Letters of Claim from Claimant solicitors frequently include a reference to National Institute of Clinical Excellence (NICE) guidelines, in a form something along these lines under a heading “Breach of Duty”: “Dr X was in breach on [date] when he did not follow the NICE guidelines.”
It is necessary to appreciate the role and the scope of NICE. It is to be hoped that NICE give reasonable and learned clinical guidance, but their remit is, in fact, to assess treatment and investigation by cost-effectiveness.
Furthermore, this approach is not consistent with a correct application of the Bolam test. As usually framed, a doctor may be negligent if “no reasonable body of opinion” would support his or her actions. The test does not define a reasonable body of opinion, let alone specify which one should be accepted by a Court. There may be several “reasonable bodies of opinion” in respect to a clincial scenario, of which only one may be that specified in NICE guidance. So, while adhering to NICE guidelines is probably a defence in most situations, not doing so is not prima facie evidence of negligence.
I am of the opinion that aspects of NICE guidance are in fact illogical, and therefore do not consitute a reasonable body of opinon, or to follow them would fall foul of the Bolitho test. Part of NG12 (guidance on referral for suspected malignancy), used to state – to be fair it has been revised – with respect to bowel cancer, that a patient over 50 (but under 60) with altered bowel habit should have a faecal occult blood test (biochemical detection of blood in the stool) test before referral. However, since this test has a 50% false negative rate for bowel cancer (that is, 50% of people with bowel cancer do not have blood detectable in the stool), it seems to me that to follow this guideline would not be “reasonable”.