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Membership information +44 113 241 0727
Dentolegal advice +44 113 210 4398

On deadly ground

Here we present six diverse cases from MPS’s files, listed by theme and not involving claims. They are drawn from incidents around the world (regulatory bodies will be generically referred to as “Medical Council”) and some facts have been altered to preserve confidentiality.

Social Media

Dr P was working as a junior doctor in general practice. Three months into her new post she received a “friend request” on Facebook from a former patient, Mr T. She had got to know him whilst doing her medical school psychiatry attachment as he had been an inpatient for a brief period of time.

Mr T told her that he was doing really well and was off all his medication. He had started an arts course at the local college. Dr P accepted his friend request. Initially she enjoyed reading Mr T’s posts, but gradually she noticed his comments were becoming more bizarre, culminating in the statement that he felt he was being followed by the CIA. She recognised this as being a symptom of his mental illness and sent him a personal message urging him to go and see his GP.

Mr T replied stating that he didn’t trust his GP. He asked to meet up with Dr P. She told him that she couldn’t do so and suggested she speak to his GP on his behalf. He became angry and upset. Dr P was concerned about Mr T so she contacted his consultant psychiatrist who arranged to review him later that week. Mr T ‘de-friended’ Dr P a few days later.

A month later Mr T complained to the senior partner at Dr P’s practice. He was unhappy that Dr P had declined to meet him as he had felt that they were friends. He was disappointed that she had contacted his psychiatrist, although he admitted that he was feeling a lot better and back on his medication.

The senior partner and Dr P met with Mr T to discuss his concerns. Dr P apologised to Mr T and stated that she should never have accepted his friend request. She told him that she had been concerned about him and had felt she had to contact his psychiatrist to try to access help for him.

Mr T accepted Dr P’s apology. He asked her to share the experience, anonymously, with her colleagues, so that they could all learn from this incident.

Learning points

Doctors should ensure that their conduct justifies patient and public trust in themselves and the profession as a whole. This applies equally online as it does in the consultation room.

Using social media creates new risks, particularly where social and professional boundaries become unclear. If a patient contacts you about their care or other professional matters through your private profile, you should indicate that you cannot mix social and professional relationships, and decline any “friend” requests.

Doctors should ensure that their conduct justifies patient and public trust in themselves and the profession as a whole. This applies equally online as it does in the consultation room

Raising concerns about colleagues

Dr H visited his local pharmacy with a private prescription for a benzodiazepine; he had a fear of flying and was due to undertake a long-distance flight for a holiday. The pharmacist had concerns that Dr H might be self-medicating for a more serious psychiatric condition, with potential implications for his ability to practise. Dr H was reported to his Medical Council, who invited him to undergo a full health assessment. He contacted MPS for assistance.

Dr H was angry and embarrassed at this turn of events. He felt that he was facing castigation for an innocuous incident. Dr H was very uncomfortable with the prospect of a health assessment and was also concerned about the potential of being referred to a full panel hearing to assess his fitness to practise. While MPS’s medicolegal adviser advised Dr H on the full range of options open to him, he opted for voluntary erasure, which was accepted by the Medical Council. Dr H was close to retirement and explained that he found voluntary erasure more appealing than a health assessment.

Learning points

Many doctors feel it is their right to prescribe as they see fit, but they risk referral to the Medical Council. In other similar MPS cases, members have undergone health assessments and MPS has advised them to apologise, demonstrate greater awareness of prescribing guidance and undertake only to self-prescribe in emergency situations in future.

Guidance states that doctors should be registered with a GP, to ensure treatment of an independent, objective nature

The temptation to self-prescribe in order to patch yourself up, and avoid taking sick leave, is understandable; however, doctors who do this might be presenting a risk to patients in not having had their condition reviewed independently. Guidance states that doctors should be registered with a GP, to ensure treatment of an independent, objective nature. Furthermore, your clinical judgment could be impaired if you are genuinely unwell.

In particular, you must avoid self-prescribing controlled drugs unless there is no-one else available with the legal right to prescribe without a delay that would cause great pain or distress, or a risk to your life. Any decision to self-prescribe should be recorded and your own GP should be notified as soon as possible.

Chaperones

Dr V was carrying out a routine doctor’s round in the segregation unit at a women’s prison. She was accompanied by a healthcare assistant. During the round she was asked by a prisoner, Ms J, for medication for anxiety; Dr V declined. Ms J then made a further request for opiate analgesics for hip pain; Dr V decided to examine her and took the appropriate consent. Dr V discovered a small abscess in the left groin area and prescribed anti-inflammatories and antibiotics. However, Ms J reiterated her original medication request and threatened to report Dr V to the Medical Council.

