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  • Overview

    Do you know your rights when it comes to medical treatment?  With the introduction of Heath and Social Care Act 2012 abolishing the government’s duty to provide us with health care, the cutting of NHS budget and the increased privatisation of many NHS services, becoming a well informed patient is increasingly important and can improve your access to healthcare and the quality of treatment you receive.  This article aims to highlight some of the recent changes in this area to help you to know your rights and make the best use of NHS services.

    Duty of confidentiality

    Doctors have a duty of confidentiality towards their patients, as patients often reveal personal and sensitive matters to doctors during medical consultations.  This duty of confidentiality extends to all the supporting staff.

    You have the right to see most health records held about you, subject to certain safeguards.  You are also entitled to be informed of the uses of the information and who has access to it.  Nowadays GPs are no longer required to comply with requests from insurance companies to release patient’s medical records under the Data Protection Act, even when a patient has given consent.  GPs who are data controllers, could be in breach of the Data Protection Act if they release the whole record, including information not pertinent to the insurance report in question. 

    Your GP may allow you online access to your medical records, known as e-health records (EHR).  EHR was introduced in 2013 with the intention of giving patients more control of their healthcare and improving transfer of medical records.  However, few GP practices currently offer access online.  This is very much a work in progress and most surgeries that do so only offer online access as a compliment to paper based medical records.  In time it is anticipated that both patients and medical practitioners will be able to access medical information via various media ranging from Smartphones or Tablet computers.  This can pose problems in cyber security as we have seen in Talktalk or British Gas where confidential customer information was posted online by cyber attackers.

    Choosing a GP

    If a GP surgery refuses to accept you or tries to remove you from their list, they must give you reasons for their decision in writing and have reasonable grounds to do so.  These grounds must not have anything to do with race, gender, age, pregnancy, disability or medical condition. You would also contact your Local Clinical Commissioning Group (CCG)  or NHS England who will try to find a new GP for you.  Remember that in the interim, your GP must provide any treatment which is immediately necessary in an emergency, even if you are no longer registered with them. 

    Complaints against your GP can be directed to their own complaint procedure, CCG, NHS England  or the General Medical Counsel (GMC). 

    Choosing a hospital/surgeon

    You have the right to choose a particular medical team headed by a particular consultant for your first outpatient hospital appointment, except for mental health or emergency services and for cancer treatment where the two week wait applies.  Indeed, you may choose a team based at any NHS or private hospital.  But how do you make that choice??

    At the very least your consultant should be suitably qualified and a member of the appropriate organisations and associations, such as the British Association for Surgery of the Knee.  You may wish to also find out where they trained and what qualifications they hold.

    The NHS publishes league tables of performance data of surgeons and you can view the data via the My NHS (NHS Choices)

    The tables are grouped according to speciality areas.  Currently there are 13 speciality areas of surgery, including cardiac, colorectal and urological, giving patients another route to find out more about an individual surgeon’s practice and outcomes of their patients after an operation.  Currently operations carried out in private hospitals may not be included in the audit.

    This data measures the consultant’s performance against a set of professional standards such as survival rates, length of stay in hospital following a procedure and repeat operation rates, as well as the total number of operations performed within the year.  Those surgeons who are doing much better or worse than the average are described as ‘outliners’.   However, not all consultants publish their data.  There are currently no sanctions for failing to do so.

    Whether you are paying for surgery, or having it carried out under the NHS, you want to be sure that you are getting a high standard of care from surgeons.  Whilst the data can be crude and is not conclusive, it is hoped that patients can be active participants in their care and use consultant outcomes information to have an informed conversation with their surgeons and discuss the likely outcome and recovery process from treatment.

    Waiting time

    New waiting time pledges have been updated in the recent handbook to the NHS Constitution .  The maximum waiting time can be summarised below:

    1. From diagnosis to first definitive treatment for all cancer sufferers – 1 month
    2. From referral from an NHS cancer screening service to first definitive treatment for cancer – 62 days
    3. From referral to diagnostic tests – 6 weeks
    4. Subject to some exceptions, from referral to non urgent surgical treatments (eg. a hip replacement) – 18 weeks
    5. From cancellation of an operation to a new surgery date – 28 days

    Before you decide from which hospital to receive treatment, you can compare waiting times to see if the waiting time elsewhere is shorter compared to your local hospital.  Average waiting time information of hospitals can be found in the NHS Choices website.

    Informed consent

    Informed consent is at the heart of shared decision making in health treatment.  Patients must have adequate information if they are to play a significant role in making decisions that reflect their own values and preferences.  Physicians play a key role in explaining all relevant and necessary information about treatments.  In 2015, the Supreme Court clarified the law by ruling that “an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo and their consent must be obtained before treatment interfering with their bodily integrity is undertaken.  The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments.”

    Shared decision making between clinicians and patients is an important part of patient centred care. A patient focused approach has been shown time and again to improve physician performance, patient satisfaction and health outcomes. 

    Duty of candour

    The statutory ‘duty of candour’ came into force in November 2014.  It means that NHS hospitals must inform and apologise to patients if there have been mistakes that led to or likely to lead to severe, moderate or prolonged psychiatric harm.

    Traditionally health care workers are reluctant to talk about errors for a number of reasons including what was regarded as a ‘blame culture’.  As a result of recent reviews and enquiries such as the Francis Inquiry , the inquiry into Winterbourne View Hospital  and the Berwick Review , concerns were raised about standard of care provided, failure of NHS and health watchdogs to act on concerns raised by patients or their families and lack of openness and transparency about errors.  Interestingly, for other providers including GPs, the law does not oblige them to report if the adverse event does not lead to any harm. 

    The duty is backed by criminal sanctions, making it an offence to fail to notify the relevant body and patient involved If the statutory duty of candour is followed it should reduce incidents of clinical negligence claims.  Where there are claims hopefully it would make the process less confrontational, expensive and damaging for both patients and clinicians.

    The way forward: open and efficient investigation

    A report by the NHS Ombudsman in December 2015 found that nearly three quarters of hospital investigations into avoidable harm and death claimed there were no failings in care given when, in fact, there had been serious errors.  An effective investigation process is absolutely vital and should run hand in hand with the NHS Complaint process.

    The vast majority of patients get good, safe care and it is important to say that not every poor outcome results from substandard care. All treatments and procedures carry a degree of risk even in the very best of hands. An open and effective investigation and complaint handling process will result in some patients receiving an honest explanation that the disappointing outcome they suffered was the result of misfortune rather than negligence.

    However, when an avoidable error occurs the patient is entitled to fair compensation for the harm they have suffered. It is the role of the clinical negligence lawyer to help them recover that compensation. We seek wherever possible to negotiate a settlement which saves considerable cost and is easier to achieve if there is an early admission of error.

    A positive outcome from our work as medical negligence lawyers is that the NHS is able to learn from a claim to continue to improve patient safety, which is now a priority for the NHS.

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