Final Report > Chapter 27: Care of an Appropriate Standard > Setting standards for clinical care > The authority of standards of clinical care

The authority of standards of clinical care

29 What authority should the standards have and what should follow if they are not observed? We have said that NICE must have the legal authority to take the lead in developing and issuing standards. But that does not address the matter of what authority the standards themselves may have. Should some standards be obligatory? Care is needed here. To describe standards as obligatory means for us that they must be followed and that, if they are not, some action will follow. We accept that some standards should be obligatory. We also accept that other standards will serve as aspirations to be achieved over time. When we use the term obligatory we do not mean that failure to observe the standards would bring legal sanction. This would create a nightmare situation in which legalistic arguments would intrude into the care of patients. Further, in the case of standards addressed to healthcare professionals, it would deny the professionals the proper exercise of discretion to tailor care to the needs of the individual patient. It would bring an undesirable element of rigidity, where flexibility and responsiveness to the requirements of individual patients are essential.

30 Thus, in the case of the healthcare professional, where standards are not followed we look to the professional's contract. We see the obligation to observe the standards which are issued by NICE as being necessarily incorporated into the contract of employment between a healthcare professional and his employer. Failure to comply with the standards, without acceptable justification, [18] would then entitle the employer to take whatever action was deemed appropriate. Initially it could involve retraining. It need not, indeed it should not, result in some automatic response of suspension or disciplinary action save where warranted. [19] To the extent that the standards constitute good practice, professionals who observe them can rebut any allegation of poor quality of care. Professionals who do not observe them would be required to justify their conduct.

Footnotes

[18] Guidelines and standards must cover the majority of patients, but we accept that they have to be applied flexibly. We agree with the view of the Royal College of Physicians that there will be times when it is right for clinicians to deviate from a guideline as long as there is a justification for the change in plan, and it is recorded in the patient's notes. See Seminar 6. Royal College of Physicians. Position Paper

[19] We found the approach adopted in the DoH's publication `Supporting Doctors, Protecting Patients' to the balance between support and discipline too heavily weighted in favour of the latter, particularly with regard to too-ready recourse to suspension