from doing the same with your doctor if you are both up for it and have the time?

Good doctors will recognise when such discussions are appropriate and will be sensitive about professional boundaries.

Of course, the real test of the new guidelines will be the way they are interpreted and applied in practice by the GMC itself. Will we see them applied with wisdom, discretion, flexibility and tact, or will they be used as a stick to police and beat doctors with? I hope it will be the former.

Christian doctors need to be to continue to be as innocent as doves and wise as serpents: innocent as doves because we are in a position of power and patients can be needy and vulnerable, and wise as serpents because there are those who would like to stop all faith-related discussions in the medical consultation and others who will be only too willing to provide the vexatious complaints.

But this is by no means a one-way street.

Secularist doctors who reveal their own anti-religious prejudices, or who express their political or moral views in a way that exploits vulnerability, causes distress or is otherwise inappropriate need to realise that they too may be equally running the risk of censure, or worse.

Full wording of the 2008, 2012 and 2013 versions on discussing personal beliefs

Personal beliefs and medical practice (2008 edition)

9 For some patients, acknowledging their beliefs or religious practices may be an important aspect of a holistic approach to their care. Discussing personal beliefs may, when approached sensitively, help you to work in partnership with patients to address their particular treatment needs. You must respect patients’ right to hold religious or other beliefs and should take those beliefs into account where they may be relevant to treatment options. However, if patients do not wish to discuss their personal beliefs with you, you must respect their wishes.

19 You should not normally discuss your personal beliefs with patients unless those beliefs are directly relevant to the patient’s care. You must not impose your beliefs on patients, or cause distress by the inappropriate or insensitive expression of religious, political or other beliefs or views. Equally, you must not put pressure on patients to discuss or justify their beliefs (or the absence of them).

Personal beliefs and medical practice (2012 draft for consultation)

12 In assessing a patient’s conditions, it may be appropriate to ask them about their personal beliefs. However you must not put pressure on patients to discuss or justify their beliefs, or the absence of them.

13 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. You must not impose your beliefs and values on patients, or cause distress by the inappropriate or insensitive expression of them. You should keep the discussion relevant to the patient’s care and treatment and, as with disclosing any personal information to a patient, you must be very careful not to breach the professional boundary‡ that exists between you, and must continue to exist if trust is to be maintained.

Personal beliefs and medical practice (2013 final version)

29 In assessing a patient’s conditions and taking a history, you should take account of spiritual, religious, social and cultural factors, as well as their clinical history and symptoms (see Good medical practice paragraph 15a). It may therefore be appropriate to ask a patient about their personal beliefs. However, you must not put pressure on a patient to discuss or justify their beliefs, or the absence of them.

30 During a consultation, you should keep the discussion relevant to the patient’s care and treatment. If you disclose any personal information to a patient, including talking to a patient about personal beliefs, you must be very careful not to breach the professional boundary that exists between you. These boundaries are essential to maintaining a relationship of trust between a doctor and a patient.

31 You may talk about your own personal beliefs only if a patient asks you directly about them, or indicates they would welcome such a discussion. You must not impose your beliefs and values on patients, or cause distress by the inappropriate or insensitive expression of them.

Changes between consultation draft (2012) and final (2013) edition (tracked below)

Doctors should identify themselves on line and respect colleagues and professional boundaries, says GMC

The General Medical Council (GMC), the regulatory body for doctors, has today published advice on doctors’ use of social media for the very first time.

The news comes as the Medical Defence Union, which provides legal advice and protection for doctors reveals that more doctors than ever have been asking for advice on use of social media. 

The GMC’s new booklet, ‘Doctors’ Use of Social Media’, is just one of ten sets of supplementary guidance published today by the GMC alongside an updated edition of its core guidance for UK doctors, Good medical practice. 

The long-awaited guidance, last updated in 2006, comes into effect on 22 April and all doctors will have to show they are complying with the updated standards for their revalidation - the new system of regular checks that came into force in December 2012. 

