I often have great difficulty understanding the way the legal system works. The way ‘learned’ is usually appended to ‘judge’, and the track record of corruption when legal officers do the dirty work of governments, suggests to me that a great deal of scepticism is warranted. That is before we get to the inability of judges to understand what sort of statements we can make the empirical world. Then there is the problem of the interpretation of statistics. Physicists try to measure the speed of light, and they can only report the answer when they have worked out a way to do it. By contrast, law (like much economics) seems to just make it up — whether it is possible to answer a question or not, instead of remaining silent (“Wovon man nicht sprechen kann, darueber muss man schweigen”).
Anyway the above little rant was provoked by what I thought were some bizarre statements in the BMJ in an article from the ethicist and barrister, Daniel Sokol (BMJ 2017;357:j2949). I am going to take some of the argument out of context, so beware.
This issue was about an adverse medical event, and to what extent the failure of a junior doctor to ask a question led to the event and whether the junior doctor should have asked the question. Sokol summarises an argument underpinning the judgment as follows:
“In short, the law expects history taking to be the same, whether it is by an inexperienced junior doctor or a senior consultant. Lord Justice Jackson Sai that history taking was a basic skill that hospital doctors at all levels should possess”
As I said, I am not debating the particular case, but the generality. So, let me alter some words in the above:
“In short, the law expects surgical skills to be the same, whether it is by an inexperienced junior doctor or a senior consultant.”
Or, how about:
“In short, the law expects diagnostic skills taking to be the same, whether it is by an inexperienced junior doctor or a senior consultant.”
Now, my two statements are patently absurd. If they are not, then we can get rid of all consultants, and save all this money. Indeed I notice when you consult members of the legal profession they show you a scale of fees that reflect different levels of expertise — and you have to choose.
The mistake is to view history taking as a checklist of questions. It is not. Or at least in many situations it is not. Some doctors are much better at it than others and just like you can quickly objectively score surgical ability based on videos of surgeons operating, to me it is obvious that the ability to elicit a history is highly variable. But most doctors get better at it over time.
A long time ago, there were three consultant neurologists in the unit I worked at in Newcastle. They all — reasonably I think — were viewed as excellent clinicians (and BTW they were terrific teachers of medical students and junior doctors). Two of them remarked that the third was not so good at eliciting physical signs but was better at taking a history than either of them.
I believed this at the time and still do. But more importantly the statement underpinning the judgment seems to be to based on a failure to understand what a history is. It is an active process, and reality does not reveal itself without an interaction between doctor and patient, that is dependent on the prior experience of both. It is not a checklist, and there is not a finite list of questions to regurgitate. Just as in science, it is experiment rather than observation, that reveals the true nature of reality. And some are better at it than others — as we should expect. So the idea that doctors of widely different experience will be able to ‘interrogate’ the same way or with the same skill is mistaken.