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The NHS cannot afford to divert more and more money to litigation, and we need to tackle the problem at source. Tim Draycott and colleagues set out four principles to reduce avoidable harm

The doctor’s role involves helping patients to understand their condition, including the anticipated benefits and risks of proposed treatments or omissions to treat. In order to treat, doctors require consent from patients but the duty to advise is equally strong if conservative management is appropriate. The recent judgement in the case of Montgomery has set a precedent for patient autonomy. However, doctors are still required to judge what risks they should disclose in their reasonable assessment of that patient and their specific situation. The General Medical Council reflects a consensus that the empowered autonomous patient is more likely to be satisfied with their clinical outcome than the passive victim of medical paternalism. Doctors, regardless of specialty, must counsel their patients adequately, paying particular attention to identifying material risks that are likely to be significant to their case.

OBJECTIVES The publication of surgeon-specific data has been controversial. To assess the profession's opinion, a forum was organized at the 2015 EACTS meeting followed by a questionnaire of the value of surgeon-specific outcome and its impact. METHODS A series of presentations were made including assessments of quality and safety in one major European country, the relationship between volume and outcome, the role of guidelines, the effect of publication of results on training, and discussion for and against publication of surgeon-specific data. A questionnaire was given to all attendees at the forum on the value of surgeon-specific data and their impact on the specialty. RESULTS The questionnaire was completed by 118 attendees. Of the total, 69% felt that mortality is a surrogate for quality and that it should be reported at the hospital and unit level as opposed to the individual surgeon level, but 81% wished there were different criteria for quality outcome. Of the total, 91% felt that the individual surgeons' data should be collected but not published in public portals, and that publication produces risk-averse behaviour; 65% felt that it hinders innovation; 86% felt that EuroSCORE II is not reliable in identifying high-risk patients and the same number felt that it has affected entry into the specialty. CONCLUSIONS The information that is collectable will be published, but we can control the way in which it is published and presented.

The debate about the decision in Montgomery reveals a much deeper malaise in which hospital practice has failed to keep pace with a silent revolution in medical practice. The use of a Form recording that a patient consents to undergo an operation distracts doctors from the real problem, which is that patients need to undergo a formal training process to take any major decision about their healthcare. This training needs to be recorded for medical as well as legal reasons. It applies to decisions to use conservative therapy as well as surgery. The author describes what such a process might look like and how proper defensible records could be made.

Consent forms were created in the paternalistic days of medicine as a defence to unlawful touching. However, the forms are now used as evidence of an autonomous patient’s informed choice to a specific treatment. However, it is self-evident that the patient ‘consents’ to the treatment by them lying on the bed. What is not self-evident is that they have taken an autonomous, considered and informed decision to be there or have been advised of disadvantages and the alternatives—which is what the courts want to know. A signature on a form, especially if signed shortly before an intervention, is no evidence of a patient’s informed decision to have the treatment. Optimal medical practice requires a decision record of Montgomery-compliant discussions and learning in order for doctors to successfully argue that their patients understood the risks and benefits and made an informed choice to undergo treatment.

Medical authorities have historically either been silent or circumspect about the role of candour in clinical relationships. Hippocrates told doctors to abstain from doing harm, not entertaining the possibility that they might be negligent, while in 1847 the American Medical Association declared that doctors have: ‘a sacred duty … to avoid all things which have a tendency to discourage the patient and depress his spirits’. Being candid about an injurious mistake in the course of treatment would no doubt discourage even the worldliest of 19th century patients. However, in recent years, the focus has shifted: doctors in 21st century have an obligation to disclose even the most depressing of mistakes. This modern ‘duty of candour’ is found in a mish-mash of moral principles, regulatory guidelines and contractual agreements but following the Francis Report it will be buttressed by statute.

The publication of surgeon-specific data has been controversial. To assess the profession's opinion, a forum was organized at the 2015 EACTS meeting followed by a questionnaire of the value of surgeon-specific outcome and its impact.A series of presentations were made including assessments of quality and safety in one major European country, the relationship between volume and outcome, the role of guidelines, the effect of publication of results on training, and discussion for and against publication of surgeon-specific data. A questionnaire was given to all attendees at the forum on the value of surgeon-specific data and their impact on the specialty.The questionnaire was completed by 118 attendees. Of the total, 69% felt that mortality is a surrogate for quality and that it should be reported at the hospital and unit level as opposed to the individual surgeon level, but 81% wished there were different criteria for quality outcome. Of the total, 91% felt that the individual surgeons' data should be collected but not published in public portals, and that publication produces risk-averse behaviour; 65% felt that it hinders innovation; 86% felt that EuroSCORE II is not reliable in identifying high-risk patients and the same number felt that it has affected entry into the specialty.The information that is collectable will be published, but we can control the way in which it is published and presented.

