Setting the scene

Imagine the following scenario: you're an orthopaedic surgeon and you've just reviewed an elderly man in your NHS clinic, advising that the patient needs surgery. The patient is keen to proceed but when he learns of the waiting times he asks you if there's any benefit to paying for private care. 

You explain that the waiting list for private surgery is indeed shorter and give the patient a card with your private secretary's number. You don't document this discussion with the patient in the notes.

A few days later you get a message via your secretary from the patient's daughter, saying that she's reporting you to the medical director and to the GMC for trying to coerce her father into paying for private treatment.

You're understandably upset by this development, as you felt you had simply responded to the patient's query and had acted in keeping with the GMC's guidance.

Gauging the guidance

Situations like this can arise more easily than you might expect, as there's a certain amount of tension between the main guidance available on the subject.

In the GMC's 'Consent; patients and doctors making decisions together' (2008), the most relevant paragraphs are:

9. You must give patients the information they want or need about:

i. any treatments that you believe have greater potential benefit for the patient than those you or your organisation can offer.

12. You must answer patients' questions honestly and, as far as practical, answer as fully as they wish.

However, Schedule 9 of the Terms and Conditions - Consultants (England) (2003) outlines the following points:

• if an NHS patient asks about private care the consultant can only provide standard advice that has been agreed with their NHS employer
• consultants should not initiate discussions about private care nor should they ask other staff to do this on their behalf
• if an NHS patient asks about waiting times for the NHS and the private sector then the consultant should ensure that only accurate and up-to-date information is given.

As demonstrated in the example scenario above, navigating the interface between NHS and private health services can be challenging for doctors, especially given the possible repercussions should any misunderstandings arise.

There is potential for patients, relatives or even a patient's GP to complain if they feel that a doctor has inappropriately tried to recruit NHS patients to their private lists. Such complaints might be resolved locally if there is just a simple misunderstanding, but could lead to NHS disciplinary proceedings and GMC investigation if there are concerns about a doctor's probity.

Reducing the risks

So how can doctors ensure they don't inadvertently find themselves in a similar situation? These are some of the ways you might reduce the risk of any confusion or misunderstanding if the patient does raise a query about private care:

1. As outlined by the GMC, doctors are expected to answer questions accurately and this also applies to questions asked about private practice. It is also reasonable to explain to patients how long they may wait for a procedure but raising the issue of long waiting lists in the NHS versus shorter ones in the private sector yourself could be viewed as an attempt to persuade patients to seek private care. As such, it's prudent to avoid saying anything which may be perceived as suggesting the service available on the NHS is inferior to private alternatives or anything that may be seen as disparaging about the staff involved in NHS care (such as junior doctors).
2. Any discussion about private care should be documented in the notes and ideally also referred to in the GP letter. In this way consultants can demonstrate that they are being transparent about any conversations with the patient. These notes may also be invaluable if a complaint is received as they will help support how the discussion started, what exactly was discussed and how the conversation concluded.
3. If you're faced with a situation where a treatment that has a greater potential benefit for a patient is only available in the private sector, it would be advisable to seek input from your NHS employer as to how such matters should be raised with patients in these situations.
4. Any answers to patient questions about private treatment should be balanced, avoid bias and be entirely factual. It can be helpful to make it clear to the patient that there are alternative consultants who also provide private services that they may wish to consider.

Complaints about these types of conversations tend to arise when patients feel the discussion was uninvited, financially motivated or heavily biased towards the benefits of private treatment, rather than being in the patient's interests. Complaints are also more likely when the patient is left feeling anxious that the best treatment is beyond their means or that they are under pressure to choose the private option.

Taking these points into consideration should help to ensure the patient understands your intentions and reduce the risk of a complaint.

If you've got questions about your responsibilities surrounding offering NHS and independent care, the MDU's team of medico-legal advisers are available 365 days a year.