Martha’s rule: an undeniable right to a second medical opinion
BMJ 2023; 383 doi: https://doi.org/10.1136/bmj.p2351 (Published 12 October 2023) Cite this as: BMJ 2023;383:p2351
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Dear Editor
The death of Martha Mills is undoubtedly a tragedy. It seems clear that there were critical failures both within the wider system and by individual doctors. Prompt and robust action must be taken to address these failures. But, it is not clear how the required action is a ‘second opinion’. The problem in Martha’s case does not seem to be that the ‘opinion’ of her treating doctors was wrong. Rather, it seems that the doctors simply did not take care to properly form, document and execute opinions. The call for ‘second opinions’ deflects from Martha’s tragedy and the real remedial action.
Opinions about a patient’s care will sometimes differ between the patient, their family and doctors. Patients’ and families’ opinions must, of course, be heard respectfully and given serious consideration. Yet, both the GMC and the law make it clear that doctors should not provide treatment that they do not consider to be in the patient’s clinical interests. To not acknowledge the increasing challenge of clinically inappropriate requests by patients and their families would be to devalue the lived experiences of an already demoralised medical workforce. Although, a second medical opinion would be invaluable if a genuine concern by a patient or family-member was not being heard by the treating doctor.
But opinions can differ, sometimes hugely, even between doctors. The nature of medicine is such that it often simply cannot be said that one opinion is right and the other is wrong. The Supreme Court has recently made it clear, in the case of McCulloch v Forth Valley Health Board,(1) that doctors are obliged only to advise reasonable treatments. The Court defines a reasonable treatment as one that is supported by a body of medical opinion, regardless of conflicting opinions. Of course, a patient is entitled to disagree even with a reasonable opinion. But, in such a situation, how many additional ‘second’ opinions, and from whom, have to be provided? Clarification is urgently needed. Otherwise, an already over-stretched medical workforce will become even more disenfranchised. The place of a ‘second opinion’ for acutely unwell in-patients requires careful reflection, instead of a knee-jerk response.
1. McCulloch and others v Forth Valley Health Board [2023] UKSC 26, [2023] 3 WLR 321.
Competing interests: No competing interests
Dear Editor
Even prisoners serving life sentences have a legal right of appeal against the original decision, so in principle, it appears fair that access to a second clinical opinion receives legislative approval. Seeking a second clinical opinion is effectively a right of appeal but hardly any legal right comes without conditions attached; hence it would be unwise and illogical to expect that proposed ‘right’ to a second opinion would be a ‘free for all’ and applicable in every case for whatever reason. Although provision for second opinions for an example during MDT discussions exists, it won’t be entirely unreasonable to challenge the independence and impartiality of such internal processes.
As the editor rightly suggests [2], empowering people to seek second opinions “at the time of a workforce crisis” will be a complex issue for a multitude of reasons. For an example, should this proposal ever reach the statutory stage, legal draftsmen/women would have an unenviable task before them to unequivocally identify the nature of clinical scenarios, at what stage a formal second opinion would be merited and who would take such initial onerous decisions, particularly in NHS settings. Any deficiencies in statutory language could lead to legal challenges and open-up income streams for legal professionals, adding a further burden on to the public purse. Further it is unlikely that clinicians would readily take on any additional clinical duties without a well-structured scheme to manage such requests and adequate remuneration. Of course, self-funded opinions would not cause major practical barriers but obviously, only a tiny minority will benefit and worsen the level of inequality of care and treatment which already exists.
Editor seems to endorse that error in clinical practice is “a system failure”[1]. Given ‘systems’ (which are supposed to be safe and reliable) are developed and managed by individuals, it would be rather convenient to hide behind the term “system failure” where it is the very acts and/or omissions of individual clinicians which have led to errors, sometimes amounting to negligence. Surely it is time now to move away from the culture of blaming “system failures” when things go wrong. As candid disclosure is already a requirement, promoting acceptance of individual error at the earliest opportunity and unconditionally supporting those who need to learn from their errors should be the right approach. So lets get rid of the term “system failure” which does not need legislative changes either.
References
[1] BMJ 2023;383:p2351
Competing interests: No competing interests
Multiple Opinions and Options will only increase Complexities Re: Martha’s rule: an undeniable right to a second medical opinion
Dear Editor,
Medicine is more an art than a science.
It is certainly a right of patients to seek alternative opinions. However, only one of them can be followed/pursued.
During the course of treatment, occasions will always arise when different doctors will have different opinions.
This method of seeking second or more opinions will increase Complexities and hinder treatment.
- Arvind Joshi,
MBBS MD FCGP FAMS FICP.
Competing interests: No competing interests