Get the updates of everything you need to know about Martha's rule, including its impacts and important next steps.

On 14 September 2023, the Health Secretary, Steve Barclay, confirmed the Government's commitment to introducing Martha's rule, to give hospital patients in England the legal right to request an urgent second medical opinion.

What is Martha's rule?

Martha's rule would give all patients in NHS hospitals in England (and those acting on their behalf) the legal right to request a second opinion from a senior clinician in the same hospital if a patient is deteriorating rapidly but it appears concerns are not being taken sufficiently seriously by medical staff.

Background

The rule is named after Martha Mills, who died in 2021, aged 13, at the King's College Hospital NHS Foundation Trust. She had been admitted with a pancreatic injury after falling off her bicycle, but she sadly died when her parents' concerns about sepsis were not acted upon. In 2022, a coroner ruled that Martha would most likely have survived if she had been transferred to intensive care earlier.

Martha's mother recounts her experiences and the events that unfolded in the foreword to a report published by the policy think tank Demos. The Demos report makes three core recommendations:

  • NHS England should develop best practice guidance to allow hospitals to adopt this system as soon as possible.
  • Hospitals should adopt Martha's Rule as a matter of urgency and communicate it clearly to patients.
  • The Care Quality Commission should consider Martha's Rule standard practice in inspections and include their implementation in inspections.

How would it work?

Patients, families and carers would be able to contact the hospital's critical care outreach team to seek a review of the patient's condition, if they were deteriorating or where there are other serious concerns. We therefore anticipate Martha's rule will be invoked in a wide range of circumstances, such as sepsis, haemorrhage, embolism or perforated bowel. It is expected that circumstances will occur across multiple medical and surgical specialities. However, there may be occasions when a second opinion from the critical care outreach team is not appropriate. For example, in circumstances where a different medical or surgical team would be better placed to advise upon the appropriate treatment. For example, an orthopaedic patient may request a second opinion by the critical care team, but attendance by a vascular surgeon would be more appropriate for undiagnosed compartment syndrome. Trusts will need to plan carefully to ensure that requests for a review are acted upon promptly and appropriately, but without resulting in gaps in care elsewhere.

It is understood that hospitals would have to display on wards the contact information of the critical care outreach team. Hospitals currently without such a team would need to establish them and existing teams may need to upskill, recruit or redeploy staff to ensure the necessary capacity to deliver Martha's rule. Delivery in non-acute hospital settings may be challenging and it is unlikely that one size will fit all across the NHS.

Existing obligations and schemes

The GMC's guidance 'Good medical practice' (published in 2013) states that doctors must "respect the patient's right to seek a second opinion". It is not a legal right but it is good practice to comply, unless there are good reasons to not to do so. Further, the GMC's 'Guidance on professional standards and ethics for doctors: Decision making and Consent' (published in 2020) confirms that the information provided to patients to make decisions, should include being told of "their right to seek a second opinion". However, how many patients know about this right and how to obtain a second opinion? Further, there is the question of whether a hospital's existing processes respond with sufficient speed in an urgent situation.

There are a number of schemes which seek to ensure that the concerns of patients, or those acting on their behalf are heard. For example:

  • Call 4 Concern was pioneered by the Royal Berkshire NHS Trust in 2009/2010, and has subsequently been adopted by a number of trusts. It allows patients and relatives to call upon the hospital's critical care outreach team at any time of the day if they are concerned about a change in condition they feel is not being recognised. A review at the Royal Berkshire (in 2019) found the service had been used 534 times in seven years, and 95% of the calls placed were using the service appropriately. In a fifth of cases, significant interventions were required.
  • Ryan's rule was established in Queensland, Australia following the death of Ryan Saunders, who died in 2007 aged two from an undiagnosed Streptococcal infection, which led to Toxic Shock Syndrome. Ryan's rule gives patients of any age, their families and carers, the legal right to request an urgent second medical opinion, if a patient's condition is getting worse or not improving as well as expected and they feel their concerns are being dismissed. Ryan's rule applies to patients admitted to any Queensland Health public hospital and has proved successful in saving lives.
  • The National Australian Charter of Healthcare Rights also includes a right for patients, families and carers to obtain a second medical opinion from another healthcare provider, or expert, if they have concerns about the treatment options offered.

