Problems in clinical management
Negligence is a legal concept. It does not mean neglect or wilful misconduct, but a failure to attain a reasonable standard of care. Any doctor can make an error of judgment. Some are legally defensible, others are not; what is important is whether the management can be defended by a responsible body of professional opinion.
In cases of negligence, the only remedy available in law is financial compensation: damages are paid to restore claimants to the position they would have been in had the negligent act not occurred. Before damages are payable, however, the claimant must prove all three of the following:
- They were owed a duty of care.
- There was a breach of that duty of care.
- Damage was suffered as a result.
Any doctor can make an error of judgment. Some are legally defensible, others are not; what is important is whether the management can be defended by a responsible body of professional opinion
Clinical practice
The test for establishing negligence in a patient’s diagnosis or treatment derives from the Dunne case,9 in which Finlay CJ set out the principles that courts have since applied when assessing the standard of care the patient received. The first of his principles provides the basis for all the rest; in essence, it states that a doctor should not be considered guilty of medical negligence if other doctors of equal experience in the same specialty would have followed the same practice; such a practice must, however, be rational and reasonable.
Evidence-based guidelines improve the quality of clinical decisions, help replace outdated practices, and provide benchmarks for clinical audit
Adopt accepted practice
Accepted practice is easy to define in some areas – prescribing in accordance with the recommendations of the Irish Medicines Formulary is an obvious example. Increasingly, proper practice has to be based on evidence (ie, determined by systematic methods based on literature review, critical appraisal, multidisciplinary consultation and grading of recommendations by strength of evidence). See Appendix 1 for links to evidence-based websites.
Accepted methods of investigation and treatment are often described by clinical guidelines. Such evidence-based guidelines improve the quality of clinical decisions, help replace outdated practices, and provide benchmarks for clinical audit.
Guidelines are supposed to be an aid to clinical judgment, not a substitute for them. In theory, then, you may choose to exercise your discretion by deciding not to follow a particular guideline. In reality, however, you should only deviate from the accepted practice embodied in the guidelines if you have very good reasons for doing so. If your judgment is called into question, you will have to demonstrate why you were justified in not complying with the guidelines.
Conversely, if you follow respectable clinical guidelines and base your decisions on evidence, you will be in a very strong position if a complaint is made against you.
Act within your limitations
Although you are not expected to be infallible, the law expects that, as a doctor, you exercise a reasonable standard of skill and care at all times. Never undertake a task that is beyond your competence – when in doubt, seek help from a more experienced colleague.
Ensure you have sufficient help and equipment available for any procedure you undertake, and for the management of all foreseeable complications.
Never undertake a task that is beyond your competence – when in doubt, seek help from a more experienced colleague
Keep up to date
Make Continuing Professional Development (CPD) an integral part of your working life. This not only means keeping up to date with new treatments and technologies, but also requires self-reflection and the expansion and honing of your skills, understanding and knowledge-base.
CPD is a mandatory requirement of registration. All registered medical practitioners are required by the Medical Council to be registered with a Competence Assurance Scheme and to acquire at least 50 CPD credits each year.
Box 9: Defining poor performance
“Poor professional performance, in relation to a medical practitioner, means a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.”
Source: Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009)
Take responsibility for your health
If you have an illness, disability or infection that may put patients at risk, you must seek medical advice and, if necessary, stop or reduce your practice. The safety of your patients should be your prime concern.
The safety of your patients should be your prime concern
Check equipment
Be fully conversant with any equipment you use – ensure that it has been properly serviced and is in working order before beginning any procedure.
Delegate appropriately
In the context of multidisciplinary and cross-agency teamwork, it can be difficult to distinguish between delegation and shared responsibility. The question is really one of accountability, and working in a team doesn’t relieve you of your personal accountability for your professional conduct and standard of care.
As a member of a clinical team, you will have responsibilities for the care of patients, some of which you might delegate to staff who do not belong to a registered professional organisation. In these circumstances you would be held accountable for the actions of those staff members, so you must satisfy yourself that they are competent to take on the duties you are delegating to them and supervise them if necessary.
The matter is a little different when you delegate to a professional colleague. You would not be held accountable for the actions of another registered professional, but you would still be expected to delegate appropriately (ie, to a colleague with relevant training and skills) and to have provided them with sufficient information to carry out the task assigned to them.
Working in a team doesn’t relieve you of your personal accountability for your professional conduct and standard of care
Keep comprehensive up-to-date records
The medical record is an essential component of patient care. A good medical record will contain all the information one clinician needs to take over where another left off – or, to put it another way, to allow a clinician to reconstruct a consultation or patient contact without relying on memory.
It should, therefore, provide all the information a newcomer to the care team would need to know about a patient and their treatment plan.
If you ever need to alter the notes at a later date, make it clear that you are introducing a retrospective correction. Any alteration to paper records should be clearly dated and signed. Do not obliterate the original entry – just run a line through it. Never try to rewrite notes at a later date. Do not delete entries in computer records, but add annotations to them if necessary (and date and initial them if the software doesn’t do it automatically).
If you ever need to alter the notes at a later date, make it clear that you are introducing a retrospective correction
Do not write derogatory statements or criticisms about patients, colleagues or others; be as objective and factual as you can in making your notes. If you record any history provided by someone other than the patient, make sure you include the source – eg, “Has been ‘confused lately’ (daughter)”. Remember, patients have a legal right of access to their records, which can also be scrutinised by the courts.
Patients have a legal right of access to their records, which can also be scrutinised by the courts
The Academy of Royal Medical Colleges has adopted a national standard for notekeeping in the UK (see Box 10).10 Many of the standards are concerned with the structure of case files, and aimed at hospital medical records administration, but the standards concerned with content provide valuable guidance for doctors. Part 2 – A Clinician’s Guide to Record Standards, contains detailed advice about what to document when clerking, handing over care and writing discharge summaries.
The information can be downloaded from the Royal College of Physicians website –www.rcplondon.ac.uk.
Box 10: Selected Generic Record Keeping Standards
Source: Academy of Medical Royal Colleges, A Clinician’s Guide to Record Standards Part 2: Standards for the Structure and Content of Medical Records and Communications when Patients are Admitted to Hospital (2008)