Folic acid supplementation and the complexities of blame
BMJ 2022; 376 doi: https://doi.org/10.1136/bmj.o144 (Published 20 January 2022) Cite this as: BMJ 2022;376:o144
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Dear Editor
I feel extremely saddened to read the article about Dr. Mitchell. The reality is that doctors up and down on this land have made mistakes in their careers. This puts another nail in the "no blame" to learning culture idea. As a GP I struggle to see where the line is drawn between general public health information that perhaps the government should be providing and the role of the GP in dispensing specific advice on contraception.
Many people I know have become pregnant without prior discussion with the GP. In my consultation, I try to always enquire if they are taking the relevant supplements such as folic acid and vitamin D. However, what I have found is female patients have sometimes been prescribed all sorts of medications that are not ideal or suitable for pregnancy, such as SSRIs, migraine prophylaxis as examples. I would only find out because they have made an appointment to see me because they are now x number of weeks pregnant, what about preconception advice then?
Unfortunately, we are now very much moving from a self-responsibility for our own health to a culture of finding fault with a clinician. I have altered my medical practice somewhat over the years. Any female of childbearing age from teenager onwards when I prescribe antidepressants, topical adapalene, migraine prophylaxis, beta blocker for anxiety, before I will do a referral for dermatology for isotretinoin to name but a few I always warn and document in the notes clearly I have warned about contraception and pregnancy issues whilst taking these medications. I have had a number of "comments" from the odd parents of teenagers saying they are not going to get pregnant but I often explain to them I am not talking about right now but the future.
have applied a similar way of practice on medications that might cause drowsiness with driving. We have seen similar cases with valproate in recent years where the power of litigation has taken a change in practice by having to fill in an annual consent form to continue. I do sometimes wonder when this will all end, what happens if I prescribe an opiate for post-operative pain, the patient develops confusion and falls down the stairs and has a large intracranial bleed because they were also on low molecular weight heparin at the time. The actual reality now is, as a GP I would like to do more preventive and public health clinical work but as time has gone by I am doing more or less just acute work.
Competing interests: No competing interests
Dear Editor,
We thoroughly enjoyed reading the thoughts generated because of the Toombes and Mitchell case.
There is no doubt about the unfortunate outcome in terms of the Spina Bifida congenital anomaly and the multiple challenges and limitations it brings with it. However, it is also important to have a clear view as to what extent should the GP or a health care professional be held liable and whether the quantum of responsibility handed down to the GP in this case is justified. I agree with the statement that ‘it is not only the matter for the primary care, but all health care professionals involved’.
Another important issue that this case raises is the impact it can have on doctor patients’ relationship moving forward. Would it lead to more defensive practice, adding unnecessary costs to both services and the patients?
Therefore, it is vital that we discuss the implications of this case widely to safeguard not only professional interests but also patient’s interest. Educating patients and public about health hazards should be the responsibility of all. We need better reforms and laws to bring about this awareness. This may lead to collaborative positive changes and learning; without blaming any particular organization or professional.
I hope our concerns help and support future reforms.
Competing interests: No competing interests
Dear Editor
I agree with the comments by the other rapid responders. This case cries out for an appeal and I, too, have concerns about the judge's assessment of the witness.
This case also cries out for some kind of no-fault compensation.
Sincerely
Declan Fox
Competing interests: No competing interests
Dear Editor
This case [1] amply demonstrates the serious disadvantages that a defending doctor faces when claims are permitted to proceed to trial decades after the index event. It appears the Limitation Act 1980 [2] is no bar to claims of this nature.
Whilst resolving factual disputes can be an arduous task and a court is compelled to find facts even two decades after the event, it is arguable that the judgement [1] provides inadequate reasons for preference of Mrs Toombes evidence to that of the defendant, Dr Mitchell. In relation to rather heavy attack on reliability and credibility of Mrs Toombe’s evidence (para.45.46, 47), it is said at para.49, “I further find that this was a reflection of her temperament, which I assessed from her demeanour in the witness box to be that of a very careful and thoughtful witness. I found her to be reliable and credible”[1]. The need to exercise caution with witness demeanour being indicative of credibility has been highlighted by the Court of Appeal in Sri Lanka v. the Secretary of State for the Home Department [2018] EWCA Civ 1391 at para.41[3];
“No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”
Although Dr Mitchell has acknowledged at para.52 that his note “is inadequate”[1], that does not necessarily mean that his record keeping at the time had fallen below the ‘Bolam-Bolitho’ standard, nor is there an express finding in judgment that the quality of his note itself amounted to negligence. Given the central issue being a factual dispute, there is no comparative analysis of any case law in relation to negligence either. Even if there is an implied conclusion that inadequate note keeping itself amounted to negligence, it should be noted that expert evidence was only in relation to “condition and prognosis”( see para.15[1]) and not whether notes were within the ‘Bolam-Bolitho’ standard. Nevertheless, inadequacy of notes made two decades ago seems to have heavily influenced the outcome of this case.
