Doctors working for an NHS body (or the HSC in Northern Ireland) will have access to NHS indemnity for claims for negligence through a clinical negligence scheme. But there are many circumstances where a doctor may need help and advice that are not included in NHS indemnity.
A trust's legal department may be able to advise and support doctors in some circumstances, but its primary duty is to represent the trust's interests. These will often coincide with the individual doctor's, but there are situations where it won't.
MDU advisers can offer help with other medico-legal issues arising from clinical practice that aren't dealt with by NHS indemnity, such as a complaint to the GMC, professional disciplinary issues relating to clinical matters or a criminal investigation, as well as help with media enquiries.
What we do
The MDU's team of medico-legal advisers provides ethical and legal advice in relation to the clinical care of patients to help doctors avoid problems. They also offer advice and support when doctors find themselves in difficulties.
This advice may be one-off if a doctor calls us on the helpline, but if complex or ongoing guidance is needed we will ask a member to write or email instead. We can then assign an adviser to support and advise that doctor as the case develops.
Cases may run over months or years. As the graphic below illustrates, the possibility of multiple jeopardy means that in rare instances a medico-legal issue starting as 'just' a complaint might end up involving a coroner's inquest, a GMC inquiry or even a police investigation. A doctor may face any of these investigations even if they have done nothing wrong; all it takes is an allegation. Unfortunately, being a 'good doctor' doesn't necessarily provide protection.
Hopefully you'll never face the types of issues outlined below. But if you found yourself in a similar situation to the doctors in the following case examples, would you be able to cope on your own?
The following case examples are all fictitious but based on the type of problems members face.
The mother of twins complained to the GMC after her second twin required prolonged intensive care after being delivered by emergency caesarean section. The registrar who performed the procedure was investigated by the GMC and was being advised by an MDU adviser.
An earlier trust investigation had been supportive of the doctor's management, so she was devastated when the GMC expert was critical of several aspects of her care.
The MDU advisor obtained an expert opinion which agreed with the trust's assessment. The MDU helped the doctor to give a detailed response to the GMC allegations, backed up by the expert report.
Eight months into the process the case examiners decided to offer the doctor a warning. She wasn't willing to accept this, as she believed her management had been correct and knew that a warning on her registration would limit her chances of securing her first choice consultant post. She accepted that the GMC would most likely proceed to an investigation committee hearing. The hearing lasted 15 days, and the doctor was supported by an MDU solicitor, barrister and independent expert.
The committee confirmed that a warning should be issued. As there is no appeals process following an investigation committee, the MDU took the case to a judicial review where the decision to impose a warning was reversed. Although the warning was then removed from the GMC website, the fact that an investigation committee hearing had taken place was still stated and the MDU successfully applied to have that removed as well.
Eighteen months after the investigation began the case was closed, and shortly afterwards the registrar secured her first choice consultant post. The costs incurred by the MDU for the legal team and expert were over £35,000.
An A&E registrar called the MDU after a patient alleged he had touched her breasts and made suggestive comments when he had examined her. The trust had advised the patient to call the police and excluded the doctor from work. The doctor told the MDU adviser that he hadn't been told the name of the patient, seen any records or been asked for comment. He denied any inappropriate behaviour and was understandably very upset.
Two days later, the doctor was asked by the police to attend an interview. The adviser arranged for an MDU solicitor to assist him, and she was able to get some information from the police about the patient, as well as a copy of the member's entry in the records.
After seeing the records, the doctor remembered the patient. She had complained of breathlessness after a night out when she didn't have her usual inhaler, and had attended with a friend. A chaperone was offered before the examination but the patient refused, and instead asked that her friend stay with her. This had been agreed and documented by the doctor.
The solicitor helped the doctor draft a witness statement in advance, and they attended the police interview together. The doctor provided the prepared witness statement and denied the allegations, giving a clear account of the consultation.
The next few weeks were very difficult, as the doctor was in the process of applying for GP training. The adviser liaised with the police and explained that the open investigation was having a detrimental effect on the doctor's career progression. Eventually the police confirmed that they had insufficient evidence to press charges, but it took several more weeks before the trust concluded their investigation and allowed the doctor back to work.
A doctor may face any of these investigations even if they have done nothing wrong; all it takes is an allegation.
A doctor was emailed by the legal department of a trust where he had worked as a night duty locum. A coroner's enquiry had been opened into the death of a patient after feeding into a misplaced nasogastric (NG) tube.
The trust wasn't able to represent him as they considered that there could be a conflict of interest. This arose because a 'never event' investigation had taken place and a report by a consultant for the trust had criticised the locum doctor for not following trust policy. The trust's legal team explained that the report set out the trusts position and therefore they did not feel able to support the doctor at the inquest.
The doctor was extremely worried by what he had been told and called the MDU for advice. The adviser reassured him that the MDU could instruct independent legal representation for him in these circumstances. She asked the doctor to send in all relevant documents.
The records showed the doctor had had minimal involvement with the patient; the tube had been sited and an X-ray requested before his shift started. An unsigned entry timed after his shift had started, but in another doctor's handwriting, noted that the X-ray showed correct tube placement. The doctor recalled that as a locum he had had no password to access the X-ray system, so the outgoing SHO had agreed to check the result after the handover. The nurses later asked the locum if they could feed the patient, which he'd allowed after referring to the entry made by his colleague.
After obtaining the trust's 'never event' report and its policy on NG tube placement, it appeared the investigator assumed the entry had been made by the locum, who hadn't been asked for his account of the incident or even told about the 'never event' by the trust. It seemed the doctor hadn't breached the trust policy after all.
The coroner had already been given a copy of the erroneous report and been asked to make the locum an 'interested person', so the doctor was represented by the MDU.
The advisor suggested the doctor should refer to the MDU online guidance on writing a report for the coroner and she then reviewed the doctor's draft, suggesting some changes to improve clarity for a lay person. The doctor was supported by an MDU solicitor at the inquest, which was straightforward and involved no criticism of him.
Dr Christine Walker
Christine Walker undertook GP training before choosing a career in paediatrics. Her particular interests were neonatology, paediatric neurology and child development. She became a consultant in community paediatrics, leading a multi-disciplinary child development centre team and she was made a fellow of the Royal College of Paediatrics and Child Health. She has been a medico-legal adviser at the MDU since 2009.
See more by Dr Christine Walker