Making Patients PayThere is, as yet, no charge for non-attendance although Jeremy Hunt says he has "no problem" with the idea. But should the common law of clinical negligence penalise these patients? Should patients who miss appointments but who also suffer injury as a result of clinical negligence, have their compensation reduced?
Contributory NegligenceI have previously posted on the case of Pidgeon v Doncaster HA. In that case the court found the claimant contributory negligent for repeatedly failing to attend for cervical smear tests.
I am grateful to Nick Peacock of Hailsham Chambers for "reminding" me of the High Court case of Sims v MacLennan. The claimant alleged that a doctor (not his own GP) whom her husband had seen in 2002 was negligent in failing to advise him appropriately upon finding that he had high blood pressure. Had he done so her husband would have had further checks, treatment and would have avoided suffering a fatal stroke in 2011. In 2007 the claimant's husband had seen his own GP who had advised him to see the practice nurse to have his blood pressure checked but he did not do so. The Court decided, obiter, that had it found the defendant doctor negligent in failing to advise the deceased to attend to have his blood pressure checked, it would have reduced damages by 25% for his contributory negligence in failing to make arrangements to have his BP checked when he knew it to have been high in the past.
I have conducted several cases where the NHS has contended that failures to attend appointments should be taken into account when determining its liability, or the extent of its liability. There is a range of allegedly negligent failures:
- Where a series of fixed appointments are sent to the patient who fails to attend any of them.
- Where a fixed appointment is sent to the patient who fails to attend but there is no follow-up or chasing letter thereafter.
- Where the doctor advises the patient verbally to come back in, say 7 days, but the patient does not return.
- Where the doctor advises the patient to return after a week if the condition does not improve or if they are still concerned, but the patient does not do so.
- Where the doctor advises that a blood test should be repeated in 3 months but there is no appointment letter sent out and the patient does not make the arrangements.
- Where a GP makes a referral but the hospital/specialist does not contact the patient, and neither the GP surgery nor the patient chases it up.
- The patient is negligently reassured by the doctor and/or discharged without follow up but does not return to seek further medical advice when symptoms deteriorate.
Arguably those scenarios illustrate decreasing degrees of patient culpability.
My impression is that clinical negligence defendants are more inclined to contend that patient "failures" of the kind set out above represent contributory negligence, or that they "break the chain of causation" between the defendant's own breach of duty and the injury suffered.
MontgomeryAs the courts emphasise the importance of patient autonomy and frown upon medical paternalism (Montgomery) it could be argued that the greater is the onus on patients to take responsibility for their own health and their interactions with their clinicians. You cannot complain about paternalism and in the same breath argue that your doctor should have chased you up after you failed to attend an appointment, so the argument goes. Patients are not passive participants in their treatment and care, they are active agents. With the right of autonomy comes accountability for your own actions and choices.
But wait. Is it "negligent" to miss an appointment? As a (largely) cognitively intact and articulate middle-aged individual, I have been driven to distraction trying to negotiate a hospital switchboard to find the right out-patient department or ward. There are of course many possible explanations for a missed appointment (research has been done!) and clearly not all no-shows are negligent. There may have been a misunderstanding, an unposted letter, an urgent need to attend to something else, a transport problem.
Even if there was no "excuse" for the non-attendance, is forgetfulness or oversight necessarily negligent? Perhaps no-one had explained to the patient how important their future attendance was and what the potential implications were for their own health if they were not followed up. It is one thing to text a patient about the cost of non-attendance to the NHS, and another to inform them of the cost to their own health.
Although obiter on this point, the judgement in Sims v MacLennan indicates that courts are willing to find that a patient's failure to attend an appointment or even to make their own arrangements to make an appointment can be negligent, depending on the precise circumstances.
Darnley v Croydon
In the case of Darnley v Croydon the Court determined that there was no liability on an NHS Trust for administrative staff in A&E providing allegedly misleading information about waiting times. The patient left but suffered serious injury as a result of not having been treated. The case is under appeal but if the NHS contends that it is not liable for an administrative error of that kind, should a patient be penalised for his or her own administrative mistakes?
Appointment Errors by the NHSWhat of the responsibility of the NHS, not for advice about waiting times, but for its own failures to keep an appointment time as arranged? If the NHS contends that patients are negligent for not attending appointments, then should the NHS be liable for postponing operations at the last minute, for making patients wait for hours to be seen etc.? I don't believe that that is a road anyone wants to go down. No-one would wish upon the NHS anything like the "delayed journey" claims industry that has emerged in relation to air travel. But if the NHS seek to penalise patients financially for failures to attend, then patients may seek to turn the tables.
It would be unsurprising to see some of these issues litigated over the next few years.