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Medicolegal Issues
in Obstetrics
and Gynaecology
Swati Jha
Emma Ferriman
Editors

123
Medicolegal Issues in Obstetrics
and Gynaecology
Swati Jha • Emma Ferriman
Editors

Medicolegal Issues
in Obstetrics and
Gynaecology

Section Editors
Robert Burrell
Danny Bryden
Janesh Gupta
Raj Mathur
John Murdoch
Editors
Swati Jha Emma Ferriman
Department of Obstetrics and Department of Obstetrics and
Gynaecology, Jessop Wing Gynaecology, Jessop Wing
Sheffield Teaching Hospitals NHS Trust Sheffield Teaching Hospitals NHS Trust
Sheffield, UK Sheffield, UK

ISBN 978-3-319-78682-7    ISBN 978-3-319-78683-4 (eBook)

https://doi.org/10.1007/978-3-319-78683-4

Library of Congress Control Number: 2018940256

© Springer International Publishing AG, part of Springer Nature 2018

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or
part of the material is concerned, specifically the rights of translation, reprinting, reuse of
illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way,
and transmission or information storage and retrieval, electronic adaptation, computer software,
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The use of general descriptive names, registered names, trademarks, service marks, etc. in this
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This Springer imprint is published by Springer Nature, under the registered company Springer
International Publishing AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
This book is dedicated to my Father who introduced me to
Pandora’s box and made me the Doctor I am today and my
Mother who gave me the values by which I live my life.
Swati Jha
Preface

The UK is experiencing a dramatic increase in medico-legal claims. The four

main reasons for litigation are accountability, the need for an explanation,
concern with standards of care and compensation. However the decision to
take legal action is determined not only by the original injury but also by a
failure to provide information, an explanation and an apology. Insensitive
handling of an injury and poor communication after the original incident
increases the risk of litigation and erodes the patient-doctor relationship.
Doctors almost never deliberately cause harm to patients; however increas-
ingly claims are being prosecuted successfully.
Medicine has always been an imperfect science and as humans we will
make mistakes. Whereas the principle of “Six Sigma” can be applied to cer-
tain areas of medical practice, surgery involves so many variables that it
would be impossible to apply those principles. It is also true that a single
failure rarely leads to harm but in complex systems, which is what surgery
involves, it is usually the Swiss cheese model of accident causation that
results in suffering for the patient. Unfortunately this is also what often results
in successful litigation.
Obstetrics and gynaecology in particular has always had a reputation for
being a highly litigious specialty. However for all those in the practice of
obstetrics and gynaecology, we are in the specialty because we enjoy it and
have chosen it in spite of it being a litigious specialty and have obviously not
been deterred by this fact. Awareness of issues related to litigation however
makes us more aware of how best to avoid injury and harm to our patients and
at the same time protects us from accusations of clinical negligence.
The aim of this book is to highlight minimum standards relating to the
management of different conditions in the practice of obstetrics and gynaeco-
logy. We also highlight clinical governance issues and common causes of liti-
gation. A section on how to avoid litigation is provided in each chapter
followed by a case study. This should be of use to clinicians and lawyers alike
and raise awareness of how to avoid facing clinical negligence claims in our
day-to-­day practice.

Sheffield, UK Swati Jha

vii
Contents

Part I General
Swati Jha and Robert Burrell

1 Ethics in Medicine��������������������������������������������������������������������������    3

Kate F. Walker and James G. Thornton
2 Why Doctors Get Sued������������������������������������������������������������������    9
Eloise Powers
3 Consent After Montgomery: Clinical Considerations����������������   15
Helen Bolton
4 Consent After Montgomery: Legal Considerations��������������������   19
Elizabeth Thomas and Bertie Leigh
5 Duty of Candour����������������������������������������������������������������������������   23
Helen Bolton
6 Leading Cases��������������������������������������������������������������������������������   27
Fiona Paterson
7 The Claim Journey������������������������������������������������������������������������   31
Karen Ellison and Emma Ferriman
8 GMC Referral��������������������������������������������������������������������������������   37
Katherine Sheldrick and Angela Pilling
9 Report Writing ������������������������������������������������������������������������������   45
Eloise Powers and Sallie Booth
10 Being an Expert Witness ��������������������������������������������������������������   51
John Reynard
11 The Obstetrician/Gynaecologist in Coroner’s Court������������������   55
A. R. W. Forrest
12 Intimate Examinations and Chaperones ������������������������������������   61
Janesh K. Gupta

ix
x Contents

Part II Anaesthesia in Obstetrics and Gynaecology

Swati Jha and Danny Bryden

13 Pain Relief��������������������������������������������������������������������������������������   67

Jeremy P. Campbell and Felicity Plaat
14 Regional Anaesthesia ��������������������������������������������������������������������   73
Sujata Handa and David Bogod
15 General Anaesthesia����������������������������������������������������������������������   77
Samuel Hird and Rehana Iqbal

Part III Obstetrics

Emma Ferriman and Swati Jha

16 Prenatal Screening and Diagnosis������������������������������������������������   85

Emma Ferriman and Dilly Anumba
17 The 20-Week Anomaly Scan ��������������������������������������������������������   89
Emma Ferriman and Dilly Anumba
18 Induction of Labour����������������������������������������������������������������������   93
Myles J. O. Taylor
19 Diabetes in Pregnancy ������������������������������������������������������������������   99
Alexander M. Pirie
20 Cardiac Disease in Pregnancy������������������������������������������������������ 105
Philip J. Steer
21 Pre-eclampsia and Hypertension�������������������������������������������������� 109
Alexander M. Pirie
22 Umbilical Cord Prolapse �������������������������������������������������������������� 115
Susana Pereira and Edwin Chandraharan
23 Fetal Growth Restriction (FGR)�������������������������������������������������� 121
William L. Martin
24 Placenta Praevia, Placenta Accreta and Vasa Praevia���������������� 127
Jeremy Brockelsby
25 CTG Interpretation������������������������������������������������������������������������ 133
Vikram Talaulikar and Sabaratnam Arulkumaran
26 Operative Vaginal Birth���������������������������������������������������������������� 139
Stephen O’Brien, Mohamed ElHodaiby, and Tim Draycott
27 Caesarean Section�������������������������������������������������������������������������� 147
James Johnston Walker
28 Shoulder Dystocia�������������������������������������������������������������������������� 153
Tim Draycott and Jo Crofts
Contents xi

29 Vaginal Birth After Caesarean Section, Uterine Rupture���������� 163

Kara Dent
30 Sepsis in Pregnancy������������������������������������������������������������������������ 169
Derek J. Tuffnell
31 Twins ���������������������������������������������������������������������������������������������� 173
Mark D. Kilby and Peter J. Thomson
32 Vaginal Breech Delivery���������������������������������������������������������������� 179
Simon Grant and Emma Ferriman
33 Maternal Collapse in Pregnancy�������������������������������������������������� 185
Peter Brunskill and Emma Ferriman
34 Postpartum Haemorrhage and Retained
Products of Conception Postnatal������������������������������������������������ 191
Stephen O. Porter
35 Perineal Trauma and Episiotomy ������������������������������������������������ 199
Dharmesh S. Kapoor and Abdul H. Sultan

Part IV General Gynaecology

Swati Jha and Janesh Gupta

36 Abdominal Hysterectomy�������������������������������������������������������������� 207

Thomas Keith Cunningham and Kevin Phillips
37 Diagnostic and Operative Laparoscopy�������������������������������������� 213
Andrew Baxter
38 Diagnostic and Operative Hysteroscopy�������������������������������������� 217
Ertan Saridogan
39 Endometriosis�������������������������������������������������������������������������������� 221
Alfred Cutner
40 Ectopic Pregnancy and Miscarriage�������������������������������������������� 225
Andrew Farkas
41 Ovarian Surgery���������������������������������������������������������������������������� 229
Swati Jha and Ian Currie
42 Laparotomy������������������������������������������������������������������������������������ 235
James Campbell
43 Urological Injuries ������������������������������������������������������������������������ 243
Christopher R. Chapple
44 Bowel Injury ���������������������������������������������������������������������������������� 249
Janesh K. Gupta and Tariq Ismail
45 Vascular Injury������������������������������������������������������������������������������ 253
Jonathan D. Beard
xii Contents

Part V Urogynaecology
Swati Jha

46 Vaginal Repair and Concurrent Prolapse

and Continence Surgery���������������������������������������������������������������� 261
Philip Toozs-Hobson
47 Midurethral Synthetic Slings�������������������������������������������������������� 265
Swati Jha
48 Colposuspension and Autologous Fascial Sling�������������������������� 269
Andrew Farkas
49 Vaginal Mesh Surgery������������������������������������������������������������������� 273
Mark Slack
50 Vaginal Hysterectomy�������������������������������������������������������������������� 277
Swati Jha and Linda Cardozo
51 Laparoscopic Prolapse Surgery���������������������������������������������������� 281
Simon Jackson
52 Acute Urinary Retention �������������������������������������������������������������� 287
Mark Slack
53 Obstetric Anal Sphincter Injury [OASI] ������������������������������������ 291
Swati Jha and Abdul Sultan

Part VI Infertility, Subfertility and the Menopause

Swati Jha and Raj Mathur

54 Fertility Testing and Treatment Decisions ���������������������������������� 297

Ying Cheong and Rachel Broadley
55 Assisted Conception ���������������������������������������������������������������������� 301
Raj Mathur
56 Gamete Donation and Surrogacy ������������������������������������������������ 307
Sharon Pettle and Hannah Markham
57 Termination of Pregnancy (Abortion)������������������������������������������ 313
Swati Jha and Lesley Regan
58 Hormone Replacement Therapy (HRT)�������������������������������������� 317
Nick Nicholas
59 Long-Acting Reversible Contraception �������������������������������������� 325
Raj Mathur and Swati Jha
60 Sterilisation������������������������������������������������������������������������������������ 329
Janesh K. Gupta
Contents xiii

Part VII Oncology

Swati Jha and John Murdoch

61 Fast Track Referrals and GP Perspectives���������������������������������� 335

Rahul Kacker
62 Running a Safe Rapid Access Clinic�������������������������������������������� 339
Vivek Nama
63 Cervical Screening, Cytology and Histology
Laboratory Issues�������������������������������������������������������������������������� 345
Karin Denton
64 MDT Function and the Law��������������������������������������������������������� 351
Alan Farthing
65 Colposcopy and Surgical Management
of Early Stage Cervical Cancer���������������������������������������������������� 357
John Murdoch
66 Vulval Disorders and Neoplasia���������������������������������������������������� 363
Helen Bolton and Peter Baldwin
67 Uterine Cancer ������������������������������������������������������������������������������ 367
Amit Patel
68 Ovarian and Tubal Cancer������������������������������������������������������������ 373
Richard Clayton
69 Gestational Trophoblastic Disease������������������������������������������������ 379
John Tidy
70 Chemotherapy and Radiotherapy
in Gynaecological Cancer�������������������������������������������������������������� 383
Paul Symonds
Index�������������������������������������������������������������������������������������������������������� 389
 Part I
General
Swati Jha and Robert Burrell
 Ethics in Medicine
1
Kate F. Walker and James G. Thornton

1.1  he Difference Between

T 1.2 Ethical Principles
the Law and Ethics
Medical practice should respect the following
Good law should follow ethical principles, and in principles:
day to day life we usually act ethically if we fol- Beneficence
low the law. But in complex dilemmas the ethi- A doctor should act in the best interests of the
cally correct action cannot automatically be patient
determined by reference to current law. This is Non-maleficence
obvious when we consider past laws; in many First, do no harm
countries and for many periods slavery was legal, Autonomy
but it was never ethical. Similarly termination is The patient has a right to choose or refuse
legal in some jurisdictions and illegal in others, their own treatment
so its moral status cannot be judged simply by Justice
appeal to local laws; it must be judged by appeal Resource allocations between competing indi-
to more fundamental principles. viduals should be made justly.
However, philosophical thinking is hard, there Problems typically arise in two ways. Firstly,
is often insufficient time to do it properly, and if one principle conflicts with another. For exam-
individuals easily fall prey to self-interest and ple, termination of pregnancy puts respecting the
self-deception. For everyday decisions the law, autonomy of the mother with acting non-­
and paralegal bodies such as the GMC, provide maleficently to the fetus. In UK law, the rights of
simple guidance that any doctor should be able to the fetus cannot supersede the autonomy of the
follow. mother. However, the fetus does have some
The rest of this book describes the law and the ‘rights’ or else there would be no need to regulate
above day to day rules. In this chapter we con- termination of pregnancy. Secondly, around the
sider the philosophical principles that underpin issue of justice. People arguing for a just alloca-
them. tion of resources often appeal to two different
conceptions of justice. On the one hand, justice
as entitlement, e.g., a kidney should be allocated
K. F. Walker (*) · J. G. Thornton
Division of Child Health, Obstetrics in accordance with the wishes of the person to
and Gynaecology, The University of Nottingham, whom it rightfully belongs, for example, the
Nottingham, UK donor. On the other hand, justice as fairness, it
e-mail: katefwalker@doctors.org.uk; should be allocated by a fair process for example
Jim.Thornton@nottingham.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 3

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_1
4 K. F. Walker and J. G. Thornton

equal shares for all, or by lottery, or to the person by disputing the status of the fetus as a person,
who will benefit most. or by arguing that respecting bodily autonomy
Many philosophers and religious leaders takes precedence over not killing.
have attempted to resolve such dilemmas by
appeal to a universal moral law, the Golden
Rule. Immanuel Kant expressed it as his cate- 1.3.2 Personhood
gorical imperative “act only in accord with
those rules which you can, will that it become One of the central issues to the debate is the sta-
universal moral laws” [1]. Richard Hare, con- tus of the human fetus. At what point in its devel-
sidering the termination decision, added “and opment from a zygote to an autonomous, mature
as we are glad was done to us when we were in person does a human acquire a “right to life”.
the same situation” [2]. First we need to define person. Let’s be circu-
lar, and define it as a “being who may not be
unjustly killed”. The obvious answer is humans,
1.3 Case Scenario members of the species Homo sapiens. On that
definition the fetus is a person and, on the face of
A young woman requests termination of preg- it, termination is wrong. However, although it
nancy. She reports that her last menstrual period makes intuitive sense, the Homo sapiens claim
was 8 weeks ago. On scan she was found to be does not bear close examination. It is “specie-
25 weeks gestation. The doctor explained that in sist”, in the same sense as it would be racist to
the UK it is illegal for a doctor to perform a ter- claim that only whites are persons. They are both
mination beyond 24 weeks unless there is a sub- distinctions based on morally irrelevant criteria,
stantial risk to the mother’s life, or fetal namely skin colour, or species membership. The
abnormalities. The patient found a clinic abroad reason we don’t immediately perceive the specie-
that would offer late termination and booked sist claim as such, is that on this planet the only
flights to go. undisputed contenders for personhood are mem-
bers of the species, Homo sapiens.
We need a thought experiment to clarify
1.3.1 Termination Ethics things. Imagine a spacecraft landed outside your
house one day. How would you decide in what
The ethics around termination of pregnancy sense to have the occupants to dinner? Would you
remain as controversial today as they did in eat them, or sit down together and share a meal?
1967 when the Abortion Act was enacted in Remember they are making the same decision
English Law. The central argument against ter- about you. The answer is obvious. You would not
mination is that following the principle of non- decide on the basis of their species. You would
maleficence, killing innocent people is wrong. assess their mental state. Are they conscious,
The fetus is a person. Therefore termination is self-aware, do they want to live, would they be
wrong. The central argument for termination is deprived of anything by painlessly dying? If the
that if we respect autonomy, people should be answer is yes, you should not kill them, and if
allowed to do what they like with their own they’ve made the same judgment about you, they
bodies, and the mother should be allowed to also should let you live.
empty her uterus/have a termination. The self- So now we have a better definition—con-
described “pro-lifer” resolves the conflict this sciousness, self-awareness, wanting to live, are
way: when one person’s desire to do what they what makes people, people. For now we need not
like with their own body conflicts with another go into the precise definition any further. If we
person’s desire not to be killed, not killing takes take this argument, the fetus does not make the
precedence. The self-described “pro-choicer” cut. Or if it does we are already being unfair to
usually finds fault with this in two ways, either many other animals.
1 Ethics in Medicine 5

