One slip gets you in a lot of trouble

We all know that we live in an increasingly regulated world, and particularly so in the healthcare sector. But have you ever thought about just how many sets of regulatory proceedings a doctor may face out of one incident?

You may have examined a patient without a chaperone because a chaperone wasn’t required – but the patient may allege that an intimate examination took place. Or you may be accused of fraud because you did some private work whilst on sick leave from the NHS. You may be involved in the care of a patient who sadly dies, in circumstances in which your treatment decisions are criticised. Or any number of other things. What could happen next?

1. A police investigation. You may be invited to attend an interview under caution. In more serious cases you may be arrested and taken to the police station, and your home (and electronic devices) searched. If the CPS decide to prosecute you, you will face a criminal trial.
2. In the meantime you will be referred to the GMC (probably by the police – and you are under an obligation to self-report if you are charged). The GMC may put their investigation on hold until the criminal investigation has concluded but in the meantime you may be referred to an MPT hearing and subject to interim conditions or even suspension.
3. Your employer, if you have one, may take disciplinary action. If you are a GP, NHS England may take action under the Performers List regulations. If you work in a partnership, your partnership agreement may allow your partners to take action. Your practising privileges may be suspended.
4. If you are a provider of healthcare, CQC may also take an interest.
5. If the allegations relate to the death of a patient, there may be an inquest.
6. And in addition to all of the above, the patient/relatives may bring a civil claim for damages.

All of these different jurisdictions are separate and the fact that one does not proceed may not prevent the others from going ahead. Even if a doctor is acquitted at a criminal trial, the GMC may investigate and proceed with a hearing (because their remit is different, as well as their standard of proof). Similarly, even if the GMC proceedings do not result in any action, a claim for damages can be made because a finding that a doctor’s fitness to practise is not impaired does not mean that they were not negligent.

How to avoid trouble

How can you avoid these nightmare scenarios? Sometimes you can’t. But there are things you can do to reduce the chance of trouble:

• Have a very low threshold for asking for a chaperone. It might make your clinic over-run, but that is a price worth paying. Document the fact that a chaperone was present, and their name.  ideally, they should countersign your records. The fact that your patient is the same gender as you does not remove the need for a chaperone.
• Keep good records. Document the reason for an examination, and the nature of the examination carried out. Document the fact that you have explained both to the patient.
• In difficult or serious cases, take care to document the rationale for your treatment decisions. Discuss them with others and document that you have done so.
• Communicate well, with everyone – patients, relatives, other doctors, nurses and other healthcare staff, managers.
• Take professional advice the moment you become aware of a complaint – call your indemnity provider, they are usually a great source of advice.
• Make sure that your insurance/indemnity cover is up to date. Put the renewal on direct debit so that you don’t inadvertently forget to pay and lose cover. Remember to tell them if you move house or your scope of practice or income changes. Be careful when changing providers – think about run off cover. Make sure that your cover includes all of the above jurisdictions. The nightmare of a complaint is made far worse if you have to pay for legal advice out of your own pocket.

I hope that you never have to face any of these issues.  If you do – take advice and take care of yourself.

First published in Independent Practitioner Today in October 2021