In November, Imperial College London published the outcome of a study into the complaints system for doctors and how it impacts on those who have been the subject of a complaint.1 It concluded that the current processes for dealing with complaints affect doctors’ wellbeing and cause fear-driven work practices. Specifically, four in five doctors who have been the subject of a complaint now practise more defensively.
The results of a survey by the MPS, published today, show that the increasing fear of a claim is also resulting in more defensive practise. In the survey of over 1,300 UK GPs, 87% said they are increasingly fearful of being sued. Some 84% said the fear of being sued has resulted in them ordering more tests or making more referrals and 41% said it has resulted in them prescribing medication when not clinically necessary.
I expect most GPs who have been involved in a complaint or claim related to missed or delayed diagnosis – directly or indirectly – will relate to these findings. Indeed the issues affect most clinicians, with MPS data showing that a full-time GP in the UK can now expect to receive two clinical negligence claims over their career.
These survey results are by no means conclusive – and we call on the government to undertake more in-depth, definitive research to fully understand the issue and its impact. What the results do show however, is a concerning trend about how the fear of being sued is manifesting itself. Unnecessary tests or investigations, driven by the fear of legal action, are surely not in the best interests of patients, or society given limited NHS resources.
Doctors should be able to exercise their clinical skills and judgment without the fear of claims affecting their decision-making, but the environment is extremely challenging and the temptation to over prescribe or over investigate is understandable.
How can we tackle this?
How can we tackle the increasing fear of being sued and its impact on GPs? It is without doubt a complex and multi-faceted issue, requiring broad range of measures.
First, of course there absolutely must be continual improvements in patient safety to prevent adverse incidents. MPS and organisations across the wider healthcare system should also work together more closely to increase awareness of the medical cases that bring the most claims and look at how tragedies may be prevented.
Secondly, the healthcare community should work together to tackle the barriers to an open, learning culture where doctors are encouraged to be open with patients when things go wrong, and offer an appropriate apology.
While healthcare professionals must comply with a Duty of Candour in reporting incidents, legal requirements do not always bring about the fundamental cultural change that is required. A real shift in culture would encourage more reporting and learning from incidents, helping to enhance patient safety and avoid many complaints from escalating into claims.
Thirdly, the government should work with patient groups and medical defence organisations to instigate an honest debate about the inherent risks involved in healthcare and develop a common understanding that despite doctors’ best efforts, medicine is not an exact science and sadly mistakes do happen. Patient’s expectations are increasing and cannot always be met, and this is a driving factor for claims.
Lastly, while those who suffer serious and long term harm due to clinical negligence should be reasonably compensated, it is right that we seek to address the cultural acceptability to sue when only minor injuries or inconveniences are sustained, and there is no loss of income. This is a societal concern.
Increasing number of claims
In a YouGov survey of over 2,000 adults,2 65% said it has become easier to make a claim for clinical negligence than ever before, and 33% said they should have access to compensation when something goes wrong regardless of whether harm was caused.
In 2016/17 there were 817 clinical negligence claims against the NHS for minor injuries, where the amount of compensation paid was less than £3,000. This compares to 646 such claims in 2015/16.
As part of our Striking a Balance campaign we are calling on the government to consider a minimum threshold for cash compensation relating to claims where minor injuries or inconveniences are sustained. In practice this would mean that the financial loss caused by that injury would have to exceed a minimum threshold before a claim could be made.
This is one of a package of legal reforms MPS has proposed to help create a more proportionate and sustainable system for managing clinical negligence claims. We stand ready to work with the government on what we recognise is a difficult debate.
- Dr Bradshaw is senior medicolegal adviser at the Medical Protection Society
- The Imperial College London research referenced was published on 22 November 2017.
- The survey of 2,034 adults in Britain, was undertaken by YouGov on behalf of MPS in spring 2017.