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Файл:Ординатура / Хирургия / Библиотека им академика М.И. Перельмана / Книга_3302_Библиотеки_им_академика_М_И_Перельмана
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90 Documentation/Record keeping
Clinical records should be objective and focused on the relevant clinical ndings
and decisions.
Historically, terms such as stating the patient’s condition was ‘supratentorial’
cropped up in the medical record to suggest the condition was psychological or
fabricated. Any ippant comments or remarks will be questioned, and what may
appear humorous when written will not be when explained to a judge assessing
a clinical negligence case.
For correction of any errors, draw a single line through the entry, document the
correct info, add the date and time and sign o on the correction.
Never ever alter the clinical record. It is not worth it and can result in referral to
the GMC.
Labelling a patient can result in a complaint, so be cautious about labelling some-
one as a malingerer or an alcoholic without denitive evidence to support such
assertions.
LEGAL AND REGULATORY ISSUES
e Good Medical Practice guidelines issued by the GMC clearly state that clini-
cal records represent a formal record of the clinician’s work and must be clear,
accurate, legible and written in a scientic manner.
ey should include all relevant clinical ndings and a record of the deci-
sions made and actions agreed, as well as the identity of the clinician who made
the decisions and agreed to the actions, a record of the information given to the
patient and a record of any drugs prescribed and other investigations or treat-
ments performed.
Condentiality and data protection are becoming more important, and
breaches carry signicant penalties. Clinical records, including any patient iden-
tiable information and data on the diagnosis, prognosis or treatment of any
patient or subject, are considered condential and personal data. ese data
can only be shared with the prior written consent of the data subject to the data
manager.
In certain circumstances, condentiality can be breached in the public inter-
est if failure to disclose such information may expose others to a risk of death
or serious harm, such as reporting gunshot wounds, acts of terrorism, risks of
serious communicable disease transmission and concerns relating to the ability
to drive a motor vehicle.
THE GENERAL DATA PROTECTION REGULATION
e GDPR requires the implementation of eective controls across the six pri-
vacy principles of:
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Johnstone v NHS Grampian 91
●
Lawfulness, fairness and transparency
●
Purpose limitation
●
Data minimisation
●
Accuracy
●
Storage limitation
●
Integrity and condentiality
e GDPR is designed to ensure that individuals have more control over their
personal data and gives them the following rights:
●
To be informed about how their personal data are processed
●
Access to their personal data and details of how they are processed
●
Rectication of inaccuracies in a timely manner
●
Erasure of their personal data (‘right to be forgotten’)
●
To restrict processing of their personal data
●
To obtain their personal data and reuse them for their own purposes (‘data
portability’)
●
To object to the processing of their personal data
●
Not to be subject to automated decision making and proling
Medical practice is highly impacted, as we process, document and communicate
a large volume of sensitive personal data, which are used for the purposes of
patient care, health management and scientic research.
All health care sta, trusts and private hospitals in the UK must undergo
mandatory training in this element of data protection, as it is an important part
of appraisal.
JOHNSTONE V NHS GRAMPIAN: DOCUMENTARY
EVIDENCE OUTWEIGHS ORAL EVIDENCE IN CONSENT
CASE
A patient underwent transsphenoidal surgery in Aberdeen Royal Inrmary in
January 2011 to treat a pituitary tumour believed to be responsible for excreting
excessive levels of growth hormone. Prior to this, it had been treated conserva-
tively without any major issues.
e procedure was complicated by post-operative cerebral spinal uid (CSF)
leakage and meningitis. A further procedure was required, and the patient had to
take medication for the rest of his life.
e patient alleged that the surgeons he met in the lead-up to the surgery
failed in their duty of care to him by failing to explain the material risks involved
in the surgery. ey also allegedly failed to provide more information on the
alternative options of treatment by way of radiosurgery or continuing conserva-
tive treatment and the risks attached to these. e surgical team disagreed and
argued that this information had been provided.
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92 Documentation/Record keeping
e judge considered that each side’s witnesses could not be said to be more
reliable and/or credible over the other, so it was necessary to decide the case by
drawing inferences from the documentary evidence presented during the trial.
e judge found a note, dictated by one of the surgeons soon aer the meeting
with the patient, to be a fair and accurate summary of the discussions.
