Why doctors seek medico-legal help
In the second of a two-part series, Dr Kathryn Leask reveals more reasons why consultants contact the Medical Defence Union for advice.
Advice regarding the GMC made up 9% of the recent consultant cases examined by the Medical Defence Union.
Regardless of the nature of the complaint or referral, it is always important to let your defence organisation know as soon as the GMC informs you of a concern about your fitness to practise.
It is important to establish the nature of the communication and whether this is a provisional inquiry, an investigation or an invitation to an interim orders tribunal hearing.
Doctors can be referred to the GMC by anyone, including patients, their carers, family or friends, employers, the police or the coroner.
The GMC will also follow up any self-referrals made by the doctor themselves. Where concerns have been raised that could be due to an illness such as drug or alcohol use disorder, the doctor is likely to be invited to attend health assessments.
It is important for careful thought and consideration to be given when responding to any GMC complaint and that the doctor engages in appropriate remediation and learning.
Professional witness
Being a professional witness made up 5% of cases. A professional witness provides a factual account of the care provided to the patient, as opposed to an expert who will be instructed to provide an opinion on a case.
Witness statements could be requested, for example, by the police to support the Crown Prosecution Service or by the patient’s defence team.
It is generally better for each clinician who has been directly involved in the patient’s care to provide a statement about their own role.
However, where a large number of clinical staff have been involved, it may be better for one person to take responsibility for the whole report and this will then often fall to the consultant.
Like other reports, it is important for these to be based on the clinical records, particularly if information can’t be obtained directly from other staff involved.
You could be asked to attend court to give oral evidence and while you would not need your own legal representative as a witness, contacting your defence organisation allows you to have support throughout the process.
And it ensures the statements you provide are well considered and fulfil the needs of the role.
Disciplinary proceedings
Another five per cent of consultants made contact about disciplinary proceedings.
Your defence organisation can be a source of great support if disciplinary proceedings are issued against you where clinical concerns have been raised about your performance or competence. Doctors find this process particularly stressful and difficult to navigate.
Certain procedures need to be followed and your defence organisation can ensure you are being treated fairly and help you to put your case forward and negotiate the best outcome for you.
Employment worries
Three per cent of consultants who contacted us sought advice about their employment situation.
While employment law advice falls outside our area of expertise, some members do contact us as a first port of call to get general advice and assistance in being signposted to the appropriate organisations who can help them – for example, where contractual issues arise between a doctor and their employer.
GMC witness
Two per cent of consultant cases related to being a GMC witness.
Being a witness in a GMC case, whether you are called by the GMC or by the doctor who is being investigated, should not raise any concerns about your own standing as a doctor. But, of course, it does understandably cause some anxiety.
When acting as a witness, in any forum, it is important to follow GMC guidance, ensuring reasonable steps are taken to check the information in a reference or testimonial is correct and relevant information is not deliberately left out.
It can be reassuring to have a medico-legal expert review testimonials written for GMC investigations.
Crime allegations
Although they are very rare and make up the least common reason for consultants (1%) to contact the MDU, criminal investigations do arise from doctors’ clinical practice. It is essential to have the appropriate support and representation from the outset.
From our files, the most common reasons for consultants to contact us in relation to police investigations were allegations of inappropriate examination or sexual assault.
This is generally related to intimate examinations. In some cases, the examination was one the doctor had not regarded as intimate, but the patient misunderstood the examination process.
These types of cases highlight the need for good communication and consent so patients fully understand why an examination is needed and what it examination entails.
The offer of a chaperone should be made for any intimate examination, in line with the GMC’s guidance.
The MDU has a dedicated team of lawyers who specialise in assisting doctors who face criminal allegations in relation to their clinical practice. They provide expert advice and support, accompanying doctors to interviews-under-caution, liaising with the police, and arranging representation in court.
Dr Kathryn Leask (right) is a medico-legal adviser at the Medical Defence Union
