Broke Defendants

Some home insurance policies contain what is known as an “unsatisfied damages”clause which will allow the policyholder (and usually any member of his family) to sue a man of straw, and, if any award (including costs) is not met within e.g. 3 months will pay out those monies.

These clauses are becoming rarer, but if a local lad at a football match has shattered your leg and normally you would not proceed against him due to him having no assets, your should check whether such a policy is in existance.

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Medical reports

The General Medical Council has guidance for doctors on their duties when acting as an expert witness http://www.gmc-uk.org/guidance/ethical_guidance/expert_witness_guidance.asp

Paragraph 19 is of interest to those who obtain reports from treating doctors:

“If there is any matter that gives rise to a potential conflict of interest, such as any prior involvement with one of the parties, or a personal interest, you must follow the guidance on disclosure in paragraph 13.  You may continue to act as an expert witness only if the court decides that the conflict is not material to the case.”

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Fatal Accidents and Separated Couples

In Davies v Taylor (No.1) ([1974] A.C. 207) ([1974] A.C. 207), the widow was separated from the Deceased.

She claimed that, despite her admission of adultery to her husband, he had offered to take her back. She had not accepted his offer. The husband instructed his solicitors to commence divorce proceedings shortly before his death.

His widow claimed that she would have returned to her husband, if he had not been killed, and that he would have taken her back: consequently she had lost a valuable dependency as the result of his death. The court had to assess the value of the alleged lost dependency.

Although the House of Lords ruled against the widow on the evidence Lord Simon stated (ibid. at 220.) :
“This is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any substantial (ie not fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependent spouse of a more stable union, according as the possibility became progressively more remote…..But I agree  …  that even on the test which I think ought to be applied the appellant has not shown any significant chance or probability that she suffered any injury financially by her husband’s death”

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Conduct committed outside the course of professional practice

In Gosalakkal v GMC 2015 EWHC 2445 (Admin) one of the Doctor’s arguments on appeal was that an email found to be sent by him including the words ““A group of paediatricians have been carrying out a campaign against me and the trust carried out various investigations most of which beased [sic] on falsehoods. They are now trying to prevent me from working at UHL….” could not amount to serious misconduct as it occurred “outwith the course of professional practice itself”; and second, that this was a one-off course of misconduct and so would fall short of the threshold required to constitute serious misconduct which required persistent conduct.

Sir Stephen Silber, hearing the appeal disagreed noting that it was quite clear that matters arising outwith the course of professional practice could constitute serious misconduct. In Roylance v GMC it was said that when determining what amounted to professional misconduct “…there must be a link with the profession of medicine. Precisely what the link may be and how it may occur is a matter of circumstance…”.

Sir Stephen Silber concluded “…that the mere fact that the appellant was acting “outwith the course of professional practice itself” does not prevent him being found guilty of serious misconduct because the sending of the email clearly had in Lord Clyde’s words [in Roylance] “a link with the profession of medicine” as it related to a dispute between the appellant and paediatricians allegedly aimed at preventing the appellant from working at UHL.

Another of the Appellant’s arguments, that conduct committed outside the course of professional practice could only constitute serious misconduct if it was repeated was also rejected. The Judge noted that a requirement of persistent conduct was not referred to by Lord Clyde in Roylance where he explained that an exhaustive definition of serious misconduct could not be given, and also that “….there is no theoretical or logical justification for requiring there to be repeated conduct before conduct can be serious misconduct.  So I reject the appellant’s submission.”

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Application of Lawrence v GMC [2015] EWHC 586 (Admin)

In a previous post I highlighted the recent very important case of case of Lawrence v GMC [2015] EWHC 586 (Admin) and the potential ramifications in proceeding to consider impairment and fitness to practice in the absence of a practitioner.

Lawrence v GMC [2015] EWHC 586 (Admin) has now been referred to in a Odedun v GMC March 2015, in which it was indicated that the MPTS would be issuing guidance in relation to it, as well as being cited and considered in Sunda v General Dental Council. In the former case a (probably short but it’s unclear from the judgment) adjournment was granted while the facts determination was emailed to the Doctor. 

