Malpractice in the media

Mistakes don’t matter in TV shows, they matter in surgeries and theatres

WE’D been waiting for a good series to get our teeth into when along came Malpractice, the latest ITV drama.

This caught both of our interest: my husband as a GP and me as a lawyer at MDDUS. Described as a medical Line of Duty, it was well acted but we couldn’t help but notice some elements that didn’t ring true to life. So I want to provide a reality check on the medico-legal issues raised in Malpractice, and do some myth-busting.

The fictional scenario

Picture the scene:

You’re a senior A&E registrar. A patient arrives by ambulance, a suspected accidental overdose. Next, there’s a man in the lobby with a gun – demanding that his child’s gunshot wounds be treated. You prioritise the gunshot wound and leave the overdosed patient with a junior colleague. In a moment of panic, you alter the overdosed patient’s notes, replacing the word ‘accidental’ with ‘deliberate’. Unfortunately, the overdosed patient dies. Later, you are summoned to appear before the medical investigation unit to account for your actions…

Myth 1: If a patient/their relative makes a complaint, I will be hauled before the medical investigation unit

Fortunately, the all-powerful medical investigation unit (MIU) is a fictional creation. In real life, your employing Trust/health board would respond to the complaint under the normal statutory procedures and timeframes. A Trust employee – unconnected to the care provided – would oversee the investigation and you’d be asked to provide a statement. MDDUS can advise members on how to approach this and review draft statements.

Myth 2: If I make a clinical mistake, my fitness to practise (FTP) will be called into question

If your responsible officer had concerns about your FTP following a patient complaint, they may consider a referral to the GMC. Or the patient could make their own referral. Only the GMC has the power to investigate a doctor’s FTP and to take steps which may lead to action on their registration. However a case arises, the regulator undertakes its own triaging process to determine whether a full investigation is required.

Myth 3: I will be interrogated about the care provided

This depends on the context. In a patient complaint: you may be invited to a meeting with the Trust’s internal investigator to discuss your statement, but this would be far from the adversarial meeting portrayed in the series.

In a GMC case: a face-to-face meeting during an investigation is incredibly rare. Ordinarily, MDDUS would make written submissions on your behalf. If a GMC case is then referred to an FTP hearing, you may choose to give evidence, but again we would guide you through.

If the Trust decided to take disciplinary action: you may be invited to attend investigatory meetings, but you would be fully supported.

In a coroner’s inquest/fatal accident inquiry: you’d be asked to give an initial statement and may be invited to attend an interview. You would be supported throughout - whether by the hospital or by MDDUS.

Myth 4: I won’t get any support from my representative

Whatever the context, your solicitor or medico-legal adviser would be there to fight your corner and to ensure that due process was followed. You would be kept fully informed about the procedure, and steps you could be taking to ensure the best possible outcome. MDDUS members can also access YourHalo, a free, confidential support service, available 24/7.

Myth 5: The context will not be taken into account in any FTP investigation

The GMC’s guidance for decision-makers makes clear that mitigating circumstances should be taken into account, including the environment in which the doctor was working and any personal factors.

Myth 6: If a concern is raised about my FTP, I will be followed round the hospital by an investigator waiting for me to make a mistake

This was one of the most noticeable inaccuracies. The lead character was shadowed on shift by an investigator who asked her (and her colleagues) probing questions.

Performance assessments in the GMC process are reserved for cases in which there are significant and widespread concerns about the standard of care provided by a doctor. Performance assessment based on a single patient complaint is unthinkable. Any investigation by an employer into the conduct or competency of a doctor is conducted in the strictest confidence.

Myth 7: My ill health could be used against me in FTP proceedings

This one is more nuanced. A health issue would not be relevant to a clinical GMC complaint unless it had a clear bearing on the care provided. Provided that one has taken the appropriate advice and acted on it, there is unlikely to be any need for the GMC to be involved.

Myth 8: My personnel records could be obtained for an FTP investigation

The lead character is told it’s “normal procedure” for the ‘MIU’ to recover her personnel records.

While the GMC would contact employers to ask whether they had any FTP concerns, they would never seek to recover personnel records in this way. These could not be disclosed without the doctor’s consent.

Myth 9: ‘Impaired’ fitness to practise is the end of my career

Where dishonesty is admitted, a GMC finding of impairment of fitness to practise is likely to follow, but this is not necessarily career-ending. The sanction ultimately imposed will depend on the quality of insight and remediation a doctor is able to demonstrate and whether they can satisfy the decision maker that there is no risk of repetition.

For all its poetic licence, we can only hope the show succeeds in giving audiences an appreciation of some of the many challenges facing doctors today.

Joanna Jervis is practice development manager and a senior lawyer at MDDUS