D. Disciplinary Procedures
A disciplinary procedure may arise out of an adverse clinical incident or outcome but it is not aimed at informing patients about the nature of their care, or answering their complaints. A disciplinary investigation may not be brought by the patient, but by the body with whom the doctor has a contractual relationship, that is a health authority (HA) in the case of a GP, or an employing trust in the case of a hospital doctor. The patient may not even know that proceedings are in train and very seldom participates in the proceedings, save as a witness in some circumstances.
General practice
A GP is disciplined through a Medical Disciplinary Committee convened by a neighbouring HA. The doctor may be represented by someone who is not legally qualified, often an MDU adviser. If the findings go against the GP he may be admonished, or the HA may make a withholding from the money due to him. The GP may appeal the outcome and he may be legally represented. HAs with serious concerns about an independent contractor GP may refer him or her to an NHS tribunal with a view to obtaining an order that the practitioner ceases practice immediately.
Hospital practice
For hospital practitioners, matters concerning professional competence or conduct are dealt with under HC90(9) or a variant 17. This gives the trust's chairman the ability ot proceed using intermediate or formal disciplinary procedures and requires outside expert assessors. A complaint from a patient which results in a disciplinary investigation or action by an employing trust is not referred back to the patient who may never learn of its outcome. This is becuase a disciplinary investigation is a contractual matter and the relationship between employer and employee is confidential.
As with the complaints procedure, there are no disciplinary proceedings within private care and practitioners in this sector are regulated by the GMC. Within the NHS, there is a disparity among disciplinary procedures for doctors whose contract of employment refers back to HC(90)9 and those who do not. Unless there was an agreed variation, contracts of all those employed by regional health authorities incorporate the provisions of HC(90)9. Where there has been no variation and the doctor has remained in post, that circular still governs the relevent part of the contract of employment. If, however, the doctor is a new appointee there is no requirement for HC(90)9 to be incorporated in the contract of employment with the trust. Some trusts do make reference back to it in their disciplinary procedures but some have moved away from its terms. Overall, there is no requirement for contracts of employment for trust employees in relation to professional conduct or competence to be standardised between trusts in any way, creating variations in the disciplinary process which has to be followed.
In the private healthcare sector, for doctors employed by a specific company or hospital who have a contract of employment, disciplinary matters need not be approached on any standard basis. Doctors with admitting rights are not employees and the only sanction available in circumstances where allegations of a disciplinary nature arise would be withdrawal of the admitting rights. The procedures whereby admitting rights are removed may or may not be set down in individual hospitals which may also choose to set down specific courses of action which have to be followed.
Conclusions
Disciplinary procedures are implemented in a variable manner in NHS general practice and hospital service and in the private sector.
It is the NHS complaints procedure that is intended to provide the patient with an apology and an explanation. Disciplinary procedures following adverse clinical incidents are not intended to and do not make available to patients and their relatives information, support and advice in relation to adverse clinical incidents.
Recommendations
The distinction between disciplinary procedures and the proper investigation of an adverse clinical incident tied to the complaints procedure which provides information and explanation to the patient is appropriate and should be maintained.
E. Inquiries
1. Public Inquiries
The provision applied when establishing a public inquiry through the Secretary of State for Health is contained in Section 84 of the NHS Act 1977. Section 84(1) permits the Secretary of State to "cause an inquiry to be held in any case where he deems it advisable to do so in connection with any matter arising under this Act" (or the NHS and Community Care Act 1990).
An inquiry is principally a fact-finding exercise and not a method of apportioning guilt. Individuals may be summoned to give evidence, to produce documentation, and the inquiry may take evidence on oath.
There is openness in terms of the information available to a patient who may have made a complaint or contribution which results in the inquiry. Inquiry records are made public and the evidence given is made available through a public hearing and, in the case of the Bristol inquiry, through publication of the information on the Internet.
Patients may be assisted by a lawyer, but inquiries are intended to be inquisitorial, a process of investigation, rather than adversarial as they are in a trial. Financial assistance might be given as the Secretary of State can make an order under Section 84(6) to pay the costs of a party at an inquiry.
