Select Committee on Health Minutes of Evidence



Examination of witnesses (Questions 380 - 399)

THURSDAY 1 JULY 1999

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

  380. You have not got any evidence that things have changed since the legal liability was taken over by trusts rather than the NHS Executive?
  (Dr Green) I do not think so.
  (Dr Tomkins) No, I do not think there is any data that has been collected on that comparison of what happened with claims pre-NHS liability and what has happened afterwards in the context of whether or not the trusts are more or less reluctant to provide information to patients.
  (Miss Nisbet) We do have experience of great nervousness by trusts to give us information we are seeking and even in some cases nervousness by the trusts that because we may be acting through our own solicitors that the trust might be sued by the GMC. That is such a misunderstanding of the whole system that we are going to talk to the Department of Health to see if that ghost can be laid. I know of one case where there was a great delay because of that. Also I should say that any time a trust receives a letter from a solicitor some, particularly the smaller trusts for which this is an unusual thing, often go into anxiety mode and pass it immediately to their own solicitors and it all gets held up. Sometimes the request is for quite simple information. There is a fear as soon as the legal profession comes in. I fully understand what lies behind it but it can cause delays. One thing that we are thinking is whether our early screening information finding process could be a bit less formidable because it could be that the case could be sorted out without having to go very far.
  (Professor Thomas) Our professional experience has been that it is improving and the complaints procedures within trusts, both where I am employed now and in Hammersmith Hospital where I was employed previously, are more open. There are attempts to provide information at the earliest stage possible for the complainant because very often that is all that they want, they just want to understand what has happened. There is no evidence that it escalates litigation and certainly the culture has been able to change in that knowledge without fear of litigation. I do think trusts are improving from my personal experience.

Mr Gunnell

  381. Do doctors and nurses have a statutory duty to inform both patients and their relatives about adverse clinical outcomes?
  (Professor Thomas) Doctors, through the General Medical Council, have a regulatory duty, if you like. They have a risk of being struck off or erased if they do not.

  382. I understand that it is part of your good practice but does that put it on a statutory basis? Is there a statutory basis for it?
  (Professor Thomas) It would not have a legal basis.
  (Miss Nisbet) You may be referring to the discussion around the Court of Appeal judgment in 1997. What happened there was that the Court of Appeal made its judgment in 1997 which drew into question whether doctors had a legal duty to inform relatives. The GMC issued a statement at the time of that judgment to make it clear that whatever their legal duties were it was a clear professional ethical duty. They then drafted some revised guidance which the Council looked at in May 1998 and it was issued in July 1998. It makes it clear that: "If a patient under 16 has died you must explain to the best of your knowledge the reasons for, and the circumstances of, the death to those with parental responsibility". That was to make it clear that that was unambiguous.

  383. I think you have made it clear that that is what they should do.
  (Miss Nisbet) Yes.

  384. But if it is only a professional duty rather than a legal duty, how can patients and relatives be assured that they will be informed?
  (Professor Thomas) The risk to the doctor of not doing so is that they could be referred to the GMC and go through the conduct procedures. If the cover-up, if you like, or the concealing of the truth were sufficiently severe as to amount to serious professional misconduct then they could be erased or suspended. I think that is the risk to the doctor of not behaving in that way.
  (Miss Nisbet) The Council did everything it possibly could after the events that I have described. The bit I read out was new, it was put in in 1998, it was not in before. It was put in because the Council said "gosh, what can we do now? This is very serious". We have done everything we possibly can to make it clear. I do understand that it is not the same as changing the law but we have done everything we possibly can.
  (Miss Lavin) I think the answer to your question is, as far as I am aware, no. The next logical question is should there be a statutory duty. Whilst we can set down guidance for good practice and whilst we can man help lines for members of our profession and advise them in circumstances where they find themselves perhaps feeling concerned about things being concealed from patients, that is very different and it is perceived very differently by members of the public from having the force of statute. I would not want to be the person to sit down to try and draft it because I think it is quite hard to unravel some of the mixed accountability within the structures for regulating and acting as consumer watchdogs within health care. Indeed, as a regulatory body we do not have the statutory duty to go off and tell patients. I can certainly think of at least one case, and I am sure there may well be others, where the first a patient knew about the practitioner coming to us was a report in their newspaper that that nurse had been removed from the register. That is clearly unacceptable. We have been working very hard to see what we can do to ensure that patients are informed when cases that they have been involved in are being considered by our council. It is a very large loophole. I would concede that I think there is a lot more that we can do as a regulatory body and it is certainly something that we have been looking at very carefully and also taking legal advice on as to what we can actually disclose to people. I have to say there are circumstances where the local trust and the practitioners involved are very resistant to that information being made available.