Looking at this case in the round, although there is no specific reference to well known Supreme Court case of Montgomery (in relation to informed consent)[4], it appears the standards formulated in that case particularly as to warning & discussion of ‘material risks’, has effectively been applied to a clinical consultation that took place about two decades ago[1]. So is this a case of over reliance on ‘witness demeanour’ and retrospective application of current ‘Montgomery standards’ against Dr Mitchell?
References
[1]https://1f2ca7mxjow42e65q49871m1-wpengine.netdna-ssl.com/wp-content/uplo...
[2] https://www.legislation.gov.uk/ukpga/1980/58
[3] Sri Lanka v. the Secretary of State for the Home Department [2018] EWCA Civ 1391(https://www.bailii.org/ew/cases/EWCA/Civ/2018/1391.html)
[4] https://www.supremecourt.uk/cases/docs/uksc-2013-0136-judgment.pdf
Competing interests: No competing interests
Dear Editor
Abbasi cites several examples of potentially ‘sub-optimal’ decisions that place people at ‘risk’. Implicitly, in his view, an optimal decision would be one that is free of risk. But, is this really possible?
Uncertainties are pervasive in medicine.(1) Also, resources are inescapably limited. As such, decision-making always involves risk-benefit and cost-benefit considerations. Consequently, all decisions will inevitably carry some risk. Moreover, risk perception can vary substantially amongst people.(2) What is perceived as a significant risk by some may be considered to be trivial by others. As such, any quest for risk-free decisions is illusory.
In assessing healthcare decisions , a court of law will consider whether or not the decision-maker had acted reasonably. The legal idea of reasonableness is not one of perfection. To the contrary, a reasonable decision will always be subject to some shortcomings.(3) Legal judgments deal essentially with what shortcomings are acceptable and what are not. The present challenge is to agree on risks that are acceptable in the practise of medicine. We should focus our attention on addressing this challenge, rather than aspiring for Utopia.
1. Fox RC. The Evolution of Medical Uncertainty. Milbank Memorial Fund. 1980;58:1-49.
2. Slovic P. Perception of Risk. Science. 1987;236:280-5.
3. Gardner J. The Many Faces of the Reasonable Person. LQR. 2015;131:563-84.
Competing interests: No competing interests
Dear Editor
It is concerning that the Judge concludes that the mother “did not take folic acid until she saw Midwife” and seems to ignore the contemporaneous documentation by the midwife which states “Current Medication-Folic acid" by an entirely unconvincing explanation. The clear documentation by the midwife contradicts the mother’s evidence that it was only after seeing the midwife that she began to take folic acid..
The midwife’s documentation seems to prove that following preconception counselling with the GP, during which folate supplementation was discussed, the mother was taking folate supplements.
The Judge also seems to have completely disregarded the universal fact that human-beings modify their behaviour following a stressful or bad event. The actions and words of the mother, in the months and years following the birth of a baby with a neural defect, seems to have been given undue weight by the Judge while trying to assess the mother’s initial behaviour before the bad event. The Judge does not seem to have given any consideration to behavioural modifications that might be expected to have been made by the mother subsequent to the birth of a baby with a neural defect.
I hope the case is appealed on these factual grounds.
Competing interests: I am not a medicolegal expert on these matters and my views are more similar to that of an informed member of public rather than an expert on these matters.
Dear Editor,
I feel a great deal of sympathy for the unfortunate GP: I find it difficult to believe that he is solely responsible for a complex birth defect. I hope he is OK and managing to continue to work and stay well.
Regards,
Marie
Competing interests: No competing interests
Smoke and mirrors
Dear Editor
By a twist of fate, Victor Li's pertinent response is juxtaposed with one from Alain Braillon [1] who writes
"Cannabis is already the most commonly used harmful substance during pregnancy".
When the reality of this sinks in, Dr Li and other General Practitioners will have one more stick to be beaten with.
[1] https://www.bmj.com/content/376/bmj.n3114/rr-10
Competing interests: No competing interests