Serious or persistent failure to follow GMC guidance puts a doctor’s registration at risk.

The new GMC guidance says that doctors’ use of social media (facebook, twitter, blogs, you tube etc) can benefit patient care by ‘engaging people in public health and policy discussions, establishing national and international professional networks and facilitating patients’ access to information about health and services’.

However it also warns that ‘standards expected of doctors do not change because they are communicating through social media rather than face to face or through other traditional media’.

Specifically it says that doctors should be scrupulous to maintain professional boundaries, guard patient confidentiality, treat colleagues fairly and with respect and avoid hiding their personal identities. 

Doctors who are contacted through their private profile by a patient should explain that they cannot mix social and professional relationships and, where appropriate, direct them to their professional profile.

They are warned that they must not use publicly accessible social media ‘to discuss individual patients or their care with those patients or anyone else’; ‘must not bully, harass or make gratuitous, unsubstantiated or unsustainable comments about individuals online’; and that ‘if you identify yourself as a doctor in publicly accessible social media, you should also identify yourself by name’.

When interacting with or commenting about individuals or organisations online, doctors ‘should be aware that postings online are subject to the same laws of copyright and defamation as written or verbal communications, whether they are made in a personal or professional capacity’.

The MDU, which represents over half of UK doctors, said it received around five calls each month in 2012 from GPs and hospital doctors with concerns about Facebook, blogs and other websites.

Common concerns included complaints and allegations made about doctors by patients on social networking sites; friendship requests from patients; and doctors who had found themselves in difficulties after posting comments and images online.

MDU adviser, Dr Catherine Wills, said: ‘Social media can be a force for good in medicine, for example, by helping doctors to network more effectively and giving patients access to more healthcare information. But there are risks too, particularly when it comes to maintaining boundaries with patients and acting professionally and we are pleased that the GMC’s guidance has addressed such a growing issue for our members.’

Doctors using social networking sites are advised by the MDU to:

• Keep your profile private - limit access to friends only and don't accept requests from patients to become a friend.
• Be professional in your comments, especially about patients or colleagues.
• Be cautious about posting anything that may bring the profession into disrepute.
• Be aware that anything you upload on to a social networking site may be distributed further than you intended.

These new GMC guidelines are most welcome and help to clarify the legal and professional boundaries for doctors in social networking whilst encouraging its proper use.

Doctors need to take seriously the fact that abuse of social media could put their revalidation or registration at risk, but I hope the new guidance from both GMC and MDU also means that many more doctors get involved in making use of the many benefits of social media in a responsible way. 

Doctors cannot encourage or assist suicide: Official

Almost a year after its consultation closed, the UK General Medical Council issued on 31 January its guidance about what doctors can and cannot do with patients who consult them about assistance with suicide.

Contrary to the spin suggested by Dignity in Dying (the former Voluntary Euthanasia Society) and its satellite, Healthcare Professionals for Assisted Dying, the only clarification which could remotely be seen as a concession is that doctors who respond to a valid request and solely hand over the medical records required by Dignitas for confirmation of diagnosis are unlikely to face sanction by the GMC.

Otherwise, the 6-page guidance for the GMC’s pre-hearing investigators ‘considering allegations about a doctor’s involvement in encouraging or assisting suicide’ upholds the law as it stands and sends no signals at all to suggest the profession endorses assistance with suicide. Although of course the GMC recognises its neutral role and states ‘Nothing… should…be taken to imply that the GMC supports or opposes a change in…law’, the guidance helpfully underlines the law and the profession’s position.

