Accidents happen; mistakes are made; patients feel aggrieved. A key concern for GP practices is what avenues are legally open to the patient.
It is a fundamental principle of the law that ‘he who asserts must prove’. The wronged person must make their case in either civil law or through a complaints procedure. For that reason practices will often find themselves on the back foot, and will be better placed not only forearmed with knowledge, but also compliant with any relevant procedures.
Complaints may be either administrative (lost referrals) or medical (harm in treatment). A patient will be guided in their approach by the nature of any harm suffered and, by extension, the quality of redress sought. While an apology, explanation and rescheduling may suffice in the case of lost referrals, it may be inadequate to a medical mishap that entailed physical harm.
It stands to reason that it is preferable to avoid complaints being made, through improved services and training of staff. Yet a patient may still feel the need to make use of complaints procedures.
It is as well for practices to know and understand the avenues open to the patient. The UK Government has in recent years promoted greater patient-centred care, and in 2009 the Department of Heath (DH) encouraged practices to seek qualitative patient feedback, and published Understanding what matters: a guide to using patient feedback to transform services.1 Feedback data gathered by practice managers and medical staff are designed to feed into improvements in the quality of care. Several publications have featured papers on this initiative, generally finding the exercise to be credible, though not without its limitations.
As well as keeping up-to-date with current trends in practice management, resources are available that cater to those issues that could escalate to a complaint or even to a legal dispute. For example, the Royal College of General Practitioners (RCGP) has published various books, CDs and DVDs on subjects such as conflict resolution and communication skills. And the NHS itself offers certificate and vocational training schemes2 that cater specifically towards GP surgery practice management. These courses also include training in medical ethics and in the management of information and communication.
Despite training and feedback processes, both complaints and cause for complaint should still be envisaged. There is a range of options open to the patient. In 2014 the Care Quality Commission (CQC) published How to complain about a health or social care service.3 In it the CQC points out that, “[by] law, all health and social care services must have a procedure for dealing efficiently with complaints.” The first port of call for complaint is the service provider – in this case the primary care practice – or through the existing NHS complaints procedure.4 The CQC lists various bodies that may be approached, including the Health Service Ombudsman. If a patient is unhappy with the response, they may contact the Independent Healthcare Advisory Services.5
Should a patient remain dissatisfied after consulting these bodies, their first recourse to a legal solution may be by way of judicial review.6 Rather than a consideration of negligence, in this mechanism a judge rules on the lawfulness of a decision made by a public body. The court will rule on whether the decision was within the power of the body making it, followed the correct procedure and was not contrary to the Human Rights Act 1998 or EU law. Such cases may be heard, for example, where a patient was denied access to scarce resources, such as expensive drugs or services.
Because a defence may be required, the question of indemnity will arise should a matter be referred to court – either by way of judicial review or in the civil law of negligence. Indemnity schemes may cover individual GPs or involve group coverage of whole practices. Organisations such as the Medical Defence Union7 offer both kinds of coverage. It is a statutory requirement for GPs to hold adequate insurance against liability for wrongful acts.
A patient’s complaint may follow a medical mishap. Again, this may be resolved through bodies such as the CQC or Ombudsman if the complaint is made directly to the practice. Failing that, a patient may seek legal advice with a view to bringing a claim in medical negligence.
Legal liability (locus)
Liability for wrongdoing may in law be either direct or vicarious. Direct liability involves an individual person bearing responsibility, for example a GP being personally liable for their own negligent act. Under vicarious liability the employer is liable for the wrongful act of their employee, as long as it was committed in the course of employment.
In general, GPs are independent contractors rather than employees and so are individually liable for claims brought against them. But as employers of administrative staff, the GP will be vicariously liable for any wrong committed by their staff.
In contract terms, a GP practice is a partnership. That means that the partnership is a separate legal person. As such, it will be the partnership or practice that will be vicariously liable for the wrongful acts of its partners, as long as those acts are committed in the ordinary course of practice business. The partners in a practice will be jointly and severally liable, which means that action may be taken against the individual GP or against the partnership. The availability of legal aid8 depends on the material circumstances of the parties.
Negligence of medical staff
What follows is a brief outline of the elements of a claim that a patient would be required to prove in order that their claim is successful. They will be required to prove all of these elements, ie. harm that is caused by the breach of the duty of care.
While that may appear to leave the GP or practice on the back foot, in the UK these elements weigh in favour of the health care professional.
1. The duty of care and its breach
That a duty of care exists between a doctor and their patient is uncontroversial. The standard of care expected of medical professionals is the so-called Bolam standard:9 a doctor will not be liable in negligence if they acted in accordance with the accepted practice of a responsible body of medical practitioners skilled in that field. As long as that practice is reasonable, it does not matter that there is another equally reasonable practice.10
2. Causation of harm
It is necessary to establish a causal link between the negligence (breach of the duty of care) and the harm suffered. If the negligence does not cause or materially contribute to the harm, the claim will not be successful; so it is possible for there to have been negligence, but for the claim to fail.
An act is seen as causal if but for that act, the patient would not have suffered the harm. For example, if a surgeon wrongfully leaves a swab inside a patient during an operation and that patient contracts MRSA during their stay in hospital, they would bear the considerable burden of proving that had the swab not been left in their abdomen, they would not have contracted MRSA. It is unlikely that those two events are causally linked (as would be the case if the harm is abdominal pain or obstruction, for example).
The avenues open to a patient that feels wronged in their care, depend largely on the nature of the wrong and the form of redress sought. Practices can guard against adverse outcomes though ongoing training and referral to existing processes. Yet it remains important to be aware of the applicable legal standards. l
Murray Earle is a freelance medico-legal advisor and writer.
Understanding what matters: a guide to using patient feedback to transform services. 2009. Department of Health. London.
NHS Careers. Practice Management. Available at: www.nhscareers.nhs.uk/explore-by-career/management/careers-in-management/practice-management/#one
CQC. How to Complain. Available at: www.cqc.org.uk/sites/default/files/documents/20140210_6642_cqc_how_to_complain_leaflet_final_web.pdf
NHS. NHS Complaints. Available at: www.nhs.uk/choiceintheNHS/Rightsandpledges/complaints/Pages/NHScomplaints.aspx
Independent Healthcare. Available at: www.independenthealthcare.org.uk
Ministry for Justice. Applying for judicial review. Available at: www.justice.gov.uk/courts/rcj-rolls-building/administrative-court/applying-for-judicial-review
Medical Defence Union. Available at: www.themdu.com
UK Government. Legal Aid. Available at: www.gov.uk/legal-aid/overview
From the decision in Bolam v Friern Hospital Management Committee 1957;2:118