PI Brief Update

Why you have no right to the best treatment - Dr Mark Burgin

28/11/23. Dr Mark Burgin asks why the logical reasoning in case law of Clinical Negligence is difficult to follow and appears to be a barrier to patients getting the best treatment.

In the context of healthcare, the patient's right to the best treatment is a complex and contested issue. While there is a general consensus that patients should have access to good quality care, there is no clear definition of what constitutes "the best treatment" and there are a number of factors that can limit a patient's ability to receive it.

An example would be a person who has cancer and a new drug becomes available with promise. The doctor may say correctly that the evidence does not yet support the new drug and the patient should wait for the evidence. The patient may argue that the drug gives them a chance which the current treatment does not and therefore it is the best treatment.

The best treatment from a medical point of view is the one that gives the patient the best outcomes with the minimum risks. Montgomery confirmed that patients have a range of factors that they consider. It is recognised that the best treatment can only be determined by both doctor and patient discussing the options in an open and transparent way.

• Doctor's opinion: The doctor may not believe that the treatment is in your best interests. They may have concerns about the risks and benefits of the treatment, or they may believe that there are other, more effective treatments available.
• Doctor's training: The doctor may not have the training or experience to provide the treatment. This is especially true for new or experimental treatments.
• Guidelines: Guidelines are often one-size-fits-all and may not take into account individual patient factors. This can mean that some patients may not be offered the best treatment for their condition.
• Cost: Treatment decisions are sometimes made based on rationing. This means that the treatment with the best chance of success may not be offered if it is considered to be too expensive.
• Patient autonomy: While patients have the right to make decisions about their own care, this right is not absolute. Doctors have a duty to act in the best interests of their patients, and this may mean overriding a patient's wishes if the doctor believes that the treatment is not in the patient's best interests.

In some cases, there may be a second opinion service available, such as Martha's rule. This allows patients to seek a second opinion from another doctor if they are unhappy with the treatment that has been offered to them. However, even if a second opinion service is available, the doctor is not obliged to offer the treatment if they still believe that it is not in the patient's best interests.

Being offered one choice and told that you must accept this or you will get nothing is not autonomy. Patients need to have both engagement in the process and be offered a real choice. Few health systems are willing or able to provide this and many are forced to ration cost effective treatments. Some may argue that a health system should have sufficient resources to provide real patient autonomy but this is illogical.

There have been attempts in clinical negligence, regulation and statute to overcome the reluctance of doctors to provide the best treatments. The doctors’ key argument has been that if patients could demand treatments then it would open the flood gates. Doctors could be forced to provide treatments that they consider to be harmful for their patients. I believe that there is a middle ground which will not increase costs, but first we need to examine the law.

Montgomery Ruling

The Montgomery ruling established that doctors have a duty to disclose material risks involved in recommended treatments and to inform patients about reasonable alternative or variant treatments.

The problem with Montgomery is that it only sets out the range of issues that should be considered when giving a consent. It does not provide any definition of what constitutes a "reasonable" range of treatment options. The assumption therefore is that it is for the individual practitioner to decide what is reasonable.

Logically that means that if the doctor in Montgomery had insisted that it was not reasonable to discuss Caesarean then there would not have been a breach. It was only that the doctor admitted that Caesarean was reasonable that their consent was in breach. This is not great logic.

McCulloch Ruling

The McCulloch ruling further complicated matters by stating that doctors are not obligated to discuss treatment options they are unwilling to offer. This means that patients may not be informed about all available treatment options, even if they are considered reasonable by other practitioners or in line with patient preferences. The court appears to have agreed that the Montgomery decision is limited cases where the defendant doctor admits that they did not mention a reasonable treatment.

The judgement started well saying that ‘reasonable alternatives’ are decided on the professional practice test (Bolam or Hunter v Hanley). When there are alternative viewpoints ‘clinical appropriateness’ (reasonableness) is decided with professional practice test. The decision as to whether a treatment is clinically appropriate is taken by the defendant doctor. The learned judges did not mention the range of opinion (PD35 3.2.6)

GMC Guidance

The GMC guidance, while acknowledging the importance of patient-centered care and informed decision-making, ultimately leaves the decision of what constitutes a reasonable range of treatment options to the doctor's discretion. This lack of a standardized framework can lead to inconsistencies in treatment offerings and potential disparities in patient care.

If a patient asks for treatment or care that you don’t think would be in their clinical interests, you should explore their reasons... If after discussion you still consider that the treatment or care would not serve the patient’s needs, then you should not provide it. But you should explain your reasons to the patient and explore other options that might be available, including their right to seek a second opinion.

Wilful Neglect Law

The wilful neglect law sets a minimum standard of care, requiring doctors to provide basic treatment. However, this falls short of ensuring that patients receive the best possible treatment, especially when advanced or specialized options are available and considered appropriate for the patient's condition.

Future developments

The problem with current law is that Bolam is applied both to the provision of options and the decision. This leads to a subjective standard of care, the doctor can decide what the options are and decide not to offer (or discuss) other treatments. There is no obligation to discuss all reasonable treatment options. This is likely to be surprising both for the public and lawyers.

The reality of ethical decisions in healthcare is that patients ultimately take the risks, not doctors and that funding will never be unlimited. Patients will make bad decisions and suffer harm with or without a doctor’s opinion. Doctors and lawyers have a responsibility to work together to make sure that the system is logical and does not make things worse.

Bolitho made it clear that illogical decisions could be challenged. Montgomery made consent objective by listing the components, but this has not been followed in other areas. Clinical negligence experts have long been able to agree on the range of opinion even if they do not agree with the exact choice in the situation. This range of opinion is therefore objective although the exact choice remains subjective.

The logical approach would be for Range of Opinion to replace single best answer in medical practice. The current guidelines will need to be adjusted so that they include a range of opinion. They will need to identify difficult choices where patient involvement is appropriate. Guidelines should say which treatments are recommended but then list those treatments where the doctor should discuss with the patient.

It is wrong not to discuss reasonable treatments with the patient because the doctor does not believe in them. The result of the above proposed changes may not be significantly different in terms of treatment but will have two significant advantages. The first is that court decisions in clinical negligence will be more logical and consistent, the second is that patients would have a right to know their best treatment.

Patients would then understand the reasons why they are not offered the best treatment whether it is financial, doctor preference, availability of the treatment or paternalism. Clinical negligence cases would be more certain as the reasonable treatments are agreed as a range of opinion. Guidelines would have flexibility rather than the current straitjacket so that good doctors can involve their patients in the decision as to what is the best treatment for them.

Conclusions

There can never be a right to the best treatment because it would have cost implications and anyway the best treatment is often unknown. There however should be a system that ensures that the patient and doctor discuss all reasonable treatments and record any reasons for refusal. Guidelines can assist by moving away from the recommended – not recommended model to include ‘discuss with patient’ options.

This article was written with assistance from BARD a LLM from Google.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Image: public domain from https://pixabay.com/en/doctor-medical-medicine-health-563428/