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DLA Phillips Fox: Legal Commentary

Hanne Janes, Adam Holloway and Sean O’Sullivan, from DLA Phillips Fox, offer the legal view on the revised aspects of Good Medical Practice

GMP has important consequences for doctors. As acknowledged within GMP, under the Code of Health and Disability Services Consumers’ Rights (Code) patients have “the right to have services provided that comply with legal, professional, ethical, and other relevant standards”. GMP is both intended, and functions, as “the foundation stone” for those standards.

This is why GMP, the way it is drafted, and how it is interpreted is so important. In this legal commentary we offer a perspective on the recent revisions to GMP and discuss some of the issues that might arise for doctors and their advisers.

Prescribing

This change reflects increasing use and realities of internet and ‘telemedicine’ prescribing.

Where inconsistencies exist between GMP and the Council’s 2010 Statement on Good Prescribing Practice, it is expected that the overriding duties set by GMP are likely to take precedence. Care needs to be taken however: we are aware of a practitioner who believed themselves to be fully compliant with Council’s Statement on Good Prescribing Practice but is nevertheless currently facing the prospect of being referred for a performance assessment.

While the Health and Disability Commissioner has previously acknowledged that renewal prescriptions will be appropriate in some circumstances, in a 2009 article the Commissioner wrote: “Depending on the nature of the medication, the doctor may be expected to decline a repeat prescription in the absence of a review.” (Repeat scripts for patients, NZ Doctor, 22 April 2009.)

The limited circumstances in which GMP states that it “may be reasonable practice” to prescribe without a face to face consultation or discussion with another registered health practitioner who has seen the patient apply only where having that consultation or discussion is not “possible or practical”.

What circumstances will qualify as being not possible or practical is uncertain. Depending on how it is interpreted and applied, this change to GMP may make the renewal of prescriptions problematic where an agency takes the view that it would have been “possible” or “practical” to require a patient to be seen first.

Sharing information in public (supplementary guidance)

It is not difficult to see the underlying sense in the supplementary guidance, particularly by reference to obvious or extreme information disclosures. Less extreme boundaries will be less easily defined, and could therefore expose practitioners to risk.

Less extreme boundaries will be less easily defined, and could therefore expose practitioners to risk

Submissions on the consultation draft of GMP included:

  • Restriction on disclosing information about oneself which might undermine relationship with patients is very vague and probably unreasonable. What sort of problem is this addressing?
  • … as doctors, we are responsible for making sure information about our patients is private. Information about ourselves is our own business.

These concerns remain. There are also some circumstances where a practitioner may feel it could be helpful to the therapeutic relationship to share some limited information about themselves, for example to establish rapport or encourage a patient who is hesitant to share relevant and important information.

As phrased by this GMP guidance, it could effectively capture information about clinical matters (for example, criticism of a colleague or disclosure of inappropriate behaviour within a hospital), as well as any information that might undermine patient relationships (for example, using Facebook to protest against meat-eating in a farming community).

There is a risk that this part of GMP could give rise to collateral investigations into clinical or professional conduct, and it is not clear where agencies will in future demark that very fine line between personal and professional boundaries.

Adverse outcomes (par 24)

While an appropriate and reasonable expectation, which is also phrased as a “should” requirement and therefore implying flexibility in application, in our view any obligation to provide a “prompt” explanation should always allow for the doctor to have time to assemble relevant facts and to assess matters as calmly and carefully as possible so that incorrect information is not conveyed which may exacerbate later complaints or distress. It should also allow for an opportunity for the doctor to obtain an objective assessment of his or her conduct from an appropriately qualified colleague or specialist.

It is always appropriate that the doctor meet with the patient, express regret that there has, or appears to have, been a complication or adverse outcome, explain what is known at that point in time, and explain the process and timeframe for finding out more about what has happened

It is always appropriate that the doctor meet with the patient, express regret that there has, or appears to have, been a complication or adverse outcome, explain what is known at that point in time, and explain the process and timeframe for finding out more about what has happened. It is equally important that the doctor doesn’t speculate or rush to a conclusion.

The standard as written has the potential to place undue pressure on the doctor to make a hasty assessment of his or her conduct, which could have adverse consequences later.

Reporting abuse (par 27)

Aspects of this new duty are uncertain. They do, however, go significantly beyond the duties imposed under sections 151, 152, 195 and 195A of the Crimes Act 1961 (introduced in March 2012) to take steps to protect a child or vulnerable adult. For example, s151 provides that everyone who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty to take reasonable steps to protect that person from injury.