Action concerning a doctor’s fitness to practise is certain when:

•a doctor has been convicted of encouraging or assisting suicide

and probable when

•a doctor has accepted a caution and/or has been the subject of an adverse determination by another regulatory body for encouraging or assisting suicide
•the doctor’s encouragement or assistance depended upon the use of privileges conferred by a licence to practise medicine (such as prescribing) or took place in the context of a doctor-patient relationship
•the doctor knew, or should reasonably have known, that their actions would encourage or assist suicide
•the doctor acted with intent to encourage or assist suicide

Also likely to lead to action are:

•encouraging a person to commit suicide, for example by suggesting it (whether prompted or unprompted) as a ‘treatment’ option in dealing with the person’s disease or condition
•providing practical assistance, for example by helping a person who wishes to commit suicide to travel to the place where they will be assisted to do so
•writing reports knowing, or having reasonable suspicion, that the reports will be used to enable the person to obtain encouragement or assistance in committing suicide
•providing information or advice about other sources of information about assisted suicide
•providing information or advice about methods of committing suicide, and what each method involves from a medical perspective

Guidance follows about ‘realistic prospects’ for proof, and the only ‘Allegations that will not normally give rise to a question of impaired fitness to practise’ because of their lawfulness or their distance from the encouragement or assistance include:

•providing advice or information limited to the doctor’s understanding of the law relating to encouraging or assisting suicide
•providing access to a patient’s records where a subject access request has been made in accordance with the terms of the Data Protection Act 1998
•providing information or evidence in the context of legal proceedings relating to encouraging or assisting suicide

Wisely, the GMC has also released shorter 2-page guidance aimed at patients and those close to them, which summarises the principles and the legal limits detailed for doctors.

Clarifying that ‘respect for a patient’s autonomy cannot justify illegal action’, doctors should ‘limit any advice or information about suicide to an explanation that it is a criminal offence to encourage or assist a person to commit or attempt suicide’.

The position of doctors is now clear to all and does not need changing.

The BMA has welcomed the guidance and the Medical Defence Union (MDU) has not revised its previous warning that doctors who provide medical reports for patients seeking assisted suicide abroad could be prosecuted.

Reprimanded by the GMC for sharing faith with a patient – reflections on the Richard Scott case

On 14 June the General Medical Council’s Investigation Committee reprimanded a Christian doctor who shared his faith with a patient at the end of a private consultation. They ruled that his actions ‘did not meet the standards required of a doctor’.

Dr Richard Scott (pictured) has now been issued with a warning which will remain on his record for five years. Further serious or persistent failure to follow GMC guidance will put (his) registration at risk.

Dr Scott, who has been a doctor for over 28 years, was initially investigated by the GMC after it received a complaint from a patient that he had discussed the benefits of Christianity with him.

The full judgement is available on the GMC website and the Huffington Post gives more detail of what Dr Scott said in his defence.

The case arose from a complaint made to the GMC on 14 August 2010 by a patient’s mother about the doctor’s conduct when her son consulted him ten days earlier. It was alleged that Dr Scott ‘abused his position as a medical practitioner to push (his) religion upon a vulnerable patient’.

The patient on 20 October 2010 provided a written statement on which the GMC’s allegations were based. After seeking Dr Scott’s views on the allegations, which he did not accept, they sought to issue him with a warning, which he refused thus exercising his right to an oral hearing before the investigation committee.

When the patient refused to give evidence to the committee last autumn the case was adjourned until June 2012. On this occasion the patient again refused to appear but eventually agreed to give oral evidence over the phone.

During the hearing the committee noted that there was ‘clearly a conflict of recollection of what occurred in the consultation between the participants’ but considered that ‘both witnesses were honest and not trying to deceive’.

Dr Scott insisted that he had acted with the GMC guidance but also accepted that if he ‘had acted in the way in which the alleged this would be a significant departure from (it)’.

There was, in other words, a significant disagreement between Dr Scott and the patient about what was actually said during the consultation.

The committee, however, considered that the patient ‘gave credible evidence, direct answers and made all due allowances’ in Dr Scott’s favour. But they considered that ‘a number’ of Dr Scott’s responses ‘were in conflict with the evidence’ and that at times he ‘appeared to be evasive when answering questions’.

In other words the committee appeared to prefer the patient’s evidence over that of Dr Scott where their recollections were in conflict.

However, whilst a number of the allegations made were found ‘proved’, three significantly were not, raising questions about the accuracy of some of the patient’s evidence.