In the Cleveland inquiry, established under section 84 of the NHS Act, together with a similar provision in the Child Care Act 1980, the doctors and various families were represented by barristers demonstrating that all parties may be represented in such inquiries.
2. Private Inquiries
The trust or health authority may establish a private inquiry about an adverse clinical incident or outcome, allegations about adequacy of services etc. Such inquiries are ad hoc and there is no regulation stipulating when they should take place and how they should be constituted. There is no requirement to publish a report or a summary of the outcome. The trust or health authority can consider whether or not any assistance might be given to patients who might become involved in a private inquiry, but there is no provision for this. It follows that a complaint made by a patient or a matter raised by a patient might become the subject of a private inquiry and there is no requirement that the patient should be kept informed, no indication as to what part the patient might have to play in an inquiry process and no commitment to make information available at the end of the process.
Risk management inquiries are generally conducted in private and do not necessarily lead to information being passed to the patient, but reports arising from such inquiries are disclosable in the event of a medical negligence claim. Audits of professional medical activity can also be disclosable, though they will usually refer to anonymised groups of patients.
3. Psychiatric Inquiries
In HSG(94)27 the NHS Executive has issued guidance on the discharge of mentally disordered people and their continuing care in the community. This includes guidance on action to be taken in the event of a violent incident. Action by local management must include an immediate investigation to identify and rectify possible shortcomings.
If the incident involves a death, the requirements go further. In the case of suicide of a mentally ill person there must be a local multi-disciplinary audit of the care. If there is a homicide there must be an inquiry independent of the providers. The health authority purchasers from the relevant trust will usually be the responsible body for establishing the independent inquiry. The remit of the inquiry should encompass at least:
1. The care the patient was receiving at the time of the incident.
2. The suitability of that care in view of the patient's history and assessed health and social care needs.
3. The extent to which that care corresponds with the statutory obligations, relevant guidance from the Department of Health and local operational policies.
4. The exercise of professional judgement.
5. The adequacy of the care plan and its monitoring by the key worker.
Limited guidance is available within HSG(94)27 to suggest how inquiry panels should be formulated and conducted. In practice such inquiries are usually chaired by a senior barrister. However, this highlights the problem that inquiries and particularly private inquiries do not have a set way of conducting their affairs. This is true even in the context of an inquiry set up under HSG(94)27.
HSG(94)27 offers guidance about the distribution of the inquiry report. It states:
"Although it would not always be desirable for the final report to be made public, an undertaking should be given at the start of the inquiry that its main findings will be made available to interested parties."
Conclusions
There is variation in the way in which panels of inquiry operate. Some are conducted in private and some in public. Inquiries are inevitably very distressing for the doctors who feel that they are under significant scrutiny and can be made worse if everything is in the full glare of publicity. There can be certain matters which benefit from a private approach, for example, cases involving children and cases which, because of their sensitive nature, require anonymity.
For private inquiries a report may or may not be published. Others give relevant witnesses copies of their evidence through a transcript and ask that this be reviewed to ensure accuracy. A draft report might be made available to correct any errors of fact or to enable representations to be made concerning adverse findings. Some inquiries do this and some do not. There would appear to be no firm guidance which dictates that any particular course of action should be adopted in given circumstances.
Recommendation
Public and private inquiries, if they are conducted according to the principles of natural justice, can present a useful opportunity to establish the facts in complex cases in a non-adversarial way. The facility to conduct inquiries should continue, but in the interests of both patients and practitioners, we recommend that the government lays down guidelines which require a consistent approach, in terms of procedure and availability of information, to be adopted for public and private inquiries.
F. Claims for Medical Negligence
Civil claim
The aim of a medical negligence claim is to gain monetary compensation for the patient and the patient must prove, on the balance of probabilities, that:
— The patient was owed a duty of care by the doctor;
— The doctor was in breach of that duty of care;
— The patient suffered injury;
— The injury was caused by the breach of the duty of care.
All four conditions must be fulfilled if the patient is to succeed in a claim for negligence.
