The Medical Defence Union employs over 50 licensed and registered medical practitioners who guide, support and defend members when concerns or criticisms are made against them.

The doctors employed by the MDU have, between them, amassed over 500 years of experience in the fields of medical ethics and law and in the defence of clinical negligence claims, regulatory matters and complaints.

In the first of this two-part series we have focused on key areas such as early notification of incidents and communication. The MDU has always provided advice to members in these areas, but as the level of scrutiny and the threat of litigation faced by doctors has never been higher, this advice remains as relevant today as it ever has been.

'Seek guidance or support early, ideally before an issue has materialised'

Dr Matthew Lee, director of professional services

Our teams of medico-legal advisers and lawyers take tens of thousands of calls each year from members seeking MDU guidance or support. A recent review of the underlying reasons that members were calling identified that around 40% of calls were pre-emptive, with members seeking our advice on how best to approach a medico-legal or ethical issue to prevent potential difficulties occurring.

Even in the other 60% of calls that related to problems that had already occurred, many members were calling for early advice on how they should manage the situation or who they should report it to.

So whether you find yourself uncertain about a seemingly minor consenting issue or, in the worst case scenario called to speak to your medical director after a serious error has occurred, please remember that you are a member of the MDU and that means we want to help you.

At the very least, 'a problem shared is a problem halved', but the way a situation is handled in the initial phases can often have a profound effect on how the events pan out.

Ideally we will, in time, reach a point at which we take more calls from members calling pre-emptively than we do from those calling after a problem has occurred but it is inevitable that some problems will always remain impossible to anticipate. In such instances, picking up the phone and speaking to our team without delay can be the best course of action.

'Communicating with patients'

Dr Caroline Fryar, head of advisory

Clear communication with patients, both verbally and in writing, is vital in avoiding medico-legal issues. More than one in ten GMC cases from 2011-15 that resulted in a sanction or warning involved allegations solely relating to communication and respect for patients¹. Furthermore, a significant proportion of complaints, both at the GMC and locally at the Trust/GP practice level, involve concerns about communication to a greater or lesser extent.

In my experience patients will forgive many mishaps if they have developed a good rapport with you. Meanwhile, others for whom all goes well clinically will forgive little if they feel that you have been dismissive of their concerns or rude.

If you are running late, defuse the situation with a simple apology - this can go a long way to setting an interaction off on the right foot. Listen carefully to your patients' questions and be alert to those who ask lots of them, making sure they are provided with as much information as possible. Equally be cautious with those who ask nothing at all, and consider whether they have understood what you have said.

Acknowledge when patients do not appear happy with what you are saying and offer the opportunity to review their concerns or for them to have a further discussion with a colleague. It is also essential to communicate well with patients' relatives, where appropriate.

Finding time to communicate well can be challenging when working under the stress that clinicians face today. However, it will be time well spent - and considerably less than that required to unravel and resolve problems later.

'The standard of written medical records'

Dr Kathryn Leask, medico-legal adviser

The old mantra 'if it wasn't written down, it didn't happen' isn't quite true when it comes to medical records and recording consultations and other interactions with patients, but having good documentation is key to defending and justifying your actions.

The GMC states that documents must be 'clear, accurate and legible' and should include relevant clinical findings, what decisions and actions have been agreed and what information was given to the patient.

Recording in the notes can be time consuming in an already pressured environment, but it is definitely worth the extra time. If a patient questions a doctor's actions, detailed clinical records are invaluable in responding to concerns. You can refer to your usual practice and recollection, but this won't be as persuasive as good notes.

It is important, however, to not only record what you've found and said to the patient, but also any relevant negative findings and any other important information; for example, the fact that you offered a chaperone but the patient declined.

You can guarantee that it'll be the patient for whom your notes weren't up to standard who will complain, with the potential for those notes to be scrutinised by various third parties, including the GMC.

'Amending or altering the medical records'

Dr Ellen O'Dell, medico-legal adviser

If you want to make additions or alterations to a medical record, make sure that you enter your name, the date and time of your amendment, the additional details and sign the entry.

It is essential there is an identifiable audit trail of all changes made so that no-one can accuse you of tampering with the records and attempting to pass off the amended entry as contemporaneous. Such actions have led to local disciplinary proceedings as well as GMC investigations.

'Ensuring systems are in place for follow-up'

Dr Sharmala Moodley, deputy head of underwriting

Delayed or missed diagnosis is the number one cause of claims the MDU settles on behalf of GPs. Problems with tracking test results or acting on information from other parties can feature in these cases, so it's important to have systems in place to review or act on results and correspondence to ensure patients are managed promptly.

There should be clear procedures to guide staff and ensure consistency. All clinicians and support staff should know of the follow-up systems in place and whose responsibility it is to deal with each step. A safeguard should be introduced so that if a result or response is not received within a specified time, the requesting clinician (or another in their absence) is informed.

It is helpful to involve patients by checking they understand what tests are being ordered and what referrals are being made. Tell them how long referrals or results take to be processed and when they can expect to hear back or make a follow-up appointment. Ultimately, it is the practice's responsibility to ensure patients are followed up appropriately.

Be aware of errors and mishaps so that systems can be improved if they are not working. Staff should be encouraged to report errors or near misses, and adverse incidents and complaints should be investigated with a view to improving systems, training and learning.

Despite all the above measures being taken, it remains possible that the practice might face a complaint or claim relating to a lost test result or letter; for example, if a patient's treatment was delayed or interrupted because a result or hospital discharge letter was not properly actioned. If this happens, the GP should approach their medico-legal organisation for help with any claim or complaint.

While every case is different, it is generally accepted that the clinician who requests the investigation is responsible for checking the result and making sure the patient is appropriately informed, rather than placing responsibility on the patient to attend for results. No-one wants to be responsible for a lost test result or referral letter which causes a patient to come to harm, but with the right systems in place you can minimise the risk of this happening.

Summary

Dr Pierre Campbell, head of underwriting

My colleagues' insights have come from their experience in dealing with thousands of complaints, claims and other medico-legal matters arising over the years.

As Dr Moodley states, the most common feature we see when we analyse claims is that of an allegation of a delay or missed diagnosis. Having processes and systems in place (that are regularly reviewed and tested) to minimise the risk of delay or loss of key pieces of information is mandatory.

These systems complement the channels of communication between the healthcare professional and the patient. These too, must be reliable and robust. Good communication lies at the very heart of what we do and Dr Fryar points out, communication failings feature heavily in cases reported to the GMC.

We do see cases where an accusation of tampering of the medical records has been made. Dr O'Dell's practical advice on how to minimise the risk of this allegation ever being made is clear and unequivocal: it is acceptable to amend a medical record retrospectively, but make sure you do it properly.

Finally, I repeat the advice given by Dr Lee: seek pre-emptive advice early. The sooner we know about something, the easier it will be to give you the best advice and support in dealing with an issue.