More people than ever need urgent mental health care, but the nature of a patient's condition and any medication prescribed can mean a risk of an adverse outcome, including the risk that the patient might come to harm.
The MDU supports psychiatrist members with a range of issues, including complex medico-legal and ethical queries, complaints, inquests and GMC investigations. We also support members who find themselves facing clinical negligence claims.
Reasons for claims
A recent analysis of MDU claims over a 10-year period showed that the most common reason for a patient bringing a claim against a psychiatrist related to prescribed medications. Other reasons included self-harm and suicide, and allegations relating to detention in hospital.
The most commonly implicated drugs were lithium, benzodiazepines and antipsychotics. Allegations from patients prescribed lithium often related to development of impaired renal function, and claims arising from prescriptions of benzodiazepines related either to addiction or problems with rapid detoxification. Other problems arising from prescribed drugs were side effects, including neuroleptic malignant syndrome.
Self-harm or suicide
Another common cause for a claim related to self-harm and suicide. Several allegations also focused on a failure to recognise the patient was at risk of suicide or self-harm, or that the patient was inadequately managed, often following multiple consultations. Several high-value psychiatric claims involved patients attempting suicide resulting in a significant brain injury and the requirement for lifetime care provisions and associated expenses.
There can be a great number of factors that lead a patient to attempt to take their own life. This means it can be difficult for the claimant to prove causation - in other words, to demonstrate that were it not for the alleged negligent act by the doctor, the patient would not have self-harmed, or died by suicide.
Deprivation of liberty
In a number of cases, it was alleged the patient had been inappropriately detained in hospital for treatment. Although all but two of these cases were successfully defended, it's important to ensure all appropriate alternatives are considered, there is appropriate input from all involved parties, and that the reasons and discussions are thoroughly documented.
This is a complex area of the law, and it is always worth getting specialist advice if there is any doubt about detaining a patient.
A claim can arise many years after the psychiatrist was caring for the patient...
In general, claims following an alleged misdiagnosis or inadequate assessment arose when it was alleged that a physical condition was misdiagnosed as a mental health issue, including subarachnoid haemorrhage, stroke and obstructive sleep apnoea.
The MDU also received claims where third parties were injured by the patient in the period following a section 12 assessment under the Mental Health Act.
Several claims concerned patient information being inappropriately passed to third parties or incorrect information being referred to in medico-legal reports. Examples included information being divulged about the patient to a family member without their consent, and inaccurate statements being made in a medico-legal report, which affected the court case for which the report was prepared.
Claims were also brought for alleged defamation following comments made (for example) in referral letters and reports.
The claims process
It can be very distressing to find out a patient is bringing a claim against you. A competent adult claimant can bring a claim for alleged medical negligence for up to three years from the date of the incident, or the date of their knowledge of the alleged harm.
However, there is no time limit for a claimant who lacks capacity - and for children, the three-year time limit doesn't begin until they reach 18 (16 in Scotland).
In addition, the claimant may occasionally not be aware of the injury for some time after the events in question; for example, it can be many years after beginning lithium therapy before renal impairment develops. This means that a claim can arise many years after the psychiatrist was caring for the patient, which underlines the importance of keeping detailed notes about clinical decision-making and advice given to patients.
If you face a claim, you can be assured that the MDU's expert claims handlers understand how stressful this is and the importance of mounting a robust defence of your position. The MDU will defend claims whenever possible, and we involve members in the conduct of their cases and will always seek your consent to settle a case.
A clinical negligence claim can either be settled by the defendant, with a payment of compensation being made to the claimant; or it can be discontinued, become statute barred (out of time) or a case can be won at trial by either party.
You can find out more about what to expect when you receive a claim in our article from the last issue.
Outcome of cases
The vast majority of cases brought against MDU psychiatrist members were successfully defended, with damages payments only being made in under 10% of claims in this analysis. However, even when a claim is successfully defended, considerable costs can be incurred by the MDU on behalf of the member in that defence process.
The purpose of compensation is to put the patient back in the position they would have been in if it wasn't for the problems caused by negligence. Two claims settled over the period of analysis had damages paid of well over £1 million, and both related to prescription of benzodiazepines.
Manage the risk
Claims involving psychiatrists are very diverse, but there are some common medico-legal risk factors that, if managed appropriately, can help to reduce risks.
- Ensure that where there is a significant risk of suicide or self-harm, both the patient and the medication prescribed are appropriately reviewed.
- Be aware of the current available guidance on the prescription of medications that you prescribe, including the BNF and NICE.
- Have a system in place to review patients on long-term medication, and for ensuring any necessary monitoring is occurring.
- If a patient's care is being managed by a number of professionals, there should be clear agreement on the responsibility for the monitoring and treatment of that patient. Explain this to the patient and, where appropriate and with consent, share with families and carers.
- Be prepared to refer patients for specialist treatment when necessary. This is in line with GMC requirements to "recognise and work within the limits of your competence". You should ensure that you have the appropriate qualifications, skills, and experience for the care you are providing.
- Get specialist advice if there is any doubt about whether a patient's detention is appropriate and lawful.
- Clearly document your discussions with patients and family members.
- If things go wrong, be open and honest with the patient by providing an apology and an explanation of what has happened, and the short-and long-term effects of this.
- Remember to seek early advice from the MDU.