Examination of witnesses (Questions 360 - 379)
THURSDAY 1 JULY 1999
PROFESSOR HILARY THOMAS, MISS ISABEL NISBET, MISS MANDIE LAVIN, DR CHRISTINE TOMKINS and DR STEPHEN GREEN
360. In that case would you make it clear to the people whose claims were settled that the result of that claim would not actually be passed on to anybody else? So if they wanted their experience to be known it would be up to them at that point to write to the GMC and to pass that information forward.
(Dr Tomkins) I think it would be extremely helpful if it were widely known by all those patients' groups and those representing doctors if it was understood exactly what the claims mechanism is for and exactly what the other mechanisms open to patients to pursue any dissatisfaction might have about their treatment are and what the results of those processes are. Certainly if the patient were to say, and it would usually be through their solicitor in the context of a claim, "is this going to be reported to anyone else?" our answer would be "not by us". Of course, there would be nothing to stop the patient either directly or through his or her solicitor from pursuing any other route that they thought was appropriate.
361. This person had clearly assumed that the information would get through and obviously it ought to be known to patients that they have to pass the information on themselves if they want it to be more widely known because claims are settled on the basis that there is complete privacy thereafter and you only simply claim on behalf of the person concerned.
(Dr Tomkins) I agree that what the process of civil justice is aimed at and what it is capable of achieving should be better understood.
Mr Lewis: Dr Tomkins, if I can try and help a bit. If I go to a lawyer to defend me, it is not usual practice to expect the lawyer to end up helping the prosecution. Is that really how you would characterise to some extent your relationship with members of the medical profession, which is why we are getting a bit stuck? It seems to me that you are saying your organisation is not best placed providing that service to be reporting doctors. Is it not right that the way to deal with this matter is the other way around, to say that in any case where there is an out of court settlement or there is some form of settlement that either the health care trust or, in the case of the GP, the PCG or the health authority has a statutory duty to report that to the GMC?
Dr Brand: They need not know necessarily.
Mr Lewis
362. I am saying would that not be a way around it? If there was an out of court settlement involving a doctor, that there was a statutory duty on that doctor or the relevant employer to inform the GMC?
(Dr Tomkins) I think that might result in the same sort of difficulty as I was envisaging when I answered Mr Gunnell in that I think if there was a statutory duty to notify to the registration body those cases where a claim was settled that might result in many fewer claims actually being settled without the process going through the full blown public process of a hearing in court, which I do not believe would be in the interests of the patient bringing that claim. However, I do think that there should be very clear, open, well set out mechanisms whereby those who know of the under-performing doctor, be they colleagues, be they employees, be they other practitioners in the same practice as the doctor, feel that they can, without fear of criticism themselves, do the right thing and those concerned about the under-performing doctor let it be known to the appropriate authority which in many cases will be the regulatory authority.
363. In a sense this Committee is going to make a judgment about what happens in the case of litigation and whose responsibility it is to report it. What I am trying to ask you is was I right to characterise your perception of your role as the defence lawyer and, therefore, that would explain to me, I do not know if it would explain to other Members of the Committee, why you do not feel it is your job to pass on information about members of the medical profession in civil litigation cases that are settled through the GMC? Is that an accurate characterisation?
(Dr Tomkins) I think that is a very good way of describing it although we are not lawyers. I think it is a rather wider point than that we are there to defend the doctor. I do believe that there are real difficulties in associating claims with under-performing doctors for the various reasons that I have discussed. I do believe that there are public interest reasons why it is important that a doctor has a body to whom he can go to get advice about what he should do in situations where he is under-performing without fear that information will be used against him if you like.
Dr Brand
364. Do you think it might be reasonable if continued membership of your organisation occasionally depended on that doctor going to the GMC to see whether there were problems that ought to be sorted out? I take the point that Ivan is making that there is this professional relationship but it is really more a sort of mutual support society and if you are a member of that you also have an obligation to the other members of whatever the protection organisation is. I think that you almost shelter people that really do not deserve that sort of shelter and that brings the rest of the profession into disrepute. There should be some mechanism where you are not tainted with that sort of association.
