Debunking Lansley: on patient choice and the NHS reforms

Professor Savage drafted the 'Good Medical Practice' guidelines. Here, she argues that the Coalition's health reforms will prevent doctors in England from fulfilling their duties to their patients.

As the Health Secretary takes to the stage at the Conservative Party Conference, we publish a speech that picks apart Lansley's claims. Professor Wendy Savage, who helped draft the 'Good Medical Practice' guidelines, delivered this Richard Price Memorial Lecture on 28th September. 

I am honoured to be asked to give this lecture in memory of Richard Price, an eighteenth century moral philosopher and preacher who spent most of his adult life as minister of Newington Green Unitarian Church where we meet this evening.

He was active in radical, republican, and liberal causes such as the American and French Revolutions and fostered connections between many people, including writers of the Constitution of the United States. It is said that he influenced the early feminist Mary Wollstonecraft, author of A Vindication of the Rights of Women, who in turn extended his ideas on egalitarianism to encompass women's rights. He also wrote on issues of statistics and finance, and was made a Fellow of the Royal Society for these contributions.  Were he to be alive today I am sure he would be involved in debates about patient’s rights and the meaning of choice in relation to health care.

I was an elected member of the General Medical Council on the Standards Committee which drafted the first positive document about the duties of a doctor in the early 1990s.  Before that ‘the Blue Book’, Professional Conduct and Fitness to Practise, was the basis of disciplinary procedures and it consisted of a list of things which doctors should not do and which might lead to them being struck off the medical register. We thought it was time to spell out what doctors should do and so Good Medical Practice was born. Our first task was to list the duties of a doctor which I see as their responsibilities. We kept these to one page so that they could be put in all the more detailed booklets such as Good Medical Practice, Confidentiality or Advertising and as an aid to teaching.

These have been only slightly altered over the last twenty years. We said:

Patients must be able to trust doctors with their lives and health. To justify that trust you must show respect for human life and you must:

  • Make the care of your patient your first concern
  • Protect and promote the health of patients and the public
  • Provide a good standard of practice and care
    • Keep your professional knowledge and skills up to date
    • Recognise and work within the limits of your competence
    • Work with colleagues in the ways that best serve patients' interests
  • Treat patients as individuals and respect their dignity
    • Treat patients politely and considerately
    • Respect patients' right to confidentiality
  • Work in partnership with patients
    • Give patients the information they want or need in a way they can understand
    • Respect patients' right to reach decisions with you about their treatment and care
    • Support patients in caring for themselves to improve and maintain their health 
  • Be honest and open and act with integrity
    • Act without delay if you have good reason to believe that you or a colleague may be putting patients at risk
    • Never discriminate unfairly against patients or colleagues
    • Never abuse your patients' trust in you or the public's trust in the profession.
  • Listen to patients and respond to their concerns and preferences

 You are personally accountable for your professional practice and must always be prepared to justify your decisions and actions.

The vast majority of doctors do adhere to these principles and fulfil their responsibilities towards their patients and that is probably why since polls started in 1983 doctors have led as the most trusted profession, 88% this year slightly down from the 90-92% in the last decade. Politicians and journalists have always been near the bottom at 20% and 13% respectively.

GP Commissioning and its effect on the doctor patient relationship

In the White paper Equity and Excellence: Liberating the NHS (EEL for short) launched in July 2010, 6 weeks after the government coalition was formed, it was proposed that the existing structure of the NHS be swept away. 

As David Cameron said in Prime Minister’s Questions when accused of breaking his pre-election pledge that there would be no ‘top-down reorganisation’ ‘I am not reorganising the NHS I am abolishing SHAs and PCTs’. GPs were to be responsible for commissioning services, which in the internal market system means buying them, in groups called GP consortia, (now amended to Clinical Commissioning groups with the addition of a hospital doctor. a nurse and two lay members)  instead of this being done by Primary Care Trusts. 

This does raise an important issue. If the GP is responsible for the purse strings will the patient believe her or him  if they say a treatment is not needed or worry that the doctor does not want to spend the money?

This could ultimately erode the trusting relationship between the GP and patient and lead to lessening trust in the profession. It is worrying that recent surveys have shown that over a quarter of GPs are involved in providing services which could lead to a conflict of interest when buying services on behalf of patients. This is a responsibility for which they have not been trained. 

