'Advice, not orders’? The evolving legal status of clinical guidelines

Correspondence to Dr David Metcalfe, Nuffield Department of Orthopaedics, Rheumatology, and Musculoskeletal Sciences (NDORMS), University of Oxford, Oxford, OX1 2JD, UK; [email protected]

Clinical guidelines aim to reduce unnecessary variation, help clinicians make evidence-based decisions and ultimately improve patient outcomes.¹ However, clinical practice often diverges from recommendations made by professional bodies.^{2 3}

Possible reasons for low guideline uptake include logistical barriers, local policies, clinician preference, varying interpretations of study data and the availability of multiple acceptable solutions to a single problem. A further possibility is a lack of capacity to keep abreast of all guidelines.¹ The former NHS Library, for example, listed 152 individual publishers of clinical recommendations; just one of which has published over 100 guidelines² and fthose produced by the National Institute for Health and Care Excellence (NICE) can run to almost 1000 pages.^{4 5} It is also possible, however, that clinicians consider professional guidelines to be mere recommendations: ‘advice, not orders’.⁶ This article argues that such a view is being steadily eroded by developments in English common law, which reflects a wider change in approach by courts around the world. Nevertheless, guidelines are fallible and should only be treated as another type of evidence by those tasked with determining the standard of care in any given set of circumstances. They may however pose implications for shared decision-making and the process of obtaining informed consent before embarking on a treatment strategy. Clinicians should be aware of these developments when choosing how best to incorporate written guidelines into their practice.

The global reach of common law

Common law describes a body of judicial decisions reached by earlier courts. It is based on the concept of stare decisis (‘to stand by things decided’) and aims to achieve consistency between cases and certainty within the law. Up to a third of countries operate legal systems within the common law tradition. While each country is naturally free to develop its own approach, courts in common law jurisdictions are often influenced by persuasive judgments from those in other countries.^{7 8} The approach of the English courts often influences, and isinfluenced by, the judgments of foreign courts. Similarly, a single judicial approach may be recognised as arising across countries as geographically...