The medico-legal interface and clinical governance

When I refer to the ‘medico-legal' interface, I refer to issues relating to the way health professionals conduct themselves in practice, in light of their legal and professional obligations.?Ultimately, this is about clinical governance.?Whilst clinical governance goes above and beyond how we must conduct ourselves as a matter of law (or professionally), how we must conduct ourselves as a matter of law (or professionally) supports clinical governance.

Therefore, 'medico-legal risk' encompasses those legal risks associated with the delivery of care. Such risks include: causing actual (or perceived) harm and becoming liable in negligence; falling below professional standards of care or conduct (and therefore creating a risk of harm - or undermining quality of care, or best practice); breaching the law as set out in legislation, such as privacy (which serves to support autonomy and therefore person-centredness) or other regulation which enhances clinical governance. Therefore, medico-legal risks correlate with poor clinical governance - and poor clinical governance will create medico-legal risk.

As health professionals we have a duty of care to conduct ourselves in accordance with a reasonable standard of care and skill – whether in the provision of direct care, or when giving advice.?Our duty of care is a legal obligation, and we can be found negligent if we breach this (and a person suffers harm as a result).?Whether conduct is reasonable will be subject to the factual circumstances and can ultimately only be determined by the courts - who will generally be guided by peer professional opinion, as well as contemporary standards, such as guidelines.

However, when it comes to giving advice or warning of risks, the relevant standard is what a reasonable person would have wanted to know (objectively), or what we should have reasonably been aware the particular person would have wanted to know (subjectively).?This of course goes back to Ms Whitaker in 1992, whom the High Court of Australia determined would have wanted to be informed of any risk that surgery on her bad (blind) eye might cause damage to her good (seeing) eye.?The High Court held that Dr Rogers had been negligent in failing to warn Ms Whitaker of the risk of sympathetic opthalmia (which caused her to lose vision in her good eye, rendering her completely blind) - even though it was so remote (around 1:14,000) that a 'responsible body' of ophthalmic surgeons would not have raised this possibility.?

This landmark decision in Rogers v Whitaker marked a significant turning point in the law of informed consent - and in a sense, could be regarded to have paved a way from medical paternalism to person-centred care. If we are not sufficiently person-centred, not only do we undermine clinical governance, but we create a medico-legal risk - which is essentially what happened in the case of Mr Rogers, through his failure to communicate.

Communication and informed consent of course go hand-in-hand (since in the absence of communication, consent cannot be informed). Together, they can be effective in managing patient expectations (by being person-centred) and therefore mitigating medico-legal risk.

Other common 'medico-legal' issues such as records, confidentiality, open disclosure, and professional conduct all similarly relate to clinical governance.?A defensive practice of medicine, which can be driven by fear of litigation or a misunderstanding of legal obligations (and/or 'medico-legal risk'), is fraught with risk - such as by over-investigation and the ‘incidentaloma’, unnecessary treatment and harm, or ineffective care.?The key is to always be person-centred.

Understanding clinical governance in the context of a medico-legal framework, such that individual practitioners understand their duties and obligations whilst always remaining focussed on the patient (rather than on potential repercussions for themselves), will support safe, effective and person-centred care. In this way, the medico-legal interface and clinical governance are intrinsically aligned.