Jeremy read Physiological Sciences at Magdalen College, Oxford, and qualified in medicine from the University of Edinburgh. He trained in hospital medicine and haematology, before training to be a General Practitioner. He has worked full time as a GP partner at Binfield Surgery, Bracknell, Berkshire for 25 years.
Jeremy has been supplying evidence to Claimant and Defendant solicitors about allegations of General Practitioner Breach of Duty for 10 years and in that time has written around 500 reports. He has attended many conferences with lawyers, and expert witness meetings. He has given advice to the GMC to assist in their investigation of over 80 allegations of poor practice. He has a special interest in prescribing, and he has sat on various committees charged with delivering policies for the local NHS bodies in this field.
I still have the slides of one of the first presentations that I attended when I started training to be an expert witness. It described the first part of the test for negligence, namely the Duty of Care, and brooked little discussion. The headline was “Duty of care is not often disputed”.
This remains true – after all if a GP is consulting with a patient who he or she has admitted to his list, or if a surgeon has his or her laparoscope in someone’s abdomen, it is clear that the clinicians involved have assumed a duty of care. There are nonetheless some situations where duty of care cannot be taken for granted.
Modern General Practice has many challenges, but one is that there is a torrent of work that still – despite the best efforts of representatives and the GPs themselves – would come from secondary care providers if they were allowed. How much of this is actually the clinical responsibility of the GP, and how much can or should be resisted, whether for contractual or medico-legal reasons?
“Instructions” to GPs
Claimant solicitors do contend that GPs should follow “instructions” from their hospital colleagues. I quote from Letters of Claim that I was asked to give an opinion on:
“The GP failed to refer the Claimant for an ultrasound scan … when the Consultant wrote a letter to the GP asking the Claimant to be referred”
It is important to understand that there is no hierarchy or “chain of command” between hospital and primary care doctors. They are both senior doctors in their own specialities. It is surprising to this expert, from the perspective of a practising GP, that a consultant would not just request such an investigation him or herself. There is no Duty of Care to accede to such requests, and a GP can take his or her own decisions about the need for them to be carried out, if they are to make
the request.
In another case, it was alleged that:
“The GP was negligent in that she failed to manage the titration of rivastigmine [a drug used in Parkinson’s disease] after receiving instructions from [the Consultant] to do so.”
The use of the word “instructions” is misleading in that it implies that there is indeed a hierarchy in the medical world where hospital doctors can “instruct” GPs. This is not the case.
To take responsibility for supervision of a prescription for a drug that a GP may not be familiar with is not mandatory. No clinician should be expected to prescribe, or otherwise act, outside their competence. I can do no better than quote the comments of the Defendant GP in this case, which I quoted verbatim in my report:
“It would be considered that it would be the normal practice for a consultant commencing a new medication (especially one not usually prescribed in primary care), to review that medication him or herself, which is what my colleagues would have concluded.”
And
“I would comment that this remains a medication of which we have little experience in titrating. We currently only have two patients on this medication and the doses have been adjusted by secondary care.”
The situation of taking over prescribing after secondary care is clarified in some areas with the publication of “shared care agreements”, which specify the respective responsibilities, and give guidance to the GP when a medication that is usually or historically prescribed in secondary care is prescribed in primary care. It is important to understand that these agreements are permissive, and GPs cannot be compelled either contractually or medico-legally to engage in them. This point is not always fully understood by secondary care doctors.
When patients are on waiting lists
There have been instances of hospital doctors asking GPs to monitor or otherwise treat patients who are on a waiting list. This expert has been asked to monitor the calcium level of a patient with primary hyperparathyroidism who was waiting for an appointment. This issue was dealt with by a short e-mail! It is the duty of care of the hospital service to see patients in a timely manner. This position is held by this expert and by GP representatives.
When a patient is under the care of a hospital service, GPs are not completely immune to allegations of negligence on the basis of their duty of care, if by their actions they assume such a duty. This can take different forms, and I will give two illustrative examples.
I was asked to comment upon this allegation:
“Following the Claimant’s diagnosis of Graves’ disease [the commonest cause of overactive thyroid] and commencement on carbimazole [for its treatment] the GPs failed to undertake further blood tests and review his thyroid function prior to the endocrinology appointment”
The difference between this case and the one that happened to this expert in his own practice cited above is that the GPs assumed a duty of care by prescribing. The GPs felt that they were competent and experienced enough to initiate treatment which was therefore appropriate, but by doing so they assumed a duty of care that they did not have in the first instance and were in breach of said duty by their failure to appropriately follow up the Claimant. The duty of care came about because they initiated treatment of their own volition, and this was not because of the hospital’s perceived or actual lack of ability, or lack of will, to see the Claimant in a timely manner. They had the option to insist that the hospital service saw the patient at a time that was clinically appropriate.
Assuming a Duty of Care
Another situation where a GP can become vulnerable to allegations of Breach of Duty when they may not have had a duty of care in the first place, is when they attempt to be “helpful” by assuming the role of communicator and interpreter of other clinicians’ investigations, most often the hospital service.
I was asked to give an opinion on an allegation against a GP who had given inappropriate advice after interpretation of a hospital-initiated investigation. The Claimant was pregnant and had requested a screening test for Group B streptococcal carriage. This is a bacteria which can, rarely, lead to devastating neonatal infection. Screening is not offered by the NHS.
The GP agreed to carry this test out, but before it could be done the Claimant was seen in a midwife led clinic with an episode of bleeding in her third trimester. As part of the investigation, the clinic performed a swab to exclude infection.
The Claimant asked her GP to chase up the results which did not seem to be forthcoming from the hospital. The GP did so and conveyed the negative report to the Claimant. The GP confirmed to the Claimant that she was, therefore, negative for Group B streptococcus carriage.
This was not a valid conclusion. Firstly, the result would have been invalid because (as it happened) it was taken too early in pregnancy, and secondly it is necessary to request of the bacteriology laboratory to set up the test in an “enhanced culture medium”, which had not been done because it was not a test designed to detect Group B streptococcus. The outcome was tragic because the Claimant was, in fact, a carrier of the bacteria, and her newborn baby developed meningitis and deafness.
This is a cautionary tale that I tell GP colleagues when I am asked to address them about medico-legal issues. It was wholly unnecessary, clinically, contractually and medico-legally, for the GP to get involved at all, and the error was compounded by the fact that the GP did not have the specialist knowledge required to safely and appropriately interpret the result. It would have been entirely acceptable in every respect to refer the Claimant back to the hospital service.
When one clinician carries out an investigation, the responsibility for its communication to the patient and any action that is required rests squarely with that clinician unless – and this is the kernel of my argument – another clinician assumes a duty of care.
What responsibility does the patient have?
Emergency departments especially are in the habit of requesting “GP to follow up - 2 weeks” for example. I have argued that GPs do not necessarily have a duty of care in this situation, and it is particularly galling for practising GPs to feel that they are put in a position whereby work is transferred to them by secondary care that should properly be their responsibility.
It could be argued that there is a duty of care on the part of a GP in receipt of such a request. However there has to be some acknowledgement that a competent patient has a responsibility here too. It is not reasonable to expect a GP to notice a single sentence such as the one above in a discharge note that may be a few hundred words long, and to a considerable degree a competent patient should be expected to approach their GP with a request for an appointment. This expert can attest that they frequently do, often on the day after their attendance even before the important information is in the possession of the GP! In this situation I would argue that, although a GP cannot do nothing when approached, the duty of care rests with the hospital service to inform the patient of their recommendations, and of the patient to follow it through.
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