Ms J carried out her threat, alleging that Dr V’s clinical decision-making was unsound and also that she had been rude and abusive – in particular using racist terms to subdue Ms J. Ms J also alleged that Dr V spoke about her condition in a loud voice, which breached patient confidentiality.

The Medical Council concluded its investigation with no further action necessary. Dr V’s excellent record-keeping ensured a comprehensive account of her clinical decisions and this allegation was rebutted at an early stage.

Dr V had been accompanied by her assistant throughout her doctor’s round, and had also been observed at a distance by a member of the prison staff. Both were reliable witnesses and since no concerns were raised by them, Dr V was able to refute Ms J’s allegations of a confidentiality breach and Dr V’s abusive manner.

Learning points

Here the Medical Council was not concerned about the medical care provided, since Dr V had kept a comprehensive and contemporaneous clinical record, but by Dr V’s conduct. The allegations made, if proven, would be serious and might demonstrate impairment of Dr V’s fitness to practise. It should be remembered that the veracity of the allegations need only be demonstrated “on the balance of probabilities”.

It should be remembered that a chaperone also protects the doctor from unfounded allegations
In this situation the importance of a chaperone was paramount. Every patient must be afforded dignity and privacy, and this typically means offering a chaperone for an intimate examination. However, this is not the only time when a chaperone should, or can, be offered. It should be remembered that a chaperone also protects the doctor from unfounded allegations, as demonstrated in this case, and if the patient refuses the presence of a chaperone then you may wish to defer the examination or refer the patient on to a colleague who would be willing to conduct the examination, so long as there is not unreasonable delay and the clinical situation does not demand urgent assessment.

Confidentiality

GP Dr W was visited by 50-year-old patient Mrs B with a history of drug dependency, alongside her daughter V. During the consultation, Dr W inadvertently made reference to the fact that Mrs B was HIV positive; V was not aware of this. Dr W immediately apologised for this disclosure. He wrote to Mrs B that evening acknowledging the breach of confidentiality and again apologising for it.

Mrs B was very angry and complained to the Medical Council, forwarding Dr W’s letter, making reference to other concerns about the care she had received. The Medical Council wrote to Dr W indicating that they would not be investigating the matter, but asking him to provide details of his employers.

Learning points

Dr W should not have assumed that the daughter was aware of her mother’s HIV status. At the start of the consultation he should have asked Mrs B whether she was happy for her daughter to stay and should not have mentioned anything the patient or daughter had not brought up themselves. If it had been necessary to mention Mrs B’s HIV status he should have asked the daughter to leave as he had a potentially sensitive matter to explore with her mother.

Dr W should not have assumed that the daughter was aware of her mother’s HIV status
The Medical Council accepted that the breach was inadvertent and that Dr W had reflected appropriately; however, it was usual for the Medical Council to inform employers to establish whether this was part of a pattern of concerns. Dr W was also advised that the patient had raised additional concerns, which needed to be investigated and responded to in accordance with local complaints procedures. MPS reviewed his letter to the patient and advised on tone and content.

Capacity

Mrs G, an elderly patient with type 2 diabetes, respiratory disease and dementia, fell during the night in the care home where she lived. Her care home called an ambulance immediately as Mrs G was in a lot of pain and was distressed by the fall.

When Mrs G arrived at the hospital she was assessed by the staff in the Emergency Department and an X-ray revealed a fractured neck of femur. Mr L, an orthopaedic surgeon, examined her, and was of the opinion that Mrs G needed surgery. Mrs G was distressed and confused, and Mr L believed that she lacked capacity to consent to surgery. He attempted to contact her next of kin, but he was unable to do so as they were in Greece. As Mrs G lacked capacity to consent to the proposed treatment, Mr L was not sure how to proceed, so he called MPS.

Learning points

This query related to an incident in the United Kingdom; the Mental Capacity Act 2005 provides the legal framework for making decisions on behalf of adults who lack mental capacity to make decisions for themselves. Unless there is a personal welfare lasting power of attorney in place, no-one else can provide consent on behalf of another adult. In addition, the Court of Protection can settle disputes over the healthcare and treatment of a person lacking capacity. Any proposed treatment must be in the patient’s best interests.

Mr L was reminded of the factors to take into consideration when assessing mental capacity, as set out in the Mental Capacity Act. It should not be assumed that the patient lacks capacity simply because she has a diagnosis of dementia. In this instance, Mrs G’s immediate family were on holiday and were not contactable.

