Patient leaflets and brochures

ARE clinicians responsible for the content of third-party leaflets or brochures given out to patients? A recent court case addressed this question.

PATIENT leaflets can be of enormous benefit to doctors, dentists and other healthcare professionals. They ensure that, in addition to the information which can be conveyed in a time-limited consultation, patients also receive helpful further advice about specific conditions or procedures.

Not only do such documents allow patients time to digest information at their own pace, they can also answer useful questions which may have not have been discussed within the consultation. In this way they can form a valuable component of the process of taking informed consent – although such leaflets clearly do not obviate the need for a wider discussion with the patient around the relative risks and benefits of treatment.

But it might be time to consider what leaflets you make available to patients, the credibility or source of these and whether you should ensure that the leaflet is "in-date" in terms of the advice and information contained.

A recent Court of Appeal case – Webster v Liddington – considered potential liability for information contained in third-party literature provided to patients. The case concerned the provision of information leaflets to patients undergoing cosmetic skin rejuvenation treatment. The leaflets had been prepared by the manufacturers of a product system who later went into administration. Accordingly, a number of patients unsatisfied with the results of this treatment targeted the doctors who had passed on this literature to them.

The treatment involved using a culture of a patient’s own cells to produce collagen for rejuvenating the skin. The process involved fibroblasts being taken from the patient, cultured in FCS (a bovine product), washed clean of FCS and then injected into the patient. The leaflets provided an assurance that the material injected into the patient was entirely free of FCS, a statement which was later called into question.

The Court was asked to consider whether the distribution of leaflets by the clinicians constituted a representation for which they could be held liable. The Court took the view that when a professional person transmits information emanating from a third party, the extent to which they could be liable for its accuracy would depend on the extent to which a “reasonable person” would have understood that professional to be accepting responsibility for it.

At one end of the spectrum, in terms of the Court’s analysis, was the scenario where a professional person issued a warranty that the information was correct. Clearly in that scenario they would assume contractual responsibility. At the other end of the spectrum, there could be a transmission of information accompanied by a caveat that the professional was unable to verify the accuracy of the material, in which case they would not be liable (providing that they were acting honestly and in good faith).

Ultimately, the court held that this case fell into a middle ground, where the clinicians had, by distributing the leaflet, effectively adopted the information which it contained as their own. They thereby took on responsibility for the accuracy of the information provided in the leaflets, despite not having specifically or formally endorsed the material as being accurate.

In arriving at this decision, the Court emphasised the importance of the nature of the relationship between the doctors as qualified clinicians and the patients as consumers, who were entitled to rely on the professional advice which they had sought. The Court found that if the clinicians had wished to limit their responsibility, it would have been incumbent upon them to expressly adopt an appropriate disclaimer.

This issue was drawn to the attention of our plastic surgery membership in a recent blog (June 2014) but it may be of relevance to all members who administer treatment involving third-party products/systems which are accompanied by literature to be provided to patients. Such members should therefore:

  • Think carefully about the wording of any third-party leaflets you are using and take all reasonable steps to ensure the accuracy of the information which they contain.
  • In the event that it is not possible to verify the accuracy of such information, consider making appropriately worded written disclaimers when issuing these leaflets to patients.
  • Be conscious that the information contained in such leaflets will be particularly relevant to the question of informed consent to treatment in many cases. For example, this might be relevant for GPs when undertaking minor clinical procedures or administering vaccination/medicines, or GDPs using dental implant systems provided by third-party manufacturers.
  • Ensure you display the most recent version of any leaflet (e.g. patient leaflets in a general practice provided, for example, by the NHS).

ACTION: Check leaflets made available to patients, ensuring the information is credible and up-to-date. Consider the need for a disclaimer.