On this definition personhood/non-­personhood Several religions take the stance that the human
is a continuum. Some higher animals, primates, fetus is special because it has a soul, given by
dolphins and whales probably also fulfill some God from the moment of conception. Termination
criteria for personhood. Maybe they are con- is therefore prohibited. However no adult should
scious, aware of themselves and grieve when impose their religious belief on another. So a
their family members are killed. This is a strength belief that the fetus is special is an excellent rea-
of our definition; we should be careful how we son for a believer to forego termination. But it’s a
treat such higher animals. bad reason to prohibit an unbeliever, or a believer
But however we look at it, on the basis of this in a different tradition, from choosing one.
argument, the 12-week fetus say, is not even a However not all those who are anti-­
borderline person on this definition, so termina- termination argue from a religious standpoint.
tion is permitted. Tom Huffman argues that a fetus has rights wor-
One problem is that this argument appears to thy of protection: “It is proper to consider a
commit us to permit infanticide. Newborn babies woman’s right to employ a physician in self-
are not self-aware, and don’t, as far as we can tell, defence against an unwanted fetus, then it is
care about their future life. Can we also kill them equally proper to consider an interested third-
if they are inconvenient? party exercising the fetus’ right of self-defence
Some philosophers would argue yes, if no on its behalf against a women who intends to
other person is prepared to make the effort to abort. The fetus is … a moral patient who has a
look after them (e.g. Singer). The value of new- right to life but must rely upon others to protect
born babies lies in the importance other people it against those who would threaten its interests”
give them. They are precious in the way an inani- [3]. In other words because the human fetus can-
mate, but otherwise important painting like the not themselves exercise rights whereas the
Mona Lisa is precious. It is not a person, but mother can and does exercise her rights, should
destroying it would be wrong. Killing a newborn make us sensitive to the protection of whatever
baby is not the same as killing an adult, but so rights the fetus may have.
long as its mother, or the nurses looking after it, If a fetus only has rights when it is born then
want it to live then it is still wrong. the following difficulty emerges: if a doctor may
But imagine if no-one cared enough to expend be sued on behalf of a child who suffered harm
effort looking after a particular newborn baby. due to negligence on the part of that doctor while
Perhaps its mother had other concerns, or it was the child was a fetus in utero then did those rights
so premature that the only nurses who could look exist at the time of the negligence? Can the
after it, also had other concerns. Perhaps they child’s rights only be exercised retrospectively
needed time with their own families. This might after the birth?
happen as technology for saving the lives of pre- If we reject the notion that a newborn baby is
mature babies grows more complex. At that point not a person with no rights to protect, then at
we would surely allow the last neonatal intensive what stage of pregnancy is termination permissi-
care nurse to switch off the ventilator with a clear ble. A former US Surgeon General Koop said “I
conscience. do not know anyone among my medical con-
Other societies, such as the Spartans, have freres, no matter how pro-abortion he might be,
permitted infanticide in the past, and some, India who would kill a newborn baby the minute after
and China, tolerate it even today. Such societies he was born….My question is this: would you
are different but not immoral. kill this infant a minute before that, or a minute
Many people will argue that this is the wrong before that, or a minute before that?....At what
way to think about the fetus. They would argue minute can one consider life to be worthless and
that any argument which leads to a conclusion the next minute consider that same life to be pre-
that newborn babies are not people and do not cious”. A fetus may not function in the same way
have a right to life should be rejected as absurd. as an adult “consciousness, self-awareness,
6 K. F. Walker and J. G. Thornton

­ anting to live” but that fact alone may not

w ple to not travel home alone. And imagine that
remove the fetus from the status of a person. you decided to cross the local park to take the
pleasure of exercise, or of viewing the sunset, and
the Music Lovers jumped out of the bushes,
1.3.3  odily Autonomy Versus Not
B abducted and connected you. Would it make any
Killing sense for the clinic director to say, “I would have
disconnected you, but I can’t because you brought
Some people have argued that termination is per- this on yourself by your reckless behaviour”?
mitted even if the fetus is as much a person as you Surely not. By analogy taking sexual pleasure
and me. After all we don’t force women to give a does not commit you to bearing the pregnancies
kidney, or even a pint of blood to save an adult that occasionally result, whatever the personhood
life. Why should we force them to carry a preg- of the fetus.
nancy? But perhaps that’s not a fair analogy. The There are many critics of Thomson’s analogy.
philosopher, Judith Jarvis Thomson, came up Some argue that we do not have the same obliga-
with a better one [4]. Her thought experiment is tion to sustain a stranger who is plugged into us
an analogy with termination for rape, but not lim- as the obligation to sustain our own offspring.
ited to that. Koukl argues that were a woman to be surgically
A famous violinist, i.e. not just a person who plugged into our own child, it’s unlikely she
valued his own life but someone whose life was would be willing to cut off the life-support so
also valued by many others, develops a fatal kid- easily. He criticises Thomson’s assumption that a
ney disease, which can only be treated by con- mother has no more duty to her own offspring
nection to the circulation of another person for than a stranger. Others have argued that the com-
9 months. He has a rare blood group and it is dif- parison between disconnecting support or with-
ficult to find someone with the right group who is holding support is not a fair comparison with
also willing to be connected. A Society of Music termination of pregnancy as the former is a case
Lovers hear about the problem, search for a suit- of letting die and the latter is a case of killing.
able person and find you. Rather than asking if Some have argued that the burden of being bed-
you would agree to be connected, they kidnap ridden and connected to a stranger for 9 months
you and connect you to the violinist’s circulation. is not a fair comparison with 9 months of a
The next day you wake up and the clinic director mobile, healthy pregnancy.
explains what has happened. You demand to be
disconnected, but the director says his hands are
tied. He can’t disconnect you without killing the 1.3.4 Taking Potentiality Seriously
violinist, an undisputed person with his own right
not to be unjustly killed. Should you stay con- Many people find the above arguments uncon-
nected? Obviously it would be kind of you to do vincing. Their intuition is different from
so. But must you? Thomson’s, or they object to the personhood
Thomson says that if after due consideration arguments on the grounds that the fetus, unlike
you decided that you couldn’t cope with 9 months animals, has the potential to become a person. If
connection, you should be allowed to disconnect. we do nothing it will likely become a paradigm
If so we should also permit termination for rape person. The philosopher Richard Hare took such
victims, whatever our belief about the person- potentiality claims seriously, arguing from the
hood of the fetus. Golden Rule; “Treat others as you were glad that
It’s only a small step to extend this line of you were treated when you were in the same
argument to termination for a woman whose con- situation” [2]. Since most mothers would not
traception has failed? Imagine it was well known have wanted to be aborted when they were
that the Music Lovers were on the hunt for a suit- fetuses, termination is, on the face of it, wrong;
able victim in your town. The police warned peo- even for a fetus with spina bifida who is likely to
1 Ethics in Medicine 7

be h­ andicapped, because if we were that fetus aborted or be a replacement fetus after another
we would choose life in a wheelchair rather than termination. We would know the chance of being
no life at all. a boy or girl, being handicapped, being unwanted,
But, Hare says, imagine that the mother plans born to a single parent, living in an underpopu-
a family of just one child. If she carries this preg- lated or over crowded world. Hare thinks we
nancy she will bear a child with spina bifida. If think we might be fairly liberal.
she aborts she can have a normal child who would Or perhaps it is too complicated to judge.
not otherwise exist. That “replacement child” Thinking about future people and replacement
would wish the termination to happen. The fetuses is tricky. But the complications are simi-
mother cannot act as both the spina bifida and the lar to those faced by people deciding whether to
replacement child would wish. Hare asks what reproduce at all. We solve them by leaving the
you would choose if you had to live through the decision to parents. They, especially the mother,
lives of both children? Reject termination and get are probably best placed to act in their future
one life in a wheelchair and one non-life. Abort, children’s best interest.
and get one non-life and one replacement life in
full health. You’d obviously choose the latter, so
the mother should abort. At least for a predictably 1.3.5 Deprivation of Futures
handicapped fetus where the mother is fertile and
likely to have a replacement pregnancy, termina- An American Philosopher Don Marquis set out
tion is in the interests of the replacement child. his arguments against termination (except in rare
Hare then asks us to consider how this type circumstances) [5]. He sets out that termination is
of argument plays out with the more usual types wrong because it deprives an individual of their
of termination; those considered by young future: “what primarily makes killing wrong is
women not ready for a baby. They probably will neither its effect on the murderer nor its effect on
have another child later. How much better will the victim’s friends and relatives, but its effect on
that later child’s life be? Will it be better or the victim. The loss of one’s life is one of the
worse if the mother has the first termination? greatest losses one can suffer…. [It] deprives one
There are more people to consider than just this of all the experiences, activities, projects and
child now and possible replacement/future chil- enjoyments that would otherwise have consti-
dren. All children affect other people’s lives. tuted one’s future”. He argues that just as killing
Not just in big ways, by marrying them, or tak- an adult is wrong due to the loss of their future
ing the job they wanted, but in all the minor experiences, termination too is wrong because it
ways in which each of us improves or harms the is presumed that the fetus has a future of value.
welfare of others. Fortunately, few other common ethical dilem-
Consider how all these other people would mas are as tricky to resolve as the pregnancy ter-
view the termination, the decision becomes rather mination dilemma. Most others, are solvable
like deciding whether to reproduce at all. The with clear thinking. The following is one such.
high likelihood that the present fetus will exist
without termination creates a presumption that
termination is usually wrong, but it’s hardly a 1.4 Case Scenario
knock down argument. In an overpopulated
world, if the mother would struggle to look after A 49 year old woman presented with a history of
the baby, or if the present fetus will be handi- right iliac fossa pain, dyspareunia and dysmen-
capped, termination might be the right choice. orrhoea. An ultrasound revealed a 5 cm complex
Imagine what terminations we would choose right ovarian cyst. Her Ca-125 was elevated and
if we were as yet unconceived, i.e. from behind a her risk of malignancy index was 300. She was
veil of ignorance. If we did not know whether we booked to undergo a total abdominal hysterec-
would be conceived and live, conceived and tomy and bilateral salpingo-oophorectomies.
8 K. F. Walker and J. G. Thornton

The patient was a Jehovah’s Witness. She was weighed saving her life. For a well-informed
fully counselled about the risks of surgery in par- competent adult, respecting autonomy trumps
ticular bleeding and an advanced directive stat- doing good.
ing her refusal of all blood products was
completed. At the operation the patient was Conclusion
found to have extensive endometriosis. The For the vast majority of decisions clear ethical
operation was difficult and there was significant thinking gives a clear answer. In the case of a
venous bleeding. Five hours later, despite the fully informed, competent Jehovah’s Witness
assistance of a vascular surgeon, it became clear experiencing life threatening bleeding, the
that the woman had lost 5 L of blood and was decision not to give blood while difficult for
going to die. The patient was kept ventilated and all involved is the right decision. The ethics of
died surrounded by her family. The husband, termination are deeply contentious but we
who was not a Witness was grateful to the gynae- hope this article has set out some of the impor-
cologist that he had respected the patient’s tant philosophical arguments for and against.
wishes and acknowledged that it must be a very When it comes to ethical considerations:
difficult situation for him. The woman’s parents think long and carefully; talk to colleagues;
were furious with the JW community. record your thought process and justify your
The striking ethical principle in this case is decision making.
autonomy. The patient had a clear wish to avoid
all blood products. She was fully aware that the
operation she was going to have had a risk of
bleeding and that without blood products that References
bleeding could be potentially life threatening.
She was resolute in her wishes and had capacity 1. Kant I. In: Wood AW, editor. Groundwork for the
metaphysics of morals. New Haven and London: Yale
to make a decision about her treatment. The University Press; 2002.
other principle which arises is beneficence. The 2. Hare RM. Abortion and the golden rule. Philos Public
gynaecologist and vascular surgeon failed to Aff. 1975;4(3):201–22.
give a transfusion which at little cost would, in 3. Huffman TL. Abortion, moral responsibility and self-­
defense. Public Aff Q. 1993;7(4):287–302.
their eyes, have done much good by saving her 4. Thomson JJ. A defense of abortion. Philos Public Aff.
life. However, the patient was well informed 1971;1(1):47–66.
and competent and had judged that the “bene- 5. Marquis D. Why abortion is immoral. J Philos.
fit” of following the tenets of her church out- 1989;86:183–202.
 Why Doctors Get Sued
2
Eloise Powers

2.1 Introduction Most clinical negligence claims in England and

Wales are brought against Trusts or other organisa-
In this chapter, an overview of the main categories of tions rather than against individual doctors. The vast
clinical negligence claims which are typically majority of claims do not proceed to trial: in 2015–
brought against medical professionals in England 16, the NHS Litigation Authority (now part of NHS
and Wales will be provided, namely: consent, errors Resolution) stated that “fewer than 1% of the claims
of treatment (including surgical errors) and errors of we resolved went to trial” [2]. It seems empirically
diagnosis. This is not intended to be an exhaustive likely that the cases which do proceed to trial are
categorisation of cases, but it covers the majority of closer to the borderline (in terms of merits) than the
clinical negligence cases which doctors are likely to cases which settle or are discontinued by claimants.
encounter in practice. Other types of cases include Under these circumstances, it is important to con-
secondary victim claims and systemic/procedural sider typical examples of cases which settle.
failings. In each category, key legal principles are set Obstetric claims deserve special consideration:
out, a case example is given and advice is provided 33% of NHS Resolution’s annual expenditure
on how doctors can avoid litigation. The guidance (10% of claims received) comes from obstetrics
set out in the chapter can only be regarded as generic [3]. Claims involving birth injuries, such as cere-
in nature and does not constitute legal advice. bral palsy claims, are often of very high value
The advantages of avoiding litigation are self-­ involving lifelong care claims. Obstetric claims
evident. For doctors, the litigation process is time- can often span two or three of the categories con-
consuming, difficult and distressing. For patients, sidered in this chapter: for example, in a shoulder
the consequences of clinical negligence are often dystocia case, a claimant may allege a failure to
devastating. For the NHS, the costs of litigation obtain properly informed consent followed by the
are burdensome: NHS Resolution’s stated strate- use of excessive traction in effecting the delivery.
gic objective is “a move to an organisation which
is more focused than before on prevention, learn-
ing and early intervention to address the rising 2.2 Consent
costs of harm in the NHS” [1]. For all concerned,
it is clear that prevention is better than cure. 2.2.1 Key Legal Principles

Following the 2015 case of Montgomery [4], a doc-

E. Powers
Serjeants’ Inn, London, UK tor is under a duty to obtain a patient’s informed
e-mail: EPower@serjeantsinn.com consent to treatment in the following manner:

© Springer International Publishing AG, part of Springer Nature 2018 9

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_2
10 E. Powers

• Take reasonable care to ensure that the patient choices.” The implication is that the Montgomery
is aware of any material risks involved in any approach may (in the long run) serve to reduce
recommended treatment. litigation once it has been fully assimilated into
• Take reasonable care to inform the patient of medical practice.
any reasonable alternative or variant treat-
ment, and of the material risks of the reason-
able alternative or variant treatment. Case Study: Ms. A
Ms. A presented with a complaint of sig-
The concept of “material” risk is defined as nificant post-menopausal bleeding. Her
follows: “whether, in the circumstances of the medical history included two caesarean
particular case, a reasonable person in the section deliveries, Crohn’s disease and a
patient’s position would be likely to attach sig- right hemicolectomy, cholecystectomy and
nificance to the risk, or the doctor is or should hepaticojejunostomy and post-surgical pel-
reasonably be aware that the particular patient vic adhesions. She underwent an endome-
would be likely to attach significance to it.” trial biopsy, which revealed no evidence of
Importantly, it will not be a defence to estab- residual hyperplasia of the endometrium.
lish that the failure to warn of the material risk She was offered a hysterectomy to resolve
would be accepted as proper by a responsible the bleeding.
body of medical opinion. When a patient makes Ms. A was appropriately advised of the
a choice about medical treatment, it inevitably routine risks associated with a hysterec-
involves making value judgments. The Supreme tomy, but she was not advised of the sig-
Court held that these value judgments should be nificant risk to her bowel and biliary
made by the patient, not the doctor. Under the reconstruction due to her complex medical
circumstances, the Bolam approach becomes history. Further, she was not advised about
inappropriate in consent cases. alternative treatment options including hor-
In circumstances where a doctor reasonably monal treatment with progestogen, contin-
considers that disclosure of information would be uous HRT or a Mirena IUS. She was not
“seriously detrimental to the patient’s health,” or advised that the bleeding would be likely to
in circumstances of “necessity”, doctors will not stop within around a year even if she did
be required to obtain informed consent. not undergo treatment.
The effect of the Montgomery judgment is to Unfortunately, Ms. A sustained a small
move away from a paternalistic model of the bowel injury during her hysterectomy. She
relationship between doctor and patient. As the thereafter suffered a chain of complications
Court of Appeal observed in Webster [5]. “What including fistula and sepsis. Her condition
they point to is an approach to the law which, deteriorated, she went into multi-organ
instead of treating patients as placing them- failure and died at the age of 57.
selves in the hands of their doctors (and then This case illustrates the dangers of tak-
being prone to sue their doctors in the event of a ing a “standardised” approach to the con-
disappointing outcome) treats them so far as senting process. Ms. A needed to know that
possible as adults who are capable of under- she was at significantly increased risk of
standing that medical treatment is uncertain of serious complications if she underwent a
success and may involve risks, accepting respon- hysterectomy, and needed to know that
sibility for the taking of risks affecting their own there were far safer options available to
lives, and living with the consequences of their treat her vaginal bleeding.
2 Why Doctors Get Sued 11

respected professional opinion.” A doctor who

Avoiding Litigation acts in accordance with a standard of practice
• The consenting process does not start recognised as proper by a responsible body of
and finish with the consent form. Be medical opinion will not be held to be negli-
aware that a Court will review the whole gent merely because another body takes a con-
consenting process, including the trary view.
records of your pre-treatment discus- In the 1997 case of Bolitho [7], the House of
sions with the patient and Lords held that in applying the Bolam test, the
correspondence. court has to be satisfied “that the exponents of the
• As Baroness Hale observed in body of opinion relied on can demonstrate that
Montgomery, “it is not possible to con- such opinion has a logical basis.” Experts
sider a medical procedure in isolation should direct their minds to the question of com-
from its alternatives.” Make sure that parative risks and benefits and reach a defensible
you have discussed alternative proce- conclusion on the matter.
dures, and the risks and benefits of these
procedures, with your patient, and make
a record of these discussions.
Case Study: Ms. B
• Where appropriate, advise your patient
Ms. B suffered a perineal tear classed as 3b
that having no treatment/conservative
following the protracted and difficult deliv-
treatment is available as an option.
ery of her first child. The tear was repaired
• The consenting process is patient-­
shortly after delivery. Two months later,
specific and should take account of the
Ms. B re-presented with symptoms of an
risks, benefits and alternative treatments
ano-perineal fistula, which was confirmed
applicable to each individual patient.
upon MRI and upon ano-rectal physiology.
• Where your patient has a history which
The doctors who performed the ano-rectal
puts her at additional risk if she under-
physiology strongly recommended that
goes the proposed treatment, you should
Ms. B should be referred to a colorectal
discuss the additional risk with the
surgeon to perform the repair.
patient, quantify the additional risk
The repair procedure nevertheless pro-
where possible and make a record of the
ceeded under the supervision of an urogyn-
discussion.
aecologist. The procedure was performed
• When managing labour/delivery, pres-
incorrectly, resulting in far more extensive
ent the pros and cons of different modes
damage than was necessary: the vaginal
of delivery in an objective manner
wall was opened, the perineum was opened
(regardless of your personal beliefs or
till the fistula, the anus was opened and the
preferences).
fistula track was excised. The correct pro-
cedure would have been to treat the fistula
with a seton (loose or cutting).
Ms. B suffered permanent and disabling
2.3 Errors of Treatment incontinence and requires ongoing treat-
or Surgery ment by way of inserts.
This case demonstrates the importance
2.3.1 Key Legal Principles of following correct procedures, and of
ensuring that patients are referred to the
The 1957 case of Bolam [6] established the fol- most appropriate specialist for their
lowing touchstone: whether the doctor is act- condition.
ing in accordance with a practice of “­competent
12 E. Powers

