People are travelling abroad for plastic surgery procedures. In some cases there has bee injury or death. There can be issues of lack of regulation and insurance. Today I'm chairing a PEOPIL webinar to consider the issues presented. Great line up of speakers Kicking of the webinar with a presentation by Titus Adams Consultant Plastic Surgeon with a fabulous presentation emphasising the importance of post operative care and dangers of the cheapest possible price approach and aggressive online marketing #PEOPILwebinar

O'Neill -the doctor-patient relationship should be one of trust with no consideration of self-interest or gain. It is supposed to be long-lasting, intimate and trusting but the problem is its based on asymmetric knowledge and power with potential for abuse She suggests the relationship was viewed as one of trust only because the paternalistic view of medicine was assumed. Was it one of reasonable trust? Was this trust based on a lack of any alternative and an inability to determine when trust was misplaced?

Hospital prosecuted in the first duty of candour prosecution in England after the death of a patient following perforation of her oesophagus during an endoscopy. There was no timely apology and a lack of candour with the family cqc.org.uk/.../regulation… The judge said: “This offence is a very good example of why these regulatory offences are very important. Not only have [the family] had to come to terms with their tragic death, but their loss has been compounded by the trust’s lack of candour.”

And this is how we do conferences in a COVID world. Inspire MediLaw Acquired Brain injury Conference for lawyers. Top class line up of medical speakers in this challenging area. First speaker Mr Peter Whitfield Consultant Neurosurgeon on traumatic brain injury -types investigations and treatment. Fabulous presentation detailing the importance of early identification and specialist treatment of brain injury.

Kicking off Inspire MediLaw annual expert witness conference with Paul Sankey Enable Law. Recording consultations with medical experts. Is the evidence admissible? Discussing the case of Williams v Jarvis 2008 EWHC 2346 (QB) where the claimant had covertly recorded her consultation with the medical expert. She was able to use this in court to demonstrate a number of facts in the expert report were inaccurate.

In my lecture I discuss that in consenting patients are in fact performing an act of authorisation. To enable them to do so they require information and there must be effective communication. It is not simply a call for more or different information. Its a call for a different way of viewing and structuring the process of soliciting consent. The emphasis is on assisting the patient to have a substantial understanding of what is at stake in the act of authorisation.

Coggon and Miola state that the courts have failed to fully consider how "autonomy" might be exercised by patients. They have focused on what is "material" rather than any more substantive reflection on what autonomy really means for patients. The end result they say is a misconceived attempt to prioritise a principle that may at times be counter-productive for patients. The focus is on provision of information without considering the question of understanding that information.

Should patients have access to all their medical notes as they are treated? Coulter describes a GP practice who discovered errors in more than 30% of medical records when patients were encouraged to review their records. She noted that for years notes were kept well out of the reach of patients and they way they were designed and used reinforced the notion that they were for health professionals only. Tests and referrals were given to patients in sealed envelopes.

Coulter The Autonomous Patient said the problem is that patient consent has been viewed as an essentially passive activity. Doctors talk about “consenting the patient” as if it is something done to the patient rather than an active decision by the patient Many clinicians are attracted to the idea of a participative decision-making style in theory but find it difficult to put into practice. The reality is patients cannot express informed preferences unless the have information

Jones observes that the doctor-patient relationship involves a major imbalance of power some of which stem from social norms. However an important part of that imbalance relates to lack of information and that is an issue that can be addressed. He felt that the function of the law was to redress that imbalance by providing patients with the ‘right’ to be given information or more accurately imposing a duty in law on doctors to provide it. Some doctors he felt resent the notion of patient rights.

Reading interesting article where Teff suggests that the model of self determination is as flawed as the model of paternalism in the area of consent as they both hinder the formation of a therapeutic alliance in the interests of patient welfare He argued that the proliferation of information is destructive of the very principle it purports to serve. When the transmission of information is formal and impersonal it turns into a substitute for genuine conversation and communication.

Cumberlege review issued titled First Do No Harm. 2 year review of harrowing patient testimony concerning Primodos sodium valproate and pelvic mesh. Nine recommendations. Worth reading. The report highlights concern that there is no central register of financial links with manufacturers. It is recommenfed that the GMC register is expanded to include a list of financial and non-pecuniary interests of doctors.

Dr Simon Fox QC kicking off Conversations on Consent. Nadine Montgomery on the patients perspective

Interesting article by Rob Heywood The logic of Bolitho which rightly highlights the practical difficulties often faced persuading a court to enter into an analysis of the view expressed by a reputable expert witness. It is important to remember that in fact Bolitho addressed an issue of causation. It was accepted the doctor should have attended and the question was a hypothetical one namely what she would have done had she attended. Bolam was applied to that question.

Prof Sappidean in her excellent article Bolam in Australia-More bark than Bite states that the Bolam rule protected the medical profession against outside interference and confirmed its status as a self regulating profession with power and influence She correctly highlights that there should be a distinction between what is actually done and what ought to be done. Australia rightly rejected Bolam well before the authoritative statement of principle in Rogers v Whitaker

A totally different article and really worth a read. Lessons learned from the Bristol heart scandal and the 2001 Kennedy Inquiry. Laurence Vick published AVMA March 2020. He had the advantage of representing families at the Public Inquiry and in claims. He notes Dr now Professor Steve Bolsin had tried to raise concerns with the Trust over alarming surgical mortality rates over many years and did his best to escalate concerns. He immigrated and was belatedly recognised for all he had done for patient safety.

For the writers of this article. The case was about the right of a patient to choose having received information from the doctor on the options available for delivery of her baby and the risks and benefits of each option. The choice is made by the patient. Also writers the test is not just about Lord Scarman in Sidaway. The SC said test as formulated also by Lord Woolf in Pearce and High Court of Australia in Rogers v Whitaker. Worth a read.

Reading article published in BMJ -Montgomery on informed consent: an inexpert decision? The writers suggest the decision reveals a counter- productively reductionist understanding of the nature of professional expertise. Does anyone know what that means? The writers suggest the decision demonstrates a lack of expertise by our SC in dealing with specific clinical issues and a failure to appreciate the nature of professional expertise. The foundations of the decision are apparently fundamentally flawed.

Issued decision in McCulloch v Forth Valley Health Board Lord Tyre 7 May 2020 scotcourts.gov.uk I was proud to be part of the excellent team acting for the family in this case. Detailed arguments made on the use of Bolitho to trump Bolam. Mr McCulloch initially attended hospital with evidence of a pericardial effusion with clinical evidence of tamponade. The argument related to whether the failure to provide NSAID's and/or colchicine was negligent.Failure to repeat the echo before discharge

Giesen also discusses the place of therapeutic privilege in information disclosure. He states inevitably the successful invocation of the therapeutic privilege involves displacement of the patient’s goals by those of the doctor. He states this involved a direct and clear assault on the dignity of the patient. He refers to Professor Kennedy who cautioned it created a discretionary exception which is quite capable of swallowing the patient’s right to self-determination.

Reading “Bye-bye Bolitho? The curious case of the Medical Innovation Bill by Jose Miola. Medical Law International 2015. Vol 15 (2-3) 124-154. Consideration of Lord Saatchi’s Medical Innovation Bill which he saw as a deeply flawed. Lord Saatchi perceived that the principal barrier to the development of new treatments was that to deviate from standard treatment was to invite litigation. This seemed to be the only perceived barrier to innovation identified in the bill.