Common problems - Your medicolegal dilemmas resolved

Common problems: Your medicolegal dilemmas resolved

Members in Ireland contact MPS about a range of medicolegal dilemmas – here medicolegal adviser Dr Sonya McCullough shares some of them, together with the advice given

Ms C is a 25-year-old patient at my practice. She is a frequent attender who is rude and aggressive with reception staff but she is not willing to listen to advice, to the extent that I believe the relationship has irretrievably broken down. Today she was shouting at the receptionist before her appointment. Can I remove her from my list? In a word – yes.

All doctors are entitled to withdraw their treatment of a patient or refuse to treat a patient. You must, however, follow the ethical standards set out in the Medical Council’s Guide to Professional Conduct and Ethics (2009) (see Sections 8, 9 and 14 for more information). Once you undertake the care of a patient, you should usually continue to care for them for the duration of their illness.

If you decide to withdraw your services, you still have an ethical duty to continue to care for the patient until alternative arrangements for care are put in at all times. You must not remove a patient from the practice list in response to them lodging a complaint or failing to comply with treatment, or purely because a patient is highly demanding, offers criticism or questions his/her treatment.

Reasonable grounds for removal include:

The patient is unlikely to co-operate
The patient is unlikely to make the lifestyle changes required to make the treatment effective
The patient is violent or threatening.

If a patient presents a risk of violence, you should make a reasonable effort to assess any clinical cause of the violent behaviour. However, you should not put yourself at risk in carrying out this assessment and may in such circumstances refuse treatment. If a patient has been violent or threatening to the point where there have been fears for personal safety, MPS would recommend that you report the incident to the Gardaí straightaway.

Before making the decision to remove a patient, it’s a good idea to:

Warn them you are considering ending the relationship
Do what you can to restore the relationship. Has there been a misunderstanding that can be rectified? Is the patient’s behaviour out of character – could it have been caused by illness, distress, or anxiety?
Explore alternatives to ending the professional relationship. Would the patient relate better to a different GP within the practice? Could a meeting with the patient resolve matters and help clear the air?

If you do refuse to treat a patient, you should transfer their medical records to their new GP without delay. In some circumstances, it may be appropriate to explain the reasons for your refusal to treat. If you wish to discontinue treating a public patient, you should advise the HSE of this fact and the reasons why. The HSE is then responsible for ensuring continuity of care and will refer the patient to the panel of local doctors available for them to register with.

If you decide to withdraw your services, you still have an ethical duty to continue to care for the patient until alternative arrangements for care are put in at all times

It’s a good idea to notify the patient in writing that the HSE will make these alternative arrangements for their care, as a matter of courtesy and good practice, and to avoid the patient making a complaint relating to poor communication. For private patients, there is no independent regulation for removing private patients from the practice list, apart from the Medical Council’s guidance.

A two-week-old baby was seen by my partner last month with apparent URTI for which he recommended general measures. She was then seen OOH with vomiting and a cough where an antibiotic was prescribed. The next morning she was taken to the Emergency Department but was dead on arrival. The parents now wish for copies of her records. What should I do?

Firstly, remember that your duty of confidentiality to the patient remains after death. If an adult patient wished specific information to remain confidential after death you should respect that wish – though of course that doesn’t apply in this case. You should avoid any disclosure that would compromise the confidentiality of a third party.

If there is a complaint arising after a patient’s death, discuss the relevant information with the family, especially in this case as the patient was a child. If the child held a medical card, the parents are entitled to apply to the HSE for disclosure of records under a Freedom of Information (FOI) request. However, if the child was treated as a private patient, disclosure is not covered under the Data Protection Act or FOI.

Patient information remains confidential even after death

Consider the Medical Council’s guidance: “Patient information remains confidential even after death. If it is unclear whether the patient consented to disclosure of information after their death, you should consider how disclosure of the information might benefit or cause distress to the deceased family or carers. You should also consider the effect of the disclosure and the reputation to the deceased and the purpose of the disclosure.” (24.4).

You can provide parents with a copy of their child’s records, but you must ensure that you redact the third party information. If you later become aware of a claim, contact MPS immediately.

Mrs F is 80 and has terminal cancer. There has been some criticism of her care to date. This afternoon there was a family meeting, with her consent, to discuss future management. During the meeting, I realised that her son was covertly recording our conversation. I didn’t say anything to the family at the time, but what should I do?

