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Views And Reviews

Delaying surgery for obese patients or smokers is a bad idea

BMJ 2016; 355 doi: (Published 19 October 2016) Cite this as: BMJ 2016;355:i5594

Rapid Response:

Re: Delaying surgery for obese patients or smokers is a bad idea

David Shaw writes that delaying treatment for smokers and obese patients is illogical and unethical, but it is also important to state that such policies are in many cases unlawful. Policy makers who are happy to sidestep ethics and logic might be less comfortable if they understood that they are also operating outside the law.

Such policies may be unlawful on two grounds:

1) If they are not properly supported by evidence they unreasonably breach patients’ legal rights to access treatment within maximum waiting times.
2) More fundamentally, the legal regulations do not allow CCGs to mandate a delay in treatment.

On the first point: The NHS Constitution and the Handbook to the NHS Constitution summarise patients’ legal rights in an easily accessible way, including,

“…the right to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer you a range of suitable alternative providers if this is not possible….The right to treatment is subject to various exceptions. In particular, the right to treatment within 18 weeks from referral will cease to apply in circumstances where:
– you choose to wait longer;
– delaying the start of your treatment is in your best clinical interests, for example where smoking cessation or weight management is likely to improve the outcome of the treatment…”

If a delay is imposed for the smoker or obese patient where this is not likely to improve the treatment outcome this is an unlawful breach of patients’ rights.

I will use the NHS Vale of York CCG policy as an example. This uses clinical evidence in a way that would fail to pass any reputable peer review. The evidence is partial and selective. The evidence relates to a limited range of procedures whereas the policy relates to a much wider range. The evidence is misinterpreted - Waisbren et al "Percent Body Fat and Prediction of Surgical Site Infection" (J Am Coll Surg. 2010 ) conclude that BMI is not associated with an increased risk of surgical site infection and while other evidence may exist, this study is illogically used to support a policy based on BMI. And the evidence relates to a range of BMIs that differ from those in the policy – evidence relating to BMI>40 does not support a policy with a threshold of BMI 30.

The evidence does not provide a reasonable case. Rather than using oblique language such as ‘inconsistent with the NHS Constitution’, we should clearly state that this denies patients’ their legal rights. However firmly we might support health improvement it does not justify the breaching of a patient’s right to access treatment that is unaffected by a particular lifestyle factor. We cannot threaten patients with a delay in accessing services as the penalty for not engaging in unrelated health improvement.

The second point is more fundamental – the legal regulations do not allow CCGs to mandate a delay in treatment.

The NHS Constitution is only a summary document and its wording does not alter patients’ legal rights. The legal source of the right to access timely treatment is the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations . These detail the specific, limited circumstances within which an elective patient does not have to be seen within 18 weeks: primarily acts or omissions of the patient such as not accepting reasonable offers of treatment dates. The only other exception to this legal right is where,

“A person falling within regulation 47(3)(a), (b) or (c) has assessed the person referred and decided –

(a) that it is in the best clinical interests of that patient to commence treatment after the end of the period of 18 weeks beginning with the start date;
(b) that the person does not need treatment; or
(c) to refer the patient back to primary care services prior to any treatment commencing.”

The “person falling within regulation 47(3)(a), (b) or (c)” is defined as,

"(a) a consultant; (b)a member of a consultant’s team; or (c) persons providing interface services where a person who has been referred may be referred on from those services to a consultant or consultant-led team”.

The NHS Constitution makes no mention of who can decide that a delay is in the patient’s best clinical interests, so CCGs may assume that they can impose extended waits. However, the legal regulations are clear that the legal power to make that decision lies only with the defined categories of responsible clinician.

There is no support in the legal regulations for a CCG to mandate a delay in treatment for obese patients or smokers where the consultant opposes a delay in treatment; and where the patient’s consultant supports a delay in treatment there is no need for such a policy. In order to ensure that a policy to delay treatment is lawful it must be advisory rather than mandatory.

Competing interests: No competing interests

31 August 2017
Warwick Heale
NHS manager, special interest in medical ethics
Devon STP