Select Committee on Health Minutes of Evidence



Examination of witnesses (Questions 320 - 339)

THURSDAY 1 JULY 1999

PROFESSOR HILARY THOMAS, MISS ISABEL NISBET, MISS MANDIE LAVIN, DR CHRISTINE TOMKINS and DR STEPHEN GREEN

  320. That, to me, is a nonsense. There should be an obligation on him as a chief executive; he carries a responsibility. I think one could say the same about some of the professional organisations representing doctors, like the British Medical Association or indeed the RCN and the defence societies. Should there not be an obligation on defence societies when settlements are made out of court—substantial settlements quite often—because of indefensible behaviour so that automatically is referred to you? It is in the interests, very often, of that doctor let alone the patient.
  (Dr Tomkins) I support the comments Miss Lavin has made. A claim is not a good indicator of a poorly performing doctor for a number of reasons. First of all, there is the time lag between the date of the incident and the date when the claim may come in, and that may be a very long time lag, it may be more than 20 years, during which time of course the doctor is continuing to see patients. Secondly, in our experience, those doctors against whom claims are brought are not doctors who by and large are poorly performing, they are doctors who have found themselves the subject of a claim because the patient is dissatisfied for one reason or another, and those reasons may not necessarily be proven to be due to negligence. What we find is that of all the potential claims reported to us only about 25 per cent go on to proceedings, and of those only about half result in an indemnity payment being made for a MDU member. When one looks at the reasons why the indemnity payments are made, it needs to be understood that the purpose of the civil claim is solely and only to provide the patient with compensation. That is why a claim is brought, it is not to look at issues of professional competence, it is not even to look at what will be done to prevent the same thing happening again, it is aimed at providing the patient with monetary compensation. The reasons why claims are settled may not necessarily be because there is a black and white case of negligence, in fact usually not, they are issues such as the time lag, whether or not all the information in the way of notes is available, what position the doctor is in. Quite often, a non-negligent doctor will find the whole process and thought of going into the witness box to defend himself is so daunting and disruptive to his professional and personal life that he may feel we have to settle the claim for him. So it should not be assumed that because a payment is made for a doctor, this means the doctor is performing poorly. Thirdly, on the question of should a case where payment has been made automatically be reported to the General Medical Council, I think one has to consider whether that might be counter-productive. If you accept the points I make about the reasons why the payments are made, what one might find is if there was an automatic necessity to report to the General Medical Council there was greater resistance on the part of doctors to agree to settle a case when the matter is grey, as it so often is. If a doctor is going to find that he will then be the subject of a gruelling process through the General Medical Council if he agrees the situation is not entirely clear-cut and therefore agrees he would wish the matter to be settled, he is much less likely to do so. So there are all those reasons. The last point I would make is that the question here is how do we pick up the poorly performing doctor. A claim is not the way to do that. Some poorly performing doctors may never have a complaint or a claim. Very often, very good doctors do have claims. The point at which this should be picked up is when a doctor's performance is falling off, before any patient ever has a reason to bring a complaint or a claim. That means that the doctor's performance must be regularly monitored and peer-reviewed with feed-back to the doctor, so his strengths can be built upon and his weaknesses remedied before there is harm to patients.

  321. I agree entirely, Mr Chairman, with that last part of the statement. That is why, when they get to the point when harm has been done to a patient for whatever reason, it is very surprising that no action is then taken. You really need to rephrase your annual report if you think the settlements you make are made to spare the blushes and stress of doctors in courts. The phrase which keeps recurring in your annual report is, "The claim could not be defended after taking advice from doctors working in similar circumstances." They messed it up, your members, and therefore the claim was settled. That does not get reported to anyone. The civil cases carry not just a compensatory duty, I think they are also an opportunity to sort out whether something needs to be further investigated in the way of professional behaviour. I am not saying that all the people you settle for on their behalf should be struck off, that is clearly a nonsense, but I think they should all be screened at least by the General Medical Council.
  (Dr Tomkins) I would say it is the exception rather than the rule to find a clear-cut case in which an indemnity payment has been made where one could say the doctor has been performing poorly.

  322. Well, your annual report is full of them.
  (Dr Tomkins) The expression "the case could not be defended" takes into account all those factors which go into deciding whether the case should be settled, such as for example whether all the information is available, whether all the witnesses one needs are available, what the attitudes are of the various witnesses and so forth to the process.

  323. I am sorry, but it is a horror comic which you produce every year, quite rightly, to encourage other members of the profession not to make the same stupid mistakes, and I think you are quite right in doing that, but then to say that you settle out of court for this, that and the other reason, and there is no need to have a closer relationship between what you do on behalf of the profession and what the General Medical Council does, I really cannot accept.
  (Dr Tomkins) I do not say that there is no need not to pick up a poorly performing doctor, but what I do say is that to look at claims is not the way to do it, because it is too late then, it is shutting the stable door after the horse has bolted, and it is a very blunt instrument which does not pick up the poorly performing doctor.