in the higher courts, the legal principles relating to

Avoiding Litigation errors of diagnosis are the same as the legal prin-
• Familiarise yourself with up-to-date ciples relating to errors of treatment.
guidelines and literature. The National
Institute of Clinical Excellence (NICE)
and the Royal College of Obstetricians Case Study: Ms. C
and Gynaecologists (RCOG) guidance During a period lasting over a year, Ms. C
documents are routinely scrutinised in attended various appointments with her GP
the course of treatment/ surgical claims. and at the colposcopy clinic. She had a
• In situations where you are deviating sore, macerated area on her right labium
from best practice guidance, ensure that majorum, and experienced vulval pain to
you have fully thought through and docu- the extent that she was unable to tolerate
mented your rationale for doing this, and the colposcopy speculum. Despite this, she
that you have obtained clear and compre- was not referred to a gynaecologist for over
hensive consent from your patient. a year. When she was eventually referred to
• Where a particular procedure falls out- a gynaecologist, she was diagnosed with
side your specialism or is usually under- vulval cancer.
taken by a different specialism, consider Due to the delay in diagnosis, Ms. C was
referring your patient to a relevant advised to undergo a radical vulvectomy
specialist. rather than a simple removal of the lesion.
• In obstetrics, midwives should be aware She suffered disabling lymphoedema and
of the circumstances in which an obste- has lost all sexual function at a young age.
trician’s opinion is needed. This case demonstrates the importance
• In gynaecological surgery, consider of being alert to incidental findings, and
involving a colorectal specialist in cases the importance of taking action within a
where there is an increased risk of bowel reasonable time-frame where a patient has
injury. potentially worrying symptoms.
• Discuss difficult cases with colleagues/
at a multi-disciplinary team meeting,
and record your discussions.
Avoiding Litigation
• Be alert to the patient who repeatedly
presents with symptoms which are diffi-
2.4 Errors of Diagnosis/Delayed cult to explain. Discuss such patients at
Diagnosis MDT meetings, and make referrals
where appropriate.
2.4.1 Key Legal Principles • Take action quickly (investigations,
referral to other specialists, treatment)
In the 2017 first instance case of Muller [8], Mr. where a patient makes a poor recovery
Justice Kerr considered whether the Bolam prin- after surgery.
ciple applied to cases involving errors of diagno- • Have a high index of suspicion for the
sis or failure to make a diagnosis (as distinct from investigation and treatment of cancer. A
cases involving the exercise of professional judge- large number of clinical negligence cases
ment about treatment or surgery). He concluded— arise out of delayed diagnosis of cancer.
in his words, “with some regret”—that the • Be alert to sepsis and take rapid action
principles in Bolam and Bolitho do indeed apply where appropriate [9]. Failure to diag-
to cases involving errors of diagnosis. At the time nose and treat sepsis generates a
of writing, and pending any further developments
2 Why Doctors Get Sued 13

References
s­ignificant number of clinical negli-
gence cases, often with tragic 1. “Delivering fair resolution and learning from harm”:
Our strategy to 2022. NHS Resolution, p4.
consequences.
2. NHS Litigation Authority Annual report and accounts
• Encourage junior staff to escalate 2015/16, p16.
patients with troubling symptoms as 3. “Delivering fair resolution and learning from harm”:
soon as possible. Our strategy to 2022. NHS Resolution, p12. Note that
these statistics do not seem to include gynaecological
claims other than obstetrics.
4. Montgomery v Lanarkshire Health Board [2015]
UKSC 11. The facts of the Montgomery judgment
Key Points: Why Doctors Get Sued are considered in more detail in [chapter dealing with
• Plan the patient’s treatment in conjunc- case law].
tion with the patient. 5. Webster v Burton Hospitals NHS Foundation Trust
[2017] EWCA Civ 62, para 81.
• Advise the patient of alternative treat- 6. Bolam v Friern Hospital Management Committee
ment options/no treatment. [1957] 1 WLR 583, p587.
• Take a patient-specific approach when 7. Bolitho v City and Hackney Health Authority [1998]
advising about risks. AC 232, p1158.
8. Muller v King’s College Hospital NHS Foundation
• Be objective when advising about the Trust [2017] EWHC 128.
pros and cons of different birth options. 9. Sepsis: recognition, diagnosis and early management,
• Familiarise yourself with best practice https://www.nice.org.uk/guidance/ng51.
documents.
• Clearly consider and document your
rationale for any departure from best
practice in a particular case.
• Discuss complex or puzzling cases at an
MDT or with professional colleagues,
and record your discussions.
• Work within your competence and refer
patients to the most appropriate
specialist.
• Investigate or refer patients with ongo-
ing unexplained symptoms.
• Take action quickly where a patient fails
to recover as expected after surgery.
• Be alert to sepsis.
• Investigate potential cancer cases
rapidly.
• Follow up upon any concerns about
your patients.
• Encourage junior staff to escalate
patients with concerning symptoms.
 Consent After Montgomery:
Clinical Considerations 3
Helen Bolton

3.1 Background Mrs. Montgomery claimed that had she been

advised of the risks of shoulder dystocia and
In March 2015 the UK Supreme Court ruled on a offered caesarean section, then she would have
landmark case that confirmed patients’ right to chosen that option, thus avoiding vaginal birth
autonomy [1]. During her first pregnancy Nadine and her son would have been healthy. The case
Montgomery, a petite, diabetic woman, expressed was won on appeal at the Supreme Court. She
anxieties on several occasions about her forthcom- received around £9 m in damages.
ing delivery, as scans had identified a large baby. Prior to Montgomery, consent cases were
She did not specifically request caesarean section. tested by traditional tests of negligence, i.e.,
The delivery was complicated by shoulder dystocia doctors only failed in their duty in consent
and consequently her son developed cerebral palsy. cases if it could be proven that their practice
Mrs. Montgomery had not been advised of the was not in line with how a body of responsible
potential risks of vaginal delivery or shoulder dys- practitioners would act (the Bolam [2] princi-
tocia. Nor had the option of a planned caesarean ple). Doctors were only obliged to inform
section been discussed. Defending her practice, patients of risks if these were perceived by the
the obstetrician claimed that although the risk of doctor to be significant (Sidaway [3]). The
shoulder dystocia was significant, the absolute Montgomery ruling now enshrines in case law
risk of grave injury resulting from it was minimal, that it is no longer up to the doctor to decide the
and therefore she was not obliged to discuss it. extent of disclosure about risk. Rather, it up to
Moreover, she claimed such discussions are not the patient to decide.
standard practice, and that if all diabetic women
were told of these risks then they would inevitably
choose caesarean delivery, which would not be in 3.2 Requirements for Consent
their best interests. As Mrs. Montgomery had not
asked about caesarean, she had been under no Doctors have an ethical and legal duty to obtain
obligation to discuss it with her. a competent patient’s consent before embark-
ing on treatment, unless there are exceptional
circumstances [4]. Competent patients have an
absolute right to accept or refuse treatment,
H. Bolton
without any need to justify their decision. A
Addenbrooke’s Hospital, Cambridge University
Hospitals NHS Foundation Trust, Cambridge, UK patient is free to withdraw her consent at any
e-mail: helenbolton@me.com time.

© Springer International Publishing AG, part of Springer Nature 2018 15

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_3
16 H. Bolton

The Montgomery ruling has not altered the that the particular patient would be likely to
fundamentals of consent. It remains the case that attach significance to it.
for consent to be valid the patient must [5]:
What constitutes a ‘material risk’ cannot be
1. Have capacity to give their consent to make defined simply by percentages. The judges
that particular decision, gave clear guidance that the significance of
2. Be provided with sufficient information (clar- each risk for the individual patient is likely to
ified in Montgomery) reflect a range of factors other than just its
3. Be free from coercion, and able to give their magnitude. The significance of the risk should
decision voluntarily. be assessed by:

The Mental Capacity Act 2005 provides clear 1. The nature of the risk
guidance on capacity and clinicians must be 2. The effect that it would have on the life of the
familiar with this [6]. It is good practice for con- patient
sent to be documented in writing, especially for 3. The importance of the potential benefits of the
interventions such as surgery, although this is not treatment to that particular patient
usually a legal requirement. 4. The alternatives available (including no
treatment)
5. The risks involved in those treatments
3.3  onsent After Montgomery:
C
What Constitutes Sufficient Therefore, the assessment of material risk
Information? requires both facts about the risk itself, in addi-
tion to knowledge about the characteristics and
The judgment in Montgomery clarifies that it is wishes of the patient. This requires clear dialogue
the patient, not the doctor, who determines how with the patient, and doctors must take time to
much information is required for sufficient con- have a discussion with the patient about risks and
sent. This is a clear departure from previous to establish (within reason) which risks will mat-
case law, where the doctor was required only to ter for that particular patient. Substituting dia-
impart the information that a reasonable body logue with written information, or overwhelming
of medical opinion thought appropriate. the patient with technical information is not
Although the Montgomery ruling has been per- acceptable. To avoid future litigation, it is essen-
ceived to have changed the landscape of medi- tial to document what was discussed in as much
cal consent, the same overriding principles detail as possible, and how the patient responded
have been enshrined in GMC guidance for to the information.
many years [5]. Although Montgomery requires doctors to dis-
Since Montgomery, the new test for sufficient cuss alternative options with the patient, it does
information is now as follows [1]: not require the doctor to provide that treatment. It
remains the doctor’s responsibility to advise
1. The doctor is under a duty to take reasonable patients on which treatment may be medically
care to ensure that the patient is aware of any preferable, but ultimately it is up to the patient to
material risk involved in the treatment, and be decide.
informed of any reasonable alternative treat-
ments, including no treatment.
2. The materiality test is whether, in the circum- 3.3.1  xceptions to Provision
E
stances of that particular case, a reasonable of Information
person, in that patient’s position would be
likely to attach any significance to that risk, or There are three situations where it may not be
the doctor is, or should reasonably be aware, necessary to discuss material risks:
3 Consent After Montgomery: Clinical Considerations 17

1. Where treatment is provided out of necessity 3.4  ourt Decisions Since

C
in an urgent situation Montgomery
2. The therapeutic privilege exception—this is the
rare situation where a doctor has the right to 3.4.1  v East Kent Hospitals
A
withhold information about risks if it is believed University NHS Foundation
that the patient will be seriously harmed by Trust [2015] EWHC 1038
knowledge of that risk. This only applies in
very exceptional cases, and withholding infor- Mrs. A brought a claim alleging that her obste-
mation just to prevent upsetting or worrying a tricians had failed in their duty to warn her of
patient is not acceptable, as upset and worry do the possibility that her child may have a chro-
not constitute serious harm. mosomal abnormality. Routine screening tests
3. The right of the patient not to know—a for trisomy 13, 18 and 21 had estimated a very
patient can decide that they do not wish to low risk of abnormality, and there were no
be aware of the risks, and a doctor is not structural anomalies at her 20-week scan. The
obliged to discuss them when a patient fetus was shown to be small on scan measure-
makes it clear that she does not wish to dis- ments and subsequently she underwent serial
cuss the matter. The GMC guidance pro- growth scanning and monitoring until delivery
vides further advice on how to manage by caesarean section at 37+6 weeks.
patients in this situation [5]. Although Unfortunately the baby was born with severe
patients have the right not to know, this can disabilities secondary to a rare unbalanced
be problematic, as the patient doesn’t know chromosome translocation. Mrs. A claimed
what they do not want to know. that had she been advised of the risk then she
would have elected for amniocentesis, thus
detecting the abnormality, and consequently
3.3.2 Birth Choices she would have chosen to terminate the preg-
Post-Montgomery nancy. The key issue in this case was resolving
whether or not there was evidence that there
Mrs. Montgomery won her case because she had was a material risk that the baby may be suffer-
not been advised of the risks of vaginal birth or ing from a chromosomal abnormality. If so, in
offered the option of caesarean section. She had keeping with the Montgomery case, it was
not specifically enquired about caesarean section, agreed that the doctors ought to have raised
however the judge ruled that her obstetrician still that material risk with Mrs. A. However, on
had a duty of care to discuss this option with her. review of the evidence presented by the defen-
In her ruling, the judge intimated that the medical dants and expert witnesses the court concluded
team may have viewed vaginal delivery as mor- that there was no material risk that the baby
ally superior than caesarean section, and that this had a chromosomal abnormality, over and
view had dominated their thinking. She also stated above the background risk. There was nothing
that ‘gone are the days when it was thought that, to suggest that this was a risk to which a rea-
on becoming pregnant, a woman lost, not only her sonable patient, in the position of Mrs. A,
capacity, but also a right to act as a genuinely would have attached any significance. Indeed,
autonomous human being’ [1]. It remains to be the judge noted that Mrs. A had already
seen what impact Montgomery will have on future accepted the very low background risk given in
litigation. However, obstetricians must be mindful her screening tests and continued with the
of a woman’s right, now enshrined in case law, to pregnancy. Medical practitioners do not have
decide which type of delivery she wishes. to warn patients about theoretical risks.
18 H. Bolton

3.4.2  pencer v Hillingdon

S
Hospitals NHS Trust [2015] • Doctors must take reasonable care to
EWHC 1058 ensure the patient is made aware of any
material risk involved in the proposed
Although not strictly concerning consent, this treatment.
case is of relevance because the judge applied the • The materiality test is individual to the
Mongtomery materiality test in determining the specific patient and their circumstances,
duty to provide advice to a patient during the and requires dialogue between patient
post-operative period. Mr. Spencer brought a and doctor.
case claiming that the hospital had failed in its • Written information, and/or over-
duty to warn him of the possibility of post-­ whelming the patient with excessive
operative venous thromboembolic events (VTE). information does not constitute proper
He underwent elective surgery to repair an ingui- consent.
nal hernia. Shortly after discharge he experi- • Doctors must discuss alternative
enced calf pain. He attributed this to inactivity options with the patient, including the
due to being generally unwell after surgery, and risks and benefits associated with those
did not specifically seek medical attention until options.
several weeks later when he presented with • Detailed documentation of discussions
severe shortness of breath and palpitations. He is essential to avoid litigation. A written
was diagnosed with bilateral pulmonary emboli. consent form alone is insufficient
It was proven in court that the hospital had failed documentation.
to provide him with any specific information, • When considering birth options, women
either oral or written, with respect to the risks must be informed of the material risks
and symptoms of VTE. Instead he had simply associated with vaginal delivery, includ-
been advised to report ‘any problems’ after his ing risks to the mother as well as the
discharge. The judge acknowledged that Mr. baby.
Spencer was in a low risk group for VTE, and
that VTE is a rare event. However, in applying
the basic principles defined in Montgomery, the
References
judge concluded that a reasonable patient, such
as in Mr. Spencer’s case, would expect to be 1. Montgomery v Lanarkshire Health Board [2015]
advised about the symptoms and signs of VTE UKSC 11.
given the potential seriousness of the condition. 2. Bolam v Friern Management Committe [1957] WLR
582.
By not warning Mr. Spencer of specific signs and
3. Sidaway v Board of Governors of the Bethlem Royal
symptoms of VTE, the Trust had failed in its duty Hospital [1985] AC 871.
of care. He was awarded £17,500 in damages, as 4. RCS. Consent—Supported Decision Making—a
the judge also concluded that had Mr. Spencer good practice guide. 2016.
5. GMC. Consent: patients and doctors making deci-
been properly advised (confirming causation), he
sions together. 2008.
would have sought medical attention earlier. 6. GOV.UK. Mental Capacity Act 2005 Code of Practice.
2007.

