Decision-making by healthcare professionals runs a whole gamut of different situations. No-one would dispute that a decision about opening-hours is qualitatively different to a decision about what medicine to prescribe to a patient, but the defining characteristics of both may be difficult to identify comprehensively and some decisions may defy satisfactory categorisation.
When it comes to complaints about members of the medical profession, one category of decision is singled out : clinical judgments. Section 48 (1) of the Health Act 2004 states that :
“A person is not entitled to make a complaint about any of the following matters:
(a) a matter that is or has been the subject of legal proceedings before a court or tribunal;
(b) a matter relating solely to the exercise of clinical judgment by a person acting on behalf of either the Executive or a service provider
The same Health Act defines clinical judgment as being “a decision made or opinion formed in connection with the diagnosis, care or treatment of a patient” but gives no further guidance as to what factors should be taken into account when forming a “clinical judgment” leaving others to fill in the gaps. This is not always easy to do. Broadly put, a “clinical judgment” is a conclusion arrived at after observation and analysis of observable or available information or data. That much, at least, is objective and can be corroborated by medical records or subsequent review. What is less easy to quantify is the more subjective concept of judgment : that application of experience, conscience, patient needs and other subjective considerations which may form part of the final decision or diagnosis.
This uncertainly may explain the complaints in 2016 of the Ombudsman and Information Commissioner, who said that his inability to pursue complaints about clinical judgment was a “serious cause of concern” and ran counter to similar investigative officers in other jurisdictions.
The courts have not analysed “clinical judgment” as a term of art but they have tried to lay down broad parameters as to when a judgment will amount to negligence and lead to an award of damages against the person making it. The test (as laid down in Dunne -v- National Maternity Hospital) for a finding of negligence against a medical practitioner is, briefly put, as follows :
(i) If a medical practitioner has acted in a way that no practitioner of equal specialisation or skill would have acted, if acting with ordinary care, he or she may be found to be negligent.
(ii) Deviating from a general practice in the medical profession will not of itself establish negligence unless it is also proved that the course the healthcare professional took was one which no practitioner of like specialisation and skill would have followed.
(iii) If a medical practitioner charged with negligence defends himself by establishing that he or she followed an approved practice, he or she will nevertheless be guilty of negligence if it is established that such practice had inherent defects which ought to have been obvious to any person giving the matter due consideration.
To be continued.