In summary doctors have a duty to put patients first, be honest and trustworthy, keep up to date and involve patients in decision making about their care. They must respect their views and always be courteous. The five or more years medical teaching as a student followed by another 3-10 years of in-service training is based on these duties.  Ethical dilemmas are discussed both as a medical student during the ethics course and in later teaching sessions as a young doctor. There is an integrated training system overseen by Deans in each Strategic Health Authority but these are to be abolished. There is another Bill dealing with education and training which is due to go out to consultation and the Royal Colleges think they have negotiated to keep these Deans, perhaps based in Medical Schools, in the new system. However, Lord Howe in a recent debate in the House of Lords said this:

“We do think  that individual  employers with appropriate professional input and advice are best placed to plan and develop their own workforce and assess what workforce and skills are needed.” 

Manpower planning may not have always been ideal in the NHS but over the last 60 years we have seen training become more structured and doctors trained to do a large number of specialist jobs as medicine evolved.

How can ‘local employers’ plan for the future and if this new system fails how will tomorrow’s doctors emerge as ethical beings in the market place that is planned to be set legally for the NHS by this Bill? 

How can the government destroy a system of medical education which is renowned and respected throughout the world and risk leaving it to ‘individual employers? If it fails and we end up with shortages of particular types of doctor that will restrict patient choice not extend it.

This brings me to the second theme of this lecture, Patient choice

The issue of patient choice has been hijacked by the politicians who in my view have used this as a smoke screen to bring the private sector into the NHS and turn it into a fully fledged market.

Health care is an unsuitable service for market mechanisms because there is asymmetry of information between the patient and the doctor, and the patient may well be incapacitated by the illness and unable or unwilling to browse the internet and select what appears to be the best treatment. S/he relies on the advice from her doctor or doctors,  just as if I have a legal problem I rely on a trained lawyer  to sort things out for me.

To many of us the idea of market forces being the deciding factor in providing for sick people’s care is obscene. People are not commodities and private companies should not be making a profit out of misfortune or illness.

The appalling treatment of people with learning disabilities and autism at Winterbourne View, recently disclosed by the BBC Panorama programme using an undercover reporter and the collapse of Southern Cross threatening the residential care of over 30,000 elderly people, shows what can happen if profit becomes more important than patients. The government puts much faith in regulation but in the Winterbourne View case the Care Quality Commission was alerted three times to the poor standards by a nurse and they did nothing.

Good training and professionalism which has a moral basis is the best way to ensure proper care for people. Vocation is seen as an old fashioned word today but it does explain the choice that many doctors and other health workers make to join the NHS. Doctors are now well paid compared with the bulk of the population but many hospital staff still have poor wages in comparison with comparable jobs in the private sector.

Choice of Hospital.

Surveys have shown that what patients want is a good local hospital.

The Choose and Book scheme introduced by New Labour offering a choice of five hospitals for surgical appointments had to include at least one private company. Before the 1990 ‘reforms’ when Kenneth Clarke was Secretary of State for Health, a GP could refer a patient to any consultant in the UK but once the internal market was set up GPs could only refer to the consultants who worked in hospitals where the District Health Authority initially — then the Primary Care Groups, then the Primary Care Trusts had a contract.

With Choose and Book the GP could only refer to one of 5 hospitals and not to a particular consultant although he might know that consultant A was right for patient B and consultant C for patient D. The programme was bedevilled by technical problems initially.

Before this, the system was that you saw your GP, who wrote a letter to the hospital consultant, who allocated you to the appropriate clinic based on this information. The clinic clerk then sent an appointment by post — occasionally this might get lost or delayed in the system but for the vast majority of people it worked well.

With Choose and Book, the GP sent the referral letter on line and the patient was told to phone for a date. One elderly acquaintance of mine found it took him 3 days to get through, then he was told the computer was down and to ring again 2 days later, when it was still down so they said they would ring him. They did not, so he rang again and finally got through and after several calls was given a date for his operation almost four weeks after seeing his GP. Many people would have given up.

Choice of treatment

Most people trust their GPs to know where to refer them and do not want this spurious choice but as the so called ‘efficiency savings’ begin to bite even this is being denied them by the introduction of patient referral centres where the PCT uses nurses or even lay people to scrutinise the referral letters and redirect for example patients with backache to a physiotherapist or send patients back to the GP if the PCT have decided that they will no longer fund a procedure.

Hip and knee replacements and cataract operations are being refused in one Essex PCT along with another 227 procedures, and whilst some of these may not be useful or based on good evidence, joint replacements are of proven value. What choice do patients in these areas have? 

The last government launched the NHS Constitution, which lists rights and responsibilities for patients and NHS staff and included It says “You have the right to access NHS services. You will not be refused access on unreasonable grounds.”

How do these rationing decisions by PCTS fit into this framework?