Key Points: Consent After Montgomery

• The Montgomery judgment requires a
patient-centered approach to consent,
and is entirely in keeping with GMC
guidance on consent.
 Consent After Montgomery: Legal
Considerations 4
Elizabeth Thomas and Bertie Leigh

4.1 Introduction and abbreviations that mean nothing to most lay

people. For example, most forms mention the
The present law of consent is shaped by the 2015 risk of bleeding: patients will think they are likely
judgment of Montgomery [1]. The Supreme to bleed if their skin is cut; we have no record that
Court in Montgomery relied heavily on guidance they were told how much bleeding there might be
published by the GMC in 2008 [2]. However, and whether it might be difficult to arrest. Such a
Mrs. Montgomery was treated in 1999. This sug- form may be a useful aide memoir to the doctor
gests that in order to advise practitioners how to of what they have said in relation to that specific
counsel their patients today we have to anticipate procedure, but it does not provide objective evi-
the position of the regulators and courts many dence that the patient understood what was
years hence, something we attempt to do by ana- meant, had time to assimilate the information or
lysing whether the current system of consent that it was conveyed in an appropriate fashion.
reflects optimal medical practice. Sometimes the evidence we need is haphaz-
ardly recorded in clinic letters describing
Montgomery discussions and the decision to pro-
4.2 Use of a Consent Form ceed. But we need a structured record of the deci-
sion process. The current focus on consent forms
The consent form was devised as a defence to is because it is the only place where the patient
battery i.e. unlawful touching, to prove the patient makes a physical entry in the notes by their sig-
consented to the doctor’s touch. It is now used as nature - a reassuring but often empty disclaimer
evidence of an informed choice to a specific for the doctor that it is the patient‘s informed
treatment. For that consent to be Montgomery-­ choice to proceed.
compliant the form should evidence discussions For the avoidance of doubt, should the consent
of alternatives, including various material risks form (currently seen as the pinnacle of the con-
and benefits including no treatment. However, sent process) be presented to a patient shortly
typically the information the patient is given on before an intervention we say it is prima facie
the form is specific to the agreed treatment and evidence of malpractice, if not professional mis-
recorded in untidy handwriting with acronyms conduct. This is because:

E. Thomas (*) · B. Leigh 1. It implies that consent was sought at the

Hempsons, London, UK wrong time. The patient has long since
e-mail: e.thomas@hempsons.co.uk; already made their decision, they have
b.leigh@hempsons.co.uk

© Springer International Publishing AG, part of Springer Nature 2018 19

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_4
20 E. Thomas and B. Leigh

arranged to take time off work and made 4.4 The Decision Record
arrangements for their domestic responsi-
bilities to be disposed of. They have men- Lawyers work on the principle that if it is not writ-
tally adjusted themselves so as to undergo an ten down it did not happen. Therefore, we need to
intervention and it is quite wrong to suppose find a way for doctors to record not only the infor-
that a Montgomery explanation of risks/ben- mation that has been conveyed to the patient but
efits/alternatives can sensibly be presented also the fact that the patient has understood what
to them long after the decision to proceed has been said. To fend off future litigation sur-
has been taken. rounding consent we need to replace the current
2. Such consent is sought at the wrong time system with a decision record. However, it seems
emotionally. The patient will be anxious if not to us that an optimal process will not take place in
frightened by the imminence of surgery, and most time-poor NHS clinics. If the matter is to be
so it is unlikely that they will be able to absorb done properly it has to be done without time pres-
significant information that is of relevance to sure, probably in the comfort of the home.
the important decision that they are being We suggest that a great deal of the information
asked to take. Mentally they are already com- that needs to be conveyed as well as the recording
mitted to the operation. of the patient’s understanding can best be
achieved with technology. For example, an
online/downloaded programme could contain the
4.3 Future Law information that the doctor wishes to convey,
with the opportunity for patients to learn even
We suggest that when the Supreme Court next more. If the process were linked to the treating
considers a case of consent to treatment it will centre there could be a record of the information
go beyond analysing whether all the appropri- accessed and that spurned.
ate risks/benefits and alternatives were men- An algorithm could be written so as to high-
tioned: it will be considering how and when light anomalous answers with alarms triggering
they were described. It will examine the doc- invitations to attend an additional clinic. This
tor’s discharge of their role as a teacher. It will could require the presence of the treating clini-
be asking whether the necessary information cian but equally it could be with a nurse-­
was given in an appropriate fashion. If the counsellor—the process of learning must be
patient was counselled in the wrong language, recorded and scribbled notes avoided.
or at the wrong time, or if the information was Alternatively it could all be done online with an
unlikely to have been understood because the invitation to access further information. The vari-
doctor was rushed or spoke in a technical fash- ations that could be devised are vast.
ion, then the process will be found wanting Such a programme could utilise cartoons, dia-
even if all the right risks and alternatives were grams and videos describing the anatomy, the
mentioned. lesion or the disease and the modalities of treat-
Simple utterance of Montgomery informa- ment. There could be graphs and statistical tables
tion does not discharge the doctor’s duty of presenting data that the patient may want to
care. For a decision system to be fit for purpose understand. Crucially the system could be in the
it needs to be able to identify objective evi- patient’s own language.
dence that the individual patient has under- Not all medical decisions call for this pattern
stood the information provided and made a of counselling. In dire emergencies all that the
decision based on that understanding. patient really needs to know is that if they do not
Counselling may need as much skill as diagno- consent to the proposed treatment imminent
sis or performing a procedure. death is a certainty. There are also patients who
4 Consent After Montgomery: Legal Considerations 21

are so cognitively impaired that we stray into best evidence of an informed choice to a specific
interests territory and those unable to access treatment. However, we do not need a record
technology will need assistance. However, we of what is self-evident from the fact that the
have to describe an optimal process of counsel- patient is willingly lying on the bed, but a
ling before we identify the deviations that will be record of the process by which they came to
appropriate in certain circumstances. take the decision to be there. We need a record
We advocate that the profession should develop of the fact that the hospital has played its part
these procedure-specific decision records. If the in helping the patient to take that decision in a
text is agreed by the profession through the Royal Montgomery-compliant fashion. We also need
Colleges and the professional societies then we a process that reflects the importance of
will have the advantage of consistency in different recording advice given to patients when sur-
centres as well as avoiding multiple repetitions of gery is not in issue or an alternative to surgery
the work of preparation. That does not mean that is chosen. It is our opinion that the current sys-
it should be immutable. Through use we antici- tem of discussions in rushed clinics with the
pate it would be re-written and adapted - it should handing out of leaflets and consent evidenced
be a living, growing thing, responding to the way by a scribble on a consent form is not fit for
in which it is used by patients and to reflect chang- purpose and will not withstand future forensic
ing science and treatment options. scrutiny by the courts. This is not because
Incidentally the technology could also use- there is anything in the law that says it is
fully record the patient’s view of the process in wrong, but because it is not part of an optimal
retrospect; recording whether the treatment and medical practice. Trying to shoe-horn a
the outcome corresponded to the patient’s expec- defence to battery into a decision record is
tations. This would of course provide a means of simply misguided.
reviewing both the counselling provided and the
skill of the clinician and so allowing the continu-
ing development of both. References
1. Montgomery v Lanarkshire Health Board [2015]
Conclusion
UKSC 11.
The consent form was devised as a defence to 2. GMC, Consent: patients and doctors making deci-
battery—unlawful touching—the patient con- sions together. 2008.
sented to the doctor’s touch. It is now used as
 Duty of Candour
5
Helen Bolton

5.1 Background and midwives work closely together, the GMC

and the Nursing and Midwifery Council (NMC)
The duty of candour is about being open and hon- have published more detailed joint guidance on
est when things go wrong. There are two types of the matter setting out clear expectations for
duty, professional and statutory. The professional health care professionals [2]. The joint guidance
duty of candour is defined by the General Medical covers both the professional’s individual duty to
Council (GMC) as ‘a professional responsibility to patients, and the professional’s responsibilities to
be honest with patients when things go wrong’. In the organisation for which they work. The duty to
contrast, the statutory duty of candour is a legal the patient arises when something goes wrong
duty to be open and honest, and applies to all health during a patient’s treatment or care, that causes,
and social cares organisations that are registered or has the potential to cause, harm or distress. In
with the regulator, the Care Quality Commission such a case the healthcare professionals must:
(CQC) in England. Although there is considerable
overlap, there are important distinctions between • Tell the patient (or, where appropriate, their
the two. Clinicians must understand these differ- family or carer) that something has gone
ences to ensure they can fulfill both their profes- wrong
sional and legal responsibilities to their patients. • Apologise—stating what happened, what can
be done to deal with any harm caused, and
what will be done to prevent this happening
5.2 Professional Duty again
of Candour • Offer an appropriate remedy or support to put
matters right, if possible
It is well established that healthcare professionals • Provide a full explanation of the short and
have an ethical responsibility to be open and hon- long term effects of what has happened
est with their patients, and this is enshrined in the
GMC’s guidance for doctors ‘Good Medical As was noted immediately above, the profes-
Practice’ [1]. Recognising that doctors, nurses sional duty of candour applies whenever patients
have suffered harm or distress when something
has gone wrong with their care. Unlike the statu-
H. Bolton tory duty of candour (see below), there is no
Addenbrooke’s Hospital, Cambridge University
Hospitals NHS Foundation Trust, Cambridge, UK defined threshold of harm that needs to be met for
e-mail: helenbolton@me.com the duty to arise. In circumstances, where a ‘near

© Springer International Publishing AG, part of Springer Nature 2018 23

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_5
24 H. Bolton

miss’ has occurred (i.e. care has gone wrong, but these incidents as any event that has appeared to
fortunately the patient came to no harm) the have caused, or has the potential to cause, moder-
GMC advises clinicians to use their professional ate or severe harm, death, or prolonged psycho-
judgement when deciding whether to tell patients logical harm. Prolonged psychological harm
about the error. When there is uncertainty it may means that it must be experienced for 28 days or
be helpful to seek advice from senior colleagues more.
or healthcare teams. Once a notifiable safety incident has been
The patient should be spoken to as soon as identified, the statute requires that:
possible after it has been realized that some-
thing has gone wrong. Doctors should not be • The patient should be informed, in person, as
afraid of apologizing to patients when things soon as reasonably practical
have gone wrong. An apology does not automat- • A full explanation is given, including what
ically mean that the clinician is taking personal further investigations will be carried out
responsibility for the error, nor is it an admis- • Offer an apology and provide reasonable sup-
sion of legal liability. The NHS Litigation port to the patient
Authority actively encourages healthcare organ- • Organisations must keep a written record of
isations to apologise, and will never withhold the notification to the patient
legal cover for a claim because an apology of • The patient must be provided with a written
explanation has been given [3]. Any uncertain- account of the discussion and copies of corre-
ties must be explained and all questions spondence must be kept by the organisation
answered honestly. Discussions should be fully
documented, with notes made contemporane- Although the ultimate responsibility for com-
ously whenever possible. plying with the statutory duty of candour resides
The GMC also mandates doctors that the duty with the healthcare organisation, individual
of openness and honesty extends beyond just healthcare professionals have a key role in work-
patients, to include candour with their colleagues, ing with their organisation to ensure the legal
employers, organisations and regulators. This obligations are fulfilled. Senior doctors are most
includes an expectation to report adverse inci- likely to be the organisation’s representative, and
dents, to cooperate fully with reviews and inves- to lead the discussions with the patient. All CQC-­
tigations, and to express concerns where registered healthcare organisations should have a
appropriate. Doctors must support and encourage named manager responsible for statutory duty of
each other to be open and honest, and not to stop candour.
others from raising concerns. In some cases it can be difficult to determine if
an incident reaches the threshold of harm for stat-
utory notification. Guidance suggests that harm
5.3  tatutory Duty of Candour
S should be assessed in the ‘reasonable opinion of
(CQC-Registered Healthcare a healthcare professional’ with the emphasis on
Organisations, England) being open if there is any doubt [5]. Individual
clinicians should be encouraged to seek advice
Healthcare organisations in England that are reg- from appropriate colleagues and their organisa-
istered with the regulator, the Care Quality tion’s managers in cases where there is uncer-
Commission (CQC) have an organizational duty tainty. Clinicians must be mindful that their
to be open and honest when things go wrong [4]. professional threshold for duty of candour is low,
In contrast to the professional duty, the statute and that they are obliged to be open and honest
applies only when a ‘notifiable safety incident’ with their patients even when the harm caused
has occurred, where a threshold of moderate may seem insignificant, or does not meet the
harm or worse is met. The regulations define threshold for statute.
5 Duty of Candour 25

5.4 Consequences of Not nal fistula. This had occurred as a consequence of

Complying with Duty unrecognized bladder injury.
of Candour The attending registrar informed the duty con-
sultant of the events. They immediately went
For the patient a lack of openness and honesty together to see the patient, and explained her
erodes trust and can cause significant distress. bladder had been damaged during her caesarean,
Doctors who fail to act in accordance with the and advised that she would need further treat-
GMC guidance on candour may find themselves ment to fix the injury. They explained that it
with sanctions from the GMC, including restric- appeared there had been a delay in recognising
tions on their licence to practice. Organisations the injury, and that in hindsight the presence of
that do not comply with the statutory duty of can- blood in her urine should have triggered earlier
dour will incur regulatory action from the CQC, investigations, which may have avoided her
and in serious or persistent cases could even face developing the fistula. In keeping with their pro-
criminal prosecution. fessional duty of candour, they offered her an
apology, and answered her questions. She was
also advised that her case would be reviewed at
5.5 Case Study: Bladder Injury the local governance meeting, and that she would
be kept informed of the results of the review. A
A patient attended the delivery unit at 4 am with midwife was present throughout the conversa-
contractions. She had previously had one caesar- tion, who then stayed with her to provide addi-
ean section. Shortly after emptying her bladder, tional support to ensure she had fully understood
her membranes ruptured. The CTG showed an the explanation. Contemporaneous notes of the
acute bradycardia, and vaginal examination discussions were recorded in the clinical notes.
revealed that she was 5 cm dilated with a cord The clinicians reported the injury as a patient
prolapse. The attending midwife kept the fetal safety incident, following their hospital’s gover-
head elevated manually by upward vaginal pres- nance guidelines.
sure and she was transferred immediately to the- The Consultant then notified the manager
atre for delivery by category I (immediate) responsible for statutory duty of candour.
caesarean section under general anaesthesia. An Referring to the CQC guidance, it was confirmed
attempt by the midwife to catheterise the bladder that the injury was a notifiable safety incident, and
failed, so the registrar decided to proceed to that the degree of harm had reached the threshold
delivery of the baby, and to insert the catheter required for notification under the statutory duty
after delivery, reasoning that the patient had just of candour. It was agreed that the discussion and
been to the toilet and that further delays should apology that had already taken place were appro-
be minimized. Apart from some scarring due her priate and sufficient to have complied with the
previous caesarean, the procedure was apparently statutory requirements. It was also agreed that the
uncomplicated, and the baby was born in good consultant would write to the patient, summariz-
condition within 20 min of the initial cord pro- ing what had happened. The local governance
lapse. Frank haematuria was noted in recovery, meeting concluded that the injury may have been
but no action was taken and she was later trans- avoided if the bladder had been catheterised, and
ferred to the post-natal ward. The midwives identified earlier if the staff had acted on the frank
expressed concerns that the haematuria persisted, haematuria. As a consequence, teaching sessions
but were reassured by the junior medical staff and were arranged to ensure the medical, midwifery
advised to remove the catheter the following day. and theatre staff were aware of the importance of
She was discharged home on day 3. On day 10 catheterisation prior to caesarean delivery and of
she re-­presented with constant leakage of urine, the potential significance of blood in the urine.
and further investigations revealed a vesico-vagi- This outcome was included in the letter, along
26 H. Bolton

with another apology, and she was invited back to

see the consultant in clinic to debrief several • The statutory duty applies when a notifi-
weeks later. The patient had made a good recov- able safety incident has occurred that
ery and expressed her thanks to the staff for their have (or have the potential to) resulted
honesty. She was grateful that her baby had been in moderate harm or worse.
delivered safely. The consultant documented the • Offering an apology does not mean that
discussion, and copied correspondence to the the healthcare professional is accepting
manager to ensure the hospital’s notification pro- personal responsibility for the error, and
cess was complete. must not be a barrier to saying sorry.
• Where there is any doubt, the profes-
sional and statutory duties advise that
Key Points: Duty of Candour clinicians err on the side of being open
• Professional duty of candour is an indi- and honest.
vidual responsibility. The statutory duty
is an organisational responsibility.
• The professional duty of candour References
requires doctors to be open and honest
with their patients when things go 1. GMC. Good Medical Practice. 2013.
wrong, and also within their organisa- 2. GMC, NMC. Openness and honesty when things go
tion by reporting and learning from wrong: the professional duty of candour. 2015.
3. NHSLA. Saying sorry. 2014.
adverse incidents. 4. CQC. Regulation 20: Duty of candour. Information
• The statutory duty of candour (England) for all providers: NHS bodies, adult social care,
applies to care organisations registered primary medical and dental care, and independent
with the CQC. Individual professionals healthcare. 2015.
5. AVMA. The duty of candour. The legal duty to be
have a responsibility to cooperate with open and honest when things go wrong. What it
the organisation to ensure the legal obli- means for patients and their families. 2015.
gations are met.
 Leading Cases
6
Fiona Paterson

The aim of this chapter is to provide the reader have that special skill. A man need not possess
with an overview of the leading cases in relation the highest expert skill; it is well established law
to two matters; namely negligence (or breach of that it is sufficient if he exercises the ordinary
duty) and causation. They are the two compo- skill of an ordinary competent man exercising
nents of liability or put simply, if a patient is to that particular art.”
sue a healthcare professional successfully, he/she That definition was refined by the House of
must first prove that the care was negligent and Lords in Sidaway v Governors of Bethlehem
second, that the negligence in question caused Royal Hospital [2] who recognised that in many
him/her harm. Many of the leading cases arise situations there may be a range of acceptable
from treatment in areas of clinical care other than practice. The judgment stated,
obstetrics. Nevertheless, they remain relevant to “a doctor is not negligent if he acts in accor-
obstetrics and midwifery care. dance with a practice accepted at the time as
proper by a responsible body of medical opinion
even though other doctors adopt a different
6.1 Negligence practice.”
But a note of caution was sounded subse-
6.1.1 What Constitutes Negligence? quently by the House of Lords in Bolitho v City
and Hackney Health Authority [3]—finding an
Bolam v Friern Hospital Management Committee expert who was supportive of his/her actions was
[1] is often cited as the seminal case in medical not enough for a clinician facing allegations of
negligence, Mr. Justice McNair, negligence to escape liability. Lord Browne—
“…where you get a situation which involves Wilkinson stated,
the use of some special skill or competence, then “…the court has to be satisfied that the expo-
the test as to whether there has been negligence nent of the body of opinion relied upon [by the
or not is not the test of the man on the top of a clinician facing an allegation of negligence] can
Clapham omnibus, because he has not got this demonstrate that such opinion has a logical
special skill. The test is the standard of the ordi- basis… the judge before accepting a body of
nary skilled man exercising and professing to opinion as being responsible, reasonable or
respectable, will need to be satisfied that, in
forming their views, the experts have directed
F. Paterson their minds to the question of comparative risks
Serjeants’ Inn Chambers, London, UK and benefits and have reached a defensible
e-mail: FPaterson@serjeantsinn.com