In the Sunda the panel decided that notwithstanding their decision to determine facts in the absence of the practitioner they would nonetheless adjourn stage 2: “Given Ms Sunda’s level of engagement to date, the Committee considers that there is a realistic possibility that she may provide further submissions, either written or in person.”

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Lawrence v GMC [2015] EWHC 586 (Admin)

In Lawrence v GMC [2015] EWHC 586 (Admin), Doctor L faced an allegation of dishonesty.  She represented herself in her fitness to practice hearing. During the facts stage of that hearing the submitted that she felt unable to cross-examine witnesses and applied for an adjournment.

The MPTS panel agreed an overnight adjournment for Dr. L t to seek legal representation.

The Appellant attended the following morning and stated that she could not obtain representation, felt that what had happened at the hearing was unfair and that it would also be unfair for the panel to continue with the hearing. The Dr. L then stood up and left the building.

The panel decided that the Dr. L had voluntarily waived her right to attend / be represented . They therefore proceeded in her absence, found she had acted dishonestly and directed erasure from the Register.

Mr Justice Collins considered that in all the circumstances and given the seriousness of the allegations, he held that the panel should have adjourned to give Dr L the opportunity to attend and make representations before the sanction was imposed.

The ramifications of this case should not be underestimated. Once a practitioner has engaged with a hearing there may be grounds for panels proceeding with even greater caution should the practitioner absent himself/herself part way through. It also raises another issue – if a practitioner does not attend should panels reconsider proceeding in their absence once facts have been found proved ? Arguably they should, especially if dishonesty has been found, as of course has very serious implications for any practitioner.

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Expert evidence and fitness to practice

Expert evidence and fitness to practice

In my clinical negligence and personal injury practice I have dealt with countless doctors giving expert evidence – many who do so perform this function extremely well but on occasion some have been hopeless.

Any medical professional who decides to act as an expert witness in the civil, criminal or family Courts must be aware that should they fall far short of the standard expected of them, they run the risk of a referral to their regulatory body. These expert evidence and fitness to practice issues must be appreciated by all medics.

Most of the current guidance and case law on this subject concerns doctors (simply because they are by far the most used expert witnesses in Court), but the of course the principles will apply equally to all other health professionals.

Doctors, whose approach is reckless or incompetent or otherwise deficient are likely to face GMC investigation and subsequent fitness to practice proceedings.

In Kumar v General Medical Council (GMC) [2012] EWHC 2688 (Admin), the the panel found that in the context of a psychiatrist providing expert evidence in a murder trial, that:

  • K had not disclosed that he had no previous experience of acting as an expert witness in a case of homicide;
  • K had disclosed that he had been reporting on a possible diagnosis of IED in a homicide case for the purposes of bail;
  • the preparation of a report on IED in connection with a bail hearing for someone on a homicide charge could not constitute experience of acting as an expert in a homicide case;
  • K had never prepared a report on diminished responsibility;
  • K had known what he had been asked to do and that there had been an unacceptable risk that his expertise would be relied upon by those representing D;
  • K had been reckless in accepting instructions;
  • K had been reckless in not explaining in his reports that the diagnosis of IED was controversial;
  • K had been reckless when he omitted to declare in his second report that he had not read witness statements which he knew Dr J had; and

Having regard to all the circumstances of the case, K’s actions, from the point at which he accepted instructions onwards, had been so outstandingly bad that the panel was satisfied that K’s fitness to practice was impaired.and this was upheld on appeal where the Judge noted “The multiplicity of deficiencies in his expertise, experience, preparation, diagnosis of IED, his obligations of disclosure to the court and in his understanding of the legal framework for diminished responsibility were laid bare”.

The case also emphasised that that recklessness is sufficient to constitute serious misconduct.