  385. It would seem logical for it to be a statutory duty. Ought there to be steps taken to clarify that legal position and to try and return to a position where it is a statutory duty?
  (Dr Green) I think we have discussed the advice that we give our members and doctors are very aware of the powerful advice given by the GMC. If you wish to make it a statutory duty for health care professionals to inform patients of each and every adverse incident and near-miss that occurs then I think you do have to face the difficulty of deciding whether there are risks in the sense that a patient told about something that nearly happened to them, if for instance they were nearly injected with the wrong drug which would have had serious sideeffects, is it actually in that patient's interests to know that? Some patients may say "yes" and some patients may say "no". I think that is a very difficult judgment to make. If you do make it a statutory duty you have to take on board there is a risk that some patients will suffer anxiety as a result of that. I am not saying that is necessarily a reason not to introduce that.

  386. I can see the position when you include near-misses but supposing we talk about the particular situations of people whose relatives have died while in medical care. Ought there to be a statutory duty in that case to explain to the patient what has happened?
  (Dr Green) You would like to make it certain categories of cases.

  387. We are talking about cases where death has occurred.
  (Dr Green) I cannot imagine a situation where that does not actually occur, it is a normal, natural thing.

Chairman

  388. I think it is fair to say that we have picked up a number of cases where that has occurred.
  (Dr Green) Everybody's advice would be if that is the view of the committee that it should be a statutory duty in those particular situations, then the profession would take that on board.

  389. Can I say at this stage we are not expressing any view because clearly our report will be discussed over a long period of time and we will express a view when we produce the report. It is clear from the evidence that we have got that there are vast numbers of people we have talked to or heard from who have not been given any information whatsoever and as a result of that they have taken action that has ended up in the court. Whatever our perspective, we want to try and avoid that situation but if lawyers get involved we have failed in a sense.
  (Dr Green) I think we would have to be sure that legislation was the actual answer.

  Chairman: Audrey is bursting to say something.

Audrey Wise

  390. If there is a death and the legal duty on the doctor is only to the patient and the patient is dead then effectively there is no legal duty on the doctor to inform anybody. That is the situation as established in court. I am very surprised that you have not got that at the top of your mind. That is the point we are addressing on this. If there is a death then the GMC have made it perfectly clear, and the case that went to court was a child but it could happen with a spouse, for instance, we are not talking about relatives like your second cousin who wants to know something about you, we are talking about the actual maintenance of a doctor's duty to inform somebody. The GMC have made it clear but if that does not have strict legal force, and in the circumstance where the medical defence organisation never informed the GMC of anything and suspend their own professional committees as doctors, then it seems to me that it could be argued, and I would like your opinion, categorically that there should be a statutory duty in that circumstance.

Chairman

  391. Dr Green, do you want to respond to that?
  (Dr Green) We know that doctors have an ethical duty. This is the difference between interpreting the law and looking at professional ethical codes. I do not see the profession resisting the introduction of that as a statutory duty if it is thought to be appropriate.

Audrey Wise

  392. Do you think it should happen? I am not questioning the profession, I am actually questioning the representatives of the MDU. Do you think that there should be a statutory duty when there is the death of a patient that the next of kin should be informed as to the full circumstances? If so, you just need to say yes; if not, why not?
  (Dr Tomkins) I think that there should be a duty to inform the relatives when a patient has died.

Chairman

  393. A statutory duty?
  (Dr Tomkins) If it is felt that the current arrangements are not achieving that then a statutory duty may be the answer. But there is already a statutory duty to certify the death and to provide the relatives with a death certificate. There is a statutory duty in certain circumstances to inform the coroner. There is a very clear ethical duty to talk to the next of kin and explain what has happened after the death. If it is felt that those systems are not adequate then, yes, a statutory duty. As to the case that you referred to, the situation there was not that it was being suggested the relatives should not be told but in the Court of Appeal case there was a very specific set of circumstances where it was alleged that some information had been altered, the notes had been tampered with in fact, in the context of an FPC complaint. The Court of Appeal decided in the context of that case that there was not a doctor/patient relationship resulting in the duty of care which was compensatable in damages. It does not follow from that that a doctor has no need to tell the relatives when the patient has died.

  Dr Brand: I was wondering, Chairman, whether we should be asking the question whether there should be a contractual duty rather than a statutory duty because the anomaly, as you clearly point out, is once the patient has died or actually after you have certified death, you no longer have a contractual relationship in relation to that patient which means that of course you have to put in your night visit fee before you sign the death certificate. It is quite stupid the way that we do not have a little bit of on-going care as far as the NHS is concerned.

  Dr Stoate: Just to make the point really, for the record, I can clearly see there are problems with having a statutory duty because, for example, who constitutes the next of kin? It might be a very strange relationship with the person who might call themselves the next of kin. Secondly, I have dealt with patients myself who would be horrified if their next of kin were to be given all the facts of the case and have said so openly and quite competently before they have died. The doctor would be given a legal duty to tell the next of kin exactly what had gone wrong whereas the patient may have made it absolutely clear they did not want that to happen. The doctor would be in the position of a conflict of interest. Actually, I think making a statutory framework might make things quite difficult but I do agree that the situation needs to be improved over what we have got at the moment.