© Springer International Publishing AG, part of Springer Nature 2018 27

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_6
28 F. Paterson

c­ onclusion on the matter…in some cases, it can- sent a doctor’s role is to inform rather than deter-
not be demonstrated to the judge’s satisfaction mine or influence what should happen to a
that the body of opinion relied upon is reasonable patient. Patients should now be treated as autono-
or responsible. In the vast majority of cases the mous individuals allowed, possibly even encour-
fact that distinguished experts in the field are of a aged to take an active role in any decisions about
particular opinion will demonstrate the reason- their care. The ultimate arbiter of how far they
ableness of that opinion…. But if, in rare case, it should be allowed to inquire and insist is now the
can be demonstrated that the professional opin- court rather than the clinician. Understandably,
ion is not capable of withstanding logical analy- that may be a somewhat sobering message for
sis, the judge is entitled to hold that the body of clinicians and a departure from an approach with
opinion is not reasonable or responsible…” which they are accustomed. For advice on how to
The law has continued to evolve from these approach matters of consent in light of this, see
judgments in response to the specific circum- the chapter “Why doctors get sued”.
stances of individual cases which have come
before the courts, the most significant of which
has been Montgomery v Lanarkshire Health 6.2 Causation
Board (General Medical Council intervening)
[4]. The judgment is now regarded as pivotal in It is sometimes easier to recognise a causal link
matters of consent. The facts are particularly per- between a doctor’s alleged negligence and any
tinent to obstetrics and midwifery. The Supreme harm suffered by the patient, rather than to define
Court (formerly the House of Lords) recognising what the legal test for causation actually is. Over
the social and legal developments, which the years, the courts have formulated various
meant that medical paternalism was no longer tests, all of which have subsequently evolved
condoned, stated that at the heart of obtaining a through amendment and sometimes erosion by
patient’s consent must lie a recognition that he/ the later decisions of other courts.
she is entitled to decide what risks he/she is will- The following two cases (decided by the Court
ing to take. Critically, defining the ambit of how of Appeal) have been selected due to their semi-
far a clinician had to go in enumerating and nal nature.
explaining the risks associated with any proce- In Bailey v Ministry of Defence [5] the patient
dure was now a matter for the courts and not the had undergone an unsuccessful procedure in a
medical profession: Ministry of Defence Hospital to remove a gall-
“…The doctor’s advisory role cannot be stone. Her problems were compounded by inad-
regarded as solely an exercise of medical skill equate care post-operatively. She then developed
without leaving out of account the patient’s enti- pancreatitis and continued to deteriorate and was
tlement to decide on the risks to her health which transferred to the Intensive Care Unit where she
she is willing to run (a decision which may be underwent two further procedures. The patient
influenced by non-medical considerations). was then moved to the renal ward of another hos-
Responsibility for determining the nature and pital, where she aspirated on her vomit, which in
extent of a person’s rights rests with the courts, turn, led to a cardiac arrest that caused her to suf-
not with the medical professions.” fer hypoxic brain damage. The court had to grap-
The decision undoubtedly represents a sea-­ ple with whether there was a sufficiently strong
change from the deference by the courts towards causal link between the inadequate post-­operative
the medical profession which was seen in cases care at the Ministry of Defence Hospital.
such Bolam and Sidaway. A clear signal was sent The Court of Appeal acknowledged that the
by the Supreme Court; that when obtaining con- cardiac arrest which caused the hypoxic brain
6 Leading Cases 29

damage had been caused by a combination of Both the parties (in the proceedings) agreed
negligent care and bad luck. But was that suffi- that, if the child had been admitted to hospital
cient for the patient to win or did she have to 2 days earlier, and given the same treatment as she
show that the negligent care had been the domi- ultimately received, it was very likely that there
nant cause? The Court of Appeal decided that if would have been significantly less permanent
the patient could prove that “but for” the impact damage and possibly no permanent damage.
of the negligence (as opposed to the bad luck), However, the damage suffered as a result of GP’s
the injury would probably not have occurred, the negligence was identifiable and divisible from the
claimant should win. The issue was then, what damage caused by the hospital’s negligence.
did the evidence actually demonstrate or prove Consequently, there was no way that the hospital
on the facts of the patient’s case? In a dose of could be held liable for the earlier damage and the
judicial pragmatism, the Court of Appeal decided GP should not be liable for the whole damage.
that where medical science could not establish The Court of Appeal went even further and
the probability that “but for” a negligent act the looked at the case in terms of a loss of opportu-
injury, would not have happened, but could estab- nity to secure a better outcome. It held that where
lish that the contribution of the negligent cause a doctor had negligently failed to refer his patient
“was more than negligible,” the patient should to a hospital, and, as a consequence, she had lost
succeed. In the present case, the patient had the opportunity to be treated as she should have
crossed that hurdle. been by a hospital, the doctor could not escape
In Wright v Cambridge Medical Group [6] a liability by establishing that the hospital would
child, aged 11 months, had developed a bacterial have negligently failed to treat the patient appro-
superinfection in hospital and been discharged priately, even if promptly referred.
home undiagnosed. Her mother contacted a GP, The implications of these two cases has been
who negligently failed to refer the child to hospi- the subject of much discussion and debate
tal until 2 days later. It was not until three further within the legal press and in subsequent deci-
days later that the child was correctly diagnosed sions. In most cases, causation will be consider-
in hospital, by which time her hip had become ably simpler and will turn largely on a
infected. As a result, she had permanently combination of expert evidence and a judge’s
restricted movement, and a leg length discrep- sense of what is fair, just and reasonable in the
ancy. Proceedings were brought on behalf of the circumstances.
child against the GP only. In conclusion, the leading cases summarised
Perhaps surprisingly, the judge decided that above should give the reader a snap shot of how
GP’s negligence had not caused the child any the law currently stands. What is clear though, is
harm, as, even if she had been admitted to hospi- that the tectonic plates of judicial reasoning are
tal 2 days earlier, she would not have been treated shifting in relation to the practice of medicine.
properly and would have suffered the same per- Even 10 years ago the idea of a court making the
manent damage. The child’s litigation friend bold statements made by the Supreme Court in
appealed to the Court of Appeal who decided Montgomery would have been unthinkable. The
that the GP’s negligence was a causative factor decisions of the appellate courts over the next
of the child’s permanent injury. The reasoning decade, (particularly in an area as emotive as
behind the decision was that the hospital’s treat- obstetrics), are likely to involve a judicial balanc-
ment of the child (even though it was negligent) ing act of the patient’s rights and a recognition
was not so serious or unusual as to destroy the that clinicians do not offer a consumer service,
causative link between the GP’s negligence and but care to the sick and vulnerable, in often highly
the child’s injury. pressured circumstances.
30 F. Paterson

Conclusion References
Clinicians need to familiarise themselves
with the rulings of these landmark cases as 1. [1957] 1 WLR 582.
2. [1985] AC 871.
they have a bearing on patient care and man- 3. [1998] AC 232.
agement, and will continue to be the leading 4. [2015] AC 1430.
authorities in respect of all areas of clinical 5. [2008] EWCA Civ 883; [2009] 1 WLR 1052.
practice. 6. [2011] EWCA Civ 669 [2013] QB 312.
 The Claim Journey
7
Karen Ellison and Emma Ferriman

7.1 Introduction 7.2 Letter Before Action

In a recent poll of all doctors in the United States The first step in the litigation process will be a
60% of them had been through the medical litiga- letter from a patient’s solicitor, this usually occurs
tion process at some point in their career. When without warning and is often unpleasant contain-
this was broken down by specialty 85% of obstet- ing criticism of the doctor and is usually written
rics and gynaecology doctors had been sued. Of in an aggressive and adversarial style. It is impor-
the cases that went forward 35% were settled tant to keep this in perspective, to acknowledge
prior to trial, 21% were withdrawn by the the emotions experienced and to seek support and
Claimant, 14% ruled in favour of the doctor, 11% advice from a colleague. When faced with this
were dismissed by the court, 3% settled at the situation it is important that the doctor seeks
trial; leaving only 3% where the court ruled advice from their defence organisation and does
against the doctor [1]. Litigation seriously affects not respond directly [3]. The defence organisa-
doctors leaving them feeling hopeless, doubting tion will provide a buffer between the doctor and
their own competence with a fear of exposure and the claimant’s solicitor in the legal process. It is
humiliation by their peers. This can lead to isola- important that the doctor provides their full co-­
tion and loneliness with negative effects on rela- operation with the process to enable it to progress
tionships and their family. In addition, the process [2].
is often lengthy taking doctors away from their For a clinical negligence claim to be success-
patients [1, 2]. ful the claimant has to prove on the balance of
probabilities that the doctor owed a duty of care,
that there was a breach in that duty and that harm
occurred as a result of that breach (causation).
The clinical management in a case is assessed by
independent experts in the relevant field using the
Bolam standard. This standard considers the clin-
K. Ellison (*)
Medical Protection Society, Leeds, UK ical management of the doctor against that of a
e-mail: ellisonkaren@ymail.com reasonable body of doctors practicing in the same
E. Ferriman field. The claimant must prove that the doctor’s
Department of Obstetrics and Gynaecology, Jessop care fell below a reasonable standard and that this
Wing, Sheffield Teaching Hospitals NHS Trust, resulted in the claimant sustaining harm. Experts
Sheffield, UK are therefore required to provide both reasonable
e-mail: Emma.Ferriman@sth.nhs.uk

© Springer International Publishing AG, part of Springer Nature 2018 31

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_7
32 K. Ellison and E. Ferriman

and logical evidence that will stand up to scru- tor cannot recall the precise nature of their
tiny. A doctor must respond quickly to any com- involvement the doctor should document this and
plaint and provide medical records within a describe their usual clinical practice. Where the
timely manner. Following this however, there doctor does have a good recollection of events
may be a long period of waiting, months or even the account should be as detailed as possible.
years, when the claimant takes advice and makes Remember the claimant has a number of years to
a decision on whether to proceed with their case. bring their claim and recollections will fade with
If the claimant does proceed with the case, then a time, so the time spent preparing the account may
strict timetable will be drawn up which must be be invaluable at a later date.
followed. Formal proceedings must be brought
within a three-year timescale. This three-year
period may run either from the date of the inci- 7.4 The Response
dent or from the date of knowledge. The date of
knowledge is the date at which the patient became The legal process will begin with a pre-action
aware that the injury sustained could be attribut- protocol where disclosure of the medical records
able to clinical negligence. There are two excep- is requested (Fig. 7.1) [4]. Following disclosure
tions to this; in the case of children and in those of the medical records the claimant will take
patients with reduced mental capacity for exam- expert advice and make a decision whether to
ple as a result of cerebral palsy. A child has up to proceed. In these cases, the trust or their repre-
their twenty-first birthday (i.e. 18 years plus sentatives will receive a letter of claim and this
3 years) to issue proceedings. In the case of a will be forwarded to the doctor involved. The let-
minor legal action is usually brought by a close ter of claim gives a detailed description of the
relative who becomes the child’s litigation friend. alleged failings of the doctor. The claimant
For claimants with impaired mental capacity should not issue formal proceedings until
there is no time limitation on claims. 4 months after the letter of claim. The trust’s rep-
resentatives are obliged to issue a formal letter of
response within 4 months of the letter of claim. A
7.3 Letter of Claim doctor involved in this process may take advice
from the hospital’s representatives or from their
When a doctor is notified of a claim it is impor- own defence organisation regarding preparation
tant to contact their defence organisation and the of a suitable response. For those claims that are
litigation department within their trust. The letter denied, clear and detailed reasons will be pro-
of claim should be shared with the defence union vided to the claimant in order for them to con-
as well as any medical records and a record of the sider their position. Arguments should be
doctor’s involvement in the case. Medical records reasoned and logical in an attempt to facilitate a
should be available within 40 days of their request withdrawal of the claim and to settle any dispute
from the claimant’s solicitors. Having instructed informally. For those claims that are not resolved
a defence organisation all correspondence should the claimant will issue formal proceedings.
be directed through them so that the doctor has
no direct contact with the claimant’s solicitors.
Any documentation received directly should be 7.5 Formal Proceedings
forwarded immediately to the doctor’s represen-
tative whilst maintaining a photocopy of any rel- A doctor involved in a case where formal pro-
evant information. Accurate record keeping is ceedings have been issued will be supported by
essential. The doctor should write a factual the hospital’s representatives if the case has
account of the event for their own records. This occurred in the NHS or by the legal representa-
record should detail their involvement in the inci- tives of agencies working in the private sector. In
dent and their direct recollection. Where the doc- the NHS, all claims are ultimately overseen by
7 The Claim Journey 33

REQUEST FOR LETTER OF

INCIDENT
RECORDS NOTIFICATION

• Claimant(s) suffers adverse • C requests copies of medical • C sends Letter of Notification

outcome and seeks legal records from D and any (LoN) to D explaining that
advice. relevant third parties claim is contemplated
• C’s adviser considers • D provides records - or an • D acknowledges LoN and
limitation explanation as to any delay confirms where Letter of
• C’s adviser considers within 40 days Claim (LoC) should be sent
rehabilitation • If D fails to provide records • D considers whether to
• C’s adviser considers use of or explanation C makes commence investigation and/
complaints process pre-action application for or obtain expert evidence
disclosure • Both parties consider
• C paginates and files any rehabilitation
received records • Both parties consider
limitation

Fig. 7.1 The legal process simplified

the NHS Litigation Authority (NHSLA) in expert reports in the exchange of evidence and to
England, the NHS Wales shared services part- attend conferences with counsel. They are
nership in Wales, the Central Legal Office (CLO) obliged to sign a statement of truth as part of the
in Scotland and The Directorate of Legal documentation.
Services (DLS) in Northern Ireland. In addition, The reports of experts instructed by the
the doctor can be supported by a representative defense and claimants are exchanged, and either
from their defence organisation. A detailed may present questions to the other about their
defence document will be produced with the report. Experts may be required to meet and pre-
doctor’s own witness statement as a key compo- pare a joint statement. The objective of such
nent. The witness statement is the doctor’s meetings is to resolve as much of the case before
signed factual account of their involvement in trial as possible to save on time and costs. Where
the case and will be lodged with the court, so it the defense is persuasive the claim may be dis-
is imperative that the doctor involved is entirely continued by the claimant.
happy with the contents of the statement. The
doctor is also required to sign a statement of
truth as part of this document. 7.7 Trial

Some cases will be settled out of court usually

7.6 Doctors Witness Statement without admitting liability, but on occasion a
and Exchange of Witness breach of duty will be admitted to achieve an out
Statements of court settlement.
For those few cases that do proceed to trial
The process of medical litigation is lengthy and (less than 1%) [5] the process can be lengthy
time-consuming. Any doctor involved in this pro- depending on the complexity of the case and it is
cess will be expected to liaise directly with the important that a doctor involved in this process
hospital’s representatives and to provide informa- has adequate professional and personal support.
tion in a timely manner. This information may Doctors involved in medical litigation com-
consist of evidence of adequate accreditation and monly ask whether all cases are referred to the
training and so it is imperative that a doctor keeps General Medical Counsel (GMC). GMC referral
detailed evidence in their appraisal documenta- rarely occurs [5]. The GMC will investigate those
tion. As the process proceeds the doctor will be cases where there are significant concerns regard-
asked to comment upon any allegations, to read ing patient safety and where a doctor’s fitness to
34 K. Ellison and E. Ferriman

13%
Orthopaedic surgery
Casualty/A&E
Obstetrics
34% 12% General surgery
Gynaecology
Total number of General medicine
clinical claims 10,686
Urology
Radiology
10%
Psychiatry/Mental health
Ophthalmology
3% Other (aggregated specialties)
8%
3%
3%
3% 5% 5%

Fig. 7.2 The number of clinical negligence claims received in 2016/2017 by specialty

practice may be impaired. Another issue for some the patient and their family especially in the face
doctors involved in litigation is where the claim- of complications or adverse outcome. Time spent
ant remains a patient of the doctor thus providing explaining in detail is invaluable and although this
a potential conflict. The GMC states that a doctor process wont completely dispel all medical litiga-
must not allow a complaint to prejudice a patient’s tion it may help to alleviate a patient’s concerns
care. There are instances however, where the or anxieties. Adverse incidents can be reduced, but
doctor-­patient relationship is deemed to be irre- not eradicated by clinical risk management. For
vocably damaged and where the patient may be an individual doctor this means practicing within
better receiving care form an alternative health- their own area of expertise, knowing their personal
care professional [6]. limitations, and communicating effectively with
Doctors will never avoid being sued. It is highly patients and colleagues and writing good contem-
likely in a high-risk specialty such as obstetrics poraneous notes [8].
and gynaecology (see Fig. 7.2) [7] that a doctor
will become involved in a formal patient complaint
and medical litigation. What a doctor can do is put References
themselves in a stronger position by being able to
defend their treatment for example by following 1. The doctor weighs in.com. What happens when
doctors get sued. https://thedoctorweighsin.com/
local and national guidelines. Good record keeping what-happens-when-doctors-get-sued/.
and detailed correspondence regarding a patient’s 2. Bowen-Berry D. The physicians guide to medi-
care is imperative. Cases where documentation is cal malpractice. Proc (Bayl Univ Med Cent).
poor are more difficult to defend whereas cases 2001;14(1):109–12.
3. Medical Defence Union. Medicolegal guide to clini-
in which the documentation is of a high standard cal negligence.
are more difficult for the claimant to dispute [5]. 4. Ministry of Justice. Pre-action protocol for the reso-
Another key factor is good c­ ommunication with lution of clinical disputes. 30 Jan 2017. https://www.
7 The Claim Journey 35

justice.gov.uk/courts/procedure-rules/civil/protocol/ 7. NHS Resolution. Five years of cerebral palsy

prot_rcd. claims. A thematic review of NHS resolution
5. Debono J. When patients sue. BMJ Careers. 16 April data. September 2017. http://resolution.nhs.uk/
2011. http://careers.bmj.com/careers/advice/view- five-years-of-cerebral-palsy-claims/.
article.html?id=20002645. 8. Panting G. How to avoid being sued in clinical prac-
6. General Medical Council. Good medical practice. tice. Postgrad Med J. 2004;80:165–8.
London: GMC; 2001.
 GMC Referral
8
Katherine Sheldrick and Angela Pilling

