Reasons doctors seek ethical help
In the first of a two-part series, Dr Kathryn Leask reveals the reasons why consultants contact the Medical Defence Union for advice.
Medical indemnity is important at any stage of a medical student’s or doctor’s career, but particularly so for consultants who work privately, instead of or in addition to their NHS work.
For consultants working in the private sector, indemnity is essential and a requirement of the GMC.
So why do consultants contact the Medical Defence Union (MDU) and what are the most common reasons for them to request assistance or advice?
A review of recent cases opened for consultant members revealed some interesting results.
Seeking advice
Twenty-one per cent of consultants making contact were seeking advice from one of our expert team. Remember, you don’t need to wait until a problem has arisen or an investigation started before contacting your medical defence organisation.
Here are some of the main areas of concern for consultants.
Confidentiality and subject access requests in both the NHS and private sector are a common reason for consultants to get in touch after having been approached for information about a patient, living or deceased.
Duty of confidentiality
The Data Protection Act 2018 applies to living patients and the Access to Health Records Act 1990 to deceased patients. Both allow disclosure of information under certain circumstances, but consultants also need to take into account their ethical duty of confidentiality as set out by the GMC.
Even where the hospital’s data protection officer is involved in the decision to disclose information, as the senior person involved in a patient’s care, you may be asked to assist in the process so that the decision to disclose or withhold information can be justified.
There were several cases where consultants had contacted us for advice about requests from the police, solicitors, the Driver and Vehicle Licensing Agency and immigration services. There are often a lot of factors to consider, and it is better, therefore, to seek advice before any decision is made whether or not to disclose.
Records management
Records management is particularly important for those working in the private sector who may be the Data Controller and, as a result, need to be registered with the Information Commissioner’s Office.
Questions particularly arise at the time of retirement from clinical practice.
This is a time of life when queries about the storage and disposal of private clinical records or medico-legal and expert witness documents often arise. Some requests for advice about what to do with private records were from the spouse or partner of a recently deceased doctor.
So it is important to think ahead and have provisions in place to ensure any records you still hold are dealt with properly and don’t become a burden for your loved ones.
Raising concerns
Working in the NHS is particularly challenging at the moment and this has inevitably resulted in the MDU receiving more contact from doctors who have concerns about patient safety.
The GMC has specific guidance on raising concerns about patient safety and every doctor, regardless of their grade, has a responsibility to raise concerns if they think patients may be put at risk.
In 2020, the GMC brought out its updated guidance on consent and this is another area where consultants proactively seek advice.
This can be in relation to the process itself, and what should be discussed with the patient, concerns about who should be obtaining consent and about patients who refuse treatment which is thought to be in their best interests.
Coroners’ inquests
Twenty per cent of the contacts from MDU consultant members were with regards to coroners’ inquests. Whether you provided NHS care for the deceased or saw them privately, it is always helpful to get advice and, if necessary, assistance from your defence body.
While hospital legal services departments deal with inquests and liaise with staff, their responsibility is to the hospital and not to individual employees.
Even where you have no concerns about the care you provided and don’t feel likely to be criticised, it is a good idea to discuss the case with a medico-legal adviser, who can assist you in writing a report and preparing yourself to give oral evidence if you are called as a witness to the inquest hearing.
‘Interested person’ status
The coroner can give you ‘interested person’ status if they believe you have particular relevance to the coronial process, at which point you are entitled to legal representation.
Your defence organisation can discuss the pros and cons of instructing a solicitor and barrister, and whether it is necessary in order to protect your interests.
Where a doctor has been criticised by the coroner, in line with GMC guidance they should refer themselves to the GMC.
Again, your medico-legal adviser can discuss this with you as to whether comments made by the coroner in their summing up and conclusion do amount to criticism that requires self-referral.
Complaints
Fourteen per cent of consultants contacting the MDU did so about a complaint.
While complaints are sadly a fact of life for doctors due to rising patient expectations and limitations on what doctors can do for them, it doesn’t make them any less upsetting.
Even a simple complaint based on a misunderstanding that is easily resolved can cause a lot of stress and can be time-consuming to deal with. Doctors have an obligation to deal with patients’ concerns, provide an explanation and, if appropriate, an apology.
How a complaint is dealt with can make a big difference to the outcome and a good complaint response can reduce the risk of escalation, for example to the Ombudsman or GMC.
While complaint managers should ensure an appropriate response is received by the complainant, clinical staff involved in the patient’s care or named in the complaint are likely to be asked for their comments and to address any concerns relevant to them.
Even where a complaint appears to be relatively straightforward and you feel you are being well supported by your employer or complaints manager, it is still worth contacting your defence organisation for advice.
As well as our guidance on how to set out your complaint response, we can advise on the tone and style and ensure that you have addressed the relevant points.
Adverse incident report
Ten per cent of consultants contacting us did so about an adverse incident report.
The purpose of an adverse or serious untoward incident investigation is to consider whether there have been any systems failures and to establish what went wrong, rather than to identify individuals at fault or apportion blame.
Being involved in an adverse incident and being asked to attend an investigatory meeting or provide a report can be a daunting experience.
Much like complaints, these are an opportunity to review and reflect on the care the patient received, not only from you but the whole team, and consider what went well and what could be improved upon.
Again, doctors have a professional obligation to co-operate with such inquiries and use them as an opportunity to develop professionally.
Dealing with claims
Another 10% of consultants who contacted us did so about a claim.
For private consultants with the appropriate indemnity, their defence organisation will deal with the claims process and liaise with the claimant’s solicitor.
It is important to let your defence organisation know as soon you are made aware of a claim – for example, if you receive a letter from a patient’s solicitor – because deadlines may need adhering to.
Claims made by patients treated in the NHS are dealt with by NHS Resolution. If you are involved, then it is likely you will need to write a report which may relate to care provided some years ago, including before you became a consultant or from a previous post.
We can help prepare your report, which should be based on the relevant clinical records, but, where appropriate, can also be based on your recollection of events and what your normal practice would have been at the time.
Your comments will assist the trust’s legal representative in deciding whether to settle the claim, with or without admitting liability, or defend the claim. If the claim is defended, it could result in a trial which you may be asked to attend.
As a professional witness, your role is to provide a factual account and not opinion, which would be the role of an expert, but you may be asked some questions based on the claimant’s allegations.
Again, it is helpful to have your defence organisation supporting you through the process, as you may find the trust’s solicitor contacts you multiple times as more information becomes available.
Dr Kathryn Leask (right) is a medico-legal adviser at the MDU