It detailed the options of surgery and radiosurgery, their respective pros and
cons and the risks of surgery, including the risk of post-operative CSF leakage,
meningitis and future surgery.
e patient denied this discussion had happened, but this assertion was
rejected based on the contemporaneous note.
is emphasises the importance of documentation, and in this case, the whole
judgement depended upon it. e judge found both testimonies convincing and
could not decide whose recollections were more accurate. e judge could have
made a positive judgement based on the clinical notes but could also have made a
detrimental judgement if information was conspicuously absent.
As well as highlighting the need for accurate and comprehensive notes, this
case also points out that whoever ‘acts’ more convincingly on the day will be
more likely to be believed. e truth is key, and the court will likely see through
attempts at deception, which can be damaging. Conduct in court will be consid-
ered in another section.
e old adage of ‘if it’s not written in the notes, it didn’t happen’ is true to
some degree. Clinician testimony is still considered, but it is an uphill struggle to
convince the court that something happened when it is not documented. is is
compounded by the testimony of poor patients who, regardless of whether there
was a breach of duty or not, have come to harm.
However, if you are documenting a discussion or an action, then it is vital that
this actually occurred. A potentially greater injustice is clinical documentation
which seems to prove conversations surrounding, for example, consent, which
never happened. is is not only unjust but serious professional misconduct.
Honesty is a vital pillar of all health care professionals.
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93
18
Professional obligations and
the role of reflections
When you are in the business of saving lives, hurting anybody, even unintention-
ally, can leave a mark. Self-criticism and self-reection are great tools to correct
ourselves. Hence, it is crucial for doctors to be able to reect on the treatments
they provide, the decisions they make and the actions they take in their pro-
fessional capacity. e appraisal and revalidation process helps facilitate this
process.
While reecting and considering how you could have prevented an error may
be helpful in preventing future errors, going through unnecessary stress over
what has already happened can be destructive. Self-reection in a rational man-
ner is challenging when life and death situations are involved. At times, it may
be dicult to separate one’s personal feelings from a professional situation. It is
especially hard to avoid professional guilt.
It is important not only to reect on which events went well or badly but also
on how you felt at the time and how this experience has impacted how you prac-
tise medicine. In medicine, there is always more to learn, more mistakes to be
made and more progress to be made.
Although self-reection is currently stated not to be accepted as proof in
court, there is no guarantee. Moreover, when a physician is defending themselves
in court, self-reection may seem similar to admission of guilt. To put it simply,
the physician should also have a sense of self-preservation in addition to the duty
of candour.
e Bawa-Garba case sent shockwaves through the medical world when her
personal reections were used against her as evidence of recognition of poor
clinical care. e GMC have subsequently sought to assure the medical profes-
sion that they will not use personal reections in tness to practise proceedings.
However, when legal proceedings ensue, all relevant materials are disclosable,
and this may include personal reections if within a formal record.
DOI: 10.1201/9781003179351-22
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SECTION 5
Dealing with litigation
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97
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Medical defence organisations
The GMC Good Medical Practice (GMP) guidance, Section 63, requires that
health care professionals in the UK have appropriate insurance or indemnity
arrangements covering the full scope of their medical practice.
You must make sure you have adequate insurance or indemnity
cover so that your patients will not be disadvantaged if they make
a claim about the clinical care you have provided in the UK.
(Domain 4: Maintaining Trust – Ethical Guidance – GMC)
Many choose to join an MDO for this purpose.
MDOs are unregulated, independent, membership-based organisations. ey
are typically funded by membership fees.
MDOs provide medical professionals with access to advice, assistance and
representation in a range of legal and ethical matters.
THE ROLE OF A MEDICAL DEFENCE ORGANISATION
e main role of an MDO is to protect its members from litigation, professional
misconduct investigations and other legal challenges that may arise during the
course of their practice.
MDOs typically oer a range of services to their members to help them man-
age the risks and challenges associated with medical practice and to ensure they
provide the best possible care to their patients. Such services include:
●
Legal advice and representation: An MDO provides legal advice and rep-
resentation to its members in the event of a claim or complaint. is can
include assistance with preparing a defence, negotiating a settlement and
representation in court.
