I know best!

Published: 04 July 2016 Ezine

Author: Warren Town, Director of Industrial Strategy

This is the second in a series of articles the Society is publishing in response to an increase in member enquiries about patient complaints. Each article will deal with different aspects of the issue.

The first article – ‘Insurance is no substitute for good practice’ - set the scene. The third will deal with the role of professional indemnity insurance and, finally, we will look at the independent and private sectors.

This time we look at the role of the professional and the patient, as well as what the SoR needs if we are to be able to help you.

It is easy to go through a professional career assuming that nothing will or can go wrong. For 90%+ in the profession this is true. But for the small percentage that finds they are in conflict, the effect can be devastating.

No member goes to work with the explicit intent to harm a patient or to be negligent. But it is a fact of life that even the most confident of us can slip, make a poor decision or simply lose concentration for a second. Often when this happens, no harm is done and we simply gather our thoughts, have a cuppa and learn from the experience.

But for a very small percentage that one slip, that one lapse in consistency, can be devastating for the patient and a professional career.

From one mistake a whole sequence of actions kick in that increase in magnitude as the story unfolds.

This is no longer a lapse in concentration or a ‘silly error’, it is a career and potentially life changing event.

There are statutory provisions that relate to a situation when something goes wrong. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is comprehensive and obliges a professional to act in a specific way once a mistake is made.

One aspect of this is the ‘Duty of Candour’. As a result of a number of factors and comprehensive reports on failures in the NHS, the failure to say that you are ‘sorry’ or own up to an error was identified as one reason that people and systems fail.

But the ‘duty of candour’, laudable as it may seem, also brings with it a dilemma. As a regulated professional there is a duty under the Act to fulfil a number of obligations, including providing a factual account of events with an apology.

A factual account is expected but an apology could be problematic, especially where the professional is covered by an insurance policy that explicitly does not permit the insured to accept liability.

Although under the provisions of The Social Care Act you are required to apologise if an error is made, this does not in itself represent an admission of negligence or a breach of statutory duty.

For the latter to occur there would have to be physical proof and/or an admission. So by saying you are ‘sorry’, you are not necessarily admitting liability.

There is, of course, a fine line between the two and this can result in a reluctance to be open and honest.

But an apology is only one aspect of a claim when a member has a lapse of concentration, there is an equipment failure, or a miscommunication. In all instances where a patient feels they have been wronged, the employer is obliged to conduct an investigation.

The member in turn is obliged to co-operate but should obtain advice to ensure that they do so correctly and do not inadvertently compromise their case.

Employers will insist on a statement and often want it to be provided quickly. There are instances where members have been asked to sign a pre-prepared statement, provided by the employer.

It is important for members to know that irrespective of what the employer wants you to do, you also have rights and an important part of this is for you to take advice.

Too often the SoR receives a phone call that starts with ‘I have given my employer a statement and just thought you might like a copy.’

There is almost no point in contacting us after you have submitted a statement, or given evidence. By then it is too late and we will, in all probability, not be in a position to help.

The Society has to maintain the right to deny cover and not accept the claim in such cases. This is because, however inadvertently the member has compromised themselves, their action could put our insurer and the Society at risk of unnecessary and expensive litigation that could have been avoided.

The rules are simple:
• You need to tell us before you commit pen to paper or speak to the employer.
• You need to tell us what happened and not trust that your employer will act in your best interests.

This may seem overly harsh but once you have made a statement that is regarded as your evidence and if you have not had the benefit of advice, you have accepted liability for your actions.

Employers may pressurise you to comply with a different timescale or procedure. They may even threaten but you must remember that you have the right to representation and advice.

They cannot stop you and once they are informed of our involvement, their attitude will often mellow.

Too often members consider the SoR insurance after they have admitted liability but by then it is too late for us to help you. This is not a safety net but a comprehensive package of advice and support and there is no better safeguard than good professional practice.

The Society also needs to know if the employer, or the patient, or the patient’s lawyer or representative, reports you to the HCPC.

Again, please tell us as soon as possible. There is little point calling the Society when the case has gone past the investigation, or is listed for a hearing. By then memories will have faded, evidence gone stale and you will most likely have made a statement, a comment or answered questions that may seem innocent at the time but which could compromise your case.

When it comes to a police investigation (and this is not as uncommon as you may think) again, please tell us immediately. We may not be present but we can advise you about your rights and how to conduct yourself.

It is right and proper for there to be a ‘duty of candour’. But it is also the case that just as the patient wants an explanation, or ‘justice’, members of SoR also have rights.

You have the right to take advice, to be treated with respect and to give the best and most honest evidence that you can.