How to avoid a Medical Council investigation

Dr Edward Farnan, Medico-legal Adviser at the Medical Defence Union, outlines some of the common themes in Medical Council investigations

There are over 21,000 doctors registered in one of several divisions with the Medical Council. Of these, only a very small number, around 2 per cent, are involved in a complaint to the Medical Council and even fewer have adverse findings against them. However, being told that a patient has complained to the Medical Council, and finding yourself subject to an investigation, is an upsetting and stressful experience for any doctor.

Avoiding complaints that could impact on your ability to practise requires more than just good clinical skills and medical knowledge. The standards and behaviours that make up professionalism are just as important given that a high number of cases relate to professionalism and probity. A doctor’s primary responsibility is to act in the best interests of their patients, without being influenced by personal considerations. Based on the Medical Defence Union’s (MDU) experience of assisting doctors and the Medical Council’s published analysis of the complaints it receives, we advise on some of the common causes of complaints and provide tips on how to avoid them.

Communication

This is consistently the single biggest factor reported in complaints to the Medical Council. It is also something the MDU recognises as one of the key factors in how complaints can arise. Medicine typically involves explaining technical concepts and can involve breaking bad news, such as test results revealing a poor outcome. Add in to the mix the range of emotions that might surface and it is easy to see how even the most skilled communicator might occasionally struggle.

Do: Seek feedback on your communication style and effectiveness.
Do: Reflect on how you deliver bad
news – is there room for improvement?
Do: Reflect on how you deal with challenging situations and how professionally you respond.
Don’t: Assume you cannot work on your communication skills. Consider further training as part of your CPD plan.

Referrals

There are a significant number of Medical Council complaints about referrals each year. It is easy to forget to refer a patient or follow up an urgent referral, so it is helpful to have robust systems in place to minimise the chances of it happening. However, other complaints about referral are more to do with the ethical responsibilities involved in the process than the effects of a delay.

Explaining carefully to patients why an intimate examination is needed, and what it will involve, should help minimise any misunderstanding

Do: Ensure the patient understands to whom a referral will be made, and why; how long it may take and what to do if their condition worsens in the meantime.
Do: Refer to a doctor who has the appropriate skills and specialism that the patient requires. Enquire further for less common clinical conditions.
Do: Respond politely and constructively if a patient requests a second opinion; in most circumstances it will be reasonable to arrange this for them.
Don’t: Pay a fee to the doctor to whom you refer (or accept a fee for making the referral) – the Medical Council will view this as unacceptable.

Fees

There was a marked increase in complaints to the Medical Council in 2019 relating to disputes about fees. Many of these situations arose from perceived conflicts of interest.

Do: Be open with patients about any financial interest you may have in a clinic, medical device or treatment you are proposing.
Do: Be candid about any professional relationship you may have with pharmaceutical companies, such as sponsorship or payments for services.
Do: Set out clearly to patients any fees you charge and ensure these are understood and agreed.
Don’t: Accept gifts or inducements that may be seen to influence your clinical
decisions.

Intimate examinations

Complaints relating to inappropriate intimate examinations can often have their roots in communication failure. Explaining carefully to patients why an intimate examination is needed, and what it will involve, should help minimise any misunderstanding. Dignity is vital, and patients should have privacy to undress and remain covered as much as the examination allows. Chaperones help provide reassurance to patients as well as support for the doctor so it is important to ensure your surgery or clinic has ready access to a chaperone where these examinations are likely to be carried out.

Do: Ensure you have informed consent from your patient before beginning an intimate examination.
Do: Offer a chaperone for an intimate examination and note who they are in the clinical record. This can be helpful if a complaint is made later.
Do: Keep discussion with the patient during an intimate examination professional such as explaining what you are doing and checking the patient is not experiencing pain or discomfort.
Don’t: Carry out an intimate examination on an anaesthetised patient unless you sought prior consent to do so.

Social media

At least two-thirds of adults in Ireland are active users of social media and for many doctors it is part of their everyday life. But professional boundaries can quickly blur. In 2019, the Medical Council in its Guide to Professional Conduct and Ethics sets out the expectations for doctors using social media. These include the need to keep personal and professional use of social media separate and to be aware that confidentiality cannot be guaranteed, regardless of privacy settings used.

Doctors are also advised to ensure details that might identify patients are not used when working on professional networks for their CPD. Information posted needs to be valid and accurate and not make unsustainable claims for the effectiveness of treatment. Keep in mind that personal posts may reflect poorly on you professionally.

Do: Make sure your comments on social media are professional and not derogatory
Do: Assume anything you post will always be visible, regardless of your privacy settings
Do: Keep patient confidentiality first and foremost in your mind. Even if information about a patient is anonymous, there might be enough circumstantial evidence (such as an exceptionally rare disease) that could allow an individual to be identified.
Don’t: Post when you are angry, upset or tired and avoid making comments about employers or colleagues.

Duty of candour

Things can and will go wrong in clinical practice, and it is important to respond professionally and appropriately when they do. If a patient is harmed, it is important they are told as soon as practicable. Tell the patient what happened, which could include explaining how the particular set of circumstances arose, apologise and explain what will happen next. This will often include an investigation with a focus on reducing future occurrences.

Do: If you are in a leadership or trainer role, encourage a culture of openness, candour and learning within your teams.
Do: Call out behaviour that suppresses candour and learning.
Don’t: Withhold an apology because you believe it will be an admission of liability – this is not the case. An apology provided in an open disclosure meeting with the patient will not be treated as a legal admission or prejudice any subsequent claim for compensation.

For more information, visit www.themdu.com/ireland or follow us on Twitter @the_mdu