A selection of medico-legal dilemmas from our files

Voluntary erasure

A recently-retired GP decided to apply for voluntary erasure from the GMC register. She found that the online application process required her to state that she was unaware of any matters that might lead to an investigation or consideration of her fitness to practise.

The doctor recalled that she had provided a statement for the coroner shortly before she retired and had been called as a witness to a forthcoming inquest. She also remembered a claim which had been made a couple of years earlier against several of the GPs at her old practice and realised she did not yet know the outcome of that case. The doctor was unsure if any of this was relevant so she called the MDU medico-legal advice line.

“Ongoing cases, or cases that arise after retirement can mean that voluntary erasure may not always be straightforward.”

MDU advice

The medico-legal adviser asked for more information about the coroner’s case. The family had been unhappy with the care provided and shortly after the death, the practice had received a solicitor’s letter asking for information, although it had seemed their concerns were mainly to do with hospital care. The GP had been named by the coroner as an interested person, which means “a person who may by any act or omission have caused or contributed to the death of the deceased, or whose employee or agent may have done so”. Given the potential for criticism about the GP’s involvement, the adviser invited the doctor to send her coroner’s report and the relevant records to the MDU to assess the merits of arranging formal legal representation at the inquest.

The adviser checked on the progress of the claim and found that the MDU had obtained expert opinion on the case which was not critical of any of the GPs involved. The MDU claims handler suspected that the claim would not progress, although it was not yet possible to confirm that it would not reactivate (or be pursued) in the future. On the basis of the supportive expert report, the adviser reassured the doctor that it appeared unlikely that this case would call her fitness to practise into question as far as the GMC was concerned.

In the interests of full disclosure, the adviser recommended that the GP disclose in factual terms, a brief summary of the two cases in the “supplementary” section of the application form for voluntary erasure, unless she preferred to wait until the inquest had concluded and we could confirm that the claim had become “statute barred”.

By the end of their career, most doctors will have experienced processes such as these and will be aware that they can progress very slowly. Some doctors will have ongoing cases at the time they retire, or cases may arise after retirement and this can mean that voluntary erasure may not always be straightforward.

Commitment to acting as an expert

A retired consultant orthopaedic surgeon had continued to undertake independent expert work for a few years after retirement but he had not accepted any new instructions for over a year. He was dismayed to still be receiving occasional requests from instructing solicitors to answer questions on his reports or to appear as a witness in cases which were to come to court after a considerable delay. He asked if he must continue to comply with these requests.

“The overriding duty is to the court; retirement does not simply extinguish that duty.”

MDU advice

The medico-legal adviser explained that the responsibilities of experts in civil claims are governed by the Civil Procedure Rules and that the overriding duty is to the court; retirement does not simply extinguish those duties. Clearly, there are likely to be significant costs incurred by a party in instructing a new expert for a case. The adviser suggested that the doctor might explain his position to the instructing solicitors. In certain cases the solicitors might prefer to instruct a new expert who was currently practising. But if they did not agree to release him from his obligations, he might be vulnerable to criticism from the court (or even an adverse costs order) if he refused to give evidence or to provide addendum reports. Doctors who undertake expert work should plan ahead carefully. Cases can remain open for many years and when approaching retirement doctors would be well advised to enquire of the instructing solicitors about timescales and make clear any limits on the commitment they can offer. The GMC offers guidance on “Acting as a witness in legal proceedings” and the Civil Justice Council sets out best practice in terms of experts’ duties.

Although neither document specifically addresses the effect of retirement on the duties of experts, the best practice guidance states that if experts withdraw, they must give formal and adequate written notice to those instructing them with reasons. Doctors who continue to undertake expert work must make sure they have appropriate indemnity still in place and that they maintain their licence to practise if required for the work they do.

Insurance report

A GP was asked by an insurance company to provide a medical report on a patient who was seeking medical insurance through his employer’s scheme. The GP was aware that he was currently being treated for mild hypertension and eczema. She had also received the patient’s consent for her to provide a report.

The doctor had started to draft the report with reference to the patient’s notes but had come across an entry made five years previously. At that time the patient had suffered a period of severe anxiety and depression and had attempted suicide several times.

She was unsure if she should include this detail in the report, and if she needed to discuss this issue with the patient first.

MDU advice

The adviser confirmed that the GP had a duty, as set out in the GMC’s Good Medical Practice (2013), to ensure that the report was not false or misleading, to take reasonable steps to ensure the information in the report was correct and not to deliberately leave out relevant information. However, the GP should only disclose factual information that was relevant to the request.

The adviser suggested that she should discuss with the patient that she would have to include information regarding his mental health illness in her report as she was not able to withhold relevant facts. If the patient objected to this information being included then the GP would not be able to write the report. The adviser suggested that it may be advisable to share the report with the patient before submitting it to the insurance company so he was aware of what she had written. Should the patient disagree with the content of the report then the GP could add a comment to the report highlighting that the patient did not agree with what she had written.

Any patient is entitled to see a report under the Access to Medical Reports Act 1988. There are circumstances when it may not be appropriate to share a report with a patient – namely, if they have indicated that they do not wish to see it; if disclosure would be likely to cause serious harm to the patient or anyone else; or if disclosure would be likely to reveal information about a third party who had not consented.

The outcome

The GP prepared a report including all relevant details of the patient’s medical history. She arranged to meet with the patient to discuss the report and explain why she needed to include his history of mental health illness. The patient reviewed the report and after discussion with the GP he was satisfied that the report be submitted.

FOOTNOTES

References:

  • GMC GMP para 71
  • GMC Confidentiality para 34
  • Access to Medical Reports Act 1988

This page was correct at publication on 12/08/2015. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.