A member contacts Medical Protection to seek advice about disclosing a patient's records to the police when a manslaughter case is opened. By Marshal Ahluwalia, Solicitor and Case Manager, and Dr Clare Devlin, Medicolegal Consultant, Medical Protection.
Dr A initially contacted Medical Protection to seek advice and guidance on whether it was appropriate to disclose a deceased patient’s medical records to the police, who were investigating a crime of possible manslaughter against the patient’s daughter.
The patient was in her early 90s and had significant limited mobility and ongoing dementia concerns. The patient required a significant amount of care from her relatives, in particular her daughter with whom she lived. Dr A and another professional colleague made arrangements for a home visit to see the patient, after safeguarding and wellbeing concerns were raised by one of the patient’s other children who lived abroad.
When Dr A and her professional colleague attended, the patient and her daughter were present. Dr A and her colleague explained that they wanted to do some assessments on the patient including blood tests, a memory assessment and a mobility assessment. Before any attempts at assessing the patient’s memory could be made, the daughter intervened. It was explained to the daughter that it was the patient who needed to respond to Dr A’s questions. Dr A attempted to take a blood test from the patient to rule out an organic cause for her apparent poor memory and mobility. The patient’s daughter vehemently objected to Dr A taking any bloods from her mother. Despite her best efforts in seeking an explanation for the daughter’s inexplicably hostile, challenging resistance, the reason for her refusal was not clearly articulated in a comprehensible manner to Dr A.
Dr A explained several times the importance and reasons for doing blood tests, however the patient’s daughter would not allow her to take her mother’s blood tests. Although the patient seemed completely amenable to Dr A taking her blood tests, the daughter had become extremely agitated and created a major fuss. Dr A and her colleague both found the daughter’s behaviour most unusual and extremely unnerving. Dr A decided that for both her own and her colleague’s safety, they should abandon the home visit at that point and discuss the next steps when back at the surgery.
Dr A discussed her concerns when she arrived back at the surgery and although Dr A did not have any immediate safety concerns about the patient, she concluded it was still appropriate to complete a safeguarding referral, as she had concerns that the patient was vulnerable and at risk of neglect. After the safeguarding referral was made, a social worker subsequently contacted the surgery to arrange a joint visit to the property to re-attempt to re-engage with the patient and carry out a physical health assessment. The patient’s daughter refused access to the property. A plan was then agreed by professionals for there to be a multi-agency meeting to discuss the next steps. Dr A and her colleagues then made numerous attempts to engage the patient’s wider family to see if it was possible for one of them to bring the patient to the surgery to have the physical health assessments completed, however nobody else in the family was prepared to get involved and help facilitate this.
The practice was informed by extended members of the family that the patient had developed an infection in her toes and shin and had lost a lot of weight. After further unsuccessful attempts were made to access the premises, Dr A decided to phone the police and call an ambulance. Dr A also phoned her local emergency department to make them aware of the safeguarding concern.
Very sadly, the patient passed away shortly after paramedics gained access to the premises and admitted her to hospital. The police commenced a manslaughter investigation in relation to the daughter and contacted Dr A to seek disclosure of the patient’s records. Dr A was then also contacted by the local coroner who asked for a statement.
How did Medical Protection help?
In addition to seeking advice about disclosure of the deceased patient’s records to the police, Dr A also sought assistance and advice with regard to her draft statement for the coroner. Dr A gave permission for Medical Protection to contact and communicate with the coroner on her behalf.
After submitting her statement Dr A was informed by the coroner that she was a ‘witness of fact’ and her attendance at the inquest would be necessary.
It is possible for a clinician to be called to give evidence at an inquest in one of two ways:
- As a ‘Witness of Fact’. This generally indicates the coroner believes the clinician’s involvement in the case to be peripheral rather than pivotal.
- As an ‘Interested Person’ (IP). Interested Person status could be given to a clinician who the coroner believes is pivotal to the case or has sufficient interest in the inquest. Being granted IP status means a clinician will have the following rights: the disclosure of all the documents the coroner intends to rely on at the inquest and also importantly, the right to legal representation.
At 2.30pm on the Friday just before the August Bank Holiday weekend (and just one and half working days before the start of the inquest which was due to commence on the following Wednesday), the coroner’s office sent Medical Protection an email to say the coroner had decided very late in the day to make Dr A an IP and was she was no longer a witness of fact. The coroner’s officer explained that the reason behind this decision was that a number of other parties who were previously witnesses of fact had been given IP status (and hence were entitled to be legally represented) and the coroner felt it was only fair to make Dr A an IP as well in all the circumstances. Late on Friday afternoon, Medical Protection instructed its panel solicitors who attended the inquest on the following Wednesday and asked for the hearing to be converted into a pre-inquest review, which would enable Dr A and all the other parties who had recently become IPs to be given the opportunity to properly prepare for the inquest. The coroner agreed for the inquest to be adjourned and the inquest hearing was converted into a pre-inquest review hearing.
The inquest
When the inquest eventually commenced, Dr A attended as an IP and was represented by Medical Protection’s instructed panel solicitors. Prior to attending the inquest, a number of meetings with our member and panel solicitors took place to ensure our member felt fully prepared to assist the coroner in the best way possible, complying with their professional regulatory obligations. At the inquest, the coroner concluded that the patient’s death was a consequence of a failure to treat an infected pressure sore. In issuing a narrative conclusion the coroner determined that there was neglect on the part of the deceased’s daughter due to her failure to procure medical treatment, despite it being palpable that there was a clear need to do so. There was no criticism of Dr A and in fact the coroner commended the way Dr A gave her evidence.
Learning points
- A doctor who is asked by the coroner for a statement should seek early advice from Medical Protection and we can assist in finalising the statement for the coroner. It is all the more important to seek early guidance, as criticism at an inquest can bring about a need for a clinician to self-refer to the GMC.
- It would be wrong to assume that, once a coroner has identified a clinician as a witness of fact, this status will remain throughout the whole lifetime of the inquest process. It is possible for a clinician to be a witness of fact one minute and an IP the next and this conversion of witness status could take place very late in the day depending upon the particular circumstances of the inquest. Keeping Medical Protection promptly updated enables us to assist in a timely way and provide support and representation when required.