8.1 Background and performance; safety and quality; communica-

tion, partnership and team work; maintaining
The General Medical Council (“GMC”) is the trust). In addition, the GMC publish more detailed
regulatory body responsible for maintaining the explanatory guidance which shows how the prin-
register of medical practitioners, setting stan- ciples of GMP apply in specific circumstances. All
dards in medical education and practice, 5 year registered medical practitioners are expected to be
revalidation, and investigating concerns which aware of and follow the GMC’s current guidance
may put patient safety or the public’s confidence and to maintain their continuing professional
in the profession at risk. It regulates all registered development. The standards set out in its guidance
medical practitioners across the UK. Since 2012 are applied by its investigators and experts in
the investigatory and hearing (or adjudication) determining the seriousness of any alleged depar-
functions of the GMC have been separated. If ture from GMP and whether it may call into ques-
you are subject to a GMC investigation and your tion a practitioner’s fitness to practise medicine.
case is referred for a hearing, the hearing will
take place before a Panel of the Medical
Practitioners Tribunal Service (“MPTS”). The 8.3  MC Statistics on Number
G
MPTS is a Statutory Committee of the GMC and Outcome of Referrals
established under the Medical Act 1983 [1].
The most recently published data for 2016 [2]
records the GMC reviewed 9140 concerns or
8.2 GMC Guidance referrals in the context of almost 240,000 licensed
and registered medical practitioners. The annual
The GMC publishes and updates its guidance and level of referrals has remained fairly constant
standards periodically. Its overarching guidance is over the last 5 years, at between 9 and 10,000. Of
entitled “Good Medical Practice” (GMP) (last these concerns in 2016, almost 74% were closed
updated in 2014). It sets out the duties and core at the initial triage stage without further investi-
professional standards of all registered doctors gation. This may be because they do not raise a
broken down into four domains (knowledge, skills serious concern or the concern does not relate to
a doctor’s fitness to practice. If a concern is
K. Sheldrick (*) · A. Pilling closed at the initial triage stage, you are unlikely
Hempsons, Manchester, UK to be informed of the fact or be made aware that
e-mail: k.sheldrick@hempsons.co.uk; there was a concern.
a.pilling@hempsons.co.uk

© Springer International Publishing AG, part of Springer Nature 2018 37

S. Jha, E. Ferriman (eds.), Medicolegal Issues in Obstetrics and Gynaecology,
https://doi.org/10.1007/978-3-319-78683-4_8
38 K. Sheldrick and A. Pilling

Fig. 8.1 GMC 1451

investigation of concerns 16%
in 2016. Data from
GMC Annual Report
2016
Investigated
459
5% Closed following
provisional enquiries
Referred for employer
resolution
477 Closed at initial triage
5% without investigation

6753
74%

Of the remaining 2387 concerns which were 8.5 When You Should
not closed at triage, just over 60% (1451) were Self-Report?
investigated, 20% (477) were referred to the doc-
tor’s employer for local resolution and the balance GMP identifies three situations [4] in which prac-
(459) closed following provisional enquiries. titioners should self-refer where:
Of the investigations concluded by the GMC
in 2016, 54% were concluded with no further 1. their health may put patients at risk;
action. Just over 13% (245) cases were referred 2. they have been cautioned or convicted by the
for an MPTS hearing. The remainder of the cases police anywhere in the world: and/or
concluded with advice, a warning or undertak- 3. where they have been criticised by an official
ings. Warnings and undertakings are recorded on inquiry (including by a Coroner).
the doctor’s registration (see Sanctions section
below) (Fig. 8.1). Practitioners must protect patients and col-
leagues from any risk posed by their health. A
practitioner cannot rely upon their own assess-
8.4 Sources of Referral ment of risk but must consult a suitably qualified
colleague and follow their advice about any
Anyone can refer a medical practitioner to the changes/limitation to their practice or to refrain
GMC. Thus a referral can be made by a colleague/ from work while they are unwell.
whistleblower, patient (or their Solicitor), relative,
member of the public, Coroner, their employer’s
Responsible Officer, Police, pharmacist, CQC or 8.6  hat Type of Concerns Are
W
NHS Protect amongst others. In addition, a medi- Investigated?
cal practitioner may be under a regulatory duty to
self-report or the GMC may commence an inves- The concerns:
tigation in the absence of referral, for example,
where there has been adverse press reporting. • Must raise issue of impairment of fitness to
If you are a manager, colleague or responsible practise
officer and are considering making a referral, you • Be made within the last 5 years (unless in pub-
may wish to consider the GMC thresholds guid- lic interest to investigate older cases)
ance [3] before doing so. • Single clinical incidents may be investigated
8 GMC Referral 39

• Repeated/pattern of concerns about clinical competence, a practitioner is likely to be invited

care and practice likely to lead to invitation for to undergo a performance assessment. Such an
performance assessment assessment will include written examinations,
• Concerns of lack of knowledge of English lan- observed simulated clinical examinations
guage will lead to invitation for formal (OSCEs) and interviews with the practitioner and
assessment other third parties.
• Concerns regarding a practitioner’s own Concerns may be referred about a practitio-
health will usually lead to assessment by two ner’s knowledge of the English language either
independent health assessors spoken and/or written. Such concerns will lead to
• Presumption that five categories of serious an invitation to sit further examinations to test the
concern will be fully investigated practitioner’s language skills. The current GMC
criteria require a valid (taken within the last
The GMC will only investigate concerns 2 years) IELTS certificate showing:
which raise an issue of impaired fitness to prac-
tise. Within their guidance they give examples of • A score of at least 7.0 in each testing area
concerns which will not be investigated including (speaking, listening, reading and writing), and
minor motoring offences not involving drugs or an overall score of 7.5.
alcohol, a delay of less than 6 months in provid- • You got these scores in the same test
ing a medical report, a minor non-clinical matter • You took the academic version of the test
or a complaint about the cost of private medical • The original stamp and test report form (TRF)
treatment. number
They cannot investigate concerns which took • You obtained the scores in your most recent
place over 5 years ago unless they determine sitting of the test.
there is a public interest in doing so despite the
fact it has been made late [5]. Similarly concerns about physical or mental
Isolated concerns which do not raise an issue health will be investigated by inviting the practi-
of impairment, for example, about the quality of tioner to undergo an independent assessment
treatment where there is no serious risk to the usually by two specialists who are instructed to
patient or a poor attitude to a patient, will not be provide their opinion on the practitioner’s health,
fully investigated but are likely to be disclosed to diagnosis and fitness to practise with or without
the practitioner and RO to be dealt with at restriction.
appraisal to ensure there is no repetition. There are some categories of concerns that
Single clinical incidents which resulted in will inevitably be investigated fully. These
patient harm will be investigated and usually an include allegations of:
expert opinion obtained to determine whether the
management falls below or seriously below the 1. Sexual assault, indecency or sexually moti-
standard to be expected of a reasonably compe- vated examination
tent practitioner. Where it is alleged that the prac- 2. Violence
titioner has fallen seriously below the standard to 3. Inappropriate relationships with patients
be expected, the threshold for presumption of 4. Dishonesty including fraud
impairment will be reached which means the 5. Practising without a licence
level has been reached for imposition of a sanc-
tion (see below for an explanation of the sanc- Practitioners need to be aware that any allega-
tions which are available to the GMC Case tions (including those arising in their personal
Examiners/MPT). lives) which fall into any of the categories 1, 2 or
Where any further concerns are notified, they 4 above will be fully investigated by the GMC
will also be investigated fully. If there is a pattern irrespective of whether they directly involve
or area of concern identified relating to clinical patients or their care as they give rise to a pre-
40 K. Sheldrick and A. Pilling

sumption of impaired fitness to practice because permitted except in exceptional circumstances

of their seriousness. but oral representations are made on behalf of the
GMC and the practitioner to the IOT Panel. In
addition, documentary evidence can be submitted
8.7  otification of Criminal
N in advance or at the hearing, for example, refer-
Investigations ences from colleagues, CV, appraisal documents.
The hearing is held in private unless the practitio-
In accordance with the Common Law Police ner requests it is held in public. All IOT hearings
Disclosure arrangements [6], the police will dis- are routinely listed at the MPTS offices in
close to the GMC details of any practitioner who Manchester.
is arrested or charged with an offence where they To make an interim order restricting a practi-
consider there is a “pressing social need” to do so tioner’s registration, the Panel must determine it
and there is a public protection risk. In such is necessary for protection of members of the
cases, police notification to the GMC is usually public and/or otherwise in the public interest and/
the source of the concern and their investigation. or in the doctor’s own interests. The latter ground
Having received such information the GMC will is usually applied in cases of health concerns.
ask a Case Examiner to decide whether a practi- The “public interest” includes maintaining public
tioner should be referred for an MPT Interim confidence in the profession and good standards
Orders Tribunal (IOT) hearing (see below) to of conduct and performance. The IOT cannot
consider whether interim restrictions should be accept undertakings offered by the practitioner.
placed on the practitioner’s registration whilst an If conditions are imposed by the Panel, they
investigation is ongoing. The IOT can make no will be taken from the suite of “standard condi-
order, impose conditions or suspend the practitio- tions” set out in IOT conditions bank available on
ner’s registration. the GMC and MPTS websites [7].
The maximum length of interim order which
can be imposed by the Panel is 18 months. Any
8.8 IOT Hearings further extensions require High Court approval.
Further interim order hearings will be listed at 3
If a practitioner receives correspondence listing or 6 monthly intervals (depending on the circum-
an IOT hearing they should seek urgent advice. stances). They may not require attendance at a
The minimum notice period is 24 h in urgent hearing and may be dealt with on the papers in
cases but usually a practitioner will be given a certain circumstances. A practitioner or the GMC
week or 10 days notice. It is important to ensure can request an early review hearing if there has
that your registered address is kept up to date so been a change in circumstances.
that you receive correspondence in a timely man-
ner. A bundle of papers will be disclosed which
sets out the concerns raised with the GMC. This 8.9 GMC Investigation
may be the first indication a practitioner has
received of any concern. Ordinarily, the practitio- Once a GMC investigation is opened, the GMC
ner will be expected to attend the hearing and/or will notify you of the fact and disclose (some)
attend with their legal representative. The hearing details to you of the concern(s) raised. This is
can proceed in the absence of the practitioner if known as a “Rule 4” letter. The GMC may
the Panel is satisfied the doctor has been served ­anonymise the concern. You will be asked to pro-
with notice of the hearing. The GMC will instruct vide information about your current work/
a lawyer to attend the hearing and present their employer(s) (called a Work Details Form) and
case. The GMC should confirm what order they invited to respond to the concern.
seek in advance of the hearing to assist prepara- You should notify your medical defence
tion of the practitioner’s case. No oral evidence is organisation immediately upon receipt of any
8 GMC Referral 41

GMC correspondence. You should also notify depend on the nature of the allegations and may
your employer(s) (and Deanery if you are a doc- include testimonial references, evidence of
tor in training) of the GMC investigation. The focussed CPD, appraisal documents, reflective
GMC will contact them on receipt of your com- statement and/or expert evidence.
pleted form, disclose the complaint and ask them Once a response has been served or the dead-
to confirm whether they have any concerns about line has passed, two GMC Case Examiners (one
you. It is, therefore, in your interests that they are medically qualified and the second lay) will be
aware prior to receiving GMC correspondence. asked to review the case and determine whether
The GMC will set a deadline for you to provide a the case should be referred for a hearing before a
completed Work Details Form and if you fail to Medical Practitioners Tribunal (MPT) or con-
do so without good reason, the failure may be cluded in another way (see below). Both Case
included as an additional concern as you are Examiners must agree to any decision. If the
expected to cooperate with your regulator. The Case Examiners are unable to agree, the matter
form includes a declaration that the information will be referred to the Investigation Committee.
is complete and accurate and it is therefore Where cases fall within one of the following
important that you ensure that it is. Incorrect or seven headings, unless there are exceptional rea-
incomplete information may give rise to addi- sons, a referral for a hearing will be made:
tional concerns about your probity and honesty.
You should take advice from your medical 1. Sexual assault or indecency
defence organisation and/or solicitor about 2. Violence
whether it is in your interests to provide a response 3. Improper sexual/emotional relationships
at this very early stage of the GMC investigation. 4. Knowingly practising without a licence
You are not obliged to respond at this stage. 5. Unlawfully discriminating
The GMC will undertake investigations to 6. Dishonesty
obtain documentary and witness evidence to sup- 7. Gross negligence or recklessness about a risk
port the concern(s) and expert evidence to con- of serious harm to patients
firm their seriousness. If the concerns relate to the
practitioner’s health or performance, the GMC The Courts have determined that cases in
will usually invite the practitioner to undergo an these categories where the practitioner has not
assessment. Any unreasonable refusal to agree to been prosecuted or has been acquitted in a crimi-
undergo an assessment is likely to be included in nal court can still be investigated by the GMC,
the allegations against the practitioner and will be referred for hearing and sanctioned [8].
considered as demonstrating a lack of insight. It
may also lead to an IOT referral (see above).
Once the GMC have concluded their investi- 8.10 Referral to a MPT Hearing
gation, they will determine whether the evidence
they have obtained supports an allegation of Following notification of the Case Examiners
impaired fitness to practise. If the evidence does decision to refer your case, a timetable will be set
not, the GMC investigation will be concluded at telephone hearings for steps (known as direc-
and you will be notified. Where the evidence sup- tions) to be taken to prepare the case for hearing.
ports an allegation of impairment, the GMC will A hearing date will be set within 6 months of the
set out formal allegations in what is referred to as first telephone hearing.
a “Rule 7 letter”. The practitioner has 28 days to The directions may include deadlines for dis-
respond to the allegations. An extension of time closure of evidence (documentary, witness and
may be needed to prepare the practitioner’s expert) by each party, a meeting of experts,
response. You should take advice on what (if any) exchange of documents setting out legal argu-
allegations should be admitted and what evidence ments to be raised at the beginning of the hearing
should be submitted with any response. This will (called preliminary arguments). These hearings
42 K. Sheldrick and A. Pilling

are in public and do attract press attendance and • Conclude the case with no further action
publicity. The GMC will present their case first • Conclude the case with written advice to the
by calling witnesses and introducing documents. practitioner
Usually a witness’s statement will be taken as • Agree undertakings with the practitioner
their evidence in chief. Witnesses will then be • Invite the practitioner to accept a warning
cross examined by the other party and asked
questions by the Panel. When the GMC has called Undertakings are promises made by the prac-
all of it’s evidence (subject to any legal argu- titioner usually to take certain steps or restrict
ments), the practitioners case will then be pre- their practice. They are of unlimited duration and
sented. The practitioner may give evidence or are reviewed at least annually by the GMC. On
choose not to do so. Evidence can be called on average, they remain in place for 2–3 years. Any
his/her behalf to rebut the allegations and sub- breach of undertakings will be investigated by the
missions on facts. GMC and may result in further action being
At the conclusion of the practitioner’s case, taken. The undertakings will appear on the medi-
the Panel will go into private session to decide cal register except those relating to health which
what facts are found and which allegations they remain private.
find proved. They will then announce their find- Warnings can be offered where the Case
ings and hear submissions from both parties, first Examiners decide that there is no impairment but
on whether or not the findings amount to impair- there has been a serious departure from
ment and secondly, if they do, what sanction is GMP. The GMC will provide a draft of the pro-
appropriate. The Panel can impose a warning (see posed warning. Representations can be made
below) even if they determine that there is no about the contents of any proposed warning. If
impairment. The sanctions available to them you do not agree to accept a warning or the pro-
where impairment is found are: posed terms of any warning, you can elect for a
hearing before the GMC Investigation
• Acceptance of undertakings (see below) Committee. They have the power to impose a
• Conditions for up to 3 years warning.
• Suspension for up to 12 months or If a warning is accepted, it will be published
• Erasure from the medical register on the medical register in the terms agreed for a
period of 5 years and will be disclosed on request
The practitioner may appeal a decision of the by any employer indefinitely.
FTP Panel to the Administrative Court. Any
appeal must be lodged at Court within 28 days of
the determination. 8.12 Things to Remember
Before the expiry of any conditions or suspen-
sion period, a review hearing will be listed to 1. Don’t ignore correspondence from the GMC
determine whether the practitioners fitness to 2. Keep your registered address up to date to
practise remains impaired (in which case further ensure you receive correspondence
sanctions may be imposed) or is unimpaired and 3. Be aware of GMP and the GMC’s updated
the sanction will expire. guidance
4. Seek advice and assistance as soon as
possible
8.11  esolution of Cases Not
R 5. Notify your employer(s)
Referred to a MPT Hearing 6. Keep everything you are sent and copies of
any documents you provide to the GMC
Where the Case Examiners determine that a case 7. Seek support—it is likely your colleagues
should not be referred to a MPT hearing they have been part of a GMC investigation or
may: know someone who has
8 GMC Referral 43