The first thing to consider in this case is patient confidentiality. You need to confirm that the patient has given her consent to disclosure of information to her family. The Medical Council’s guidance states: “While the concern of the patient’s relatives and close friends is understandable, you must not disclose information to anyone without the patient’s consent.”

In this case, Mrs F has given consent to disclose information, as she was happy for her son to be present. However, a recording of the consultation could be shared elsewhere. Section 32.1 of the Medical Council’s guidance states: “Audio, visual or photographic records of the patient, or relative of a patient, in which that person is identifiable should only be undertaken with their express consent. These recordings should be kept confidential as part of the patient’s record.”

Express consent of any family members taking part in the consultation should be obtained prior to the start of any recording. Can you be sure that Mrs F consented to the recording, and that the recording will be kept securely and confidentially afterwards? As a doctor, you would not be allowed to record any consultation with the patient, except in accordance with section 32 of the Medical Council guidance, where you obtain the prior express consent of the patient.

Section 98 of the Postal and Telecommunications Act 1983 clearly makes it an offence to record private conversations without the consent of the individuals involved. Section 13 (3) appears to allow for the recording of telephone calls where either party consents to its recording. Applying this to the scenario of recording a consultation between a doctor and patient, it would appear to allow for the recording with the consent of either the doctor or the patient, but not necessarily both.

You may wish to consider a policy prohibiting the recording of any such consultations

The legality of recording private conversations, whether on the telephone or otherwise, has been tested on a limited number of occasions and it would appear that such recordings are permissible in certain circumstances. However, the matter is still quite uncertain and remains to be tested before the Medical Council or the courts.

MPS solicitors are of the opinion that the recording of a private medical consultation, particular with the recording undertaken by a third party, would be inadmissible in any such hearing. There is also your own consent to the recording to take into consideration. Your organisation could consider putting in place a policy concerning the recording of consultations with family members and patients, to ensure that they protect the patient’s rights, but also the rights of clinicians working in the hospital.

You may wish to consider a policy prohibiting the recording of any such consultations. This could be incorporated into the terms and conditions of any contractual documentation entered into by the hospital and the patient, with an express provision to be signed by the patient agreeing that any consultation should not be recorded by either the patient themselves, or a family member, or by the treating clinician, unless express consent of the patient has been obtained.

Mr O is a 30-year-old man who presented at my practice this morning with a tonic-clonic event, tongue biting, and incontinence of urine. I know he is a taxi driver. Do I have an obligation to tell the DLA?

Mr O’s presentation suggests epilepsy and you should consider specialist secondary referral. You should advise Mr O about the impact of his potential medical condition and recommend he does not drive until the incident is investigated further.

Slainte agus Tiomaint is a new guide that gives clear advice on implementing medical fitness to drive policies in Ireland. If a patient has a condition that may affect their ability to drive, you should tell them to report their condition to the Driving Licensing Authority (DLA). You should treat, monitor and manage Mr O’s condition with ongoing consideration of his fitness to drive (in this respect it would be important to liaise closely with secondary care and his neurologist).

If Mr O is diagnosed with epilepsy and is started on treatment, he should adhere to prescribed medical treatment and attend for regular follow-up so monitoring of his condition can be made and consideration given to his fitness to drive.

In exceptional circumstances where there is a risk to the public and the driver cannot, or will not, cease driving, you should report your concerns to the DLA

He must comply with the requirements of his licence, including periodic medical reviews. If the patient is hostile about the possibility of restrictions to their driving or withdrawal of their licence, you should consider referring the driver to another practitioner or referring them directly to the DLA.

Consider the immediate risk to public safety; risk of disclosure versus non-disclosure; ethical and professional obligations, and whether the circumstances indicate a serious and imminent threat to the health, life or safety of any person. In exceptional circumstances where there is a risk to the public and the driver cannot, or will not, cease driving, you should report your concerns to the DLA.

The DLA will attempt to make contact with the patient. If they cannot do so they will contact the Gardaí. So, for example, if a patient is diagnosed with epilepsy and has been advised not to drive by a neurologist, as their fits are not under control, but you become aware that they are continuing to do so, you can report that matter to the DLA as a public interest disclosure. For more information see the September 2013Casebook article, “Managing Unsafe Drivers”.

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