This case gives a warning to doctors who undertake expert witness work that they must ensure that they are competent to undertake the specialist expert witness work, that they take appropriate steps at each stage of a case to ensure that their conduct is reasonable and that all relevant matters are properly considered in the report.

Similarly in Pool v General Medical Council [2014] EWHC 3791 (Admin) it was held that the Appellant was not an expert in the field of general adult psychiatry and that he had failed to restrict his opinion to areas of which he had expert knowledge or direct experience and gave evidence on matters outside his professional competence.

If you do provide expert evidence you must read the General Medical Council guidance that can be found here and  here.

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The use of testimonials and references in disciplinary hearings

The use of testimonials and references in disciplinary hearings.

It’s surprising how often practitioners fail to bring to their hearing character references or other testimonial evidence to their fitness to practice hearings, for example at the General Medical Council or General Dental Council.

This can be relevant not only at the sanction stage but, in some circumstances, assists with fitness to practice considerations.

However, when it is brought along, such character evidence is often badly prepared.

Some points to always bear in mind:

  1. Does the author know of charges ? – all too often this is not mentioned in the letter and so panels may give less weight to letters. not containing this information;
  2. Is the author in a position of authority ? It’s always better to get a line manager / Consultant on the unit etc;
  3. The reference should be on headed notepaper;
  4. It should be signed (it’s amazing how often this is missed !);
  5. Make sure the reference is recent;
  6. If at all possible bring the witnesses along – even if the case presenter agrees their statements (and they often do) give consideration to getting them to give evidence – it’s often powerful and makes all the difference.
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Use of social media by doctors, dentists and nurses

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As at Q4 of 2014 Facebook had 1.39 billion monthly users. China (the most populous country in the world) has a population of 1.36 billion. Looked at these figures another way, 20% of the entire human population now log onto Facebook every month. Clearly the use of social media by doctors, dentists and nurses is a topic of great importance.

As with so many things in life, the codes provided by the GMC, GDC and NMC hopefully do nothing more than put “common sense” into written form.

The GMC Guidance on social media which came into effect in April 2013 can be found here.

Amongst other things, that guidance recommended that individuals who identify themselves as a doctor in publicly accessible social media, such as Twitter should describe themselves by name rather than use aliases.

After something of an outcry from Doctors that restricting their ability to post anonymously on social media infringed articles 8 and 10 of the Human Rights Act (which guarantee a right to a private life and a right to freedom of expression) the GMC clarified matters (by, of course, posting on Facebook):

“Failure to identify yourself online in and of itself will not raise a question about your fitness to  practise.Any concern  raised is judged on its own merits and the particular circumstances of the case.  But a decision to be anonymous could be considered together with other more  serious factors, such as bullying or harassing colleagues, or breaching  confidentiality (or both) or breaking the law.”

“The GMC has no interest in doctors’ use of social media in their personal lives —  Tweets, blogs, Facebook pages etc. But doctors mustn’t undermine public trust  in the profession. Usually this means breaking the law, even where the  conviction is unrelated to their professional life.”

The GDC guidance is found here here. Amongst other things it recommend that dentists should “think carefully before accepting friend requests from patients.” Perhaps the best course would be to decline such requests.

For nurses and midwives The new Code states at Clause 20:10 that nurses must uphold the reputation of their profession at all times by using “all forms of spoken, written and digital communication (including social media and networking sites) responsibly, respecting the right to privacy of others at all times”

This reinforces the 2012 Nursing and Midwifery Council guidance on the use of social media which all professionals would be advised to read.

That guidance gives some examples of the ways in which a nurse or midwife could put their registration at risk:

  • sharing confidential information inappropriately;
  • posting pictures of patients and people receiving care without their consent;
  • posting inappropriate comments about patients;
  • bullying, intimidating or exploiting people;
  • building or pursuing relationships with patients or service users;
  • stealing personal information or using someone else’s identity;
  • encouraging violence or self-harm;
  • inciting hatred or discrimination

Further useful guidance comes from the RCN and can be found here.

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