By reference to the Crimes Act, “vulnerable patients” will likely be interpreted as including “vulnerable children” (those under the age of 18 as established by s152) and “vulnerable adults” (defined in s2 as meaning “a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person”).

There is no definition in GMP of “vulnerable patients” or “abuse or neglect”. There is tremendous scope for confusion for doctors in applying, and thus complying, with this standard, particularly in circumstances were there will inevitably be a number of competing and potentially inherently incompatible considerations and interests.

Nor does GMP provide any guidance on what the “appropriate authorities” might be. In some circumstances doctors might regard a clinical Child Protection Team as more appropriate than the police or child, youth and family.

The term “without delay” could also be subject to differing interpretations. If a doctor notifies too quickly without obtaining and/or checking relevant facts, they could equally be subject of later criticism. In a criminal context, “without delay” has been interpreted as being not synonymous with “immediately”; and that it is a matter of what is reasonable in each case (Elliott v Police HC Dunedin AP15/97, 16 April 1997).

The new duty is also potentially confusing about a doctor’s duty where the reporting of abuse might cause danger. It states: “You should inform the patient, and if the patient is under the care of another person, his or her caregivers of your intention to report your concerns, taking into account that such action might endanger you or the patient.”

The extent of the latitude provided by the words “taking into account” remains to be seen. The consultation draft of GMP provided simply that you should inform “unless this action might endanger you or the patient”.

It is suggested that a relevant consideration doctors should be entitled to take into account is whether complying with this new duty may give rise to a danger to themselves or the patient. There will be cases where confronting a suspect abuser will be better and more safely done by the police or another agency.

There will be cases where confronting a suspect abuser will be better and more safely done by the police or another agency

Informed consent (par 30-34)

Doctors are familiar with the principles of informed consent. They should, however, read these particular standards in conjunction with the earlier stated requirement inGMP that requires them to work in partnership with patients and colleagues, “giving them the information they want or need in a way they can understand and ensuring they understand it”.

Doctors may need to incorporate into their informed consent processes a mechanism that demonstrates the patient has “understood” and document this clearly. Medicolegally, this is also desirable so compliance is encouraged.

With the extension to have a “reasonable knowledge of the range of evidence-based treatments” doctors will again have to be able to demonstrate that at the relevant time, they were up-to-date with such evidence-based treatments, provided the information to the patient, and also that they advised the patient where he or she could find information about other evidence-based treatments not discussed. This could be expected to expand the time required to properly obtain informed consent.

Continuity of care (par 50-52)

The ‘supplementary guidance’ to these paragraphs includes: “When you transfer care of a patient to another practitioner, you must [note: not “should”] ensure that the patient remains under the care of one of you at all times.” This is a significant obligation, particularly in some contexts, such as where a professional relationship is being ended.

There are likely to be circumstances [...] where it will be very difficult to comply with what GMP says about patient transfer and ending a professional relationship

There are likely to be circumstances (for example, a GP in a small community wanting to stop seeing a patient who is threatening) where it will be very difficult to comply with what GMP says about patient transfer and ending a professional relationship.

In relation to test referrals, the supplementary guidance to paragraphs 50-52 provides that the doctor who orders a test remains responsible for responding to the results and “must have a process for identifying and following up on overdue results”.

This has been the expectation reiterated in many Health and Disability Commissioner decisions. With it now becoming an explicit standard under GMP, it will require greater care to personally ensure appropriate systems. This may require employed or locum doctors to challenge the adequacy of the systems provided for them.
The referring doctor “should ensure that the patient is aware of how information about them is being shared and who is responsible for providing treatment, undertaking an investigation and reporting results”. This may prove difficult where, after referral to one service, a patient is referred again for, say, testing without the first referring doctor knowing about this until sometime later.

Raising concerns (par 62-69)

Doctors are encouraged to follow the steps outlined, which starts with speaking to the colleague in a “constructive manner” as a first step, with escalation of reporting of concerns thereafter if the concerns are not appropriately responded to.

While there is an enjoinder that the doctor should “not delay taking action because you yourself are not in a position to put the matter right”, doctors should also ensure that they have all the relevant facts and do not act precipitately.

It may seem self-evident but these new duties should be read in conjunction with the standards under “Working with colleagues”, in particular the requirement to “not make malicious or unfounded criticism of colleagues” and to “not discriminate” against them. Reference is made in GMP to the Health Practitioners Competence Assurance Act 2003 requirements to notify, and doctors should be familiar with the provisions in sections 34 and 45 of that Act.

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