MPS advised Mr L to gather as much information as possible in order to arrive at a ‘best interests’ decision regarding further treatment if Mrs G was unlikely to regain the capacity to consent. The extent of Mr L’s enquiries depended on the urgency of the treatment. If the proposed treatment was non-urgent Mr L should continue to attempt to contact Mrs G’s family, and gather information from other sources (such as staff at the care home and the GP).

The member of staff who ultimately delivers the treatment is the decision maker, and assessments of capacity and best interests had to be carefully documented in Mrs G’s records.

Probity

Dr M was employed by a university to undertake a research project, which was funded by a charity, for two years. After his employment ended, the university’s faculty of medicine agreed that Dr M could continue aspects of his project work, supported by his grant; at the same time Dr M was also beginning specialty training in general medicine.

After a period of around eight months, Dr M’s supervisor at the university raised concerns over a number of purchases made by her department, credited to the research grant. These included an expensive piece of specialist equipment and costly travel and accommodation expenses for two overseas conferences. The supervisor discovered that the purchases had been made without her authorisation, or that of the charity providing the funding. Dr M was questioned about this and claimed to have indeed received the necessary authorisation.

It was later found that Dr M had made numerous fraudulent attempts to demonstrate this authorisation, including retrospectively amending travel booking details and forging approval letters.

Dr M was eventually reported to the Medical Council, where a panel hearing assessed his fitness to practise. It was found that Dr M’s fitness to practise was severely impaired by his lack of honesty, integrity and probity – the basic attributes of being a good doctor. His attempts at deception and manipulation of colleagues exacerbated his original dishonest acts.

Dr M admitted to the charges but revealed that he had been under severe stress due to the recent death of his sister; further psychiatric examination led to Dr M being diagnosed with a major depressive disorder, which the Medical Council accepted as having contributed to his original actions.

The panel concluded that despite his mental health issues, Dr M’s conduct was unacceptable for a doctor and and brought the profession into disrepute, undermining public confidence in the profession. A three-year set of conditions was imposed on Dr M’s practice, including notifying the Medical Council of any post he accepted which required Medical Council registration; agreeing to the appointment of a workplace reporter, as approved by the Medical Council; and informing the Medical Council of any further formal disciplinary proceedings. Dr M was also placed under the supervision of a medical supervisor, nominated by the Medical Council.

Any doubt surrounding the probity of a doctor can be extremely damaging to the trust invested in the profession by patients

Learning points

Honesty and integrity are central to the role of a doctor, principally because of the extent to which the doctor–patient relationship depends on trust. Doctors have a responsibility to the reputation of the profession to be trustworthy in all aspects of their work, including signing forms, reports and other documents, and in any financial arrangements with patients and employers, insurers and other organisations or individuals. Any doubt surrounding the probity of a doctor can be extremely damaging to the trust invested in the profession by patients.

Doctors are notoriously bad at looking after their own health. Stress and anxiety can affect a doctor’s ability to practise safely, and an impaired practitioner is a significant medicolegal risk. There are usually local support networks for doctors affected by mental health issues, and any concerns about your own health should be raised with senior colleagues. MPS also has a worldwide counselling service available to members.

How can MPS help?

Members sometimes come up against problems that are out of the ordinary. MPS considers borderline requests for assistance on the merits, balancing the individual member’s needs against the responsibility to use members’ funds wisely and in the interests of the membership as a whole. The following are examples of problems where detailed consideration of the exercising of discretion to assist may be warranted.

Criminal proceedings arising from non-clinical practice

We can exercise our discretion to assist with criminal allegations, but this does not usually extend to allegations of fraud or theft, on the basis that these offences arise from the business aspects of practice.

Allegations of fraud

It is unlikely that we would provide assistance in connection with allegations of fraud arising from business dealings. Occasionally, allegations of fraud may have arisen from professional life, for example, errors on a CV, or in research. Such cases are considered on their individual merits.

Defamation

If a member is the named defendant in a defamation claim, we may assist if the alleged defamation stems from their professional practice and their professional reputation is likely to suffer serious harm.

Other employment and disciplinary issues

MPS is unlikely to assist where a member faces a disciplinary investigation or hearing arising from:

  • Employment or contractual issues
  • Working relationships with colleagues
  • The business of practice.

Personal conduct

Assistance is very unlikely to be offered with complaints or claims arising from a member’s conduct that is of a wholly personal nature clearly unrelated to professional practice, or only loosely related to the practice of medicine (for example, by virtue of having been committed at the work/practice premises, or because they happened to involve an employee or working colleague).

Taken from MPS cases handled between June 2012 and May 2013. Words by Gareth Gillespie and Sara Williams