  324. Do you ever get referrals from the protection societies, Miss Nisbet?
  (Miss Nisbet) I know of cases where doctors have been advised by their protection society or their defence union that they would be advised to draw their concerns to the attention of the GMC, because they have a duty themselves and they are putting themselves at risk if they do not. I have seen many letters with advice of that kind which is a very responsible thing to do.

  325. But not from the defence organisation itself?
  (Miss Nisbet) I would have to take advice on that. I have not personally seen anything. Can I add one point on your question, if I may? I take the view that if there are a small number of cases which should have come to the GMC's attention to protect the public and they are falling through the slots, that is not acceptable, and we have to think how we can try to cover for that. I do fully accept the point that a cost of that would be cases referred to us for screening which would be screened out and it would behove us to make sure that the screening was done speedily and fairly and without putting the doctor through quite unreasonable trauma, and the complainant too in some cases. But I am not satisfied that we are fool-proof yet. If there are cases of the small exception group which are of serious concern and the GMC was not in a position to start thinking how to protect the public, that is a matter of concern for us, and that is the bottom line I think.

  Dr Brand: Did we not hear, Mr Chairman, that a gynaecologist recently struck off in fact had had defence claims settled on his behalf some years previously—a number of them? It really does concern me. I will leave it at that.

Audrey Wise

  326. Dr Tomkins, you said that the cases are not usually clear-cut. Does that mean that you think only clear-cut cases should be referred to the GMC?
  (Dr Tomkins) I think there should be mechanisms in place which sort out when is a doctor is beginning to perform poorly early. I do think that is the critical point. The point of prime importance is to prevent harm to patients. It is really not what happens after the harm has occurred which is important, it is the prevention in the first place that is important. So I think the performance should be monitored on a regular basis and doctors should be picked up if they are performing badly early and remedial action put in place. By the time there is a claim, it may be too late.

  327. Too late for that patient's harm to be prevented but not too late for another patient's harm to be prevented. We have had evidence of a very large sum, a very large sum, being paid to a patient on account of harm a few days before another event involving the same doctor which resulted in a death. It would not have been too late for that patient. The fact that a person's practice has not been picked up at an early enough stage so that some harm has been done, does not seem to me to be any excuse for not doing something a little more energetic at that stage. I repeat my question, because you have not answered it, Dr Tomkins, should only clear-cut cases be referred to the GMC?
  (Dr Tomkins) I think there is a duty on those who work with clinicians who know they are poorly performing—and it is the duty which is spelt out explicitly by the GMC and the UKCC—to let their registration body know if they feel a doctor's performance may be posing a hazard to safe patient care. Yes.

  328. But you are a medical doctor?
  (Dr Tomkins) Yes.

  329. What about your professional duty then? In addition to the duty which may or may not lie on the MDU, what about all the doctors associated with it?
  (Dr Tomkins) Our position is that we come into the picture when a doctor has a claim. At that point, as I have said, there may be a long time lag between the date of the incident and the date of the claim. The people who know that a doctor is performing badly, hopefully before harm has occurred, are the colleagues who work with that doctor. So, for example, general practitioners who refer to consultants will usually know whether or not that consultant is performing well. A consultant's colleagues will usually know if he is performing well, and consultants who have referrals from general practitioners will usually know if they are performing well. That is the point at which, if a doctor is performing badly, action should be taken. I do make the point that really by the time there is a claim, not only has harm quite possibly occurred to other patients, but if that claim is as a result of a poorly performing doctor—and it should not be assumed it always is—then the steps which should have been taken in the current framework which I hope will cause to happen should prevent that doctor getting in that position in the first place. By the time he comes to his defence organisation he has a claim, he comes to us for help in dealing with that claim to understand what the processes are and to be appropriately advised about how to deal with it. If the doctor were to feel when he came to his defence organisation for help he was going to find himself in further difficulty as a result, that will merely have the effect I think of deterring him from coming to get the help and advice he needs to mitigate the situation he finds himself in.

  330. Well, actually I imagine he comes to you because somebody is suing and it would not be in his power to prevent that. I do not really think that is a very valid answer. Early on you said "clear cut", you still have not answered my question, which really does just need a yes or no. Surely only the issues which are clear cut would be referred to the GMC? Then you say the doctors who will not know about somebody poorly performing, now "know". What you do not seem to do, Dr Tomkins, with due respect, is give any credibility whatsoever to the capacity of the GMC to make a judgment. You prejudge and you prejudge, it seems, largely along the lines that you have no responsibility in this area at all. It is everybody else who should have done it sooner, perhaps ought to have done it sooner. We are not talking about that. The Committee will be pursuing everybody who ought to have done it sooner, I can assure you. What we are pursuing at this minute is your responsibility. Do you think that only cases which are clear cut should be referred to the GMC because that is what you say, "it is not clear cut usually, therefore we do not refer it".
  (Dr Tomkins) I am sorry if I gave that impression. The answer to that question is that the registration bodies do give clear and explicit advice to registered medical practitioners and to nurses about their professional duty to notify the registration body if it believes that a doctor's performance or a nurse's performance makes it a hazard to safe patient care. We do spend a lot of our time with our members providing advice on just such questions and advising them about what they should do in these circumstances.

