Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The increase in medical negligence claims and the impact of this on the NHS’ purse strings has been in and out of the press recently. The most worrying thing about these stories is the removal of focus from the injured patient, which is never going to result in improvements in care.
There is also a perception that legal action punishes hardworking doctors and nurses. This is not the case. We all rely upon the dedication and commitment of the doctors, nurses and therapists who look after us and our families. They work long hours and provide a humane and compassionate service often in difficult circumstances.
So, what should we do if there is a concern about the care that is being provided?
If there is a concern about the clinician's conduct, then you could pursue a complaint to a regulatory body, such as the Health and Care Professionals Council or the General Medical Council. For example, the clinician may have done something which is unethical (a breach of confidentiality) or in breach of professional standards (conducting inappropriate intimate examinations.)
If an NHS Trust, or another funding body is refusing to provide treatment or healthcare services, a judicial review challenging their decision may be the appropriate response. It may be possible to ask the High Court to effectively set aside the decision, and ask the Trust or other funding body to reconsider if it is found the decision was made unfairly. A typical example might be the “postcode lottery” that sometimes applies to funding for cancer medication – one Trust might provide it, when a neighbouring Trust does not.
Finally, a clinical negligence claim in the Civil Courts for compensation is a possibility in cases of injury as a result of a doctor's actions or medical accident. A claim will be successful where the standard of care provided was below the standard expected from a reasonably competent practitioner in that field. This is a fair test, because with healthcare a good outcome cannot always be guaranteed, and so it would be wrong to make clinicians too widely accountable in law. However, things do sometimes go wrong, and if a clinician makes a mistake that leads to avoidable injury, then a compensation claim is appropriate.
As an example of a clinical negligence action, Kingsley Napley deals with a number of cerebral palsy claims. Very sadly, for a small number of children with cerebral palsy, their condition has been caused by birth asphyxia arising from obstetric negligence at the time of their birth. Not surprisingly, the rights and wrongs of bringing a claim for a potential multi-million pound settlement can generate heated debate, but in my view, as a lawyer who has acted in many such claims, there is no moral dilemma. We all make mistakes, and if others suffer in consequence, we should compensate them for their losses and help to improve their quality of life. This is why we have insurance.
A compensation claim is not about blame, and neither is it about getting hardworking clinicians into trouble. It is about helping the injured patient have the best possible future.
If you or a member of your family would like advice any aspect of medical treatment, please contact the Clinical Negligence and Personal Injury team on 020 7814 1200 or by email at firstname.lastname@example.org
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