The standard of care is assessed by independent medical experts who provide reports on whether or not the defendant doctor treated the patient in accordance with the standards of a reasonable body of doctors practising in the same field. If the case proceeds to trial the judge may take a view on whether the management was reasonable. If the management fell below an acceptable standard, the patient must show that the damage or injury complained of has been caused by the negligence, ie causation must be established. This can be complicated and difficult to determine, especially when the case involves complex treatment in which alternative causes, such as the disease itself, may be responsible for the damage, rather than any failure in the treatment.
If the patient has been damaged, then compensation is offered on the basis that the sum awarded should, as nearly as possible, be an amount which would put the injured person in the same position as he would have been if he had not suffered the injury. This sum depends not only upon the injury, but also upon the sum the patient has lost as a result of the injury and will lose in the future.
A patient may bring a claim many years after the event giving rise to it. In general the time limit (the limitation period) is three years from the date the cause of action arose, or from the date of the patient's knowledge, if that is later. The limitation period for children does not begin to run until they are 18, and for people suffering under a mental disability there may be no limitation period. So a claim may be brought years, sometimes decades, after the event giving rise to it. We have experience of medical negligence claims being brought more than 20 years after the alleged negligent event.
Civil justice reforms
Lord Woolf's report, following his inquiry into Access to Justice, identified many deficiencies in the system for dealing with civil litigation, particularly that it was too slow, costly and adversarial. On 26 April 1999 new procedural rules came into force in England and Wales. The aims of the new rules, based on Lord Woolf's proposals are:
— To speed up the litigation process.
— To make it more user friendly.
— To give the courts, rather than the parties, control over the litigation process.
— To reduce costs and deal with cases in ways which are proportionate to:
— The amount of money involved.
— The importance of the case.
— The complexity of the issues.
— The financial position of each party.
This should result in more efficient and faster litigation, benefiting patients and doctors for whom the stress of litigation is very great.
A pre-action protocol for the management of clinical negligence claims has been devised and proceedings should not usually be issued until it has been followed.
Pre-action protocol
Encourages openness when something has "gone wrong" with a patient's treatment or the patient is dissatisfied with that treatment and/or the outcome.
Provides general guidance on how this more open culture might be achieved when disputes arise.
Recommends a timed sequence of steps for patients and healthcare providers and their advisers to follow when a dispute arises. This should mean that relevant information is exchanged faster and more easily and that disputes are more likely to be resolved without resorting to legal action 18.
The protocol emphasises the importance of clinical risk management and should be helpful, not only in achieving early resolution of potential claims, but also in encouraging incident reporting and attention to patients' complaints and inquiries and the manner in which these are dealt with.
If a patient is contemplating a claim and has not yet obtained a copy of the health records, then he may request them using an approved standard form and copy records will be provided within 40 days of the request. If the patient wishes to make a claim he will send the defendant a letter of claim which summarises the facts, states the main allegations, describes the patient's injuries and outlines the financial loss. The defendant has three months to investigate the claim and send a reasoned response. Either side has an option of making an offer to settle before proceedings are issued. The proceedings must not be issued (with some exceptions) until three months after the letter of claim.
S Cross/cor Sue Smith
The MDU welcomes this new procedure which offers the opportunity to investigate and resolve cases without proceedings. In our experience, fewer than 25 per cent of potential claims notified to us are pursued by patients and their advisers. Of those cases which do progress to issue of proceedings, only about half result in an indemnity payment on behalf of an MDU member. The remainder are discontinued, settled by another party, or successfully defended. The new procedures, by encouraging greater openness and an opportunity to provide factual information, should reduce the number of claims being inappropriately pursued and provide potential claimants with a satisfactory explanation more quickly, and at lower cost to the doctor's indemnifier and the patient, or the Legal Aid Board, as medical negligence claims are, for the most part, funded through legal aid.
Alternative dispute resolution
The courts have a duty to manage cases actively, encouraging co-operation between both sides, identifying issues early, fixing timetables, deciding whether the benefits of each step justify the cost and encouraging the use of alternative dispute resolution (ADR), including mediation and arbitration.
