Critical Care and the Law

A session blog from Day 2 of State of the Art, London December 2015. See the full list

Blogger David Garry (@davidgarry2000)

Preventing future deaths

Coroner Mary Hassell

A succinct talk highlighting the following points on preventing future death (PFD) reports:

What is a PFD report?

A prevention of future deaths report (Coroners and Justice Act 2009) is produced by the coroner. The aim is to help people focus on system processes that could be improved to help prevent future recurrences of an error.

What do you do if you think the coroner got it wrong?

Remember that the coroner is only as informed as the evidence that s/he hears. If you attend an inquest be prepared to discuss what you have done or what you are doing. If you want support from the coroner (for example to escalate the highlighted issues to a national level) then please do raise this at the inquest.

What happens after the response?

Everyone gets a copy of the report, including the Chief Coroner, CQC and family members. After this it often seems that everything goes quiet, but this is the time to ensure that the right changes are implemented to prevent future recurrences.

Summary/Key messages

  • PFD reports should be viewed as an opportunity to improve system processes.

References/Further reading


Consent in Critical care

David Body

The days of the Bolam test are a thing of the past – Montgomery.

Recent case of Montgomery(C), a patient under the care of the obstetricians with diabetes. She was told that she was having a larger than usual baby, but not was told about the risk of shoulder dystocia (9-10% in diabetic mothers). Dr McLellan (D) accepted that although this was a high risk she did not consent for this as the risk to the baby was very small. Furthermore she stated that this discussion would not have been in the mothers interests as the patient would then want a caesarian section (which itself has inherent risks).

C stated that if she had been told of the risk of a shoulder dystocia she would have requested a caesarean section. C’s labour was complicated by a shoulder dystocia. The end result was a general anaesthetic, a difficult birth and a brachial plexus injury and cerebral palsy.

There is now dissent from the Bolam consensus. A patient may well have in mind circumstances, objectives and values which s/he may not make known to the doctor but which may lead him/her to a different decision than that made by a purely medical opinion. The doctor has a duty to warn his/her patients of the risks inherent in the treatment that he/she is proposing and especially so if the treatment be surgery. The law post-Montgomery has changed!

Summary/Key messages

  • Discussing risk shouldn’t be limited to a numbers game, it should be part of a two-way dialogue.
  • Montgomery vs Lanarkshire


The Court of Protection and DOLS

Yogi Amin

Legal background

The Mental Capacity Act was released in 2005, includes a “test” to assess capacity. Section 5 of the act allows you to provide treatments for patients that lack capacity as long as it is in their best interests. Section 6 of the act allows you to restrain the patient for the above purposes as long as it is proportional and in their best interests. Some treatment decisions are more serious, and should go to the Court of Protection.

Deprivation of Liberty (DoL) relates to the ability of the patient to have the capacity to make decisions regarding the residence and care. The recent case of Cheshire West established the elements for DoL – is the individual under continuous supervision and control, and is the person free to leave? The capacity (or lack thereof) of the patient is irrelevant to the above “acid test”, as is the reason for the placement (a gilded cage is still a cage). This is more relevant to people in the community which is the setting of the above judgement.

For hospital settings, the Law Society issued some recent guidance. This is worth a read – chapter 4 of the Law Society Guidance (Deprivation of Liberty – A practical guidance, April 2015).

A very recent judgement (since the Law Society Guidance) looked at a potential DoL in a hospital setting (R Ferreira v HM Senior Coroner for Inner South London). The judge stated that although the “acid test” is applicable to patients in hospital or ICU settings, to apply the Cheshire West judgement to all patients who lack capacity and who spend a brief period of time on the ICU would be mechanistic, unwarranted and divorced from the mischief it sought to address. This judgement should enhance our confidence in the use of sections 5 and 6 of the MCA for the emergency treatment of our patients who lack capacity as long as we act in their best interests. The case can be found here

Summary/Key messages

  • We should continue to treat our patients according to the guidance of the MCA as long as we are acting in their best interests. The recent uncertainties surrounding the relevance of DoL to our patients is starting to become clearer.