Will clinical guidelines replace judges?

Medicine and Law

Volumn 25, Issue 4, 2006, Pages 585-591

  Foster, C ^a  

^a Outer Temple Chambers   (United Kingdom)

Author keywords

Clinical guidelines; Evidence based medicine; Litigation; Negligence

Indexed keywords

ARTICLE; CHILD HEALTH CARE; CLINICAL COMPETENCE; CONSENSUS DEVELOPMENT; EVIDENCE BASED MEDICINE; HUMAN; INFORMATION DISSEMINATION; INTUBATION; LAW SUIT; LEGAL LIABILITY; MEDICAL DECISION MAKING; MEDICAL ETHICS; MEDICAL PRACTICE; NATIONAL HEALTH SERVICE; NEGLIGENCE; PERSISTENT VEGETATIVE STATE; PRACTICE GUIDELINE; PROFESSIONAL STANDARD; TREATMENT FAILURE; UNITED KINGDOM;

EID: 33846120961     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (24)

1. See, eg, in the UK: Department of Health, Using Clinical Guidelines to improve patient care within the NHS (London: HMSO, 1996); Department of Health, The New NHS: Modern, Dependable (London: HMSO, 1997); General Medical Council, Maintaining Good Medical Practice (London: General Medical Council, 1998)
2. Based on McNair J's direction to the jury in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
3. See Bolitho v City and Hackney Health Authority [1998] AC 232
4. At 243
5. Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, at 638
6. Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, at 649
7. At 243
8. Both questions presuppose that it is possible to give a meaningful definition of "authoritative guideline." But beware a circularity from which some commentators have never escaped: an "authoritative" guideline is presumably one about which responsible clinicians should at least know and which represents the default position so far as clinical practice is concerned. The italics point up the potential logical error.
9. [1998] Lloyd's Rep. Med 1
10. A court of first instance.
11. [1993] 4 Med LR 39
12. British Medical Association: akin to a trade union for doctors, which issues advice about ethical conduct. It has no regulatory power. The regulatory body for UK doctors is the General Medical Council (GMC), which issues its own guidance on ethical and other matters.
13. Atp. 61
14. [1994] 5 Med LR 214
15. Atp. 216
16. See R.P. Solomon, Guidelines in the United States: perspectives on law and litigation: in J. Tingle and C Foster (Ells), Clinical Guidelines: Law, policy and practice (London: Cavendish, 2002), 137-59;
17. M. Bagle 'Main physician practice guidelines: implications for medical malpractice litigation' (1995) 47 Med Law Review 69;
18. GW. Kuc, 'Practice parameters as a shield against physician liability' (1994) 10 Journal of Contemporary Health Law Policy 439-468;
19. and M. Mello, 'Of swords and shields: the use of clinical practice guidelines in medical malpractice litigation' (2000) 149 University of Pennsylvania Law Review 645-710
20. See A. Samanta, M.M. Mello, C. Foster, J. Tingle and J. Samanta, The role of clinical guidelines in medical negligence litigation: Medical Law Review (forthcoming).
21. National Health Service: the state financed health provider in the UK
22. Associated Picture Houses v Wednesbury Corporation [ 1948] 1 KB 223;
23. R. (on the application of Rogers) v Swindon NHS Primary Care Trust (2006) EWCA Civ 392;
24. The issue is discussed in detail in Foster, C, Simple rationality? The law of healthcare resource allocation in England, Journal of Medical Ethics (in press)