  331. What we are asking is what you should do? You accept apparently no responsibility in this field at all. Now, I would suggest that there must be at least a question, not necessarily clear cut, if somebody has a claim settled, perhaps for a substantial amount, a claim settled, there is at least a question. It may have been a one off, it may have been bad luck, it may have been completely unforeseeable and not negligent at all but why should you make the judgment when there is a registration body? Why do you not regard it as an automatic thing? If a doctor knew it was automatic then mainly he would have no choice about coming to you but in any case is your responsibility to the public, your own professional responsibility, simply to protect the doctor from stress?
  (Dr Tomkins) No, not at all.

  332. This is verbatim, you know, and when you read your answers I think you will find they are rather odd.
  (Dr Tomkins) Our role is to assist the doctor when he finds that his performance is criticised in whatever sphere that might be. As far as public interest is concerned, it is important, I believe, that the doctor who finds his performance criticised knows that he has a body to whom he can go, who will explain to him what the procedure is and who will assist in dealing properly with that procedure. I think it is important also that he feels he can do so when adverse incidents are reported. The Medical Defence Union has adverse incidents reported to it which it is then able to advise the doctor how to deal with properly. We use the information that we get on adverse incidents to feed back to the profession those areas which are causing the difficulties with advice about how they might be avoided. As far as claims are concerned, I have made the point about the timing between the incident and the claim and I do believe if one was in a situation where if a claim was settled for a doctor, if the body settling for the doctor was obliged to tell the General Medical Council, this would impede the settlement of those claims which are so often really rather grey which I do not believe would be in keeping with the current change in the civil procedure rules which are aimed at trying to bring about the resolution of claims.

  333. Dr Tomkins, finally, you said at an earlier stage in your evidence that people bring claims in order to get compensation. Are you aware that repeatedly this Committee has been told, before it ever was inquiring specifically into this but it comes into many other inquiries, people volunteer the information that actually they bring claims because they are left in a situation where it seems it is the only way of getting any information, any progress, anything? Do you stick to your view that the reason why people bring claims is to get compensation and that is your only concern in the matter?
  (Dr Tomkins) No, not at all, I do not believe that is the reason why people bring claims. I think your description of the reason why people bring claims is absolutely accurate. The point that I was trying to make was that the civil justice procedure is aimed solely at providing compensation. The reason people bring claims is, I am sure you are right, to try and get an explanation and indeed an assurance that whatever happened to them will not happen to anybody else. The procedure itself is solely aimed at providing them with compensation, that is what the procedure is for. I think what the procedure does and the reasons why people bring the procedures do not match.

Dr Stoate

  334. Could I take a step back from this and just ask you to define what the Medical Defence Union actually is there for and clarify exactly what your position is in the whole of this?
  (Dr Tomkins) Yes. The Medical Defence Union is an organisation to which doctors belong as members. We provide them with medical legal help and advice. Much of that is preventative advice so we provide a lot of advice on matters such as consent, confidentiality and disclosure of records, help with dealing with complaints satisfactorily so that they will not go on with that to a claim or go on to a disciplinary matter, help with dealing with them so that the patient is happy with the answer that they have received in answer to their complaint. Our role is to assist our members in dealing with those issues, those medical legal issues, which arise in practice. Another very important part of our role is to use the information that we receive from our members about those areas of practice which cause problems, to advise them how they may avoid these problems in practice themselves. We have a risk management department who are dedicated to that function.

  335. Really your primary purpose is the defence of your members, that is really what you are there for? When your members get into difficulty, you are there to defend their interests?
  (Dr Tomkins) Yes, we are there to assist them.

  336. Is that the reason, therefore, why you find it difficult to act as a sort of prosecutor and defendant because if your role is to defend your members, is that what is making it difficult for you then effectively to blow the whistle on your members which is what Mrs Wise was trying to get you to agree to?
  (Dr Tomkins) I completely understand the point Mrs Wise was making and I can quite see the reasoning behind it. The point that I was trying to make was that if it was the case that the body that the doctor is now able to turn to for help, and very often preventative help, resulted in a situation developing which was actually disadvantageous to the doctor, this would prevent him from getting the help and advice he needs to mitigate whatever situation he is in which would not be in the interests of the patient, nor would it be in the interests of the doctor. On the specific point, with regard to claims, I make the point again that claims are a very, very blunt instrument. There are doctors who are not performing well who will never be the subject of a claim and there are doctors who are performing extremely well who might be the subject of a claim, and the time lag between the date of the incident and the date when the claim is brought, let alone the date when the claim is settled, is so long as to make it useless really as a mechanism for picking up a poorly performing doctor. I do understand the point you are making but what I would say is there are much better ways of dealing with that.

  337. Could I ask you then when and how, therefore, you do get involved in under performing doctors?
  (Dr Tomkins) We get involved in under performing doctors at a point where their performance is called into question.

  338. Is that only when you have received a claim or do you have any other role in the under-performance of doctors?
  (Dr Tomkins) It is when we receive a complaint, it is when we receive a claim or the doctor himself comes to us and says: "There is a difficulty and I need your help".

  339. Up to then you are not really dealing with under-performing doctors at all until that point is reached?
  (Dr Tomkins) That is correct.


 
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