Monday, 25 April 2016

Who is My Neighbour?

Do healthcare professionals owe a duty of care to anyone other than their patients?

In Connor Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) HHJ McKenna sitting as a Judge in the High Court struck out claims by or on behalf of two second cousins of a patient, Mr Craven, who had adrenomyeloneuropathy (AMN) a genetic condition. It was alleged that there had been negligent delay in diagnosing the AMN with the result that his two infant second cousins were late in being diagnosed and treated. One had died by the time the action was brought. 

The Judge applied the High Court decision in ABC v St Georges Healthcare NHS Trust [2015] EWHC 1394 (QB), a decision of Nicol J, which is under appeal, in which a patient with Huntington's Disease had refused permission to the Defendant Trust to notify his daughter of the diagnosis. She was pregnant at the time. She later gave birth and a doctor accidentally told her of her father's condition. She was found to have the disease herself but it was not yet known whether her child had it. The claim was struck out.

In Connor Smith, the Claimant sought to distinguish ABC on the grounds that Mr Craven would readily have consented to his diagnosis being shared with family members. There was no issue of confidentiality. HHJ McKenna was not swayed by that argument and found that the Claimants' claim would mark a very significant departure from the current law.

Relatives are often closely involved in treatment decisions

He noted the case of Selwood v Durham CC [2012] EWCA Civ 979 in which the Court of Appeal held that it was possible for the court to find that an NHS Trust owed a duty of care to a social worker who was in contact with a psychiatric patient, to protect her from harm from that patient. He found that the facts in Selwood were very different from those in Smith.

Floodgates, as we all know, are meant to remain closed. If second cousins could have valid claims then potentially so would all manner of relatives in similar cases. But perhaps there will be other situations which would test the courts' commitment to restricting the scope of duty. Suppose a patient was wrongly discharged home harbouring a contagious infection which was transmitted to a family member living with them. A patient might injure a spouse when suffering a seizure when driving a car after a failure to diagnose a serious head injury. Some decisions to discharge a patient place a heavy onus on a spouse or other carer at home, for example the discharge of a psychiatric patient who, even though in the community, needs considerable care and supervision. Suppose it was known, or ought to have been known, that the carer would have considerable difficulty carrying out the role of carer or supervisor, and that they went on to suffer psychiatric or physical injury themselves because of having to look after the patient. If it was negligent to have discharged that patient, should the Trust be liable for the injury to the carer? 

In some cases there may be conflicts, or potential conflicts of interest between the patient and the potential claimant. In others, their interests will fully coincide. In some cases the claimant will not be known to the healthcare professionals, in others they will be well known and have had repeated contact with the Defendant, its employees and agents. In some cases the harm to the claimant will have arisen in unlikely circumstances, in others it will have been readily foreseeable, It is easy to imagine circumstances in which there was considerable proximity between defendant and the (non-patient) claimant, and in which the harm was readily foreseeable. Will the policy remain against widening the scope of the duty of care or will the three Caparo principles be found to apply?

The current trend in restricting secondary victim claims has been particularly telling in clinical negligence cases where there is often a distance in time between the negligence and the "event" that causes nervous shock/psychiatric injury to the claimant. Given the courts' current attitude to such claims, the prospect of expanding the scope of the duty of care to any non-patients might seem remote. We can expect more judicial guidance following the appeal in ABC which is apparently due for hearing in early 2017. 

Tuesday, 12 April 2016

New Cosmetic Surgery Guidelines

New Guidelines have been published by the Royal College of Surgeons of England and the GMC with the aim of improving professional standards in the provision of cosmetic surgery and cosmetic interventions. The RCS guidelines do not cover the non-surgical procedures such as Botox injections but the GMC guidelines do.

The authority of the GMC is over registered medical practitioners and not over aesthetic practitioners, nurses or others who might provide non-surgical cosmetic interventions. However the guidelines provide that a doctor must physically examine a patient before prescribing a cosmetic medicine such as Botox. If you have Botox injections you should be examined by a registered medical practitioner, even if the injection is given by a non-doctor.

The Guidelines provide that there has to be active consideration of the patient's psychological vulnerability and their suitability for the proposed surgery or treatment. This will include making a referral to a mental health practitioner if the patient maintains unrealistic expectations of the surgery notwithstanding the provision of advice by the surgeon or if they have a history of "psychological disturbances". The two week "cooling off" period is now clearly set out as a requirement in the RCSEng guidelines.

Of considerable interest are the new guidelines to surgeons concerning financial arrangements

"Surgeons who perform cosmetic surgery should:
-   Obtain adequate professional indemnity insurance that covers the procedures
they undertake."

That begs the question, "What is adequate?" I have previously commented on this blog on the adequacy of insurance that does not cover pre-operative advice, or which does not cover a claim made in a period after the insurance has lapsed, even if it is for negligent surgery performed during the period when the insurance was in place.

"Communicate clearly their relevant professional qualifications to patients, including
specialist registration on the GMC register and certification in the areas of cosmetic
surgery in which they practise."

This information must be given to patients. The surgeon cannot rely on the patient looking up the information on line, or asking questions.

" Make patients aware of fees and the full cost of treatment before seeking consent,
including fees relating to follow-up treatment or potential complications and revisions.
Information should include what is covered and what is not covered in the fees.
"Disclose any personal affiliation or other financial or commercial interest relating to
practice, including other private healthcare companies, pharmaceutical companies or
instrument manufacturers.
"Inform patients if any part of the fee goes to any other healthcare professional."

This is a welcome move towards transparency in relation to cosmetic surgery fees and costs. It seems to me that surgeons will have to disclose what their own fees are for the proposed surgery. At present patients often pay a fee to a clinic, unaware of the amount paid to the surgeon or the anaesthetist. Surgeons might be engaged on a contract to perform a certain number of procedures at a certain cost. Whilst the new guidance applies to surgeons and not the clinics, it seems evident that if a surgeon is to make a patient aware of "fees and the full cost of treatment" and whether any part goes to any other healthcare professional, it is a requirement to make the patient aware of the surgeon's fees, the aneaesthetist's fee and the total cost to the patient. It is the surgeon's personal obligation to provide the information.

"Ensure that any advertising is realistic and ethical. Advertising should be for the sole
purpose of conveying factual information. Surgeons should refrain from the use of
financial inducements that may influence the patient’s decision such as discounts, timelimited
or two-for-one offers."

Again, surgeons have to take personal responsibility for the advertising deployed by any clinic for whom they work.