●
Indemnity cover: An MDO provides its members with indemnity cover,
which means that the MDO may cover the cost of any compensation
DOI: 10.1201/9781003179351-24
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98 Medical defence organisations
awarded against the member as a result of a claim or complaint up to a cer-
tain limit.
●
Complaints and investigations: An MDO can provide support and guidance
to its members if they are the subject of a complaint or investigation. is
can include assistance with responding to the complaint, preparing for an
investigation and representation at hearings or meetings.
●
Training and education: An MDO can provide its members with access to
training and education on various topics related to medical practice. is
can include training on clinical risk management, ethical issues and legal
requirements.
●
Advice on regulatory and professional issues: An MDO can provide advice
and guidance to its members on regulatory and professional issues, such as
compliance with professional standards, disciplinary proceedings and tness
to practise.
In addition to supporting individual health care professionals, MDOs may also
advocate for changes to health care policies and regulations that impact the
medical profession as a whole. is can include lobbying for reforms to improve
patient safety, reduce regulatory burdens and ensure fair and equitable treatment
of health care professionals.
ACCESSING SUPPORT FROM A MEDICAL DEFENCE
ORGANISATION
Many MDOs provide a helpline that members can call for advice and support
on a range of issues, such as legal or ethical questions, complaints or investi-
gations and other professional issues. Members also have access to numerous
online resources, such as guidance documents, case studies and training materi-
als, which can be accessed either through the MDO’s website or a member portal.
MDOs may organise meetings, seminars and other events where members
can network with other health care professionals, learn about the latest develop-
ments in their eld and receive training and education.
If a member is faced with a claim or complaint, they can contact their MDO
for support and guidance. e MDO typically assigns a case handler or solicitor
to manage a member’s case. e case handler provides advice on how to respond
to the claim or complaint and may provide legal representation if necessary.
A WARNING ABOUT INDEMNITY COVER
e indemnity provided by an MDO is a form of insurance that protects medi-
cal professionals, such as doctors, dentists and other health care practitioners,
against medical negligence claims.
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A warning about indemnity cover 99
If a member faces a claim, the MDO may provide nancial support to cover
the cost of any compensation awarded against the member, as well as any legal
fees or other costs associated with the claim.
e level of indemnity cover provided by an MDO varies, depending on the
type of membership, the individual circumstances of the member and their area
of practice. Some MDOs provide a set level of cover for all members, while others
oer a range of options for members to choose from.
However, the indemnity cover provided by an MDO is usually discretionary,
meaning that the MDO is not obligated to provide cover in all circumstances. For
example, an MDO may decline cover for claims arising from deliberate or crimi-
nal acts. As long as the decision to decline indemnity is not malicious or irratio-
nal, there is no appeal against that exercise of discretion, and it is not possible to
enforce a right to indemnity.
While medical professionals working in the NHS are covered by crown
indemnit y,
1
those working outside the NHS, with some limited exceptions, are
not and thus require indemnity cover. e discretionary nature of indemnity
cover provided by MDOs can be problematic, as members of MDOs may nd
themselves without the necessary nancial support in the event of a claim or
complaint being made against them, and patients may be le without the ability
to seek compensation for any harm suered.
In 2018, the Medical Defence Union (MDU) exercised its discretion and
declined to indemnify rogue surgeon Ian Paterson, prompting the government
to launch a consultation on indemnity cover for regulated health care profes-
sionals. e consultation aimed to determine whether legislation was necessary
to require all medical professionals who are not covered by crown indemnity to
hold regulated insurance-like indemnity rather than relying on the unregulated
discretionary indemnity provided by the MDOs.
e government was concerned that, unlike commercial insurance compa-
nies, MDOs have no contractual obligation to meet the cost of any claim against
the members they cover and no legal obligation to ensure that they have the
reserves to cover the cost of claims, raising the risk that patients will be unable
to access appropriate compensation. Furthermore, MDOs are not obligated to
disclose their complete nancial status, which can leave health care professionals
unaware of the risk of their discretionary indemnity provider refusing to provide
cover due to inadequate nances.
MDOs are also not subject to regulation on nancial conduct and fair treat-
ment by the Financial Conduct Authority and Prudential Regulation Authority,
potentially leaving members at risk of unfair treatment. e responses to the con-
sultation were published in December 2022,
2
and the government has said that it
will continue to work closely with stakeholders on these issues.
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