Court report may harm my patient
Business Dilemmas
Useful tips on how to respond to a complaint following the submission of a medical report to the courts are given here by Dr Kathryn Leask.
Dilemma 1
Will I breach confidentiality?
QI am a private GP and a patient has asked me to provide her with a medical report for the court in relation to domestic violence.
She told me she was the victim of abuse by her husband. I provided a report, with her consent, detailing the information she had given me about the cause of her injuries and my findings on examination.
But I had not appreciated this report would not only be seen by the court but would also be in the documents disclosed to the husband’s legal team.
I have now received a complaint from the patient’s husband about the information I gave to the court. I am concerned that responding to the complaint will result in me breaching confidentiality about my patient or putting her at risk.
AIt is important when writing a medical report to ensure it is written to a named person or someone in a specific role/organisation rather than ‘To whom it may concern’.
And it is helpful to state at the beginning what the purpose of the report is and who requested it. This prevents misunderstandings and ensures the report is only used for the purpose you intended.
It is also important to state that the report is based on the relevant clinical records and, if appropriate, your recollection.
Duty of confidentiality
Where a patient has told you something has happened, but you are not able to confirm or verify this, you should make clear in your report that this is based on information from the patient and not a matter of fact.
While a complaint should be responded to, you should not disclose information about a third party.
Your duty of confidentiality to all your patients should be explained in the complaint response and that this will inevitably limit your ability to respond.
You can respond in general terms, to explain your usual process when receiving these types of requests. For example, that the records are reviewed and a report prepared to the best of your knowledge and belief, based on the patient’s self-reported history.
This information will have been recorded in the notes in good faith as part of the trust between patient and doctor.
If your practice has a second stage to its complaints procedure, you should make the complainant aware of this. For example, if you are a member of the Independent Sector Complaints Adjudication Service (ISCAS).
It is important that all complaints are handled carefully, no matter how minor they may originally seem. If you need advice, your medical defence organisation will be able to help you.
Writing reference for a colleague
A private consultant gastroenterologist has a problem with being asked to provide a testimonial for a former colleague. Dr Kathryn Leask responds
Dilemma 2
What happens if I write reference?
QI have been asked to provide a testimonial for a colleague whom I used to work with in the NHS a year ago. I understand they are subject to a GMC fitness-to-practise investigation and they have contacted me for a reference.
The thing is, I do have some concerns about my former colleague’s behaviour and attitude towards other members of staff when I worked with them, but no concerns about their clinical decision-making at that time.
What are the implications for me if I agree to provide a reference?
AFor you to provide a testimonial, you will need to have adequate information about the reason for its request.
As your colleague is subject to a GMC fitness-to-practise investigation, you will need to understand what the allegations and concerns are so that you can specifically address these.
You may find that the investigation is not about your colleague’s clinical care of patients but relates to their behaviour towards other people.
If this is the case, the fact that you have concerns about this is relevant and, if you decide to provide the testimonial, you will have to include it.
You should make clear your relationship with your colleague and how long you had known and worked with them and provide the dates, so the GMC knows you have not worked with them recently. This is important, as you may not have been working with them at the time the concerns were raised.
Be honest
In its guidance on writing references, the GMC says you must be honest and objective when writing them.
References must include all information which is relevant to your colleague’s competence, performance and conduct. It goes on to say that you must not deliberately leave out relevant information.
If your colleague’s fitnes-to practise investigation leads to a hearing at the Medical Practitioner’s Tribunal Service (MPTS), you could be called as a witness to give oral evidence. You could be asked to justify your comments in your reference.
Rather than your colleague request a testimonial directly from you, it would be better for the request to be from the solicitor that is representing them. The solicitor can provide you with a formal request and give guidance on the type of information to include based on the allegations that have been made.
You do not have to provide a testimonial and, where you do, the solicitor and your colleague can choose not to use it.
If you need further advice, your medical defence organisation will be able to help you.
Dr Kathryn Leask is medico-legal adviser at the Medical Defence Union (MDU)