One of the recommendations of the Future Forum chaired by Professor Steve Field, a previous chair of the Royal College of GPs who helped to write it, was that the NHS constitution should be referred to in the Health and Social Care Bill and this has been done:

The proposed super- quango, The NHS Comissioning Board has a

Duty to promote NHS Constitution

(1) The Board must, in the exercise of its functions—

(a) act with a view to securing that health services are provided in

a way which promotes the NHS Constitution, and

(b) promote awareness of the NHS Constitution among patients,

staff and members of the public.

Act with a view to securing is not quite the same as a duty to provide and a duty to promote is not the same as a duty to enforce the constitution and thus provide the service.

If the Bill is passed I can see a field day for lawyers acting on behalf of patients denied proven effective treatment

In his white paper EEL, Andrew Lansley said he wanted to put patients at the heart of care. He used the phrase “No decision about me without me” which relates to research that has been done about patients’ decision making with their doctors. This is defined as:

“Shared decision-making is a process in which clinicians and patients work together to select tests, treatments, management or support packages, based on clinical evidence and the patient’s informed preferences. It involves the provision of evidence-based information about options, outcomes and uncertainties, together with decision support counselling and a system for recording and implementing patients’ informed preferences.”

Many doctors feel that they do involve patients but the Care Quality Commission asks patients in their annual surveys whether they felt that had had sufficient involvement in decisions about their care. Since the survey started in 2002 the proportion saying they had not has remained pretty static at just under half.

Extra training is needed to overcome some doctors’ paternalism and decision aids have to be produced for the patients, which takes time and money but in my lifetime as a doctor there has been considerable progress in listening to patients and accepting their choices.

Doctors often find it difficult to accept it when a patient declines to have treatment which, in the doctor’s opinion, would improve their quality of life but this is a choice that should be accepted. However I do not think that a doctor is bound to perform an operation that s/he considers medically unjustified so choice is not unfettered. All operations carry risks and doctors also have rights as well as responsibilities. The patient has a right to a second opinion.

Choice in reproductive health

This is an area where a woman’s choice may not always be accepted by the doctor either when she is seeking an abortion for an unplanned pregnancy or is planning to give birth in the way she wants.

In assisted conception a woman’s choice is legally constrained as the doctor treating her infertility must make a judgment about the welfare of the potential child. The HFE Act was passed in 2000 but it was only in 2008 that the rights of same sex couples were recognised when the reference to “the need for a father” was replaced with “the need for supportive parenting” – hence valuing the role of all parents.

The 1967 Abortion Act gave women the right to a legal abortion only if two doctors certified that she met certain criteria that the operation was necessary for her physical or mental health.

Ironically it was a clause inserted in the House of Lords which was designed to make abortion more difficult to obtain, that allowed doctors to use a liberal interpretation of the law. Abortion was lawful if  “the risk of continuation of the pregnancy was greater than if the pregnancy were terminated”. It is always safer to terminate if the pregnancy is under 20 weeks and most abortions take place before 12 weeks. So this gave doctors the legal option of allowing abortion on request of the woman.

It is still an anomaly that the woman does not have the right to choose whether or not to continue the pregnancy and still some doctors’ attitudes fall far short of the ideals in duties of a doctor. Whilst I accept that terminating a pregnancy is ending a potential human life and therefore statistics should be kept, which is another a legal duty placed upon doctors, I do not think we need two doctors to certify that the woman needs an abortion. This is not required for any other operation.

It was a sad commentary on the last government that they failed to find time to debate the amendments to the HFE 2008 bill which would have allowed this requirement to be scrapped – a position adopted by the RCOG. With a woman leader of the House of Commons and several female cabinet ministers being pro-choice and evidence that the law needed to take account of medical advances in the 40 years since it was passed, it was a tragedy that these changes were not enacted.

I accept that doctors have a legal right to conscientiously object to discuss abortion in general practice or perform an abortion in hospital. GPs must make this clear to women and should refer to a colleague who does not have a conscientious objection and gynaecologists must make their position clear to referring GPs. Colin Francome and I have surveyed gynaecologists in Great Britain twice and separately, once in Northern Ireland, where the Act does not apply.

In our study in 2008, doctors often declined to do abortions after 12 weeks for ‘social’ reasons and one quote shows the attitudes which women may still face when requesting an abortion.

I have always provided a ‘social service up to 13/52, but only undertaken TOPs for abnormality thereafter. In addition I will often refuse if it is a 3rd or 4th abortion and there is no evidence of contraceptive responsibility’.

Paternalism in evidence here I would say, and forcing a woman to continue with a pregnancy because she is careless with contraception cannot be right. About a third of GPs say they are anti-choice so women requesting TOP face a lottery and it is the young and vulnerable who may suffer, ending up with a later abortion or a baby they did not want. 

