Clinical negligence claims pursued against MDU private psychiatrist members are analysed here by Dr Claire Wratten and Lee Lewis, who also offer tips on managing common risks.
According to Mind, the mental health charity, approximately one-in-four people in the UK have mental health difficulties.
The Medical Defence Union (MDU) supports members with issues such as complaints, performance concerns, inquests and GMC investigations.
We also support members working in private practice who find themselves facing a clinical negligence claim.
A data analysis of MDU claims over a ten-year period showed that the most common reason for a patient bringing a claim against a psychiatrist related to prescribed medication, and the most implicated drugs were lithium, benzodiazepines, and antipsychotics.
Allegations from patients prescribed lithium often related to development of impaired renal function.
Claims arising from prescriptions of benzodiazepines related either to addiction or problems with rapid detoxification.
The main other problems arising from prescribed drugs were side-effects, including neuroleptic malignant syndrome.
Another common cause for a claim related to deliberate self-harm and suicide. Several allegations also focused on a failure to recognise the patient was at risk of suicide or deliberate self-harm or that the patient was inadequately managed, often following multiple consultations.
Several high-value psychiatric claims involved patients attempting deliberate self-harm resulting in a significant brain injury and the requirement for lifetime care provisions and associated expenses.
There can be a great number of factors which lead a patient to attempt to take their own life, therefore it can be difficult for the claimant to prove causation – in other words, to demonstrate that but for the alleged negligent act by the doctor, the patient would not have self-harmed or died by suicide.
In several cases, it was alleged the patient had been inappropriately detained in hospital for treatment.
Although all but two of these cases were successfully defended, it is important to ensure that all appropriate alternatives are considered and that there is appropriate input from all involved parties and that the reasons and discussions are thoroughly documented.
This is a complex area of the law, and it is always worth getting specialist advice if there is any doubt about detaining a patient.
In general, claims following an alleged misdiagnosis or inadequate assessment arose when it was alleged that a physical condition was misdiagnosed as a mental health issue, including subarachnoid haemorrhage, stroke disease and obstructive sleep apnoea.
The MDU also received claims where third parties were injured by the patient in the period following a section 12 assessment under the Mental Health Act.
Several claims concerned patient information being inappropriately passed to third parties or incorrect information being referred to in medico-legal reports.
Examples included information being divulged about the patient to a family member without their consent and inaccurate statements being made in a medico-legal report which affected the court case for which the report was prepared.
Claims were also brought for alleged defamation following comments made, for example, in referral letters and reports.
Outcome of the cases
It can, of course, be very distressing to find out a patient is bringing a claim against you. If you face a claim from your private practice, you can be assured that the MDU’s expert claims handlers understand how stressful this is and the importance of mounting a robust defence of your position.
The MDU will defend claims whenever possible and we involve members in the conduct of their cases and will always seek your consent to settle a case.
A clinical negligence claim can either be settled by the defendant, with a payment of compensation being made to the claimant; or it can be discontinued, become statute barred (out of time) or a case can be won at trial by either party.
The vast majority of cases brought against psychiatrists were successfully defended, with damages payments only being made in under 10% of claims in this analysis.
However, even when a claim is successfully defended, considerable costs can be incurred by the MDU on behalf of the member in that defence process.
The purpose of compensation is to put the patient back in the position they would have been in had it not been for the problems caused by negligence.
Two claims settled over the period of analysis had damages paid of well over £1m and both related to prescription of benzodiazepines.
A competent adult claimant can bring a claim for alleged medical negligence for up to three years from the date of the incident or the date of their knowledge of the alleged harm.
However, there is no time limit for a claimant who lacks capacity, and for children, the three-year time limit doesn’t commence until they reach 18. In Scotland, it’s 16.
In addition, the claimant may occasionally not be aware of the injury for some time after the events in question – for example, it can be many years following initiation of lithium therapy before renal impairment develops.
This means that a claim can arise may years after the psychiatrist was caring for the patient and this underlines the importance of keeping detailed notes regarding clinical decision-making and advice given to patients.
Dr Claire Wratten (left) is claims team manager and Lee Lewis (right) is high-value claims handler at the MDU