MEDICAL NEGLIGENCE

The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 9th Edition

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As a Solicitor who has expertise in the area of medical negligence law and who has also advised professionals, to include doctors and other medical practitioners, on both disciplinary and regulatory issues, I was interested to review the new Guide.

While the Guide is not legally binding, its introduction states that doctors who apply its principles, act in good faith and in the interests of their patient, whilst respecting their will and preference, will find themselves in a good position to justify their position if a concern is later raised regarding their practice. Accordingly, as was always the case, it is imperative, from a doctor’s perspective, that they are familiar with the guide and their duties and obligations as set out therein.

Notably, the Guide makes a very clear distinction between situations where there is an obligation on a doctor to do something and a situation where it is best practice for them to do so, whilst recognising that this might not always be possible. The word ‘must’ places an obligation on a doctor to do something, while the use of the word ‘should’ suggests best practice.

The following amendments are of interest:

Open disclosure and Patient Safety– Regarding open disclosure; doctors are obliged to practise, promote and support a culture of open disclosure. Open disclosure is defined as an ‘honest, open, compassionate, consistent and timely approach’ to communicating with patients, and, where appropriate, their family, carers and/or supporters, following patient safety incidents. Doctors are obliged to report adverse incidents, learn from them and take part in any subsequent review or investigation into the incident. They are also obliged to comply with legislation in the area of open disclosure.
Regarding patient safety, while there has always been an obligation on doctors with control over a premises to ensure accessibility and cleanliness, the new edition of the Guide states that doctors with control over a premises should take all reasonable steps to ensure appropriate standards of safety are met. Doctors who do not have control over a premises should raise any concerns they have regarding safety standards should raise their concerns with the appropriate person or authority.
Consent- Informed consent is an essential requirement for lawful medical treatment. Chapter 2 of the Guide has been amended in light of the introduction of the Assisted Decision Making Act. Where a patient lacks capacity, doctors are required to listen to their views, to include where possible, their past views, beliefs and values and involve them in decisions regarding their healthcare. Doctors are obliged to take all reasonable steps to identify whether a patient who is lacking capacity has made an Advance Patient Directive. These documents are legally binding. Doctors must consider the views of any person named by the patient as a person to be consulted and any decision-making supporter or person with legal authority to act on behalf of the patient. The Guide recognises that capacity is a fluid concept. A patient may recover capacity and patients may have capacity to certain aspects of healthcare but lack capacity in respect of other aspects. Doctors are obliged to ensure that decisions made are proportionate both to the significance and urgency of the situation and are as limited in duration as is possible in the circumstances
Protected disclosures/whistleblowing– there is an obligation on doctors to raise their concerns if patient safety or care is being compromised by the practice of colleagues, or by systems, policies and procedures in the organisations in which they work. Before doing so, the Guide suggests that doctors should consider seeking advice from an experienced colleague or from your medical indemnity organisation.
The Guide provides that if a doctor’s concerns are not resolved within the organisation, they ‘should’ raise the issue with the relevant regulatory authority or through the applicable notification or disclosure pathways. I would respectfully suggest that where patients’ safety is at risk, there should be an obligation on doctors to ensure, insofar as is practicable, that their concerns are addressed and listened to. If their valid concerns are ignored within the organisation in which they work, I believe the Guide should oblige doctors to raise them elsewhere. We have already seen the devastating repercussions of ignored concerns with the Lucy Letby trial in the UK, where it transpired that an NHS Consultant had raised concerns regarding Nurse Letby’s years previous but these concerns were ignored. Doctors who worry for their patients’ safety should know that they will be supported and protected when they voice concerns regarding patient safety. This country has a terrible track record with regard to how we treat whistleblowers. Arguably, more robust language would vindicate their position rather than perpetuating the mistaken and harmful belief that a whistleblower might be a disgruntled employee with their own agenda.
Conscientious Objections- under the terms of the new Guide, doctors are obliged to provide care, support and follow up to patients who have had a lawful procedure,treatment or form of care to which the doctor holds a conscientious objection. Accordingly, while doctors are not required to provide treatment to which they hold a conscientious objection, such as a termination of pregnancy, they must now provide care, support and follow up care to patients who have undergone such treatment. The Guide also states that doctors must inform patients of their right to seek the procedure lawfully and provide information to enable them to transfer to the care of another practitioner to undergo the procedure. Doctors must not mislead, or obstruct the patient’s access to treatment.
Doctors’ social media– Doctors with a social media presence are advised to keep personal and professional profiles separate. They are advised that where they give clinical advice online, they should always identify themselves by name. The Guide states that doctors legally liable for anything they publish on their own social channels and should take this into consideration when posting content or advice publicly. Doctors are advised to avoid communicating with patients via social media.
Recording Consultations- Doctors are advised that if a patient requests to record a consultation, the request should be facilitated. If the doctor believes that the recording of the consultation could have a negative impact on the consultation, they should advise why this is so and endeavour to reach an agreement with the patient.
Continuity of care- The Guide recognises the risk to safety of patients where there is a transfer of care between different settings. This will not be news to solicitors who practise in the area of medical negligence law. Happily, under the terms of the new Guide, there is now an absolute duty to share all relevant information with colleagues in a prompt and timely manner when referring, delegating or transferring the care of a patient, or discharging a patient.
Expert Witnesses- While doctors have acted as expert witnesses for many years, this is the first Code of Conduct which deals with the doctors’ duties and responsibilities in such a situation. According to the Guide, and obviously, according to jurisprudence, (established case law on the issue,) a doctor’s primary duty, while acting as an expert witness, is to assist the Court on topics within his/her own area of expertise. The Guide prohibits a doctor from acting outside their area of expertise and places an obligation on a doctor to make clear the limits of their own expertise.