When will it be introduced?

The Government has said that the case for the Martha's rule is 'compelling' and that it wants to introduce the scheme as quickly as possible, particularly in paediatrics. The Health Secretary has asked the patient safety commissioner to convene NHS leaders with NHS England, to consider the proposals and gather evidence from NHS trusts where there are already such schemes. The plan is to have one consolidated Martha's rule across hospitals in England, if not across the NHS.

How would Martha's rule impact clinical negligence claims?

The implementation of Martha's rule would help to ensure that the voices of patients and their families and carers are heard, drawing attention to changes in a patient's condition, which may have been missed or misinterpreted by the treating team. It is, therefore, anticipated by the Government that Martha's rule would help to reduce incidents of clinical negligence, and therefore reduce the cost of claims against the NHS.

Subject to the decisions made in relation to the implementation of Martha's rule, the legal recourse for a failure to comply with Martha's rule is likely to remain a claim in negligence, which is subject to the usual tests for breach of duty and causation. It is important to note that a legal right to request a second medical opinion is not the same as the right to a second opinion. Furthermore, for adults with capacity there is currently no requirement to consult with families.

When critical care outreach teams are asked to review patients, they assume a duty of care that it may be challenging for them to discharge, as the standard of care required of them may be different from that which applies in other medical fields - the standard of care that applies would be that of a responsible body of professional opinion in the same field as the treating clinicians. Therefore, as patients (their families and carers) contact critical care outreach teams with concerns, trusts may be at a risk of clinical negligence claims arising from alleged failures by the critical care outreach team to review patients, either due to errors in clinical judgement (based only upon reports of symptoms from patients, families and/or carers), or a lack of capacity to attend patients. It is currently unclear how requests for a second opinion would be most appropriately prioritised. Further, delays in treatment may also arise where the critical care outreach team is called to review a patient and treatment is put on hold pending the second opinion, which results in avoidable harm. , but in the some circumstances, it would be appropriate for a different medical or surgical team should to have attended, again resulting in delay.

It is also unclear whether Martha's rule would potentially impact upon the law in relation to consent. For example, whether a failure to advise patients of their right to seek a second opinion would amount to a breach of duty, under the principles in Montgomery v Lanarkshire Health Board.

Following the implementation of Martha's rule, patients may argue that they should be advised of the material risk of serious injury or death if they do not request a second opinion where there is rapid deterioration and they believe inadequate care is being provided. Further, a second opinion from the critical care outreach team may also be deemed to be a reasonable alternative course of treatment depending on the patient's condition – see McCulloch & others v Forth Valley Health Board. Case law would probably be required to determine these issues. Causation may be difficult to defend in many cases where an earlier critical care review could and should have occurred.

Next steps

We will have to wait and see whether Martha's rule progresses swiftly, with continued governmental support, to become an obligation upon the NHS. It could be given a statutory basis in law, as occurred with the introduction of the statutory duty of candour. Compliance with the duty of candour is monitored by the CQC and can lead to regulatory action in the event of a breach.

We recommend that trusts begin considering what changes, if any, they should make now to deliver the safety benefits of Martha's rule. Several trusts have already adopted a process similar to Martha's rule and a trust should not wait until Martha's rule becomes an obligation. To help identify patient safety priorities it will be important for trusts to collect information on why and how often a second opinion by the critical care outreach team overturns the management by treating clinicians.

In any event, trusts should ensure that they have safe and robust processes for patients, families, carers, and staff to escalate concerns. Careful consideration will need to be given to the availability and staffing of critical care outreach teams and the process for attending patients when a review is requested by staff, the patient, or someone acting on their behalf.

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