Managing Medico-legal risk Give personal and RM background Dr Claire Macaulay National Education Lead for Realistic Medicine, NES Director, Nidus Communication

Aims for today To be familiar with the concepts of professional risk – what are the risks, and how likely are they? 01 To appreciate the overlap between the concepts of Realistic Medicine and regulatory guidance. 02 To be reassured about your personal position when practicing Realistic Medicine 03 Ask audience who is medic, nursing, other health professional, others Primary or secondary care

“Am I covered?” “Who is liable?” “What if I am sued?” “What if they claim?” What do we mean? Discuss with your neighbour what these things mean to you. Have you ever said any of them?

Who carries the risk? “NHS bodies are liable in law for the negligent acts and omissions of their staff in the course of their NHS employment. Under NHS Indemnity, NHS bodies take direct responsibility for costs and damages arising from clinical and other negligence where they (as employers) are vicariously liable for the acts and omissions of their staff performing NHS function.” Central Legal Office website Ask who has been involved in a claim

Medico-legal risk = risk of litigation? “Claim” “Indemnity” “Covered” “Sued” “Risk” Medico-legal risk = risk of litigation? Am I covered = have I got appropriate indemnity in place for the work I am doing? If you are working purely in NHS secondary care, then your work is indemnified by the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS) which is paid for by contributions made into the scheme by NHS Boards

What other risks are there? Complaint Disciplinary investigation Fatal Accident enquiry GMC investigation Police investigation What other risks are there?

How likely is the risk? Claims GMC NHS Complaints 450 clinical claims notified to CNORIS in 2018 300 were paid out in the same year GMC 8,546 GMC complaints received 1506 proceeded to investigation NHS Complaints 31,117 complaints received by NHS Scotland 45% not upheld at stage1 c300, 000 doctors registered with the GMC 1506 investigations, but only 200 hearings. 62 struck off 85 complaints in the NHS in Scotland every day.

What do people complain about? 46% of complaints are about “treatment” 28% are about staff attitude, communication and behaviour. ISD NHS Scotland complaints statistics 2016/17 Open to the floor

What are the possible risks of Realistic Medicine? “Something will go wrong and the hospital won’t support me” “ If I deviate from a guideline, I will be pulled up for it! “What if I get referred to my regulator?” “What if I get sued?” What are the possible risks of Realistic Medicine? Open to the floor – what are the concerns in relation to medico-legal risk and Realistic Medicine?

Personalised approach and shared decision making are absolutely central to the RM agenda. If 28% if complaints are related to communication issues, then really concentrating on good communication and ensuring that patients are involved in their care has the potential to reduce risk, rather than increase it.

Legal support for RM The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient. “…the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.” Supreme court judgement, Montgomery v. Lanarkshire Health Board

Regulatory support for RM “The doctor uses specialist knowledge and experience and clinical judgement, and the patient’s views and understanding of their condition, to identify which investigations or treatments are likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.” GMC, Consent Guidance para 5b

Regulatory support for RM (cont) “Listen to people and respond to their preferences and concerns To achieve this, you must: 2.1 work in partnership with people to make sure you deliver care effectively 2.2 recognise and respect the contribution that people can make to their own health and wellbeing 2.3 encourage and empower people to share in decisions about their treatment and care” NMC Code para 2

Regulatory support for RM (cont) “1.1 You must treat service users and carers as individuals, respecting their privacy and dignity. 1.2 You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided. 1.3 You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions.” HCPC Standards of conduct, performance and ethics para 1

NHS and Governmental support for RM “By 2025, everyone who provides healthcare in Scotland will demonstrate their professionalism through the approaches, behaviours and attitudes of Realistic Medicine” CMO Annual report 2015/16

(and in fact it may reduce risk) There is nothing to fear in relation to your personal risk when practicing RM (and in fact it may reduce risk)

Staying safe Document clearly “What matters to you?” Be able to justify warranted variation Remember we are stewards of NHS resources Staying safe

Over to you…….