Just before Xmas the Royal College of Anaesthetists (RCoA) issued its updated Scope of Practice for Anaesthesia Associates (AAs). A much-needed revision; it is a thorough and well-researched document setting out clear rules for what AAs can and cannot do.
But unfortunately we cannot be sure that wide adoption will happen straight away, and not everybody is on board. We have seen the response to it by Mr Massey of the GMC who, despite being not an anaesthetist himself, feels that the College experts are being overly restrictive. And we are aware that some Trusts are currently allowing practices that fall outside the new College guidance.
So if a Trust allows an AA to act outside RCoA guidance, and if a patient comes to harm as a result, then what might the legal position be?
We put this question to Valerie Humphreys LLB LLM MA, former Head of the School of Law at Birmingham City University, for her opinion, which is copied below. Anaesthetists United are very grateful for her contribution.
Bolam and Negligence
Negligence has a particular meaning in English law. It requires there to be a breach of a duty of care by conduct which falls below the standard of reasonable care and skill and which causes foreseeable harm.
“A doctor is not guilty (sic) of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”
Bolam v Friern HMC (1957)
The Bolam case has been modified over the years, but the basic principle set out by McNair J (above) remains. A medical man (or woman) can escape liability for their actions by showing that a reasonable, responsible body of medical opinion, whose stance can withstand a logical analysis of risks and benefits, would have likely acted in the same way. This is so even if there are other bodies of medical opinion that think differently. It is for the court to weigh the evidence, but judges are not medics and cannot decide on the merits of different treatments.
For example, suppose an anaesthetist mismanages a difficult airway, and as a result the patient is harmed. Groups of experts may disagree with one another about whether the anaesthetist acted correctly under the circumstances, and a judge would be unable to say which of the expert opinions was right. But as long as the anaesthetist had acted in accordance with the opinion of one of those groups – and crucially that the group is reasonable, responsible and has logically sound views – then that should be enough.
Scopes of Practice
Suppose that a professional body such as a Royal College issues a Scope of Practice document that outlines the medical tasks which persons should be permitted or expected to undertake, either with or without supervision, and sets boundaries to their ability to practise. This would seem a reasonable and responsible thing for a professional organisation to do, both in the interests of patient safety and of the professional integrity of its discipline. Different bodies will produce different scopes and that is to be expected.
What would happen if a person subject to such a Scope of Practice acts, or is permitted or directed to act, outside of that scope, and in doing so, a patient is harmed? In the example above, suppose that the person deciding on and implementing the management of the patient with the airway problem was in fact an Anaesthesia Associate and that acting autonomously in such a potentially serious situation was outside the Scope of Practice set by the Royal College. The patient or their family might then proceed to take action for medical negligence against the AA, the supervisor and the employer.
When the case comes to court, the main bone of contention could be whether acting beyond the Scope of Practice amounts to conduct falling below the standard expected of a reasonably competent AA. If so, how much weight is the judge likely to attach to it? Does acting outside the Scope complicate or aggravate the situation?
What might a judge decide?
It is difficult to imagine that a judge would not consider all of these issues fundamental to their decision-making. A Scope of Practice from a professional body is unlikely to have been carelessly or flippantly constructed; it will have been considered and drawn up by experts in the discipline, put out for consultation and review, and amended and re-amended before it is issued. It will have at its heart the protection of patients and will aim to uphold the highest standards of clinical practice. I cannot see that any judge could reasonably fail to take account of that.
This means in my view that, in an appropriate case, a judge is highly likely to take account of the content of the College Scope and to use it to assess the standards of conduct expected of those subject to it. It will of course not be the only relevant consideration, but it is difficult to conceive of an instance where it would not be influential.
It is likely that opposing voices will be heard: those who think the scope is wrong or inappropriate, is too restrictive, or does not take account of individual training or competence (something which in reality no scope can feasibly do). However, if the judge views the scope as having a pivotal role in their decision-making, it may ultimately not matter that there are opposing views
Of course, these matters are rarely straightforward; the evidence is unlikely to be equally balanced – one body of opinion, whether it relates to medical treatment or to the relevance of a Scope of Practice, may carry more weight than another.
But in my opinion, and with all appropriate caveats that implies, in an appropriate case, the views of the Royal Colleges, upholding the boundaries and integrity of their respective disciplines, are likely to hold considerable sway in any legal action of this kind. This may well outweigh the views of an individual, a group of clinicians, or a generalist medical organisation.
Note: These comments represent my personal views only. I have researched and taught in this general legal area, but I do not hold myself out as an expert. I do not give legal advice and nothing written here should be interpreted as such. Anyone involved in a medical negligence or other legal matter should seek advice from a specialist solicitor, Union or professional body.