The mediator's role is to help the parties reach a solution. Mediation is particularly useful where there are emotional or non-clinical elements to a claim or the parties wish to maintain an ongoing clinical relationship. It allows opinions, feelings and needs to be expressed in confidential and mutual environment. It gives an opportunity to provide an explanation in person and in many cases can narrow the issues between the parties and speed up resolution of a claim, even if it is not fully resolved at the time of the meeting. The mediator may meet the parties privately during the mediation, however, he does not have the power to decide between them. Mediation allows the strengths and weaknesses of each side's case to be confronted and points of issue can be identified and narrowed.
With arbitration the parties effectively create their own court to decide between them. The agreement reached is binding on the parties and can be enforced by the court. Nevertheless, the parties are free to agree terms, including the rules of the process and it is usually private, cheaper and quicker than a full court hearing.
As a tool for resolving clinical negligence disputes, ADR is in its infancy. A pilot mediation scheme was carried out in the NHS between 1995 and 1998. Only nine parties to medico-legal disputes took up the option of mediation with eight resulting in resolution. Lack of support on the part of legal advisers may be a reason for the low uptake.
Funding
Funding of clinical negligence cases is expensive and problematic for patients. The current system requires the application of a merits test for the award of legal aid. Our experience suggests that the merits test is not rigorously applied. As we have said above, the overwhelming majority of clinical claims intimated to use are not pursued. Of those which are, less than half result in a compensation payment on behalf of an MDU member. Equally as important many claims, especially for dental negligence, are supported by legal aid though the potential costs on each side exceed the potential damages. It is hard to reconcile this with the proper application of the private client test. The net costs to the Legal Aid Board for closed cases in 1997–98 was £28.5 million for medical negligence cases which were lost This sum can be doubled because the successful defendant will not recoup the costs either. The MDU does not recover its cost when a claim against an MDU member brought by a legally aided patient is discontinued or successfully defended.
Initially the Lord Chancellor proposed that personal injury claims, including clinical negligence, should be excluded from the scope of legal aid, on the basis that such claims could be funded by conditional fee arrangements. We did not support this view, as we felt it would unfairly exclude a significant proportion of the population from access to justice in respect of clinical negligence claims. We consider conditional fee arrangements are not appropriate vehicles to fund clinical negligence claims, because of the special features of clinical negligence, such as the need for expert investigation before an assessment of the case's merits; the high cost of such an investigation; the complexity of clinical negligence cases, and the high premium cost (about £15,000) for the patient to insure against the cost of losing. In the event the Lord Chancellor decided to reprieve clinical negligence (but not personal injury) claims for the time being.
Only lawyers with a clinical negligence franchise are now permitted to apply for legal aid and the effect of this should be to concentrate expertise, which we again support.
Community legal services fund
When the Access to Justice Bill becomes law, legal aid will be replaced by a community legal services funds probably in about January 2000. A funding code will determine the criteria for assessment of the "merits" of individual cases and we consider the funding code is likely to be applied more properly and consistently than the merits test under the old legal aid system. It is intended to provide a more flexible approach to funding. This should divert resources to the most deserving cases and we support it.
Conclusions
We welcome the new civil procedure rules which followed Lord Woolf's inquiry into access to justice. We believe these will allow issues of compensation for patients to be considered and resolved more efficiently with more open investigation of the issues and greater availability and accessibility of information to both sides. However, the aim of litigation is to compensate the patient who can prove, on the balance of probabilities, he has been negligently injured. It is not an appropriate means of investigating adverse clinical incidents or outcomes, nor of making information available and accessible to patients, their relatives and carers.
When an adverse clinical incident has occurred, patients want to receive an explanation and to know that something is being done to prevent a similar problem occurring in the future. They want the matter to be dealt with effectively and speedily so they can put it behind them quickly. The complaints procedure, at local resolution level, allows for this to happen. On the other hand, issues of compensation which might, at first sight, appear to be clear cut, will often have underlying complexities concerning duty of care, liability and/or causation upon which the parties cannot form a view without sufficient information and detailed investigation, which may take time. Both parties need independent, legal and expert medical guidance to ensure appropriate decisions are made on payment of compensation. Usually neither the staff, nor the patient, or his advisers will possess that expertise. If claims are not properly evaluated there will be a risk of overpayment, which may involve public funds, or even underpayment, neither of which is desirable. If a patient needs specialist legal and/or medical advice to present his claim, he should be represented properly through the pre-action and claims procedures.
