Back to basics with testamentary capacity
Coronation Street character Dr Ali Neeson recently found himself facing a clinical negligence claim following his failure to diagnose appendicitis.
The off-duty doctor, who had dropped by to help a friend, mistook the severe pain which fellow Corrie resident Emma Brooker was suffering in her right side as food poisoning. The unfortunate Emma was later found unconscious and rushed to hospital for emergency surgery to remove her by-now ruptured appendix.
In a subsequent altercation at the hospital, Emma’s dad, Steve McDonald, threatened to sue Dr Neeson for failing to spot Emma’s condition. I’m not a clinical negligence lawyer, but the storyline raises some pertinent issues for me as a regulatory lawyer.
Could this incident put Dr Neeson’s ability to practise in jeopardy if the complaint were referred to the GMC?
Firstly, the fact that Dr Neeson assessed Emma outside the auspices of his GP surgery isn’t a material point.
Dr Neeson had a duty to comply with his professional obligations and exercise his clinical skills with due care and attention. If he was in any doubt, the appropriate course of action would have been to refer Emma to another clinician or arrange to see her in his practice as an emergency.
In an emergency, whilst doctors aren’t strictly required to assist, the GMC’s glossary notes the following about ‘Good Samaritans’: ‘A situation where a registered doctor comes to the aid of someone in an emergency situation outside their normal practice (e.g. where a doctor happens to be at the scene of a road traffic accident). In the UK there is no legal obligation to offer help in such circumstances, but there is a professional duty to so.’
The risks of a clinical negligence claim arising when a doctor acts as a Good Samaritan are low, but not non-existent.
Part of the GMC’s role is to protect patient safety, and the GMC can receive complaints and referrals from a variety of sources, including patients; people connected to the patient, such as family members; employers; and enforcement agencies such as the police.
In the circumstances of the Corrie storyline, it would be open to Emma, Steve, or anyone with knowledge of the circumstances, to raise a concern to the GMC about Dr Neeson.
Upon receiving a complaint, the GMC decides whether it’s serious enough to warrant opening an investigation. The GMC doesn’t ordinarily open investigations into clinical matters such as this, unless there’s concern that the doctor has or may put the safety of patients at risk. Being off-duty is no mitigating argument, if that's the case.
Deficient professional performance is one of the reasons identified in the Medical Act 1983 by which a doctor’s fitness to practice may be regarded as impaired. In Dr Neeson’s case, it would be this ground that could potentially be engaged for his failure to diagnose and/or take appropriate action in relation to Emma’s appendicitis.
Whilst it’s clearly unfortunate that the diagnosis was missed, this doesn’t necessarily mean that Dr Neeson’s fitness to practise is impaired. Single clinical incidents such as those in Corrie are unlikely to meet the threshold. The GMC may close the complaint at the initial stages if the allegation isn’t considered to be serious enough.
If the complaint is progressed, the GMC will make contact with the doctor to advise of the nature of the complaint, and request that a standard form is completed, which provides details of the places at which they work (including where they hold practising privileges).
The GMC will then correspond with these establishments to find out initial information about the doctor and ascertain whether there are any concerns.
In the course of an investigation into clinical matters such as the issue arising from this storyline, the GMC will invariably seek the opinion of an appropriate expert to provide an opinion on the doctor’s actions and whether or not they fall (far) short of the standard expected of a reasonably competent doctor in the particular circumstances.
The investigation can also include steps such as taking statements from relevant persons and obtaining documents such as clinical records. Then once the initial investigation is complete, the GMC will write to the doctor, providing them with an opportunity to comment. Upon consideration of the doctor’s comments, the case examiners (one medical, one lay) can decide to:
Doctors are often concerned that the latter scenario will lead to them being suspended or erased from the medical register, but this isn’t the reality. Good Medical Practice guidelines make it clear that it’s only ‘serious or persistent failure[s] to meet the standards [that] will put your registration at risk.’ Single clinical incidents such as those in Corrie are unlikely to meet this threshold.
Whilst it’s likely, then, that Dr Neeson would avoid any severe regulatory sanction over Emma’s case, perhaps a greater cause for concern arises due to his ongoing addiction to Diazepam and impairment by adverse physical and/or mental health being one of the factors the GMC may investigate. The act of self-prescribing controlled drugs represents an aggravating feature of the Corrie plot.
GPs looking for real-life lessons from Corrie can take comfort that not every mistake in practice will lead to career-ending regulatory action, although even decisions taken out of official hours can form part of a GMC investigation, but it’s nevertheless important that the process of dealing with any complaint is handled carefully and appropriately.
Shannett Thompson is a Senior Associate in the Regulatory team. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context. She is adept at advising and assisting individuals in respect of registration/licensing applications.
This article first appeared in Pulse on 12 December 2019
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