Medical Law

Sham peer review

2010-11-06T06:43:00.000-07:00

"Sham" peer review (SPR) is "an adverse action, taken in bad faith by a professional review body, for purposes other than the furtherance of good health care, that is disguised to look like fair peer review." Another definition is "tortious conduct by hospitals in order to exploit a judicially-created immunity i.e. disguising the true course of events to indict a doctor." This U-tube video sets out the position.
Originating with Ignaz Semmelweiss in 1840 the US Hospitals playbook in SPR is now well-developed and uses a wide variety of tactics. They make an "event" fit "the crime". They are often engaged if the hospital is under financial pressure, or, in specialties where bullying is rampant.
Tactics include:

(1) the "ambush" - informal invitation to a (no agenda, no member) meeting to induce "shock and awe"
(2) withholding hospital records connected with the allegations
(3) burden of proof with the doctor (hospital follows Nuremberg defence - "we followed orders")
(4) numerator without the denominator (5 complications ? 5 in 25 or ? 5 in 5000)
(5) change the "standard of care"
(6) false and/or trumped up charges/misleading patients to cause them to complain
(7) rare, and unusual, clinical cases where two opinions are equally plausible
(8) fabrication of documents, or dates on documents

Each tactic can be developed in different ways to discredit the physician. In the UK there will be an accompanying GMC referral and an FTP hearing where the "test of insight" associated with the civil standard of proof at first instance, prevents the doctor from adducing evidence to identify the malfeisance. Managers do not have a disciplinary code and have nothing to fear from colluding with these processes. The doctor finds themselves with an employment case, a disciplinary case and a fraud case running concurrently - with extensive newspaper and Internet coverage.

Extensive bullying in some specialties threatens the integrity of FTP procedures and revalidation.

Edwards v Chesterfield NHS Trust

2010-10-03T08:39:00.000-07:00

In 2006, a consultant orthopaedic surgeon was summarily dismissed by an NHS Trust. The disciplinary offence was so minor that the GMC did not press charges - a "crouton" moment. The surgeon has suffered
an employment tribunal (which ruled he was entitled to three months notice), a High Court hearing and a Court of Appeal hearing.

The Court of Appeal ruled that his treatment was unlawful and that he was entitled to "damages at large". The surgeon claimed £4 million for loss of career, etc. The judgement is available on the website at Old Square Chambers. It is a landmark ruling. The Trust is seeking permission to appeal to the Supreme Court. Few doctors will be eligible for this sort of award.

The important aspects of this situation were the lack of a disciplinary "offence", summary dismissal, and, prompt recourse to an experienced lawyer. Generally the law works prospectively and you need to get organised very quickly - prior to the first hearing within the Trust.
* The BMA is no assistance - the IRO's know the Trust HR Department better than you and often walk you into a disciplinary hearing without telling you that you are entitled to a lawyer (Kulkarni)
* The Defence Unions are no assistance - they deal with clinical matters and not employment matters
* Your colleagues are no help - they cannot risk upsetting the Trust.

You are on your own and it is a long hard road - unless you get the right lawyer. The crucial step is to speak to colleagues that have been in this position before you. There are now many - perfectly good - doctors who have been set up on by colleagues (usually) and subjected to employment and GMC procedures. You cannot deal with this on your own.

Revalidation

2010-06-03T00:42:00.000-07:00

Andrew Lansley, Secretary of State for Health, has made a wlecome statement on the present proposals for revalidation. He said that he was not confident regarding the present proposals and wished to delay them for twelve months. The full letter is available from the link below.

http://offlinehbpl.hbpl.co.uk/NewsAttachments/OCH/content.pdf

No-one is concerned about the requirement for audit in the present appraisal arrangements. There is great concern about the subjective elements of revalidation including "360 degree feedback, patient surveys, and, learning needs" . In the hands of an experienced GMC prosecutor this information will likely result in the end of your career. It arrives in the hands of the prosecutor by a complaint by a colleague, a manager, or, a patient. Such complaints simply have to include an allegation; they do not have to include the "truth". Your ability to set out your answer is gravely hampered by the "test of insight", civil standard of proof, and, the lack of an independent tribunal. It may be terminally "hampered".

Remedy UK v GMC

2010-06-03T00:35:00.000-07:00

Remedy (UK) brought a case against the General Medical Council because they had failed to bring "fitness to practice" charges against the architects of the MTAS debacle. The case was unsuccessful despite the best efforts of Mr de la Mare and his team. Thorpe LJ and Keith J gave their full reasoning here.

www.remedyuk.co.uk

Some good news for doctors

2009-11-05T13:53:00.001-08:00

The decision in Kulkarni v Milton Keynes NHS Trust is settled law.

The important aspect of the decision is that doctors are entitled to legal representation in disputes with their employer. That right has been denied since the 1st June 2005.

The remarks of Lady Justice Smith (in obiter i.e. not relating to the reasoning of the decision) are also important . She said that doctors should be entitled to article 6 rights i.e. the right to a fair trial. In practical terms that means an impartial tribunal. At present, under "Maintaining High Professional Standards in the Modern NHS" doctors are subject to a tribunal of three Trust employees - who will usually do what the employer requests. The NHS Employers have convened a series of meetings around the country to establish what to do in the light of this situation.

Dr Kulkarni and his lawyers (John Hendy QC instructed by the MPS) have done the profession a great service.

Health Professions Council near The Oval

2009-08-21T07:12:00.000-07:00

The Health Professions Council (HPC) have their hearings rooms at 184 Kennington Road near Kennington Oval. Most of the legal profession goes on holiday in August but not at the HPC. All hearing rooms were working throughout the day.

