How they affect
………… YOU !
Dr Mark Corcoran 8th Feb 2013
ACCOUNTABILITY
• Civil Liability
– Negligence
• Criminal Liability
– Assault and Battery – Manslaughter
• Professional Accountability
– Disciplinary Hearings – Complaints Procedure
THE NEW NHS
• General Trends
• Clinical Governance
– NICE Guidelines – QuOF
• Harold Shipman; Colin Norris
• Practice Based Commissioning
• Laws of Consent
– Living Wills
– Fraser Guidelines
• Chaperone Policies
• Victoria Climbie; Baby P
• Information Technology
LEGAL REFORM
• The Adversarial System
• Lord Woolf
• Out of Court Settlements
• No Win No Fee
• Lord Jackson
GENERAL TRENDS
FROM 1989 to 1999
• General Practitioners were 13 times more likely to be sued successfully
• General Practitioners were 33 times more likely to be involved in a
GMC Figures
• 2001 - 50% increase in complaints from 3000 to 4470
• 2010 - 7,153
• 2011 - 8,781
• No evidence that this points to falling standards of practice
NHS OMBUDSMAN
upholds only a quarter of cases brought against GPs
NHS COMPLAINTS
• 16,337 in 2011-12
• 2,951 (18%) Against GPs
• 7,403 (45%) Against Hospital Trusts
COST OF LITIGATION
NHS Litigation Authority
•
9375 claims in 2004/5
•
Total payments £633m in 2007/8
•
Rising to £787m in 2009/10
COST OF LITIGATION
• TIME
HOW NOT TO GET SUED
Don
’
t be a Doctor
Don’t be a Lawyer
Don’t be an Accountant
DON’T DO ANYTHING THAT INVOLVES
TAKING RESPONSIBILITY FOR ANY ASPECT OF OTHER PEOPLE’S LIVES
WHY ARE PATIENTS UNHAPPY?
PUBLICITY
New cancer drug 'shows promise’
Hospital hails new arthritis drug
PUBLICITY
•
Rotten Apples
• Stafford Hospital: Five more hospitals to be investigated
• Doctor's sorrow for Bailey's death
• Cauda equina syndrome misdiagnosis woman payout
• Former care home nurse struck off
• Medical trial surgeon played God, says widow
• Aberdeen doctor struck off over child pornography
• Hospital 'failed' man who choked to death on pill
• Nurse accused of using Facebook while caring for ill child
• Doctors 'missing cancer' in young people, says survey
WHY ARE PATIENTS UNHAPPY?
• Publicity
WHY ARE PATIENTS UNHAPPY?
• Publicity
• Awareness of Health Issues / Rights
• Raised Expectations
IN ADDITION
• To Establish “The Facts”
• To Prevent Recurrence
WHY DO PATIENTS TAKE
ACTION?
• Publicity
• Awareness of Health Issues / Rights
• Raised Expectations
IN ADDITION
• To Establish “The Facts”
• To Prevent Recurrence
“I have very strong views on the lawyers’ involvement in health care. Their proper place is on the operating table and
certainly keeping doctors and nurses out of court and lawyers out of hospital
seems to me to be the best working principle.”
Are Healthcare Professionals
Blameless – Or just
misunderstood?
THE TEST OF NEGLIGENCE
• The Patient is owed a
DUTY OF CARE
• The Duty of care is
BREACHED
• As a direct result, the Patient suffers
THE DUTY OF CARE
IN THE NHS
This duty will
usually exist
without
THE DUTY OF CARE
Reasonable Foreseeability
• The NEIGHBOUR PRINCIPLE
– Donaghue -v- Stevenson (1932) – Bourhill -v- Young (1942)
• Applied in a Medical Case
BREACH OF DUTY
• WHO DECIDES ??
• Bolam -v- Friern Barnet Hospital (1957)
“A Doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art...”
BOLAM UNDER ATTACK
“A judge would be entitled to reject a unanimous medical view if he were
satisfied that it was manifestly wrong.”
(Bolam, High Court ruling)
• Hucks -v- Cole (1993)
• CLINICAL GOVERNANCE
DAMAGE IS CAUSED
AS A RESULT OF THE BREACHExamples :-
• Kay -v- Ayrshire & Arran Health Board (1987)
• Barnett -v-Chelsea & Kensington Hospital (1968)
Are Healthcare Professionals
Blameless – Or just
misunderstood?
Are Healthcare Professionals Blameless?
MDU Analysis
• Failure or delay in diagnosis 51%
• Prescribing errors 23%
• Minor Surgery 7%
• Failure or delay in referral 4.5%
Are Healthcare Professionals Blameless?
MPS Analysis
• 60% of claims are due to System Failures
• Communication Problems – Misunderstandings
– Data Management – Referrals
ORAL COMMUNICATION
• Rudeness
• Lack of Explanation
• Uninformed Consent
• Communication Between Teams
• COMMUNICATION
• COMMUNICATION
• COMMUNICATION
• COMMUNICATION
• COMMUNICATION
HOW NOT TO GET SUED
WRITTEN COMMUINICATION
Lack of Written Records is
the Number One Problem
MDU ADVICE
“Good medical and nursing records are an indication of good practice. If you are sued it will be difficult to convince
a Judge that you are a good Clinician or Nurse if your records are poor. Accurate, legible, comprehensive and contemporaneous notes are often the key to successful Defence of a medical
WRITTEN COMMUINICATION
Testicular atrophy - an uncommon but
recognised complication of herniorrhaphy and as such there might have been a case which could
be defended.
However, the general level of care as indicated by the case records is of such a poor standard
that I feel it would cast a shadow over any subsequent Court Proceeding.
“if they are unable to write adequate and accurate notes, can we trust them to perform a proper
10 TOP TIPS
• Comprehensive and contemporaneous • Accurate and legible
• Do not insult the patient
• Record all significant events • Facts and not fiction
• Entries should clearly identify personnel • State timing when it is relevant
• Declare post dated or corrected entries
• Indicate when advice of colleagues is sought • Record complaints of patient or family
COMPLAINTS
• Local Resolution – Practice – PCT – PALS • NHS Ombudsman • GMCWhat To Do?
• Talk to someone – In practice – Friend / mentor – LMC (Safehouse) – MDO • Respond promptlyCONTROVERSIAL ABBREVIATIONS
