The Clinical Disputes Forum 2017 Programme

Including Details of Past Events

Upcoming Events

Concurrent Expert Evidence – the Role of the Judge

Our next meeting will review hot tubbing – the Australian practice of having groups of expert witnesses giving evidence together. More respectfully known as Judge-led Concurrent Examination, this process has made very slow progress in English courts since Sir Rupert Jackson’s lecture in January 2016. In July the Working Group led by Professor Rachael Mulheron published a report that was generally positive and in December Lord Woolman gave judgement in SSE Generation Ltd v Hochtief Solutions AG, a massive case in which the hot tub seems to have played a successful part. However there are a number of problems: quite apart from experts having to get used to having their feathers ruffled by needing to change the way in which they present their evidence, the process requires a great deal of work by the Judge before the trial. It may save time in court, but only at the expense of a lot more work being done by the Judge before the trial starts, at a time when judges are already being sorely pressed by the demands upon them, and too many cases still settle at the door of the court. It may shorten trials slightly, but only at the expense of much more preparation. We think the Forum should provide an opportunity for judges, counsel, solicitors and experts to identify the hurdles and means of resolving issues.

The Duty of Care to the Non-Patient

Since Tarasoff , Egdell and Osman we have known that doctors may acquire information of profound importance to other people and the conflicting obligations that this knowledge may create have been considered from time to time by the courts, as in Palmer v Tees HA where it was said that the doctor would have a duty to break confidence if the patient was a member of group of people identified as being at risk. Now the Court of Appeal has been confronted with the daughter of a man suffering from Huntington’s Disease who asserts that she should have been told so that she could terminate her pregnancy. The case raises fascinating issues of causation, since she will not know for many years whether her child will be afflicted.

Later this year the Forum will hold a meeting to debate whether the law is getting this balance right. It seems odd that the law should determine an issue which cries out for a consensus in society about the nature of the implied terms of confidentiality and how the interests of the patient are balanced with those of others who may be affected by information. Nor does it seem right that the GMC should take on the role of legislator. However as long as that is the way we do things in our society it seems helpful for the Forum to provide a place in which the issue can be debated.

Badly behaved patients in GP/ED

Many GPs and other front line staff are regularly confronted with abusive, multiple repeat attenders. People most of us would ordinarily ask to leave our premises and not to return if we met them in the course of delivering any other service. How does the law and the GMC require the doctor to respond?

This issue raises a fascinating practical conundrum that also raises interesting issues about the nature of the NHS – why is that we cannot say “go away” having checked they are not bleeding to death? Any abusive patient who presented themselves to a private hospital would be asked to leave as promptly as if they had started to abuse the staff in a shop or a restaurant. What are the implied terms of the contract between the NHS and its patients? How have things changed as a result of GPs losing the unfettered right to remove patients from their lists? What practical steps can we take to improve matters? We think this is a topic where the Forum could produce useful ideas and it will form the subject matter of our last meeting in 2017.

Past Events

What sort of NHS can we afford?

The Forum held its first meeting of 2017 on 23 February. Building on the apercu that many clinical disputes spring from the disparity between what funders decide that people are prepared to pay for healthcare and the quality of healthcare that they demand whent hey or their families are ill, we tackled the question of healthcare funding in an international context. The problems of the NHS have their parallels in every other system because the costs of caring for an aging population with ever rising expectations have not been resolved satisfactorily anywhere. The NHS still seems to deliver more high quality care for a given percentage of GDP than any rival model but it is dangerously close to running on empty. Most members of the Forum welcomed the reintroduction of population based healthcare planning but there was a widespread feeling that it will be discredited if it is part of an attempt to cut costs and reduce expenditure.

Montgomery v Lanarkshire Health Board

The principal meeting held during 2015 was on 1st October, when a working party conveyed by the Forum met to consider implications of the decision of the UKSC in Montgomery v Lanarkshire Health Board for the counselling of patients. The Working Party included representitives of most of the Royal Colleges, the indemnifiers and the regulators, as well as the legal profession. It was recognised that this decision has forced the professions to recognise that the guidance given by the GMC in 2008 has now become law of the land and demands a redical redesign of the documentation of healthcare decisions. The requirement that doctors advise their patients about the alternative treatments that are not being recommended raises the bar in several ways, not least because in law that means that they have to make records of such advice. Given the context in which many doctors work, where they are trying to advise patients who may be cognitively impaired, suffering from complex co-morbities and sharing no common language with their doctors this is a formidable challenge. This complex teaching assignment has little to do with getting somenone's signature on a consent form after mentioning a litany of rare risks and it is not best done either in the context of a busy out patient clinic or a pre-operative ward. It was agreed the the Colleges would support a series of pilot schemes in which individuals would prepare materials suitable for improving communication with patients and taking as much of the work as possible off the shoulders of the doctors in the clinic, so that a Decision Record could be prepared describing the information imparted to the patient. Much of the work on Decision Aids created in other institutions could be used for this purpose.

We beleive that the enhancement of communication in this fashion will reduce and avoid clinical disputes, many of which are caused by failures in communication.