Calculated risk

DAVID is in foundation year two. After a hard week he and friends go out one Friday night for a few pints. The pub is crowded but they manage to find a table. A few rounds later a guy pushing his way through the crush spills a drink on David’s girlfriend. Words are exchanged and David loses his temper and throws a punch. The bartender calls the police and David is later arrested and charged with assault.

David is mortified at his actions and tenders a plea of guilty. He pays the £100 fine and tries to put the incident behind him. But a few months later he is shocked to receive a letter from the General Medical Council. His conviction has been reported by the police and he has now been called to answer before a fitness to practise panel. He faces possible suspension from the Medical Register.

Where does David stand as regards legal advice in this case? Under his NHS employment contract he has legal indemnity for work undertaken as part of his foundation training. But this coverage does not include support and representation for GMC matters.

This scenario is based on a real case at MDDUS and demonstrates why membership of a medical defence organisation (MDO) should not be considered an optional extra for foundation trainees.

MDDUS is an independent ‘mutual’ MDO. Doctors pay an annual subscription fee and in return receive access to advice and assistance on legal, ethical and other problems arising from the practise of their profession. Members not under contract to the NHS (such as GPs) also receive access to legal representation and indemnity for damages and costs arising from judicial decisions or out-of-court settlements in clinical negligence cases.

Most medical students will join at least one MDO or sometimes more – if only just for the freebies handed out. But many will let that membership lapse upon entering foundation year two, relying upon NHS indemnity to see them through their training. It’s a risky move. Even the GMC states on its website: “The protection that comes from employment in the NHS is by no means sufficient to cover all situations in which you may find yourself”.

To be clear, NHS cover does not provide:

• Representation and legal support at GMC proceedings

• Assistance with disciplinary matters

• Legal representation and support at fatal accident inquiries and coroner's inquests

• Indemnity for Good Samaritan acts.

Over the past decade, ‘non-claims’ GMC, disciplinary and other such cases undertaken by MDDUS have risen steadily. MDDUS estimates that in 2008 only 20% of medical adviser time was taken up by professional negligence claims. A significant portion involved GMC matters. It’s a hard reality but doctors remain on the Medical Register 365 days a year, 24 hours a day. In many ways the work–play split does not apply in medicine as it does in other professions. Questions of conduct or behaviour, such as breaches of criminal law or offences involving drug abuse and alcohol, can restrict and even end a medical career. With so much at stake, not making provision for costly expert legal advice and representation would seem foolhardy at best.

Even inadvertent errors can lead doctors into difficulty. One young doctor represented by the MDDUS carried out a rectal examination of a female patient who presented at A&E with bleeding but did not ensure that a chaperone was present. The patient subsequently made a complaint to both the GMC and to the hospital.

An MDDUS medico-legal adviser provided support throughout the GMC investigation, reviewing paperwork and case notes and liaising with lawyers. No further action was taken and the matter was referred back to the hospital. A meeting was arranged and the doctor admitted that no chaperone had been present but insisted that he had obtained consent for the procedure. In the end the patient accepted an apology and reassurance that in future the doctor would ensure a chaperone was present during intimate examinations and that fully informed consent was granted. No other disciplinary action was taken.

Had the doctor not been an MDDUS member the cost of legal advice and support in defending his actions both to the GMC and the trust would have been substantial by any standard.

So is not belonging to an MDO really worth the risk?

Dr Jim Rodger, head of professional services, MDDUS