References 6. Which replaced the Notifiable Occupations Scheme

(NOS) in 2015.
7. GMC: www.gmc.org.uk MPTS: www.mpts.org.uk.
1. Schedule 1, Part III, section 19 F of the Medical Act
8. Rv Metropolitan Police Commisioner ex parte
1983.
Redgrave [2003] 1 WLR 1136 and clarified in Bhatt v
2. GMC Annual Report 2016.
GMC [2011] EWHC 783 (Admin) and Ashraf v GDC
3. GMC Thresholds guidance July 2016 www.gmc-uk.
[2014] EWHC 2618 (Admin).
org.
4. GMP guidance April 2014, paragraphs 28 and 75.
5. GMC Guidance for decision makers on Rule 4(5) 11
January 2016.
 Another Random Document on
Scribd Without Any Related Topics
suppose they almost certainly have got on more
rapidly than with 9 teachers out of 10.”
One is glad to learn that months before she left
Mannheim, the tide of popularity turned; and,
although even she attributed the change in great
part to the fact of her having worn a “ravissant”
gown at the School Carnival Ball (a gown which she
had worn as a bridesmaid in England) she was glad
to respond by expanding good spirits to the
diminished pressure. So the pretty frock served its
turn. “There’s no doubt about it that opinion
altogether has veered round widely about me. I think
I am rather popular now,—I certainly was thoroughly
the contrary.”
She was, until the later years of her life, wanting in
sympathy with the more or less innocent and
pardonable vanities of youth, and yet during this
period she did sometimes cry out for a more vivid
life,—or rather for days and hours of greater
vividness to break the monotony of the working life
she had deliberately chosen. It was one of her
ambitions to be duly presented to Queen Victoria, for
whom throughout life she had a great admiration,
but the ambition was never realized.
“Darling,” writes her Mother, in answer to a very
human cry, “your young bright days are nobly spent
for the Lord. Shall we offer Him that which costs us
nothing?... There always has been (though probably
not necessarily) so much that is false, impure and
hollow connected with most of what are termed
amusements that you would soon loathe them, and
feel work and even discipline more satisfying.” But
never for one moment from her twentieth year
onwards did S. J.-B. ask for amusement and
vividness in place of work and discipline.
She might have found recreation and stimulus in
the music of Germany, but her chief limitation was
on the side of Art. Music did not appeal to her, and,
although one of her greatest gifts was the possession
of a beautiful speaking voice, with a perfect natural
production, she could not sing and had no ear for
music at all. She argues with herself on the subject,
—“Surely singing, for instance, is a wholesome and
good amusement. Surely it is right that some should
contribute it for others? Yet, perhaps, mere
amusement, even for others, is not a life-work for
anyone? At least unless as a duty. So few sing, as
Fra Bartolomeo painted, ‘on their knees’.”
This is estimable enough so far as it goes, but
artistic perception is wanting, and throughout life she
never got much farther in this direction, though she
always loved to hear a simple congenial song sung
by one she loved. “Do you care for the ‘unlearned
praise’?” she used to say. When she quoted, as she
sometimes did, “’Tis we musicians who know,”—it
was not of music she was thinking.
All through this period her main preoccupation was
with religion. She was reading, among other things,
the In Memoriam and Robertson’s Sermons, and she
continued to read them till the end of her life. Her
volumes of Robertson are falling to pieces with sheer
honest careful lifelong use, and many of the sermons
are marked with a date and with initials to remind
her of the times when she shared her treasure with
some special friend. Assuredly, in the words of her
loved quotation, Robertson “found her.” Living, as
she was at this time however, mainly among Roman
Catholics, she felt—as so many have felt—a real
desire to share their communion.
“I mean to study Romanism as thoroughly as I
can,” she says. “Hitherto I have not by any means
found, as C. Brontë, my repugnance to Roman
Catholicism increased by close view.”
She was anxious to get a proper breviary or
missal, and apparently finding this difficult in
Mannheim, she wrote to her Mother to send her one.
That wonderful old lady! She can’t have enjoyed the
commission, but she set about the fulfilment of it
most loyally. And, oddly enough, she too met with
many difficulties. She declined to be put off with The
Garden of the Soul, and finally she writes:
 “I despair of getting a satisfactory breviary, unless you can send
me definite orders for Treacher to procure one. Marvellous rubbish at
the only R.C. shop. They were very anxious to fetch the R.C. priest!
—to help me,—‘were sure he was within.’ Fancy if Daddy had come
by, with the carriage at the door and I inside in deep conversation
with said Priest!...”

No, there never was such a Mother! Her openness

of mind shows itself in a hundred extracts. “I do not
fairly know Thomas à Kempis,” she says. “The
passage you quoted was very grand and beautiful.”
“I wonder if you will care for my extract from Pusey
in the ‘Times’. I always think there is such a
chastened, disciplined spirit in what he writes,—no
pepper, nor vinegar.” “If I were obliged to have a
great deal of company, I should, I doubt not, feel
‘Lent’ a grand repose and comfort; as it is, I am
disposed to kick at it as artificial.”
And she is no longer afraid to express her loving
appreciation.
“I don’t call you so much a ‘sweet-tempered’ as an ‘excellent-
natured’ girl,—most unselfish, energetic, and at all times ready in
the behalf of others. A regular ‘sweet temper’ is rarely found with
very strong deep feelings.... I don’t think there ever was such true
love as your’s—unless it be her’s under disguise. You would not now
be able to stand alone as you do had circumstances not separated
you. God has two great works,—one for her, one for you.”
“I am quite sure, by pouring out your heart to me, you help me on
as well as yourself. You bring before me such strengthening texts
and poetry, and our hearts get so very closely knit. It may seem
selfish to say so, but your sorrows have greatly enhanced my joys by
bringing us close, and, as it were, entwining us inseparably.”

In a fine sermon on Old and Young, the late

Bishop of Oxford dwells on the “tragedy going on in
the life of many a home, ... as father and son or
mother and daughter grow conscious, sometimes
with silent pain, and sometimes with scarcely veiled
resentment, of an ever-widening severance, a
perpetual and almost irrevocable ebbing of sympathy
and trust.” If any further proof were needed than has
already been given of the wholeheartedness with
which this mother and daughter resisted that
tendency to severance and realized the sympathy
and trust, it may be found in the correspondence
that follows:
“Jan. 23rd, 1863. Friday night.
and Jan. 24th.
My own Darling Mother,—I’m right sorry you didn’t get your baby’s
first morning greeting,—I went out on purpose to post the letter on
Friday that you might. It’s very tiresome too that the other little
messenger didn’t reach you,—however Mother knows it was sent,
and it’s useless to risk sending more the same way; you shall get it
in duplicate when I come home,—whenever that is.
Sometimes I think I ought to stay here till I have mastered my
difficulties and learned to rule,—then again I see that years and
years of my life will be but a learning of that lesson, and the great
thing is to see how to dispose of them most wisely, not in obstinacy
or in self-consenting even on a point like that. Besides month after
month of unbroken work does come to tell on one, specially if one
starts not over strong; and I feel myself looking forward with
significant expectation to the coming rest (and still more,
refreshment time) again,—to say nothing of seeing faces and
hearing voices that I fancy may too not be sorry to see and hear
mine again. I am watching the now really lengthening days almost
like a schoolchild,—indeed I am tremendously much of a child yet,
Mother,—and thinking how the days and weeks roll on and bring the
homecoming nearer. Even if I returned here, I must have a holiday
and not a very short one,—for I have got a good deal used one way
or another,—though now I am again delightfully cheery and strong,
—and able to work twice as well among the children when a
laughing word comes instead of a weary one; and they feel it too, I
am sure.
I shall be very curious to read Colenso’s book,—will you send me
its name, please? It is so very easy a way to get up a laugh (which
somebody calls the Devil’s keenest sword) against opinions or people
you don’t agree with, by such a jest as that Colenso wants to turn
‘the Bible into Rule of Three sums’,—so much more easy than
justifiable or Christian. It’s just a word which, said of a great
Mathematician, is sure to ‘take’ whether there is any or no sense in
it. People like to laugh and repeat what sounds sharp, and prove
their own superiority (?) to such men as they can’t hope to get
within 100 miles of in attainments.
Besides in a certain non-sneering sense, it may really be true
without inferring any blame. (I wonder if you like me to discuss the
question or not? If not, just tear up the next page or two unread,
that’s all.)
The Rule of Three (as it is most absurdly called) is perhaps the
purest form of development of the principle of Cause and Effect,—
the principle that rules the world and lies at the root of all science
and all logic. You see an effect,—it must have a corresponding
cause. You are aware of a cause,—you imply with certainty
answering effect. ‘To look through Nature up to Nature’s God’—is
strictly (if you choose so to call it) a Rule of Three sum. Again,
—‘These are Thy works, Parent of Good,—Thyself how wondrous
then!’—a pure syllogism,—or, if you please, Rule of Three sum—
thus:
 I. The author must be greater than his works.
II. God’s works are great beyond our
conception.
III. How infinite then their Maker!
Or, more beautiful and more sacred than all,—‘He that spared not
His own Son ... how shall He not with Him freely give us all things?’
The form of reasoning that St. Paul did not disdain to use need
hardly be a reproach to Colenso.
God Himself does give us minds and does bid us use them,—He is
not afraid of His truth standing in the sunlight, though some of His
people are. Robertson draws out very beautifully how the Christ
never sought blind credence,—superstitious belief even in His words
because they were His. He never said ‘I say so,—there’s an end,’ (as
so many of His followers like to put in His mouth). ‘If I say the Truth,
why do ye not believe me?’—again, more exquisite still in its loving
humility,—‘Though ye believe not me, believe the works’,—‘Search
the Scriptures’ etc. etc.,—always praying them to test Him by His
works, by the voice of their own conscience, by the testimony of
their sacred books,—continually protesting against the idea of His
own assumption of sovereign power, ‘I know nothing of Myself.’ But
here I’m getting on another subject, and I’ll stop.
But I always get greatly interested in a discussion about the Bible,
—people seem to me often so hopelessly superstitious and illogical
about it, and so to miss its truest, most blessed meaning.
It always seems to me that the question divides itself into two
perfectly distinct parts,—regarding, so to speak, the spiritual and
temporal part of the Bible. The first is entirely without the province
of the intellect or the reason,—‘Eye hath not seen, nor ear heard, ...
but God hath revealed them unto us by His spirit.’ As Colani says (I
think, indeed, it was him I quoted before) it is not a question of logic
or of evidence whether we believe ‘the sacrifices of God are a
broken spirit, a broken and a contrite heart, O God Thou wilt not
despise!’,—the certainty of its truth is self-evident to us; we are
absolutely sure the moment we hear the words that the All-Good
rejoices in repentance and not in blood. It is the word of God from
without speaking to the Spirit of God within us ‘whose temples we
are.’ In Coleridge’s forcible words, ‘it finds us’,—it pierces through ear
and brain irresistibly to the spirit of every man. Yes, every man;
there is not one in the world however debased who could doubt
whether God preferred a broken heart or a costly gift. He may not
think about it, he may let the words pass by him, but, receiving
them at all into his mind, he cannot doubt....
Feel,—suffer, and words like those bring their own proof; let them
once enter and you need not ask whether their truth is received or
not. ‘Blessed are the pure in heart for they shall see God.’ We know
it is so; no one in the world could really doubt for one second
whether holiness or impurity brings the man to God,—to see Him....
In all this the whole mass of ‘Evidence’ goes for absolutely
nothing. If the Bible had never been heard of to this moment, and I
picked it off a dunghill, those words and truths would just as
irresistibly transfix and ‘find’ me as a two-edged sword.
But since, as Pulsford says, ‘Most people get their faith through
their heart, not through their head,’—there are thousands of God’s
children who, seeing and feeling the infinite beauty and
pricelessness of these words and truths,—but not seeing fully their
infinite omnipotence, their absolute impregnability,—fancy that to
preserve from the slightest danger what is to them so infinitely
precious, it is necessary to claim for the whole casket the same
authority and value that the jewel claims for itself: and then,
because this claim does not and cannot maintain itself, they rush to
arms for it and brand as ‘rejectors of the Bible’ some who, like your
child, find in its words the very deepest blessings of existence....
I don’t know enough about it to have an opinion worth anything,
but as far as I can judge, it seems to me the result of open fair
criticism rather establishes than disturbs the veracity of all Jewish
history as given in the Bible since the time of Moses, while it does
not seem to me possible satisfactorily to defend the authenticity of
the account of the Creation and probably the first few centuries,—
both from the certainties of Geology and probabilities of history, and
also from the internal evidence.
 But what is the leading point to me is the folly of trying to arrest
honest investigation about anything,—and the especial mistake of
fancying that any result arrived at could touch the real standing and
position of the Bible. For myself, I can say in all sincerity that if not
one fraction only but the whole biblical history were proved to be
utterly unreliable and mistaken, it would not make the difference of
a straw’s weight either to my life or my faith,—it is not as a rival of
Herodotus that I have valued the Bible,—the destruction of the
historical credit of the one would matter just as much to me as that
of the other. We might lose some grand illustrations of God’s love
and care, but the truths would remain, and the history of any
century, of any land, of any man, leaves Him not ‘without a
witness’....
Well, Mother, it has indeed been more than a page or two,—if it
pains or wearies you do but burn it; but I am glad from the bottom
of my heart to tell you honestly what and why I believe on a subject
where I fear Mother is a little afraid of me;—to put at least calmly
and clearly before you other thoughts and words than those you
hear oftenest,—not that you may accept, but that you may consider
them. For you as for me, Mother, God ‘shall lead us into all truth’.
Sunday. You asked me about Miss v. Palaus. She isn’t ill now, but I
think she suffers altogether from this terrible ‘no holiday’ system.
Think what it is to go on for 26 years!—with only a week’s break at a
time, and that perhaps once a year.
Dear, I broke off abruptly, it occurring to me to apply the principle
of how bad it was to go on without change and how one was bound
to get all one could; also that it was a bright day and that I was no
use where I was, so had better go to Heidelberg....
The sermon was about sorrow and bereavement, commonplace
enough and disagreeable sometimes, but chiming in in bits with
some thoughts of mine. For one thing he said it was a duty to rouse
oneself after a time and go back to one’s daily work. Now, Mother,
you know better than anyone how I have strained every sinew to
take up my tool again and work on, from the very first months even.
But there is a certain state of things which I can’t honestly conceal
from myself which makes the struggle in some ways a very terrible
one.
I am sure ‘what is is best’, and I don’t say one word in the form
even of sorrow, only of perplexity. But, Mother, I haven’t the least
the mind I had,—I have waited and waited to see if they would not
waken but now for nearly 18 months my mental powers seem struck
with stupor. It’s no use urging them,—they don’t answer the call.
The love and power of mental work seem to have faded away. I just
jog on from day to day with sense enough for daily life perhaps,—
but I don’t seem to get any nearer any return of intellects. I won’t
say it would have been better—because if it would, it would have
been so—but I don’t doubt if I had had a crushing physical illness
last Xmas, the agony would have exhausted itself and I probably
risen from a brain fever as strong as ever,—but no physical relief
coming in this form, the whole weight seems to have fallen on my
brain and paralyzed it. My whole mind sometimes seems a blank,—
the children ask me simple questions and I know nothing.
Sometimes it’s hard work to crush back the tears when it is so.
You know those terrible (they did frighten me horribly) kinds of
delusions that showed me a white dog or a wheelbarrow just when I
was going to pull up when driving you.
Well, Mother, it’s no use to go on,—no use even to say ‘What am I
to do?’ One feels sure in truth that God ‘will find a way’ and show it
to me....
But the time goes on and on, very many months already, and yet
no streak of light comes from any quarter. One does not see the
faintest sign of change, and yet one cannot see how things are
permanently possible as they are.
You don’t think it is any want of will or effort in me, Mother?
Surely God ‘reaps not where He has not strawed’.
Oh, Mother, Mother, what it will be to rest the tired stupid old head
on your bosom again.
80 lessons a week is too much I’m afraid for Ruth, but I can’t
pretend to look after her when I’m in Germany,—and perhaps
nobody gets on much the worse for that fact. It’s a very forcible
rebuke to one’s vanity to find how little anybody is missed from
anywhere, (except in their Mother’s hearts, darling) and one or two
others perhaps. Yet that’s a hasty way to speak. I believe I do have
a great deal of love from more people than I deserve....
Yours lovingly ever,
Soph.
Please tell me by what post this arrives.”

An able letter surely, for one whose “intellects”

were worn out. Of course she fails to realize how
different her whole outlook on life would have been if
she had found the Bible for the first time accidentally
in mature life, “on a dunghill” or elsewhere. The
Mother’s reply is surely at least as able:
“Thursday, Jany. 29th.
My own Darling,
Your letter did not reach me till first post this morning. I quite
believe Truth will in itself bear coming to the light, without suffering.
But I do fear there are many minds, heads and hearts without one
sentence of heavenly truth upon which to fall back for comfort,
which may be irreparably injured by the doubt and contempt thrown
upon historical parts; and thence deduce, ‘All is false, and cannot do
me good or help me in any way.’ I think I must send you the last
‘Cornhill’ come in this afternoon. I imagine the critique in it is from a
man who would favour free enquiry,—a son of Dr. Arnold’s,—
Matthew Arnold. He says, ‘I censure Colenso’s book because, while it
impresses strongly on the reader that the Pentateuch is not to be
read as an authentic narrative; it so entirely fails to make him feel
that it is a narrative full of divine instruction in morals and religion,
etc., etc.’ I ought to have stated that all this comes in in a critique
upon Stanley’s ‘Lectures on the Jews’, which Arnold greatly admires.
Now that February is at hand, I find that the January! Macmillan has
an actual critique upon Colenso. Shall I send it to you? I have not
read it. I asked Hetty if she had. She considers it severe on Colenso.
I think I shall send it.
Your long dissertation did not annoy or weary me at all, indeed it
rejoiced mother’s heart. You seem to have all you want to live and
die upon. What can you need more? Certainly I have individually
great comfort and enjoyment from seeing Christ as my Substitute in
a manner that I apprehend you do not. If it be, as I suppose,
needful, I am sure your loving Father will give it you in His good
time. As to your mental powers, it is very strange. We can only wait
patiently and say, ‘It is the Lord. Let Him do what seemeth Him
right’. I don’t suppose the important precious discipline you are
going through could have been produced in time of full mental vigor.
That will assuredly return if for your real good. Meanwhile you may
well trust Him who has done such great things for you. I long as
much as you to have you resting on my bosom. Rest you must have:
refreshment of spirit I pray you may have.... Nothing, as you say,
invalidates the grand truths responded to from within. At all times
the Eternal God is thy refuge and underneath are the everlasting
arms.
Your loving Mother,
M. E. Jex-Blake.”

