Rapid Responses to:
|
|
Rapid Responses: Rapid Responses published:
-
![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
Does the organisation have a memory?
- Peter Gooderham (15 January 2008)
-
Will the paternalistic attitude of Doctors ever Change?
- Fiona C Maclaren (15 January 2008)
-
link to whistleblower ITN news video
- Fiona C Maclaren (15 January 2008)
-
Dr Z Case may disqualify GMC from Revalidation
- Andrew J Ashworth (22 January 2008)
|
|
|||
|
Peter Gooderham, Tutor Cardiff Law School, CF10 3XJ
Send response to journal:
|
Dear Editor, The report by Clare Dyer, ‘Whistleblower who was excluded from work for five years wins apology’ (12 January 2008) (1) is fascinating, but inevitably generates several unanswered questions. These are worth considering, not least in order that lessons may be learned from mistakes in order that others do not repeat them. That is part of the current NHS culture – officially, at any rate. First it is noteworthy that the doctor who succeeded in this libel action against a Primary Care Trust and others did not have a lawyer. Misuse of an employee’s personal information might reasonably be viewed as within the remit of a trade union. Misuse of patient information by doctors might reasonably be reviewed as within the remit of a defence body. It is perhaps surprising that such bodies, which often provide legal support for their members, were apparently not involved, and one wonders why not. The use of a libel action against an employer in such circumstances is interesting in itself. One is reminded of another case in which employees were successful against a state employer, Lillie & Reed v Newcastle City Council and others (2), also heard by Mr Justice Eady. It is not clear in Dr. Z’s case how the doctor’s objections to the processing of information without consent translated into allegations of unfitness for her specific job, resulting in suspension, or any concern about her fitness to practise generally. If lessons are to be learned so that recurrence may be prevented, it might be useful to know more about this, particularly with respect to the role of occupational health services in the NHS. The report refers to several false allegations, which are now accepted as being false. Where did these originate? Has the source been capped, or is there a possibility of recurrence? Similarly, what of the third party which reportedly “misled” the trust and the strategic health authority? Is there a danger that it may mislead, or have misled, others? How can we know? Have any individuals faced disciplinary action as a result of this case? Have any systems been reviewed with a view to preventing recurrence, both in the defendant bodies in this case, and the NHS in general? What of the doctor’s educational supervisors? Did they have any input into decisions which produced the 5-year suspension? It should be noted, with respect to cancer registries, that there is currently statutory provision for their use of patient information in the Health Service (Control of Patient Information) Regulations 2002 (SI 2002/1438). This is subordinate to section 251 of the National Health Service Act 2006; previously the relevant provision was section 60 of the Health and Social Care Act 2001 (now repealed). The role of cancer registries was the subject of much controversy when the latter was before Parliament. While the secrecy surrounding this case is understandable, there is likely to be concern among NHS staff and patients that nothing similar will happen to them. It is to be hoped that the NHS will investigate this case appropriately and take the necessary steps to protect confidential information and also act decently towards its employees. It is also to be hoped that the NHS will in future be spared the cost of defending and settling defamation actions brought by its own staff. (1) Clare Dyer, ‘Whistleblower who was excluded from work for five years wins apology’ BMJ 2008;336:63 (12 January), doi:10.1136/bmj.39454.502049.DB (2) Lillie & Reed v Newcastle City Council and others [2002] EWHC 1600 (QB) at http://www.bailii.org/ew/cases/EWHC/QB/2002/1600.html and http://www.bailii.org/ew/cases/EWHC/QB/2002/1600(2).html Competing interests: PG has worked as a junior doctor in Cambridgeshire in the 1980s and 1990s. |
|||
|
|
|||
|
Fiona C Maclaren, Mother of Alder Hey Child Full time Mother Merseyside WA10 1RX
Send response to journal:
|
Your whistleblower article was also reported on the news on Thursday 10 January 2008, albeit in more detail. The central issue in the news report was that patient consent is not being sought, in relation to disclosure of patient medical records for the purposes of research. I am very surprised this is still happening, seven years after Alder Hey. I am a parent of a child involved in the Alder Hey Scandal. My child died traumatically and his heart was taken without my knowledge or consent, and during the ensuing post-mortem, my child's organs were inspected and then stuffed in his skull before he was sutured up and released to us for burial. All this without the seeking of consent by doctors with paternalistic attitudes, feeling that parents' do not have any rights over their own children. The trauma caused to me and my husband and many many other families can not be over emphasised. I do not understand why doctors