Shifting Gears

Had I been on the beach that September morning as Paul was preparing to swim the Bay I would have reminded him of the storm the previous evening that had flushed the river together with its catchment debris into the Bay; I would have pointed to the grey Spring clouds overhead; I would have suggested he check with local fishermen whether schools of bait fish were running; I would have commented that the whales were migrating with their newly born calves; I would have asked whether he really needed to wear the wet suit that made him resemble a seal.

The culprit (7 News, Australia)

Had I been on the beach that morning and done all those things, I expect he still would have swum the Bay. I do not know which of those factors attracted the shark that took him, perhaps a combination of them. For his wife and friend waiting for him to walk up the beach at the end of his swim and join them for breakfast it did not matter what caused the shark to strike, for them Paul just never arrived.

We have come a long way in some countries in seeking to ensure patients know all the risks associated with treatment but this is still poorly developed in other countries, and wherever it is done, some healthcare workers do it better than others. The landmark Rogers and Whitaker case in Australia set the gold standard for ‘informed decision making’, still referred to as ‘informed consent’ in many places.

Arlene Macdonald comments that this case distinguishes between, on the one hand, the belief ‘that a medical practitioner is not negligent if he acts in accordance with a practice accepted at the time as proper by his peers, even though other medical practitioners adopt a different practice. In other words, the standard of care owed to a patient in all things is determined by medical judgement’ and, on the other hand, in the words of five of the six Judges in this case, there is a duty ‘to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it’.

Had Paul that fateful morning asked me whether it was safe to swim and had I not mentioned the storm, the overcast conditions, the bait fish, the whale calves and the wetsuit I would have considered myself to be negligent….but the R and W judgement tells me I might have mentioned all those things and still been negligent had I not explored with him particular questions about the swim that had meaning specifically for him, for instance do these risks take on even greater significance for him because he has a young family to support; and that he would be swimming alone.

But I want to raise a question about this for your consideration. I have written before in my BLOG about a paralysis in the delivery of healthcare due to over prescribing, over ordering of tests and over informing of patients – medicine has become too ‘defensive’, too risk averse. Acting as agent provocateur I asked …. ‘Maybe there should be an agreed ‘likelihood percentage’ below which Docs are indemnified against not prescribing/ordering and against not mentioning possible complications (risks) in the course of providing ‘informed consent’.

The incidence of hospital acquired infection is around 6% to 10% in developed countries and docs will tell you when you go for surgery that it is a risk with a likelihood of about 10% (to be on the safe side). That is fair enough even though the surgeons I have worked with tell me no patient has decided not to go for surgery because of the risk of contracting an infection. So, could 10% be the threshold above which docs should warn of the risks, order the tests, prescribe the medication and below which they can’t be sued if the risk materialises?

The likelihood of sympathetic ophthalmia is 1 in 14,000, which is well below my suggested indemnification threshold, so in my scenario Dr Rogers would have been indemnified against legal action by Maree Whitaker, a case Mrs Whitaker won. So to go the way I have suggested will result in potentially successful actions being ruled out – in other words, there would be a price to pay.

Atul Gawande has had some interesting things to say recently about what the job of healthcare professionals is and what it is not:

“We think. . .[the job of healthcare professionals] is to ensure health and survival. But really. . .it is to enable well-being. And well-being is about the reasons one wishes to be alive.” Gawande examines the cracks in the system of health care to the aged (i.e. 97 percent of medical students take no course in geriatrics) and to the seriously ill who might have different needs and expectations than the ones family members predict. (One striking example: the terminally ill former professor who told his daughter that “quality of life” for him meant the ongoing ability to enjoy chocolate ice cream and watch football on TV. If medical treatments might remove those pleasures, well, then, he wasn’t sure he would submit to such treatments.) Doctors don’t listen, Gawande suggests—or, more accurately, they don’t know what to listen for. Besides, they’ve been trained to want to find cures, attack problems—to win. But victory doesn’t look the same to everyone, he asserts. Yes, “death is the enemy,” he writes. “But the enemy has superior forces. Eventually, it wins. And in a war that you cannot win, you don’t want a general who fights to the point of total annihilation. You don’t want Custer. You want Robert E. Lee... someone who knows how to fight for territory that can be won and how to surrender it when it can’t.” In his compassionate, learned way, Gawande shows all of us—doctors included—how mortality must be faced, with both heart and mind. – Sara Nelson

The current healthcare ‘system(s)’ has an enormous number of virtues but it is fundamentally broken and broke. I say the SYSTEM is broken and broke – not those who populate it who are people for whom I have and have always had enormous respect and admiration. It is these people who can make it right if given the freedom to do so.

BUT, enough of all that!  It’s soon to be the Festive Season so to my reader (is there still just one of you?)

All the very best for this special time of year.

Peter Carter
Chief Executive Officer
December 2015

References:
Bioethics Research Notes 5(3): September 1993 ROGERS V WHITAKER: DUTY OF DISCLOSURE By Arlene Macdonald
Being Mortal: Medicine and What Matters in the End. Hardcover – Deckle Edge, October 7, 2014 by Atul Gawande
Sara Nelson Amazon Editorial Review of Being Mortal.