The case involves an NHS consultant who was worried that the Trust would not support them at an inquest.
A Medical Protection member, Dr Yvonne Pearson, a Consultant Adult Psychiatrist* had cared for a patient with complex mental health needs that included borderline personality disorder, an eating disorder, anxiety and depression.
The patient had been intermittently sectioned under the Mental Health Act from a young age and had various admissions for self-harm. Our member took over the patient’s care as part of a transition into the adult mental health services. There were challenges in getting the patient to engage, and unfortunately, they died by suicide a year later.
Dr Pearson had submitted a statement to the coroner, but they were worried about a subsequent Serious Incident (SI) review that was done by the Trust. They felt that the SI report was critical of the care provided and wanted advice on whether they needed independent legal representation at the inquest.
How did Medical Protection reassure Dr Pearson?
A case file was opened to review the Trust’s SI report and the coroner statement. A Medicolegal Consultant (MLC) spoke to Dr Pearson, and it was ascertained that the member had concerns about the way the SI had been investigated, and of factual inaccuracies within the report. It was also ascertained that the Trust’s legal team had not asked Dr Pearson to seek independent representation for the inquest.
Medical Protection advised that an unfavourable SI report did not necessarily mean that the Trust’s legal team would not represent our member. The assigned MLC also advised that it is generally in the best interests of a doctor to remain within the Trust’s legal umbrella, because the legal team would be seeking to defend both the Trust, and the doctor (as an agent of the Trust).
Getting independent representation could mean that the Trust would absolve themselves of any responsibilities to the doctor, and Dr Pearson could become a target of criticism by the Trust. With this in mind, Medical Protection advised Dr Pearson to liaise closely with the Trust’s legal team to remain informed of how the inquest would be handled.
With regards to Dr Pearson’s concerns about the SI report, the MLC advised that the concerns should be raised with the team that carried out the review, and if needed, with the clinical director, so that the member’s position could be considered during the Trust’s preparation for the inquest.
Did the Trust represent the member?
As advised, Dr Pearson raised the concerns about the report within the Trust, and their position was acknowledged. Following this, Dr Pearson worked collaboratively with the Trust to improve the mental health department.
In addition, the Trust’s legal team had not objected to represent Dr Pearson at the inquest, and in fact, meetings were held to prepare them for the questions that the coroner may ask. Following the inquest, the Trust avoided a Prevention of Future Deaths report, and the member was not criticised.
Take aways
An unfavourable SI report does not necessarily mean that the Trust’s legal team will not represent a doctor. It is in the interests of the Trust’s legal team to represent both the doctor (as the agent) and the Trust, to avoid a Prevention of Future Deaths report.
The Trust’s legal team is obliged to let a doctor know if the doctor’s and the Trust’s position are so different, that it would be a conflict of interest to represent both. Unless a doctor is informed of this, it is advised not to distance themselves from the Trust by way of independent representation.
Independent representation would mean that the Trust can absolve themselves of any responsibilities to defend the doctor, and the doctor could even become a target of criticism by the Trust. The doctor would also be an easier target of criticism by the family, which could in turn end up as criticism by the coroner.
By Dr Ernesto Jones, Medicolegal Consultant at Medical Protection
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*Names and locations have been changed to protect member confidentiality.