Choice in childbirth

Choice in childbirth was an issue that was widely debated when I was unjustly suspended from my post as Senior Lecturer in Obstetrics and Gynaecology at the London Hospital in 1985 following allegations by the Professor that my management of five obstetric cases was incompetent.

People marched, the Guardian and Times followed the story as did radio and TV. The subsequent enquiry using the HM/116 procedure was held — for the first and only time — in public and I was exonerated and reinstated in 1986.

Although none of the cases were home births I was the only obstetrician who encouraged healthy women to have their babies at home and the case betrayed intolerance towards a colleague who offered women choice.

Choice of place of birth

The majority of women want to give birth naturally cared for by people they know and trust but the transfer of birth from home, where they were cared for by a midwife and GP they knew, to hospital where they met different people during the pregnancy and birth, which started in the 1960s and accelerated during the 70s,  meant that by 1980  only 1% of women had their babies at home compared with 30% in 1960. Half of these births were unplanned.

This move was not based on evidence but it was not until the Health Select Committee, chaired by Nicholas Winterton and prompted by the late Audrey Wise, published their report in 1992 that this policy was questioned.

The government responded by setting up an expert maternity group chaired by Julia Cumberlege who herself had delivered at home. They commissioned a poll from Mori that showed that the majority of women were only offered the option of birth in a consultant unit but 72% wanted a different type of care. 44% wanted domino care where a known midwife follows them to hospital, delivers them there and then accompanies them home in 6 hours.  22% wanted to discuss home birth or 16% of the entire sample. This is after 30 years obstetric propaganda about the ‘safety’ of hospital birth.

Sadly the implementation of the recommendations of the Cumberlege report in 1993 which gave more control to midwives and the option of home birth, were to be cost-neutral and coupled with divisions within the RCM meant that by 1997 only 2% of births were at home. When New Labour was elected this issue was not a priority for them.

Some changes were made in the organisation of maternity services and a survey of Home Births in 1994, published in 1997, showed that outcomes for mother and baby were just as good at home compared with similar women booked for hospital delivery but with lower rates of Caesarean section. This  meant that the RCOG changed its policy and agreed that home birth was a an acceptable option for healthy women.

This was endorsed by the government paper “Maternity Matters: Choice, Access and Continuity in a safe service” in 2007 which promised all women the choice of a home birth. This was achieved for 2.4% of women in England, 1.5% in Scotland, 3.8% of women in Wales and 0.37% in Northern Ireland in 2009.

This is not a priority for the Coalition government so women’s choice will again be frustrated. Still many obstetricians do not allow women to have their babies at home, using frightening arguments to put them off which is unprofessional and in my view contravenes one of the duties of a doctor listed earlier.

Choice of the way to give birth

This was another issue raised by my case as three of the women had breech presentations and four were delivered by Caesarean Section.

The Caesarean Section Rate has risen to 24.8% in England 26.1% in Scotland, 26.6% in Wales and 30% in Northern Ireland in the latest statistics. I do not believe this is women’s choice as studies have not shown that it is women being “too posh to push” that is driving up the rate.

Obstetricians are anxious and the system does not allow women the peace and quiet or the continuous midwifery care that they need to labour effectively and deliver normally.

Few obstetricians will perform a vaginal breech delivery so women’s choice is curtailed and the use of arbitrary time scales for the stages of labour does not allow for the individual variation  in  the way women’s bodies function.

Epidemiological studies about outcomes in twins or premature babies have replaced careful attention to detail when the woman is in labour and often she is not given all the facts needed to make an informed choice.

There is still a long way to go in obstetrics before women really have the choices they have been promised and doctors fully perform their duties to respect the patient’s views and preferences. There have been great improvements in their behaviour and practise over the last twenty years, and I know personally two women obstetricians who have had home births. 

In conclusion

I hope I have given you some indication of the complexity of patient choice and doctor’s responsibilities in the 21st century in a world dominated by neo-liberal philosophy.

Doctors have almost lost control of their profession and they need to reclaim this control from managers and politicians.

Patients are not consumers but citizens choosing advice and services from health professionals in our National Health Service.  

The majority of the English people do not want this model of care which has served them well over the last 60 years destroyed by a flawed Health and Social Care Bill sold using dishonest PR tactics and based on market ideology without good evidence that it will improve the system. 

There is no democratic mandate for the Bill which was not in either party’s manifesto or the Coalition agreement and let us hope the House of Lords will either throw it out or significantly amend it using a Select Committee. I wonder how Richard Price would have have responded? I leave those of you who know his work to decide.

About the author

Wendy Savage is co-chair of Keep our NHS Public.