In summary, the committee concluded that Dr Scott ‘caused the patient distress which (he) should have foreseen’ by the way he expressed his beliefs. He also ‘sought to suggest (his) own faith had more to offer than that of the patient’ and in so doing ‘sought to impose his own beliefs’.

The GMC claimed that Dr Scott’s actions were in direct conflict with paragraph 19 of its supplementary guidance: Personal Beliefs and Medical Practice’:

‘You must not impose your beliefs on patients, or cause distress by the inappropriate or insensitive expression of religious, political or other beliefs or views’.

and also with Paragraph 33 of ‘Good Medical Practice’:

‘You must not express to your patients your personal beliefs including political, religious or moral beliefs, in ways that exploit their vulnerability or that are likely to cause them distress.’

The GMC defended its issuing of a warning by saying it was obliged ‘to lay down a marker as to expected standards and to maintain public confidence in the profession’. It also said that ‘the discussion of religion within consultations is not prohibited’ and that this case ‘relates to the manner in which religion was approached during the consultation’.

The case raises a number of important questions for Christian doctors:

1.Is the GMC guidance overly restrictive?

The GMC Guidance, ‘Personal Beliefs and Medical Practice’ is currently under review but the 2008 version, under which Dr Scott has been assessed ‘attempts to balance doctors' and patients' rights - including the right to freedom of thought, conscience and religion, and the entitlement to care and treatment to meet clinical needs - and advises on what to do when those rights conflict.’

It does not intend to ‘impose unnecessary restrictions on doctors’ but does point out that doctors have an obligation not to impose their beliefs on patients. So there is no blanket prohibition on expressing personal beliefs, as long as it is done in a way that is sensitive and appropriate.

The guidance also underlines the principle that doctors must ‘make the care of (their) patient (their) first concern’ and must treat them ‘with respect, whatever their life choices and beliefs’.

These are all good principles that I personally have no problem with. No doctor, Christian or otherwise, should impose his views on his patient or seek to exploit his or her position.

However, the guidance goes on to stress that all patients and doctors have personal beliefs implying that these principles apply not just to those who subscribe to a particular faith, but to everyone.

‘Personal beliefs and values, and cultural and religious practices are central to the lives of doctors and patients.’ ‘All doctors have personal beliefs which affect their day-to-day practice.’

It also emphasises that taking account of patients’ beliefs is part of good medical care.

‘Patients' personal beliefs may be fundamental to their sense of well-being and could help them to cope with pain or other negative aspects of illness or treatment.’ ‘For some patients, acknowledging their beliefs or religious practices may be an important aspect of a holistic approach to their care. Discussing personal beliefs may, when approached sensitively, help you to work in partnership with patients to address their particular treatment needs.’

Provided these guidelines are retained within the new guidance, they are parameters that Christian doctors should be able to work with.

2.Was this investigation fair?

The faith conversation which seems to have got Richard Scott into trouble came at the end of a 20 minute consultation, when he asked the patient whether he could talk about his Christian faith and the patient replied ‘Go for it’. So there was mutual consent and when the conversation became tense they stopped it.

The key problem faced by the GMC was that they were making an assessment based on two varying accounts of what actually happened, one from the patient and one from Dr Scott. However, in so doing they seem to have preferred the patient’s testimony over that of Dr Scott where the two accounts conflicted. Also the initial complaint was made by the patient’s mother who was not a witness to the consultation and transcripts of Dr Scott’s radio interviews were actually gathered by the National Secular Society, who undoubtedly had an ideological vested interest in the case.

Furthermore there were elements of the patient’s written testimony which were not upheld on cross-examination and he repeatedly refused to turn up to give evidence face to face. The Christian Legal Centre, who represented Dr Scott, have understandably raised questions about the legality and transparency of this process and had undertook unsuccessfully to have the case ‘struck out’. They are still considering whether to ask for a judicial review of the way the GMC conducted the enquiry.