(Dr Tomkins) We are not, of course, the regulatory body. We do require anyone who is a member to
Dr Brand: Sorry, you are absolutely right, but you are very effective at actually shielding your members from the regulatory body by some of the things you do. Going back to the question Ivan asked, general practitioners as independent contractors do not have an employing authority and the case normally is with them and not with their practice, with them as an individual, and the PCG need not know what settlement was made.
Mr Lewis: That could be changed of course.
Chairman
365. I think Peter is making the point that it is surely in your interests in respect of defending what your members have to pay overall to root out those who are costing you money. I have got car insurance and it is in the interests of the insurance company to make sure that I am fit to drive. I think the wider point is well made by Peter.
(Dr Tomkins) We think it is in our interests too to ensure in the interests of the generality of our members that the standards of care our members are delivering to patients is high. We think it is a reasonable assumption that no doctor deliberately sets out to harm their patients, so when they do it is important that lessons are learned by all of our members and that is why we provide risk management information. We do require our members to be registered with the General Medical Council and we expect that when revalidation comes in that it will be a condition of membership that members co-operate with the GMC's requirements as far as revalidation is concerned.
366. A condition of membership of your organisation or of the GMC?
(Dr Tomkins) A condition of membership of our organisation. It already is a condition that they must be registered with the General Medical Council.
367. Revalidation, of course, will be a requirement within the GMC.
(Dr Tomkins) Yes.
368. You are saying that it will be a requirement for you as well?
(Dr Tomkins) We would expect when revalidation comes in that our members will co-operate with the General Medical Council in that process. It is a matter for the General Medical Council as the regulatory body to ensure that doctors are fit to practise.
Audrey Wise
369. Can I just ask if there is a second claim against the particular doctor, do you refer them to the GMC?
(Dr Tomkins) If there is a second claim against a doctor we do not refer to the General Medical Council. We do not refer our doctors who have claims to the General Medical Council.
370. Ever?
(Dr Tomkins) No, but what we quite often do find is that doctors may have a series of claims, none of which is pursued. I think that emphasises the point I was trying to make which was that a claim may be brought against a doctor but it is no real measure of fitness to practise. As I said, 75 per cent of the potential claims that come to us are not pursued once an explanation has been provided for the patient. Of the ones that are in only half is there a payment made.
371. A very factual question: you would not refer to the GMC even if there was a second claim which resulted in a settlement?
(Dr Tomkins) No.
Mr Austin
372. Adverse outcomes are not always necessarily the result of poor practice or poor performance, I accept that.
(Dr Tomkins) Yes.
373. There is a general feeling in the public, and certainly it has been expressed to us in written evidence from organisations , such as the Arachnoiditis trust, that once something does go wrong the shutters come down and the information flow stops. I think in your evidence the Medical Defence Union say that is not true and the information flow does come through. It is certainly evidenced in the survey that was done in the British Medical Journal which highlights the difference in attitude between patients and doctors as to what information should be given if something does go wrong and complications arise.
(Dr Tomkins) Yes.
374. I would like to know what guidance you issue on informing patients about adverse clinical incidents? Are your members advised to shut up in case where there is a legal action or are they advised to give full disclosure?
(Dr Green) Part of what we do virtually every day of the week is to give advice about how to manage adverse incidents which occur. Our members ring us up, we take 22,000 phone calls a year, we open 10,000 files, a large proportion of those are related to advice about adverse incidents. Without exception we give the sort of advice that mirrors what the GMC says in its guidance, that if an adverse incident has happened the patient deserves a full explanation immediately, that an appropriate apology is given and that some action is taken to prevent it happening again. Invariably we give that advice and our members follow that advice. They come to us for help and we help them frame letters that they might write to patients, discuss with them what they might want to discuss at meetings with patients in the context of the complaints procedure.
