Some of you may be aware of a post circulating on some other groups saying that women have no legal rights to have the ‘NHS England Standard Contract for Complex Gynaecology: Severe endometriosis’ and the ‘RCOG 2016 Standards for Gynaecology Care: Providing quality care for women’ applied. This has scared a lot of women.
Women have a legal right to SAFE care, in accordance with the many obligations that all doctors in the UK are legally bound to comply with in order to be licenced to practice, including that care imposed by the Gynaecology Standards.
Even if the documents referred to above are not ‘legally binding’ (that is to say enshrined in statutory law, that can be legally enforced standing alone), then it is clear that neither the NHS Contract nor the RCOG Standards are legally binding. That is not in doubt but is of no relevance when considering the obligations of doctors.
A document does not itself have to be enshrined in statutory law for a doctor to be legally required BY LAW to follow its guidance and standards.
The fundamental law that is relevant to the duties of doctors in the UK is The Medical Act 1983 (as amended) that empowers the GMC to regulate medical practitioners/specialists IN LAW with the over-arching objective of protecting the public. Unlike the RCOG, they have the authority to dictate what doctors must do with regard to guidelines, irrespective of whether or not such documents themselves are legally binding when not attached to regulations.
As per the GMC website:
‘We are an independent organisation that helps to protect patients and improve medical education and practice across the UK.
We decide which doctors are qualified to work here and we oversee UK medical education and training.
WE SET THE STANDARDS THAT DOCTORS NEED TO FOLLOW, and make sure that they continue to meet these standards throughout their careers.
We take action to prevent a doctor from putting the safety of patients, or the public's confidence in doctors, at risk.’
We will all be familiar with the GMC’s Good Medical Practice, that all doctors are require BY LAW to follow, including at domain 1:
'11 You must be familiar with guidelines and developments that affect your work.
12 You must keep up to date with, and follow, the law, our guidance and other regulations relevant to your work.'
So it is a fundamental LEGAL requirement that doctors are familiar with nationally recognised guidelines and standards as appropriate to their work and, even though these may not in themselves be legally enforceable at the point of care, the GMC has the power to remove a doctor from the medical register and prevent them from practicing if they fail to comply with such obligations if the consequences warrant it. It is likely that a majority of medical negligence claims will be based on failures in following guidelines and standards.
Since 2009 it has been a legal requirement that doctors have a licence to practice and from December 2012 it has been a requirement of the GMC that doctors’ licences are revalidated at least every five years to show that they are up to date, still comply with Good Medical Practice and therefore continue to be fit to practise. These requirements apply to all doctors, whether working for the NHS or in the independent sector.
Where do the 2016 RCOG Standards for Gynaecology Care fit with this?
The revalidation process for doctors' licenses requires that specialists not only continue to meet the professional standards set by the GMC in Good Medical Practice but also the specialists standard set by the medical Royal Colleges and Faculties. This is confirmed on their website under ‘The medical register’.
SO IT IS A LEGAL REQUIREMENT OF THE GMC THAT GYNAECOLOGISTS MEET THE 2016 RCOG STANDARDS FOR GYNAECOLOGY CARE.
It is probably no coincidence that this comprehensive and minutely detailed set of standards has been produced since the introduction of this legal requirement by the GMC. If the Standards are not met we can complain to the GMC (which could affect a doctor's licence) and we can take them to court if failures are serious enough.
Moving on to 'The NHS Standard Contract for Complex Gynaecology – Severe Endometriosis'
The use of the word ‘contract’ refers to the contracting of NHS services by the relevant service 'commissioner'. In the case of treatment for severe endo in England this means NHS England and not CCGs. So this is not a contract between a provider and a patient but a contract through which NHS England is required to provide a service specification – in this case for the treatment of severe endo.
The treatment of severe endo is a 'Prescribed Specialised Service' commissioned directly by NHS England. Which treatments fall under this category is determined by government Ministers who, under advice from the Prescribed Specialised Services Advisory Group (PSSAG), decide whether certain services, for people with rare and very rare conditions, are specialised and should be prescribed in regulations. The Health and Social Care Act 2012 sets out the four factors that Ministers take into consideration when they determine which specialised services should be included:
• The number of individuals who require the provision of the service or facility;
• The cost of providing the service or facility;
• The number of persons able to provide the service or facility; and
• The financial implications for Clinical Commissioning Groups (CCGs) if they were required to arrange for the provision of the service or facility
The Service Specification represented by the NHS England Standard Contract for Complex Gynaecology – Severe Endometriosis (E10/S/a) is such a specialised service that is PRESCRIBED IN REGULATIONS. This is confirmed by the Manual for Prescribed Specialised Services 2016/17 (Background and page 138). Furthermore, the BSGE state in their document ‘Complex Laparoscopic Surgery for Severe Endometriosis, guidance for clinical coders’:
‘Commissioners of healthcare in England have designated the surgical treatment for severe endometriosis a specialist service. It is commissioned by the specialist commissioners rather than local commissioning consortia. NHS England have published the specification for the service and endorsed the BSGE Endometriosis Centre model and only plan to commission services from centres that meet the BSGE accreditation criteria.’
IT IS CLEAR THEREFORE THAT THIS IS A SERVICE SPECIFICATION PRESCRIBED IN REGULATIONS, ENDORCED BY THE BSGE THAT MUST BE FOLLOWED.
Does this apply just to England?
It has been established that medical professionals have a legal duty to apply the 2016 RCOG Standards in order to practice, even though the RCOG itself can't enforce them. ‘Specialist services’ are covered at section 3 with a requirement that ‘Women presenting with complaints requiring these specialist gynaecological services should have the same access to high-quality services regardless of where they live within the UK and uniform access should be ensured’. It can be seen that NHS England Contract is shown with the Advanced Lap ATSM and BSGE requirements at 3.2.1. Whilst the Service Specification in the NHS England Contract refers only to England, this essentially reproduces the BSGE standards which apply across the whole of the UK, evidenced by the existence of BSGE accredited centres in Scotland, Wales and NI. There is probably detailed information available to members of the BSGE relating to the standards that can’t be accessed by the public, but the BSGE treatment standard can be found in the above-mentioned ‘Complex Laparoscopic Surgery for Severe Endometriosis - Guidance for clinical coders, April 2015’ that is available on their website which, together with the ‘requirements to be an accredited EC’, more or less reproduces the NHS England contract. In essence therefore, the same fundamental treatment specification applies to the whole of the UK and would be hard to dispute.
So women can be assured that gynaecologists, whether working on the NHS or privately, must abide by the 2016 Standards for Gynaecology Care and the NHS Contractr for treatment of severe endo (in England) and the BSGE standard otherwise.