Given, as acknowledged by the GMC, that Dr Scott had a previously unblemished record and was able to produce many patients’ testimonials, might they not have given him the benefit of the doubt in these particular circumstances? Wasn’t this a case that would have been better resolved locally with a mutual apology and a handshake? Has the GMC overreacted?

Furthermore, might the judgement encourage other individuals or organisations to bring forward vexatious written complaints against other Christian doctors knowing that it will essentially be the patient’s word against the doctor’s?

And why should suggestions that faith might help a patient be treated any differently from suggestions about other lifestyle choices or beliefs? As one doctor has argued in Pulse this week:

‘Patients already could say that you are ‘exploiting their vulnerability’ and ‘causing them distress’ when you speak to them about lifestyle choices which have led to obesity or addiction, but that is OK, because the evidence shows that dealing with these things would be good for them. Dr Scott has presented similarly robust evidence that shows that ‘doing God is good for your health’. So why would the GMC want to encourage one and discourage the other?'

There are certainly questions here that are worth asking and I am aware that a number of Christian doctors have already written to the GMC about them. Others who wish to express concern about the case, or to ask questions, can do so via the GMC website. The most appropriate addressee would be Niall Dickson, the Chief Executive.

3.What sort of faith discussions are still allowed within a consultation?

Last year I was involved in a Radio four PM debate with Niall Dickson, the Chief Executive of the GMC in which he confirmed the appropriateness of sensitive faith discussions with patients. His exact words were as follows:

‘The first point is that the start of a consultation is not the point at which you start introducing your faith and you should be where the patient is at. But there may be circumstances where a patient is at a point where they do want to discuss faith and it may be appropriate for the doctor to reflect on their own faith during that discussion.’

When asked how the GMC determined whether or not a doctor had expressed ‘religious, political or other beliefs or views’ in an ‘inappropriate or insensitive’ way Dickson explained that the GMC guidance was there to enable doctors to make good judgements themselves:

‘I am not there to judge, the doctor is there to judge and this essence of medicine is making judgements in the face of uncertainty and the importance of the doctor understanding where the patient is at. Taking a vulnerable patient and imposing your religious views on them and exploiting their vulnerability would be on the wrong side of the line as far as we are concerned.’

Jane O'Brien, GMC Assistant Director for Standards and Fitness to Practise, in a letter to the Daily Telegraph in 2009 even suggested that a ‘tactful' offer to pray could be appropriate. O’Brien’s letter in full read as follows:

‘Nothing in the GMC's guidance Personal Beliefs and Medical Practice (2008) precludes doctors from praying with their patients. It says that the focus must be on a patient's needs and wishes. Any offer to pray should follow on from a discussion which establishes that the patient might be receptive. It must be tactful, so that the patient can decline without embarrassment – because, while some may welcome the suggestion, others may regard it as inappropriate.’

The same sentiments were expressed in a letter from David Horkin, GMC Investigation Officer, to a CMF member this last week.

‘The GMC has no objections whatsoever to the clinician bringing up faith in the consultation if it is done in an appropriate and sensitive manner. The patient must of course consent and be happy for such discussions to take place. Also, the clinician should take note of the patient's own beliefs and not attempt to belittle / disrespect their own faith or lack thereof. You should not attempt to impose your views on any patient who does not want to discuss such matters.’

These three statements strongly endorse the appropriateness of sensitive faith discussions.

4.Are doctors still free to practise ‘spiritual care’

Taking all this into account, it is clear by the GMC’s own admission that doctors are fully entitled to take part in ‘faith discussions’ within a medical consultation provided that they are carried out in an atmosphere of sensitivity, permission and respect.

In fact, good doctors, we might argue, have a professional duty to practise ‘whole person’ medicine that is not concerned solely with physical needs, but also addresses social, psychological, behavioural and spiritual factors that may be contributing to a person’s illness.

It would be a tragedy if, as a result of this case, Christian doctors shrunk back from providing appropriate spiritual care or from sharing their own Christian beliefs in a sensitive way, when it was appropriate, and when the patient had welcomed it.