375. Very often if something has gone wrong it is very obvious to the patient that something has gone wrong.
(Dr Green) Yes.
376. On many occasions there are complications during treatment procedures which may not immediately be obvious to the patient. I think it has been suggested in other evidence to us that where complications have arisen, which the patient may not be fully aware of or the consequences of, there is a reliance on the part of the professionals to give information to patients that something has gone wrong and there may be some adverse outcomes?
(Dr Green) I would acknowledge that I think all human beings find it difficult to deal with those situations. It is no different for doctors. If a doctor comes to us and there is a situation where something has happened and a patient does not yet know about it, we tell them that the patient deserves to know about that and they should give an honest and straight forward account of what has happened. Now, of course the fear is often that actually a complaint or claim or something unpleasant is going to flow from that. Our experience is it is quite the reverse, that actually if you address these sorts of situations and you are honest and straight forward with patients, as we would advise, that in fact patients understand sometimes things go wrong. Quite the reverse is going to happen if it is found out later that something has been concealed. One can quite understand that is an unacceptable situation but we would never condone that, that is not part of our advice.
377. In this age of enlightenment and openness one would expect that complaints about poor communication to be going down. Is there any evidence of that or is the trend the other way?
(Dr Green) As I have said already, we look at complaints that are reported to us and we do analyse them. You are absolutely right that communication failure of one sort or another is probably the largest single proportion. That happens if you look at complaints about anything effectively but certainly in medicine communication is a really crucial issue. We have had three years of the new complaints procedure, we think that has been a success in general. I do not think there is enough evidence yet to see whether those sorts of communication problems are decreasing.
378. Can I put a question to the GMC about your guidance to members and whether failure to carry out that guidance is an issue of conduct or performance?
(Miss Nisbet) In the booklet Good Medical Practice, which defines what is required of a doctor, on page 7, paragraph 17, it says: "If a patient under your care has suffered serious harm through misadventure or for any other reason you should act immediately ..." and then it goes on "... you should explain to the patient what has happened and the likely long and short term effects. Where appropriate you should offer an apology". So there is reference to short and long term effects, trying to pick up the point that you raised, that often people do not know what the ramifications are. There is reference also in the next paragraph about "... who you have a duty to tell if there is a death of a patient or the death of a child". There is a clear duty there. If somebody had not told the patient what had happened and something had gone wrong, that would be a reason for referring them to us under our conduct procedures. I should also say that communication is at the heart of a lot of complaints about treatment because of this point about communication being at the heart of clinical practice in the GMC's educational publications. There is one called Tomorrow's Doctors which emphasises the importance of communication skills in the training of doctors. I think it is very difficult to say that communication will ever disappear as an issue because it is at the heart of good practice. Yes, the GMC gets a lot of complaints which are really through a failure of communication. The other point I would make is that sometimes very sadly at the end of a case that has gone through all the procedures of our professional conduct committee, the complainant may say to our barrister "that is the first time I have heard really what happened". That is not right, it should not take our conduct committee. I realise it is a very small number of cases. Partly for that reason one of the other things the GMC is looking at with an open mind is the very difficult area of whether we could be more evenhanded in the question of what information should be disclosed to parties who have complained at the various stages of our procedures. We are taking new legal advice on that, particularly in the light of the Human Rights Act and its implications.
Dr Brand
379. Can I just ask both of your organisations whether this commendable openness is being hampered by the fear of trusts and trusts' legal departments as to the consequences of litigation? My impression is that doctors get good advice from the GMC and from their defence organisations but they have got very anxious managers who really try to bottle up information rather than give it.
(Dr Green) Of course we have a large number of members who are both consultants in the NHS and in private practice and the junior training grades in hospitals. We give exactly the same advice to those doctors who are employed by NHS trusts as we do to our general practitioner members. We are not in a position to know exactly what happens very often after that but if our members come to us with concerns about the fact of whether they should or should not do what is apparently right, we will reiterate that advice and give them the same advice that they should do. Sometimes there is a conflict but our advice has always been in the patient's interests.
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