A fortnight later she writes:

“Only fancy, Daddy has been reading Colenso’s book!”
 CHAPTER XII
VARIOUS PROJECTS AND VENTURES

“Rest you must have: refreshment of spirit I pray

you may have.”
So wrote Mrs. Jex-Blake in the end of January; but
even the physical rest was destined to be long
delayed. As explained in the previous chapter, S. J.-B.
did not at all draw to the idea of deserting her post
before a suitable person arrived to supply it, and that
suitable person was not easy to find. So the months
went by, and it was not till April was well advanced
that all arrangements were made for her departure
within a fortnight. She was wild with delight at the
prospect of getting home, but the fates were unkind.
On May 3rd she writes in her diary:
“Well, I do feel most uncommonly seedy,—no doubt about that,—
having just waded through my packing somehow, and ‘bitterly
thought of the morrow’, and how many leagues and hours lie
between me and a snug bed, clean sheets and beef tea. But,
somehow or other I do mean to push through and trust my luck for
falling as usual on my feet, catlike. Specially anxious, by the bye, not
to be spied out here or it’ll all go down to the baths”—she had been
bathing in the Rhine before breakfast—“as I daresay this heavy cold
may, which reduces me to, or below, the level of the inferior
animals.
Well, three days hence! Who can’t hold out that time?”

She certainly did her best to “hold out,” dragged

herself out of bed, and went downstairs looking like
“une déterrée,” so Frl. v. Palaus said. She refused to
see the school doctor, believing that he would
prevent her going home, and also that he would
insist upon her keeping her window shut. For some
reason unknown Frl. v. Palaus resolutely declined to
have an English doctor sent for, and so things went
on for a day or two till the patient agreed that the
German doctor should be allowed to say whether her
throat was “of importance.” Whether he was allowed
adequate means of arriving at a diagnosis we have
no means of knowing. In any case his answer was in
the negative. Two days later the patient was
obviously suffering from a sharp and typical attack of
scarlet fever.
It really was a blow, poor child! She was so
longing for her Mother, “My year’s work just done so
painfully,—and now my cruse snatched from my lips.
It is hard, hard! I didn’t one moment doubt it was
right,—only very hard.” Then like an audible voice
came the reminder of the inner light, and all pain
went.
 It does not necessarily follow that she proved a
very easy patient, though she tried hard to be
reasonable, and even to keep her window shut at
night, which was quite unreasonable. The whole
situation was sufficiently trying for Frl. v. Palaus; and
S. J.-B., although she and her nurse became attached
to each other, got little of the petting which
throughout life she so greatly valued when just the
right person bestowed it. Her Mother’s letters as
usual were an infinite comfort, and her Father was
with difficulty prevented from sending out a London
physician to look after her, and, in due time, bring
her home.
She made a good recovery, and was allowed to
start for England on the 27th, when an English lady
was engaged to accompany her. “Very like getting
out of purgatory into heaven,” she says. “The dear
old folks!”
Her Father was nervous about infection, and,
fortunately for him, a trifling driving accident some
four or five days after her return forced her to
consult “Sam Scott.” “He couldn’t swear me free of
fever, but said, ‘If you meet my children on the cliff,
you may kiss them.’”

So S. J.-B. settled down once more to the old life

at home, not without occasional “cataracts and
breaks,” for her Father did not advance with the
times, and hers was not the only hasty temper in the
family. But she never doubted that a definite work
was in store for her somewhere.
Her diary is sometimes amusing reading. To an
acquaintance who—after visiting at Sussex Square
and hearing the intimate fireside names—wrote to
her as “My dear Jack,” she replies,
“Dear Miss D.,
Firstly I don’t like being called names, and secondly I have
been overwhelmingly busy,—which two reasons must excuse my not
having earlier sent you the address.”

“I agree with Macdonald,” is her connotation. “The only argument

some people understand is being knocked down, and it’s cruel to
withhold it from them.
And a very mild knocking down this time.”

“July 8th. Annette’s Sunday School. ‘The outward and visible sign
in baptism?’
‘Please, ma’am, the baby, ma’am.’”

That her lamp was not burning dim one gathers

from the letter that follows. It relates to the young
invalid college friend whom she had wished to take
with her to Germany:
“Nov. 15th. 1863.
Dear Lucy,
Though I know you will have heard before this of dear L.’s
going home to her rest, I think you will like to have a few lines from
me, as I believe E. was not able to write to you herself.
 You heard probably of her breaking a blood vessel last month soon
after her return to London, and it was very soon after that that I saw
her for the last time alive. She was very gentle and quiet then, and I
have since thought that she more entirely realised how near the end
was than I and others did,—for there was no immediate danger then
as far as anyone could know. When I told her again how much a
duty I thought it for her to take the utmost care of her life for His
service Who gave it, and added ‘Not that I want you or anyone to
fear death,—that is the last thought one should have of the Home-
going’,—she said,—‘Oh, yes,—I never did, and I never understood
why people do.’ I told her Mother of this afterwards, and it is a very
pleasant memory, among others.
Well, it was on Thursday, November 3rd. that this terrible
spasmodic asthma came on, and I am afraid the struggle was sore
for just the week,—but there was mercy in that too, for it made her
Mother glad to see her at rest after it. Just a week later she died,
very peacefully,—passing in sleep into the rest that remaineth. I
heard of it on Thursday and went up to London directly, and I never
was more heartily glad of having done anything in my life, for both
Mrs. B. and E. seemed so glad to see me, and you can hardly believe
the peaceful happy few hours we had together,—indeed there came
to me (and I think to them too in some degree) such an intense
realization of what the joy and light was into which she had entered,
that no room seemed left for any pain even for oneself. I did love L.
very much,—more perhaps than any of you knew,—but when I stood
looking down on that calm pale face, the only words that would
come into my mind were,—‘He was not, for God took him’. It
seemed quite impossible even for a moment to identify her with that
chill silence,—one felt she was already in the everlasting arms. Dear
child! She left altogether a very happy memory,—of a bright clear
life, and a calm peaceful death. We ‘thank God for this our dear
sister departed....’
The funeral is to be next Wednesday,—I know that you will not be
absent in spirit, though you cannot be there in presence as I hope to
be. Mr. Plumptre will read the service at Kensal Green.
 I do not know if I helped dear L. in her life. I know that she has
helped me in her death almost beyond my conception. I ‘never
feared’ death, and I always felt theoretically how it was the ‘going
home’ and that only, but I never felt it with the practical intensity of
this week. I never entered before into half its beauty and its
holiness,—I feel almost as if I could never associate sadness with
the idea again. Let it come in what form it may,—‘God giveth us the
Victory’.
Just before she died, L. finished a story at which she had been
working to compete for some magazine prize,—if it does not win
this, we hope to get it published separately, as a memorial that will
be beloved of many,—and indeed I hope it may come out in this
form. I have offered to undertake the whole business. It is very
pleasant to me that she has left this,—is it not to you?
Goodbye, dear Lucy,—my letter is already enormous, but I don’t
fear your criticisms.
Yours affectionately,
S. L. Jex-Blake.”

The monotony of the life that followed was broken

by one or two visits to Paris and one to Germany,
and she had a great scheme of going to America to
study the education of girls there. Here again, of
course, she was met by the strong opposition of her
Father, and again she was forced to put forward all
the good and attractive points in her plan while
herself profoundly convinced of its vagueness and of
her own physical inadequacy. She saw a good deal at
this time of Mrs. Ballantyne (afterwards Lady
Jenkinson) whom she met first in Edinburgh at the
house of her sister, Mrs. Burn Murdoch. This was the
beginning of another lifelong friendship, most
refreshing to both,—a friendship characterized
almost equally by playful camaraderie and jesting,
and by many long talks about the things that lie
deep.
“She is just good and true and ‘clear’,” S. J.-B. had
written in her diary some months before. She records
how they went together to an evening Holy
Communion, what they felt and said,—and goes on
without a break:
“Then, again she so delicious about my bonnet (not calculated

‘To take upon it

The guilt of her wandering soul’.)

The first time. I saw you in it, nearly disliked you for it—only it
was past that.
Not your taste?—Then you oughtn’t to wear what isn’t,—nor to get
14s. 9d. bonnets!
Poke into omnibuses?—Poke away, but wear proper bonnets.
Tottenham Court Road?—No business to go there for bonnets.
No money?—Then you must manage very badly! [Badly!—poor
generous child,—counting every halfpenny that she might have the
more to give away!]
Your sister?—No, I have nothing to do with her, but I have with
you. Buy proper bonnets,—then get them altered—
Whereon I vowed that if she didn’t come to London and choose
one, I’d buy the ugliest in Tottenham Court Road.
My compliments to Mrs. Heath, and she oughtn’t to compromise
her taste by letting you buy such bonnets, etc., etc.
So very very refreshingly, and with such bright arch eyes.”
 It was certainly no lack of appreciation in the
ordinary relationships of life that urged S. J.-B. to
find her vocation. There are many indications of her
popularity at this time among cousins and friends.
“Dearest Sophy,” writes the mistress of Honing Hall,—“It will be
delightful to see you here. How often have I said to myself lately
(having no one else to address my remarks to,—your Uncle being
entirely taken up with his harvest, and more bothered than ever by
it). ‘I do wish Sophy would offer her company for a few days.’
So, well pleased was I to see your handwriting this morning. I can
meet you anywhere within reasonable distance. On Thursdays I have
only your old friend, Little Grey, and on Tuesday, 30th., some of the
Catfield people are coming over. Should you be here then, it would
be an additional pleasure to all.”

And here is a characteristic note:

“Dear Miss Blake,
... Pray bring back from America a few more such good stories
as you told me yesterday. I say this not ‘hoping I should see your
face no more’.
Yours very truly,
Frances P. Cobbe.”

On November 11th S. J.-B. received a letter that

pleased her much from the Revd. T. D. C. Morse,
rector of Stretford, Manchester:
“Madam,
I have had some correspondence with Professor Plumptre of
Queen’s College about establishing a Ladies’ College in this locality,
and he has referred me to you as likely to help me in this good
work. Notwithstanding the fact that the movement for the
improvement of female education has now been for some time set
on foot, this populous neighbourhood is still very destitute in this
respect. I have two girls, 12 and 13 years of age, and after making
enquiries in very competent quarters, I have been told that there is
only one Ladies’ School ‘worth a farthing’ in or near Manchester, and
that is the Ladies’ College on the north side of the city at Higher
Broughton. We are living on the south side and are surrounded by a
large number of wealthy people who must necessarily miss such
educational facilities. I wish therefore to try whether a good Ladies’
College can be founded on this side of Manchester, and I would be
glad to know whether you could introduce me to a lady qualified to
act as Principal of such an Institution. Mr. Plumptre was not quite
sure whether you might be disposed to undertake such a work
yourself or not, but, if you were so, I feel sure from what he has told
me that the matter could not be in better hands.... You will
understand, of course, that the matter at present is only in the
phase of a project.”

“Plum, I owe thee one!” is S. J.-B.’s irreverent

comment,—“good old Plum!”
“Such a real ‘call’ it sounds—and what a field to
learn in!... Now America seems put in the
background with a vengeance.”
She plunged at once into plans and arrangements,
timetables, lists of tutors, etc., and on November
17th she writes in her diary:
“On Tuesday and today received letters from Mr. Morse, telling me
of the Bishop’s support, and thus answering my question ... asking
me for ‘any suggestions’. I feel little more is to be done without an
interview, but write somewhat on essential heads ‘with great
diffidence’:
I am sure that no one can give their really best work to any
scheme which does not stand on foundation principles with which
they are in sympathy, and, bearing in mind the proposition you
hinted at in your first letter, I am bound both for your sake and for
my own to ascertain as far as possible how far the harmony of our
views would allow me to be a really efficient worker in your cause. I
have a great belief in the superiority of rule by Law over that of
individual will, and should as Director of any such College be very
anxious to have as little as possible left to my own choice and
judgment; but, having once been able to acquiesce in the spirit of
established regulations, would deem it essential to have absolute
authority to see them carried out alike by teachers and pupils. I am
sure that to have such questions ill-defined at first is one of the most
fruitful sources of after disturbance and failure in a college....
I believe that really good women teachers are more able to
measure the power of a girl’s mind, and force her to do a certain
amount of good work than men, who are in my experience very apt
to let young pupils slip between their fingers, as it were.
At the same time, after a thorough groundwork has been laid, I
think first-rate lecturers (almost useless till then) become quite
invaluable.
Meaning—I want an interview.

“Dec. 1st. 1864. Reached Manchester yesterday. Staying now with

the Morses.
Capital man he,—clear, energetic and practical; a little ‘trammelled’
by clerical bonds, but in the main wide and satisfactory.
Spite of the double assurance of Minnie and Ruth that I need not
talk of my Unitarianism,—I could not be quite silent, and so tonight,
naturally enough, and I think truthfully, gave in my half-declaration.
Mr. Morse said (in answer to my question whether we might not
be ‘too episcopal’) that, without wishing to exclude any, he wished to
have the College decidedly of Church origin, and should be sorry to
have other than Church main workers.
I said, ‘Then perhaps you had better not have me.’
‘But do you not belong to the Church?’
‘Well, I was baptized and confirmed in it.’
‘But you go there rather than Chapel?’
 ‘Well, I don’t know. I go there pretty often. I go where helps me
most.’
‘Where else?’
‘Oh, mainly Unitarian’, adding ‘I have not, however, any intention
of joining the Unitarians, but they have helped me’, and, in answer
to a farther remark ‘that I ought to make up my mind clearly black
or white’.
‘That I can’t do.... However on the whole, though very
unorthodox, I believe I am on the whole most of a Churchwoman,
and certainly non-proselytizing, nor, I believe in the least likely to
originate any religious difficulty.’
Still he was evidently ‘stumped’, and I daresay I shall hear more of
it.
Yet, on the whole, feeling as I do, I cannot regret speaking.

‘Be true to every honest thought

And as thy thought thy speech.’[35]

She visited the Principal of Owens’ College,

however, and the Headmaster of the Grammar
School, drew up a tentative list of names for Council,
and had a long talk with Mrs. Gaskell, who promised
to be a “Lady Visitor” if the College was founded. (“I
explaining it to mean ‘right to visit’.”)
“As to my contumacy (it’s really that and not the heresy!), W. and
G. to be consulted. I said how I wished him to do only what he
thought right,—yet believing they would be wise to have me(!)
I think he surely wishes it, and, as I should guess he would find
his consultees not otherwise inclined, a very small push would
decide him that way.
(Stories,—‘The fool hath said in his heart,’ etc. Old sexton loq. ‘I
can’t but think, sir, there is a God after all’).”
 “Dec. 4th. Came to Rugby last night. The music in chapel again
and again bringing me well-nigh to tears,—so weak and thin is one
worn.
(Yet should surely notice the good Miss Garrett’s medicine does
me—taken about a fortnight now.)...
And how the conviction came (when first this Manchester scheme)
‘Yes,—“be thou but fit for the wall, and thou shalt not be left in the
way.” It is true!...
Is Minnie far wrong in her ‘Men have the best of it’? Easiest,—yes!
—
Fancy the pleasure of going through School,—College,—returning
hallmarked, for good happy well-paid work here.
Yet is the easiest ‘Best’?
Must there not be pioneers?—can their work be easy?
Yet is there not (in many tongues and roads) a ‘noble army of
martyrs’?
Shall we like Erasmus ‘not aspire to that honour’?
But, oh, dear, when the heart’s light and brain clear and life sunny,
it’s easy to ‘scorn delights’ (having plenty of the reallest) but when
the ‘laborious days’ fail and only weary and dim ones remain—when
the tunnel narrows and darkens, and nearly all the light and strength
seems to have leaked out—
Then—?
‘My Grace is sufficient for thee’. No other help,—‘none other
fighteth for us’—and what need?—‘Only Thou, O God.’”

How little her friends could guess the attitude of

her mind may be gathered from the entry that
follows:
“Dec. 5th. M.’s and my mutual objection to family prayers
evidenced by staying out tonight. Justified?
I say, prayer continual and interjectional rather than formal and
obligatory.
But follow out logically? Public worship, etc.”
 Meanwhile she was hard at work, drawing up
schemes for the proposed College, visiting schools
and colleges for men, and striving to fit herself for
the new work. Mr. Morse must have felt that Mr.
Plumptre had recommended a worker of remarkable
talents, fine sincerity and most unusual enthusiasm,
one whose knowledge of life and of the world was
far in advance of what might have been expected
from her years. Such qualities have to be paid for, of
course. Nature has a rather staggering way of
throwing in counterbalancing asperities, and, when
S. J.-B. proposed to foster a religious spirit in the
college without the formality of daily prayers, he
must have begun to realize the inflexibility of the
person he was dealing with. He would probably have
sympathized with the dictum of Cousin Ellie,—“I
would do anything for you if I could only make even
a slight alteration”!
All we actually know is that he showed no
indication of wishing to draw back; and at least one
public meeting in support of the scheme was duly
held and reported at length in the local papers.
Public opinion, however, on the subject, needed
more fundamental education than Mr. Morse had
allowed for, and—although S. J.-B.’s budget was
characterized by the splendid economy that was one
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