If the patient has suffered a compensatable injury as a result of medical negligence, then we support the use of alternative dispute resolution. It is better for the patient and the doctor to resolve the matter without the stress and cost involved in formal legal proceedings if at all possible.
Recommendations
The complaints procedure should not be confused with procedures for compensating patients. The aims and timescales of the two processes are significantly different, making it incompatible to deal with them together. The NHS complaints procedure and the tort system fulfil different functions.
We were concerned about the initial proposals by the Lord Chancellor's department to remove clinical negligence from the scope of legal aid. We made representations as we felt this was potentially unfair to patients. We recommend and are optimistic that the criteria to be applied under the new funding code for the community legal service fund will best direct resources to the right cases.
We think it right to consider alternative means of resolving disputes, which might otherwise result in formal claims for medical negligence. The MDU supports the use of mediation in appropriate cases, but is not in favour of compulsory mediation. Where there are complex issues between the parties, as is often the case in clinical negligence, it is often better to try to resolve these by meetings of experts than attempting to mediate the case as a whole.
G. Criminal Investigations
Rarely adverse clinical incidents or outcomes result in criminal proceedings. It has, for example, been alleged that doctors, in performing their clinical duties have been guilty of murder, attempted murder, manslaughter and assault. The criminal process takes precedence over other tribunals. Criminal law is designed to protect society against serious harm and if found guilty a person may lose their liberty. It will usually mean the end of a doctor's medical career. The trial is in public. The standard of proof is beyond all reasonable doubt.
In criminal cases all evidence obtained becomes available to the prosecution and defence. Any statement made by a doctor can become available. The defendant is expected to declare any facts that he will later rely on in the defence. If an employee is ordered to produce a report setting out information about treatment of a patient following an adverse clinical incident, it may amount to a breach of contract for the employee to refuse to be involved with that investigatory process. This may cause difficulties with matters which are also the subject of criminal proceedings. HSG(94)27 specifically provides for the inquiry to proceed after legal proceedings have concluded, but there is no specific requirement upon an employer to refrain from requiring the employee to be involved in an adverse clinical incident inquiry/private inquiry, even if that employee might, arising out of the same facts, be under investigation for possible criminal proceedings. Most trust employers will be satisfied with suspension of the relevant employee while the criminal investigation is under way. But not all trust managers see it this way and there is no specific rule which exists, across the board, to prevent this potential double jeopardy.
Conclusion
There is one element we would like to highlight, in the public interest. Over the years we have assisted a few members with criminal investigations after a patient has died and the circumstances of that death, while never being exactly replicated in the different hospitals in which the incidents have happened, bear remarkable similarities. We are thinking in particular of mistakes in administering drugs. In nearly all of the cases it has been found, after full investigation, that no one individual can be held responsible in law for such an error. Rather the tragedy has arisen out of a series of system failures which have culminated in, for example, the wrong drug being available and being administered in the wrong dose or by the wrong route. Quite clearly these are examples of instances where if data was made available nationally, in an anonymised format, hospitals and trusts would be given the opportunity to make sure their systems took into acount the potential for such errors. It is very possible that such tragedies could be avoided in the future. At present this facility does not exist and we recommend that the Department of Health gives this urgent consideration.
H. The Media
The media may initiate their own inquiries into adverse clinical incidents or outcomes. In circumstances where an adverse clinical incident or incidents are alleged to have occurred, doctors may find themselves the subject of press coverage, even when they themselves are not aware precisely what the allegations made against them are. They may not be at fault in any way and yet they are precluded by their duty of confidentiality to the patient from disclosing any information in respect of individual clinical cases. We are aware of many instances in which patients and relatives have used the media to put their views on a particular doctor, treatment, or set of circumstances and the doctor's failure to answer allegations in this forum may have caused readers to draw incorrect inferences. In other words, our members have been subjected to judgement by media.