In this chapter, I review the ways in which the courts have handled a number of obstetric cases that have been brought to trial in the last 5 years, and compare the ways in which cases were approached previously. The aim is to draw lessons for the benefit of lawyers, patients, doctors, midwives, expert witnesses, and hospital managers. The increasing complexity of modern obstetric patients, the rising expectations of society, the shortage of experienced staff on labour wards, and unrealistic expectations of some experts all make it difficult for the courts to handle these cases.

Angelow and Black1 mount a series of scathing criticisms of the national confidential enquiries (NCEs). They suggest ‘nesting’ NCEs within prospective National Clinical Audits. The competing interest declared by one of the authors is that he chairs the National Clinical Audit Advisory Group. He was also a member of the group convened by the National Patient Safety Agency (NPSA) that advised on the future of the NCEs. The criticisms are without merit, and I deal with them in turn. First, it is alleged that the research evidence of the impact of the recommendations is poor, with no time series analysis or experimental studies and is restricted to considering their impact on the structure and process rather than the outcome of care. The role of the NCE is to enable the profession to describe the gap between what is happening to selected groups of patients and what it believes should happen, to suggest improvements and to propagate those suggestions. The undoubted value of audit does not denigrate the value of detailed observational studies. Neither time series analyses nor experimental studies are relevant to assess the impact of what is best seen as a …

We have reviewed the current UK guidance regarding withholding and withdrawing life-prolonging treatment in the infant and termination of pregnancy for fetal malformation. We provide summaries of the key cases. The framework provided by professional bodies and the law in this difficult area stresses the importance of good and frequent communication between different professional groups and parents with early recourse to second opinions if a difference of view emerges. Legal proceedings should be used only as a last resort.

Brian Capstick's views will come as a surprise to people who suppose that negligence litigation is out of control or a large burden to the NHS. As he shows, it costs well under 1% of turnover, and most of that is the cost of caring for birth injured children, a bill that ought to be met under any system. Given that there are 850 000 adverse events causing harm, 6000 claims seems modest. The volume of claims is also falling. Making Amends noted that it had fallen in two successive years from a peak of 8000. …

As the playing field of knowledge between doctor and patient has become more level over the last 100 years, the law's respect for the autonomy of the patient has increased all over the Western world. Buttressed by medical views that patients exercising their autonomy tend to do better, the public have been encouraged to have less faith in the notion that the doctor knows best or that the contents of medication should remain obscure. In England and Wales, and probably Scotland as well, as a result of the ruling in Chester vs Afshar , it is now the law that where a patient is not warned of a risk that should have been mentioned to a patient preoperatively, the surgeon will become the insurer of that risk because the law pretends that it is the failure to mention the hazard that has caused the damage. This legal fiction is there to enforce the autonomy of the patient, even if they would have gone ahead with the operation in any event if the risk had been mentioned. This is a rule that has been fashioned for doctors alone, as we now know it does not apply to barristers, independent financial advisers, or estate agents. Whether it applies also to GPs who prescribe medicines and fail to mention those risks that should have been mentioned remains to be seen. In this brave but lonely new world in which we all approach our doctors to exercise our autonomy rather than to be treated for our ailments, there is an awkward anomalous group: the patients who lack capacity to make decisions for themselves. They cannot, by definition, exercise their autonomy. Someone else has to do it for them and the question is who and by what rules. For this group, 1 October 2007 is …

When I demitted office as Secretary of the Society 25 years ago, the medico-legal world was a placid place. It is true that medical members were already looking slightly askance at the lawyers: the medical defence organisations had abolished life membership and we had already had the first contested cerebral palsy case in Whitehouse v Jordan. The fact that the defendant won that case seems a comparatively insignificant incident of history, since it has set the template for so many others. The surprising thing is that brain damaged babies should account for two-thirds of all damages: then as now , the record medical damages are for an injured adult, but the figure then was about £230,000 where it is now over £12 million: a 50 fold increase, whilst the inflation table has gone up three fold, mainly because of the greater cost of care regimes. However, it is not in the growth of clinical negligence that the most important developments have come. Perhaps courtesy of Lord Woolf and the Legal Services Commission, litigants have been chased away from the seat of judgment and clinical negligence has shrunk massively as a proportion of the work of the medical lawyer. The role of the GMC has expanded, is expanding and ought to be diminished; the local disciplinary functions of the Trust are on a similar trajectory. The contraction of the knowledge base of the higher medical trainee and the newly appointed consultant at a time when there is far more to know, the diminished tolerance of failure coupled with the rising expectations of a society that chooses not to pay for the medical service it demands, all has contributed to that dysfunctional relationship which is to be the subject of my Presidential address in October. The medico-legal nexus is now an impor tant and worrying aspect of modern life. All of this makes it a fascinating time to take the Society’s helm for a spell. I hope that we will, in the course of the next two years, explore the difficulties that there are now in the relationship between medicine and the law and the ways in which the lawyers are contributing to the disastrous collapse in the relationship between society and medicine. The second theme of my tenure is going to be the implementation of our programme of internal reform at the Society. For reasons which have eluded us, the Society has failed to meet the expectations of its members during the 30 years I have been coming to meetings. For decades we have lined up programmes of speakers of enormous distinction who have come