Not all the registrants turned up for the hearings - some clearly did not understand the significance of the processes they were entering . In the IOP that I attended, a single allegation from June 2006 that was registered in February 2009, resulted in the interim suspension of the colleague. There was nothing else the Panel could reasonably do - there was no evidence to the contrary. Their task is the protection of the public and the public interest.

Mr L v Another NHS Trust, EWHC today

2009-08-10T06:09:00.000-07:00

Yet another surgeon ejected from his NHS Trust. In this case, no disciplinary hearing, no NCAS referral, no legal representation - just a letter. In front of the law - in this case, Mr Justice Holroyde - it did not look very good. A spirited, and at times passionate, performance by Andrew Stafford QC and the ink was almost dry on the judgment. http://www.bmj.com/cgi/content/extract/339/aug11_4/b3300

If NHS Trusts keep doing this, then High Court judges will continue to find in favour of the doctor. It will be Gryf-Lowczowski, Kircher and then Kulkarni; the judge won't even need to discuss whether article 6 (the right to a fair trial) engages. That may be a matter for the Supreme Court in the appeal in Kulkarni. http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_Kingdom http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

Eventual costs to the Trust will be well into six figures.

Gryf-Lowczowski v Hinchingbrooke NHS Trust
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2005/2407.html&query=gryf-lowczowski&method=boolean
Kircher v Hillingdon Primary Care Trust
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2006/21.html&query=kircher&method=boolean
Kulkarni v Milton Keynes NHS Trust
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/789.html&query=kulkarni+and+v+and+milton+and+keynes+and+nhs+and+trust&method=boolean

"Evidence-based medicine"

2009-08-02T06:58:00.000-07:00

"Evidence" is "information tending to establish a fact". This does not make it a fact, just that it is the best information at present. Evidence-based medicine (EBM) is the contemporary fashion for obtaining best evidence. Its architects have left the country with their reputations diminished. Why ?

Evidence Based Medicine grades evidences, according to how "good" it is. Randomised Controlled Trials are considered "best" evidence (Grade 1). While the opinions of experienced experts in the field, categorise as Grade 4 that is "less good" evidence.

That seems alright as far as it goes ? Not really. Randomised controlled trials decide which of two treatments are best when we are in "equipoise" about which to choose. It does not say which patients benefit the most, just that on average, patients in Group A did better than patients in Group B. To extend this "fragile principle" to other areas of medicine such as causation, prognosis, cost-benefit, etc is beyond the strength of the argument. The law calls this "going beyond" as ultra vires; medicine does not seem to worry. Adopting this position cedes power to those that can arrange RCT's, meta-analyses, etc. and diminishes individual contributions. Is this why there have been no insights in "causation" in the aetiology of common Western diseases for so many years ?

Austin Bradford-Hill set out the principles underpinning clinical causation in 1965. Hart and Honore did the same for legal causation in 1959. Not much has changed.

http://www.edwardtufte.com/tufte/hill
http://www.law.ox.ac.uk/jurisprudence/hart.shtml

Less predictable medicolegal hazards

2009-08-02T06:00:00.001-07:00

Being a doctor carries medicolegal risk; some obvious, some less so.

You may, or may not, be aware of companies set up to investigate doctors and their research projects on behalf of Big Pharma. More than one doctor has been involved in proceedings in the High Court against such companies. Sharma v Jay & anor was an early case in 2003 though similar kinds of libel proceedings have required the full attention of other doctors . http://www.medicolegal-investigations.com/indexae63.html

In Taranissi v BBC, a senior gynaecologist had to take up cudgels with the BBC (and HFEA) following an attack on his professional integrity in a Panorama programme. Hearings took place over 18 months. The BBC eventually agreed to pay costs amounting to £1.5 million without damages, and, without a definitive hearing. The ARGC had an excellent record in assisted conception. http://www.guardian.co.uk/society/2007/jun/30/health.uknews.

Kulkarni v Milton Keynes NHS Trust, EWCA 2009

2009-07-30T14:59:00.000-07:00

The ruling by Lady Justice Smith restores legal representation to doctors in capability and misconduct hearings in their Trusts (http://www.bailii.org/). It is important because doctors had lost this right when the law changed on 1st June 2005 under the new rubric of "Maintaining High Professional Standards in the Modern NHS". (http://www.opsi.gov.uk/)

A capability hearing is simply the procedure that an NHS Trust used from 2005-09 to get doctors off their books. All a Trust had to do, was announce an allegation, write to a doctor to invite them to a hearing before three Trust employees, and, then dismiss them. The doctor is then (almost) unemployable in the NHS. Their only redress was £64,000 in an employment tribunal. John Hendy QC argued the case on behalf of Dr Kulkarni.

http://www.oldsquare.co.uk/news-detail.asp?c=30120
http://denning.law.ox.ac.uk/

Medical Law 2009

2009-07-30T14:45:00.000-07:00

Many doctors are unfamiliar with the detailed legal frameworks within which they are working. They are changing rapidly. The financial pressures, developing over the next few months and years in the NHS, will add considerably to the instability of your working environment.

You need to know these frameworks and how they operate. Contractual provisions, Trust capability and conduct procedures, Maintaining High Professional Standards in the Modern NHS, NCAS and the GMC (and how to avoid them), recent statute and case law, etc.

Above all, you need to know who to trust if you run into problems - and you need to know quickly. There are now many doctors who have considerable experience of these matters, have done law degrees, and, some now work as solicitors and barristers.

This site may help.