Even in circumstances where, subsequently, the allegations made against the doctor are not upheld following investigation through appropriate channels, although newspapers which have covered the story have a duty to make this clear, these sort of stories often fail to achieve the same prominence as the original reporting of the allegations made against the doctor.
Conclusions
Media investigations are not, by their nature, appropriate as a means of investigating adverse clinical incidents or outcomes. Natural justice is not served and media stories can add severely to the stress and confusion of all the parties involved.
We advise our members not to comment and to abide by their duty not to disclose confidential patient information. We believe it is important to highlight the very great personal and professional cost to doctors of such ethical behaviour.
V. Summary
Our experience of dealing with adverse clinical incidents and outcomes in medical care arises from our role as a defence organisation providing indemnity and assistance with medico-legal and ethical problems to doctors, dentists and nurses. Others will be able to give first hand evidence from their positions as patients, relatives, friends and supporters of these. We have summarised the information patients can expect to have resulting from any particular process. We consider the complaints procedure best provides patients will full information as a matter progresses.
The GMC requires doctors to protect patients and to provide a prompt, appropriate, constructive and honest answer to patients' complaints. If a patient has suffered serious harm through misadventure or for any other reason, the GMC requires the doctor to act immediately to put matters right if that is possible and to explain fully to the patient what has happened and the likely long and short term effects, and when appropriate, to offer an apology. This is consistent with our own advice to members of The MDU.
Inquests well conducted by a coroner will generally leave relatives feeling the matter has been properly investigated and their questions answered.
Private inquiries vary enormously and patients may not be involved, save through the giving of evidence, but there can be at least some publication of the results afterwards, and certainly so with a homicide inquiry under HSG(94)27. Public inquiries provide full information to all concerned by their public nature.
In the context of a claim for compensation, the pre-action protocol governs what is expected by way of provision of relevant information and documentation.
Patients may turn to organisations such as Community Health Councils, AVMA, legal advisers and others for help in all these areas. It should not, though, be forgotten that a patient's own doctor may well be able to offer explanation, information, support and advice in circumstances where an adverse clinical incident or outcome has occurred.
VI. References
1. Walshe K, Dineen M. Clinical risk management: making a difference? The NHS Confederation 1998.
2. Simanowitz A. Accountability. In Medical Accidents. Oxford Medical Publications, 14: pp 209–221.
3. Genn H. Effects of Claims on Doctors. Clinical Risk, November 1996, 2:6; pp 181–185.
4. Williamson Charlotte. Critical Incidents and Candour, RCA Patient Liaison Group, Royal College of Anaesthetists Newsletter May 1999, Issue No 46, pp 113–114.
5. Hennigan CPH. Critical Incidents: To Tell or Not to Tell? Royal College of Anaesthetists Newsletter May 1999, 46: pp 115–116.
6. Green, S A. Clinical Risk and the GP. Clinical Risk 1997, 3, pp 143–146.
7. Counsel to Treatment. The MDU, London, November 1997.
8. Confidentiality, The MDU, London, September 1997.
9. Good Medical Practice, The General Medical Council, London July 1998, Para 16–18.
10. Saunders M. Don't be Afraid to Apologise. J Med Def Union, 1997, 13:2 p 25.
11. Regina v Mid Glamorgan Family Health Services and Another, ex-parte Martin (1995) 1 A11 ER 356.
12. Can I see the Records? The MDU, London, January 1998.
13. Second report of the Health Service Ombudsman for 1996–97, together with the proceedings of the Committee and Minutes of Evidence: Report from the Public Administration Committee: Session 1997–98 London: Stationery Office. 1998 (HC352).
14. Good Medical Practice. General Medical Council, London July 1998, paragraph 19.
15. Inquests: A Practical Medico-Legal Guide. The MDU, London, September 1998.
16. A Problem With Your Doctor? The General Medical Council, London, November 1997.
17. HC90(9). Disciplinary Procedures for Hospital and Community Medical and Dental Staff. Department of Health, March 1990.
18. Pre-Action Protocol for the Resolution of Clinical Disputes, Civil Procedure Rules 1999.
June 1999
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