Guidance

Medico-legal aspects

Updated 5 October 2020

The advice in this section focuses on the communication of the results of audit undertaken for education and improvement of the service rather than the prevention of claims for damages.

1. Expectation of clinicians

Under normal conditions the law expects no more of those caring for patients than that they perform as may be reasonably expected of members of their profession.

Clinicians may be concerned that by being open and transparent when communicating news of a reporting discrepancy, patients may regard the disclosure as an admission of error. From a medico-legal perspective such conclusions may not be justified.

Patients or relatives who indicate they wish to complain or seek legal redress should be given information about how they may proceed.

2. Confidentiality

Patient information is confidential. In most instances it may be shared between trust staff only in relation to the management of a patient’s treatment.

3. How to conduct a disclosure interview

Steps can be taken to reduce the likelihood of complaints and claims. It is important to understand the likely issues and to deal with them sensitively. When talking to patients about disclosure of audit findings, the quality of the explanation is crucial and must be detailed.

Complaints or claims are less likely if patients perceive that the process which led to the interview is transparent and they receive an apology or expression of sympathy for their present position.

Apologies and explanations, as opposed to admissions of liability, are encouraged. The NHS Litigation Authority chief executive’s letter from May 2009 provides guidance on this issue.

Issues of consent to audit and confidentiality in respect of patient data should be addressed during the disclosure interview.

It is important to note that the law judges standards according to the year in which the sample was taken. Therefore, improvements in screening technique will not result in a retrospective finding of liability.

Denials of liability can be as unhelpful as admissions of liability, while a lack of definite advice may lead to allegations of stalling for time or fudging the issue. A consistent approach is required which sets out the issues objectively.

If a legal question is raised or access to records is requested the clinician should refer to local trust policy and check with the trust’s legal team. Providers should be able to demonstrate they have undertaken due diligence in assessing how the duty of candour applies to each serious incident and seek legal advice where necessary.

4. How to advise patients

Patients should be advised that:

• no matter how closely the review panel tries to reproduce the original screening conditions, the conditions of a review are different – the fact that a review includes records of a patient known to have a serious condition, such as cancer, will heighten vigilance and increase reports of abnormality
• finding discrepancies on review does not imply that the same findings should have been made under routine conditions
• hindsight has a significant impact on the interpretation of images
• screening tests work within agreed parameters of sensitivity and specificity and cannot detect 100% of abnormalities at the time of screening
• in a number of screening programmes, such as fetal anomaly ultrasound, cervical and breast screening, the result is based on interpretation of appearances on a scan, slide or mammogram in circumstances where the boundary between normality and abnormality is not firmly drawn – this may result in debate between experts as to the appropriate classification of the sample or the interpretation of the image
• the patient should be given the option to see another clinician for a second opinion, should they wish

5. More information

Where requested, you should give patients the contact details for the trust’s Patient Advisory Liaison Service (PALS) and be informed about the trust’s complaint procedure.

Citizens Advice and AVMA (Action Against Medical Accidents) may also be useful contacts.