The forensic physician, also known as the police surgeon, is operating in a medico-legal minefield. In April 2006, the Royal College of Physicians established a new faculty of Forensic and Legal Medicine, which, it is hoped, will make it easier to navigate the pitfalls.
The foundation president, Dr Guy Norfolk, who is the principal forensic physician to Avon and Somerset Constabulary, says: ‘By setting standards, promoting research, establishing competence and developing the programme of continuing professional development, the faculty will ensure the highest standards of training, competence, ethical integrity and independence amongst those medico-legal practitioners who interact with the police, the judiciary and the court, thus providing reassurance to the public and to the professions, both legal and medical.’
Being a forensic physician is not easy. A broad clinical knowledge and the ability to apply this in difficult situations are vital. Forensic physicians must often work with uncooperative clients in less-than-ideal circumstances, and have the courage to make decisions that are unpopular with the detainee, custody staff or hospital staff.
Forensic physicians must also be expert in the forensic interpretation of injuries, and the collection of samples for evidential purposes.
They must be prepared both to act as an independent witness of fact and to give an expert opinion in court.
At the same time, they must balance respect for the detainee’s right to consent and confidentiality with the knowledge that forensic information is likely to have important implications for the need for justice and public interest.
To complicate matters further, important clinical decisions will have to be made on the basis of examinations undertaken with clients who may be uncooperative or incapable of cooperating through intoxication, distress or stubbornness. Often there is a limited past medical or medication history, except as provided by the detainee, and often through an interpreter.
The safety of the detainee is always a priority. If there is any clinical doubt about the wisdom of keeping a detainee in the cell, the answer has to be to move him or her to hospital.
A common cause of clinical negligence claims against a forensic physician is the failure to recognise serious medical conditions either as a result of acute injury or underlying medical illness, and consequently not transferring to hospital in time to avert permanent harm or death.
One example could be if insensibility in the detainee is detected and it is assumed to be due to alcohol rather than an acute subdural haematoma.
Other situations may be failing to diagnose diabetic hyper- or hypoglycaemic coma, or failing to detect a serious mental health problem, which, if undiagnosed, could lead to self-harm or death in custody.
When a forensic physician is called to assess a detainee’s fitness to be detained, to conduct an examination or to collect samples for evidential purposes, it is important to ensure that, once the competence of the detainee is assessed, an explanation is given as to the nature and purpose of any history taken and any examination made, and to make sure that any explanation is understood.
There is an obligation to respect the detainee’s consent and confidentiality, but the forensic physician must explain the different nature of the doctor–patient relationship and, more importantly, the difference between evidential examination (evidence for the court) and clinical examination (for the benefit of the patient).
The detainee is entitled to know precisely what samples are being taken and why. In a custodial setting, the forensic physician must take special care because the detainee has fewer choices and less autonomy, and must be clearly informed that he or she can refuse consent to examination and taking samples (with some exceptions).
Any refusal of consent must be noted, and the competence and mental health of the detainee carefully considered.
Always assume that forensic physicians will be required to give evidence about their findings, and that this may not be for months. As in all medical practice, comprehensive contemporaneous notes will allow the doctor to reconstruct the ‘consultation’ later on.
More importantly, such notes show the exercise of appropriate clinical judgment and can be used to inform other health professionals.
Conflict of interest
The conflict in the forensic physician’s duty of confidentiality must be made clear to the detainee. Reports of the assessment for criminal proceedings must be disclosed to the police. However, information obtained for therapeutic purposes would be subject to the usual doctor–patient confidentiality. Care must therefore be exercised when giving assurances about the confidentiality of the information.
Communication skills are also vital to ensure the detainee’s safety, appropriate care and proper management in custody.
Professor Seymour is medico-legal adviser at the Medical Protection Society
For more information, visit: www.medicalprotection.org or call 0845 605 4000
Forensic physician: dos and don’ts
Respect the detainee’s rights and limited autonomy.
Remember duty of care even when assessment for evidential purposes.
Always seek consent from the detainee.
Explain and inform detainee of the nature and purpose of assessment and collection of samples in custody.
Explain the specific therapeutic and evidential roles of the forensic physician.
Explain the limits of confidentiality between the doctor and the patient.
Draw attention to inadequate/unsafe services to the detainee.
Ensure continuity of care and pass on appropriate personal medical information to health professionals only.
Keep a separate full record of any examination as well as in the custody record.
Assume consent of the detainee to the assessment and collection of samples or therapeutic management.
Disclose personal information not relevant to the detention or not risking serious harm or death.
Fail to make comprehensive and contemporaneous records.
Fail to make a full assessment of detainee’s physical and mental state.