Qualified privilege
On grounds of public policy, the law in most countries offers protection on certain occasions to people who inadvertently make unflattering statements about another in good faith, and without any improper motive. Such occasions attract what is sometimes termed “qualified privilege”, on the basis that the person who makes the statement has a legal, social or moral interest or duty to make it, and the person to whom it is made has a corresponding duty to receive it. Obvious examples of this are a character reference given about an employee or colleague to a prospective employer, an independent report or an expert opinion given in the context of a legal process or investigation.
Complaints by patients to an appropriate authority, employer or the owner of a practice about the conduct of a doctor, or to a regulatory body (medical council or board), would also fall within the category of qualified privilege. The complainant, in each case would have a defence if sued for libel or slander by the doctor concerned. Patients in these situations may occasionally ask for a second opinion from another doctor detailing their findings, which may involve commenting on advice or treatment provided by a previous doctor. It would generally be considered unethical to refuse to provide such a report. It is in the public interest that the profession should not close its ranks on patients who are dissatisfied with their medical care.
Doctors must, therefore, be prepared to provide information to patients and justify any statements that they make. In doing so, they would generally enjoy the same privilege as the complainant. It is important to note, however, that this privilege is qualified rather than absolute. This means that itextends only to what is relevant and pertinent to the discharge of the duty or the protection of the interest which creates the privilege.
Thus, if a letter of complaint or a report prepared by another practitioner went beyond the facts relating to the complaint the latter statements would not be protected by privilege. A genuinely held professional opinion would be protected, however misguided or misinformed it might be. Practitioners unfortunate enough to receive disparaging communications from patients, and/or adverse and critical reports from professional colleagues, need to appreciate the principle upon which privilege is based. Certainly, such practitioners should resist the temptation to write back in anger, dispensing a few ill-chosen words giving their views of the colleague in question.
Similar control should also be exercised over any temptation to respond with a knee-jerk reaction to “hearsay” accounts of what a patient has allegedly been told by another doctor or other healthcare professional. In these cases it would be much more professional to suggest that the colleague in question should be asked to confirm his/her observations in the form of a written report. In most cases, this rapidly precipitates clarity by demonstrating that what the colleague actually said was very different from what the patient first reported them to have said.
It should not be assumed from any of the above, however, that a practitioner should ignore, or seek to justify or excuse, poor medicine. Patients are entitled to know about their health and medical care, and practitioners have an ethical duty to inform them on an honest and factual basis. If this can be done without denigrating one’s colleagues on the basis of hearsay, both patients and practitioners can benefit.
Problems are more likely to arise when comments extend beyond objective clinical opinions and become critically judgmental of a professional colleague. These comments might be fuelled by a personal animosity between the two doctors, with the second doctor perhaps deliberately embellishing and exaggerating the situation. This raises ethical questions about the second doctor, over and above any clinical issues surrounding the doctor whose practice is under scrutiny.
It is important to bear in mind that things are not always as they appear (or as first related by our patients) and there are two sides to most, if not all, stories. When reviewing the work of another practitioner, a prudent approach is to describe things in the same way that you would wish to be spoken of yourself, were the roles to be reversed. There is nothing new in medicine – as in life in general – with regard to the perils of criticising others.