Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The writer of TV drama Doctor Foster delivered another medical drama which focused on ethical dilemmas faced by doctors. This time the focus was Dr Jon Allerton, a well-respected surgeon.
For those that did not tune into Trauma, a quick plot recap: Surgeon Dr Allerton lies about having made a fatal error, which led to the death of a 15 year old patient following his treatment for a stab wound. Dr Allerton denies having made any technical errors during surgery or having had a few glasses of celebratory wine beforehand (which incidentally he had had). These errors were compounded by the doctor refusing to apologise, electing instead to justify having lied by claiming that he was trying to help the family avoid further unnecessary suffering.
Clearly this is a TV show and the plot line would not have been improved by the intervention of legal proceedings… but if this situation were to arise in reality, Dr Allerton would have been under a duty to declare that he was unfit to perform surgery given his alcohol consumption, and secondly, pursuant to the duty of candour, to tell the patient’s parents what happened during surgery. Paragraph 55 of the GMC’s Good Medical Practice (GMP) guidance states:
55. You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should:
a. put matters right (if that is possible)
b. offer an apology
c. explain fully and promptly what has happened and the likely short-term and long-term effects.
GMP makes clear that honesty and integrity are central principles which all doctors must adhere at all times.
TV series such as Trauma, Doctor Foster and Liar (which also centred on a dishonest (fictitious) surgeon) are clearly dramatised to capture the audience’s attention, but some interesting points do arise. Whilst the law states that doctors should be honest and open about mistakes they make, in my view, there is also a long way to go in terms of providing a ‘safe place’ for doctors to do so. Medical mistakes will inevitably happen. These are often followed by lengthy and emotionally draining investigations, during which a doctor is just expected to ‘get on with it’ and carry on with the day job; the concept of secondary victims has been written about widely but is often overlooked in reality. Clients I represent often tell me about the lack of support available to them when issues such as this arise; many doctors fear that any mistake they make will lead to an investigation by the GMC and have career-ending consequences; these fears do not reflect reality but inevitably impact the decisions that doctors make when things go wrong.
Few would disagree that Dr Allerton should not have performed surgery and that he should not have lied about the technical errors which occurred during the operation. The moral of the story; doctors are human and undertake often stressful work in increasingly stressful circumstances, as was so clearly illustrated by the recent case of Dr Bawa-Garba. When things go wrong, friends and family are desperate to understand what has happened; an honest response by the treating clinician can often be hugely cathartic. More needs to be done to support doctors so that fewer medical mistakes occur in the first place and so that when they do, doctors feel able to address the issues without fear of automatic regulatory (or other legal) reprisal
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