Case study: Mr David Sellu
The custodial sentence imposed on Mr Sellu has caused surprise and consternation among the medical profession. As President of the Royal College of Surgeons, Professor Norman Williams has been uniquely placed to hear the concerns of Mr Sellu’s wider surgical fraternity.
On the defensive
Although one can reasonably observe that the David Sellu case simply reflects the times in which we live – and more specifically the level of expectations patients have of us – the consequences mean that there is a real risk for doctors to practise defensive medicine. This is, of course, the pursuit of unnecessary investigations – the ordering of tests, treatments, etc, that help protect the doctor rather than to further the patient’s diagnosis.
Dr David Studdert identified two types of defensive medicine:
- Assurance behaviour (positive defensive medicine) – providing services of no medical value with the aim of reducing adverse outcomes, or persuading the legal system that the standard of care was met, eg, ordering tests, referring patients, increased follow up, prescribing unnecessary drugs.
- Avoidance behaviour (negative defensive medicine) – reflects doctors’ attempts to distance themselves from sources of legal risk, eg, forgoing invasive procedures, removing high-risk patients from lists.
Defensive medicine can make your practice more risky. Unnecessary treatment – particularly invasive procedures – could actually increase the risk of litigation. Some tests have their own inherent risks and doctors could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient).
I suppose patients have always expected very high standards but they also had a high level of trust in us and that trust has been eroded in recent years, with the problems with Mid Staffs. We have to understand that
Professor Williams says: “I suppose patients have always expected very high standards but they also had a high level of trust in us and that trust has been eroded in recent years, with the problems with Mid Staffs. We have to understand that. Yes, we can bridle, it’s unfair, but that’s not the point here; I think we have to accept that. Therefore we have to be meticulous in exactly what we do and also we have to record everything very carefully.”
Professor Williams sees the practical implications of the Sellu ruling as reiterations of long-established advice. He says: "I think doctors have to ensure that they write everything down that relates to a consultation, such as management plans, etc. It’s no good relying on verbal instructions, so you have to be very clear – and handwriting has to be legible.
"You have to be candid with patients and tell them what you are planning to do; informed consent should mean informed consent – you must discuss very clearly the possible pros and cons of any procedure you’re about to embark on. You must make sure that the patient understands that and talks back to you to confirm they have been properly informed, and you need to judge the capacity of the patient to understand. It also goes without saying that you have to be compassionate and caring."
If things go wrong
Of course, adverse events are inevitable in medicine. Openness and effective communication in the aftermath is essential – not only is it the right thing to do, but it can be a pivotal factor in determining whether a patient makes a claim for compensation. Professor Williams says: “First of all in any adverse event, we all have a professional duty of candour and if anything does go wrong you have to apologise, and it should be a sincere apology, not just to get you out of trouble. This should be accompanied by an explanation of what has gone wrong, and why, and how it has led to harm and what you are going to do about it. An apology doesn’t mean you are liable.”
Many doctors support the concept of open disclosure but have personal concerns that in responding to a patient, they may inadvertently expose themselves to further criticism or legal action – but it must be remembered that an apology is not an admission of liability. MPS has long supported a position of open communication and our advice to members is to be open when things go wrong.
This openness extends to reports to the coroner upon a patient’s death. It is essential that your MDO looks at any such report before it goes anywhere else – in addition, please see the MPS Reporting Deaths to the Coroner factsheet.