Mr Gunnell

  394. I am wondering about procedures in general for supporting and advising people whose relative has died. I wonder what you would think the role of doctors and nurses is in doing that? This is to any of the witnesses. How could we improve the procedures that exist at present? Would, for instance, the role of trusts appointing patient advocates be helpful or unhelpful. At the moment it is obviously left to the trust as to whether they do that. How do you think those procedures should be carried out?
  (Dr Green) Can I start? Certainly bereavement is obviously a difficult and sensitive time and any additional support which can be given to patients would be welcome and certainly would be supported by our organisation. We know that a number of complaints arise around the management of information given at bereavement, so I think the idea of patient advocates or special support provided by the trusts has its attraction and would certainly be a positive move.

Chairman

  395. Miss Lavin?
  (Miss Lavin) I think it is fair to say that many trusts already have the system you are describing in place. Certainly as the regulatory body of nursing, midwifery and health visiting we see many circumstances when in fact good practice is demonstrated, particularly around areas like skills in breaking bad news which does persistently feature in a fairly high percentage of our complaints. I think that there is more that can be done with some organisations. The difficulty is how you would make anything like that a mandatory requirement. I think voluntary organisations and particularly community health councils play a very key role in this as well. They give a great deal of support to people having to deal with trauma and bereavement as you have described. I know that many of those organisations certainly find their resources stretched to the limit on occasions and may not be able to provide that support. I am sure you will hear evidence from organisations, such as the ones I have mentioned, who find themselves in that position. Certainly I note in running a complaints system, a consumer watchdog organisation, a regulatory body, they give us a great deal of practical help on the ground to assist people in giving us information that we need to ensure the practitioners who rightly should be removed from the register actually get to that point. I would just like to recognise that.
  (Professor Thomas) In my professional experience, patient advocates where they have been used is often through the help of the community health councils, it has been that mechanism. Perhaps, as Miss Lavin said, there need to be more resources put into that or perhaps that offer of a patient advocate should be more widely available or more widely understood by patients. To address Dr Stoate's point about the problems with the statutory obligation, the GMC guidance actually does state in relation both to a patient under 16 who has died or an adult patient who has died "you should provide this information to the patient's partner or next of kin unless you know that the patient would have objected" because clearly those circumstances do arise.

  Dr Stoate: Yes.

Mr Gunnell

  396. Would you automatically inform the GP involved?
  (Professor Thomas) Where we were aware that the patient would have consented. There is other GMC guidance which makes it very clear that in those unusual circumstances where the relationship between the GP and the patient is not what it perhaps should be, and they have asked for their GP not to be informed, those are the only circumstances under which you can justify not advising the GP or not informing the GP.

  397. There are not specific ways in which you could suggest the NHS could improve its procedure?
  (Professor Thomas) I think greater collaboration perhaps between trusts and other organisations. There is greater awareness amongst trusts of GMC guidance and perhaps they can help by implementing it locally amongst their doctors so that these sorts of guidance are followed more widely.
  (Miss Nisbet) GMC input into education and the standards of education: it is clear from the document Tomorrow's Doctors right back to 1993 that communication as part of a clinical team, involving nurses and other professions, is at the heart of what is expected of a doctor and the skills in listening and telling. As the Deputy Ombudsman I had many examples of doctors saying to the Ombudsman that it was up to the nurses to talk to the family or whoever and that is not compatible with the view of good medical practice which the GMC has been trying to encourage to go into both under-graduates and continuing education.

  Chairman: We have a number of areas to go into and time is marching on. We do not want to keep you all day. John, have you finished?

Mr Gunnell

  398. I want to just ask you if you would encourage trusts to appoint patient advocates so people can get help in going through the system and exploring it if they need to?
  (Professor Thomas) The difficulty about that is the trust is often seen as the adversary in relation to the patient and so the advantage of the community health council is that they are an independent body who provide a perceived independent advocate. It may be that we should perhaps assist the CHC in providing advocates.

Chairman

  399. As I just mentioned, we have a number of issues that we still want to pursue and we do not want to keep you here all day. I will try and be quick with the questions I want to ask and urge my colleagues to be brief in their questioning. Could I ask the MDU for their views on the existing arrangements around the law of consent? One of the issues we have picked up from patients and relatives has been the way they are not prepared for the possibility of adverse outcomes which are inevitable perhaps in some treatments. What are your views as to whether the current law of consent as it stands reflects the interests and views of patients and professionals from your point of view?
  (Dr Tomkins) I think the current arrangements for obtaining consent for treatment are reasonable in that they require a doctor who understands the procedure to provide the patient with information about the nature of the procedure and why it is being undertaken and what the material risks of that procedure are. If, after the event, a question is raised as to whether or not the process of consent was adequate then the doctor would be judged by a reasonable body of practitioners who would say "If I had been in that position with that procedure and that patient I would or would not have done the same".


 
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