are so against seeking consent - whether that consent be for the use of organs, medical records or whatever -for the purposes of their own research? It is true that it is only with research that medicine progresses but such research when it involves patients should be a joint-venture. Previously I would endeavour to assist medical research but after my experience at Alder Hey, I want nothing more to do with it. Do doctors not understand that by alienating patients and parents and asserting this arrogant attitude, that parent consent does not matter, they are alienating their own patients? Patients and parents of child patients have different religious beliefs and sensitivities in relation to illness and its treatment and that has to be respected, as does their beliefs about use of tissue for research and indeed the use of the medical record for such purposes. The other aspect is that the medical record is supposed to be confidential and if doctors do not seek consent from patients as to its disclosure, if they are not careful they will end up with the situation where patients will not trust their doctors and will not reveal past illnesses which are stigmatising such as HIV tests, sexually transmitted diseases, mental illness etc. There was a time when doctors were one of the most trusted professions in society, however with recent scandals which show a complete disregard for patient/ parent respect, it is not surprising that the situation is fast changing. F Maclaren fmaclaren@blueyonder.co.uk Competing interests: None declared |
|||
|
|
|||
|
Fiona C Maclaren, Mother of Alder Hey Child Merseyside WA10 1RX
Send response to journal:
|
I write further to my ealier rapid response "will the Paternalistic attitude of Doctors ever Change?" I omitted to post the news video link to the story which is: http://www.channel4.com/news/articles/society/health/new+leaked+data+fiasco/1309447 I agree with Peter Gooderham in that many questions remain unanswered, not only in relation to patient and parental consent issues when medical information is used for research but of course in relation to the manner in which the NHS treats its own staff who speak out. F Maclaren Competing interests: None declared |
|||
|
|
|||
|
Andrew J Ashworth, GP Davidson's Mains Medical Centre, 5 Quality Street, Edinburgh EH4 5BP
Send response to journal:
|
According to para 45 of Good Medical Practice the Medical Director involved in this case had a duty to comply with the GMC standard: “If you have management responsibilities you should make sure that systems are in place through which colleagues can raise concerns about risks to patients, and you must follow the guidance in Management for doctors.” Both the Medical Director and the Occupational Physician cited were bound to comply with paragraph 46 “You must treat your colleagues fairly and with respect. You must not bully or harass them, or unfairly discriminate against them by allowing your personal views to affect adversely your professional relationship with them. You should challenge colleagues if their behaviour does not comply with this guidance.” Dr Z, the victim, appears to have signed a compromise agreement so that NHS funds (£0.5m would not be unreasonable based on prevention from being a consultant for 5 years over a career, with compensation for the injustice on top) that might otherwise have been spent on patient care have been used to prevent her from reporting the injustice to the press or the GMC. The GMC acts reactively to complaints rather than proactively stamping on poor practice. The GMC’s Southall verdict prevents readers of the BMJ from acting on this report to follow the instructions of paragraphs 43 and 44 of Good Medical practice to report their colleagues to the GMC even though doctors appear to have abused medical power and breached paragraph 37 of Good Medical Practice by conspiring with the punishment of a doctor who attempted to comply with her duty laid down in paragraph 6 of Good Medical Practice. (Whatever the legal position of "suspension" it feels as much like punishment to the victim as the cusodial equivalent of "remand in prison"). The only apparent option to ensure justice, if Dr Z's silence has been purchased by the Trust, would be for the GMC to act independently and publicly to investigate the matter without receiving any complaint. The GMC could also now review previous complaints that the Trust and the Strategic Health Authority had brought to ensure that the it had not been misled by these bodies in other cases in the past; the employers are reported to have implied that they might mislead the GMC about Dr Z. The GMC seeks to act with Trusts and Strategic Health Authorities to revalidate us all in the future. It needs to be able to demonstrate that it can allow the Government to permit compliance with the European Convention of Human Rights, which requires in Article 6: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. If the GMC is not independent of and impartial to employers then it cannot reasonably act as a fair tribunal. Now that it is in the public domain, unless the GMC investigates and acts on the case of Dr Z, there may be sufficient doubt about its own impartiality to prevent its proposals on revalidation from complying with European Law. Competing interests: None declared |
|||