When the doctor becomes a risk to patients

 Working in the NHS these days can carry risks, whether for single-handed GPs or as any member of the medical profession in the shiniest of Foundation Trusts. MEWS – the medical early warning system operating in many hospitals to reduce risks in acute emergency situations – relies on criteria, including assessment and management systems, regular monitoring and improved methods of communication between medical staff.

All too often, there is no early warning system for the staff themselves, who are subject to constant onslaughts on their own health, with none of the MEWS criteria applying to them. Long hours, poor support, excessive bureaucracy, and violent patients – these cover a tiny fraction of the adverse matters to be borne by the average NHS practitioner.

Professional people whose health is undermined are at risk not only of becoming ill but also, in the run-up to diagnosis, their performance and conduct may also be adversely affected. Employers owe their staff – at all levels – a duty of care to ensure their health, safety and welfare at work are not damaged.

The long day’s night

Apart from all the stresses of a job, including the doctor’s need to keep up to date with current health and safety legislation, working time is one of the important factors affecting the state of a doctor’s health, their capability for doing their work, and the effect on their working relationships with other members of the team – tired doctors do not work to their full potential.

Consider the limits on working hours in the transport and aviation industries, and any situation outside medicine that requires alertness, skill and efficiency as a matter of life or death. It stands to reason that an employer requiring staff to work without not only runs the risk of damaging their health, but also places patients at risk by reason of poor performance.

In 1991, the Court of Appeal confirmed to Bloomsbury Health Authority that requiring a doctor to work such excessive hours as to put his health at risk amounted to a breach of contract even though the doctor had contracted to work those excessive hours.

Although there is a great deal of interest in the 58-hour Working Time Regulations’ (WTR) restricted working week for trainee doctors, long hours or otherwise poorly organised working practices that increase OH problems could, with care, be headed off at the pass by suitable and sufficient risk assessments.

An unfortunate side effect of limiting the working hours of doctors in training grades is to spread the load elsewhere. Clearly, patient need does not depend on the availability of the manpower to provide the treatment. It is therefore predictable that either the WTR will be more honoured in their breach than in compliance or that other grades or nurses will have to make up the shortfall in medical staffing.

The current 58-hour maximum working week for doctors in training grades reduces to 56 hours in August 2007. In August 2009, it will shrink down to the 48-hours maximum applicable to all other workers, including senior doctors, since 1998. The hours lost to the profession merely through implementation of the 58-hour week is thought to be the equivalent of the loss of more than 3,500 doctors. This comes about because of the inclusion in the regulated time of the hours spent on-call, which usually number about 32, whether or not the doctor is actually working.

Mad, bad or dangerous

The NHS complaints procedure can and does deal with issues raised by patients, and will no doubt consider the various stresses of the job that may have had an impact on the doctor’s performance or behaviour. The doctor may then be subject to internal disciplinary proceedings or civil litigation by any person who may have been injured by their negligence.

But there are some matters that reflect so seriously on a doctor’s fitness to practice that internal disciplinary proceedings or compensation for a wrong is not sufficient to ensure the safety of other patients or otherwise permit the doctor to carry on practising, even under defined conditions. Such cases, including where a doctor has been convicted of an offence that may have had nothing to do with their practice but, by its very nature, brings the profession into disrepute, may be referred to the General Medical Council (GMC) – the medical regulatory body – which has a responsibility to ensure that registered doctors in the NHS or private practice are fit to practice in three respects. They must be in good enough health to enable them to work; they must be capable of working to professional standards; and their conduct must be good, both in dealings with patients and in the world at large. The best of doctors can be erased from the register if they are convicted of a crime.

Medical registration imposes important ethical and practical duties on the doctor. The GMC sets out its commandments, stating that the doctor must:

  • Have the care of patients as their first concern
  • Treat patients politely and considerately, with respect for their dignity and privacy
  • Listen to patients and respect their views
  • Give patients comprehensible information
  • Involve patients fully in decisions about their care
  • Keep professional knowledge and skills up to date
  • Recognise the limits of their professional competence
  • Be honest and trustworthy
  • Respect and protect confidential information
  • Ensure personal beliefs do not prejudice the patients’ care
  • Act quickly to protect patients from risk if they have good reason to believe that they or a colleague may not be fit to practise
  • Avoid abusing their position as a doctor
  • Work with colleagues in the ways that best serve patients’ interests.

To comply with these rules, the doctor may need support from the system, particularly with health and safety issues.

Even with these explicit rules, there are doctors who do not, cannot or will not comply. To that end, the GMC has developed procedures to respond rapidly and efficiently to deal with doctors where concerns have been raised.

In minor cases, a warning may be sufficient, but where matters are more serious, the GMC can stop a doctor practising, suspend their registration or place conditions on it. The badly-performing doctor is at risk of losing their livelihood and reputation.

The GMC’s Fitness to Practice Rules of 2004 require all complaints to be investigated before making the decision whether to refer to a full enquiry, which could result in sanctions. The panel hearing the evidence will bear in mind the need for patients to have confidence in the profession and for any sanctions to be appropriate. The Council for the Regulation of Healthcare Professionals has the right to appeal decisions it considers to be too lenient.

In the recent case it brought against the GMC and Dr Feda Mulhem, the GMC had suspended the registration of a doctor convicted of the manslaughter of a patient following intrathecal instead of intravenous administration of drugs.

Hospital procedures were inadequate but the doctor had committed gross negligence by failing to make the necessary pre-treatment checks. The doctor also pleaded guilty to assault against his two daughters and his wife, offering in mitigation the fact that he had been under stress. The judge, who sentenced him to 18 months imprisonment, said the crimes against his family were: “…despicable acts against those who were in your power and at your mercy within your own home.”

The High Court decided that suspension was insufficient and ordered that he be removed from the medical register.

Occupational health involvement

The key to maintaining doctors’ health in the NHS should be risk assessments as required by the Management of Health and Safety at Work Regulations 1999.

The effect will be to establish a proactive stance to ensure doctors are fit for the work they are required to do, rather than reacting to problems.
No employee is too highly qualified to ignore the duty of co-operating with their employer on health and safety matters, but it is arguable that doctors have exceptionally high demands placed on them in difficult working environments.


Sindicato de Mdicos de Asistencia Pblica (Simap) and Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] IRLR 845, ECJ
Spanish doctors brought a claim under the Working Time Directive against their employers claiming that all hours spent resident on-call should be considered as work and therefore count towards the average weekly working hours. They succeeded. Thus, all time spent resident in the hospital, even if sleeping, is to count as working time for the purposes of the directive.

Jaeger: Landeshauptstadt Kiel [2003] IRLR 804, ECJ
The contract of German doctor, Norbert Jaeger, required him to stay in the hospital overnight between two day shifts. The ECJ held that a doctor required to be available at the place determined by his employer could not be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity. However, when a doctor is on-call but not resident, only time when actual work is being carried out should be regarded as working time for the purposes of the directive. Compensatory rest is now supposed be taken immediately following the period of work which it is supposed to counteract.

Skidmore v Dartford and Gravesend NHS Trust [2003], IRLR 445, HL
Mr Skidmore lied to the family of a patient about an incident during an operation. The Trust dismissed him on the grounds of ‘personal conduct’ and rejected his appeal that he was entitled to have the hearing carried out under ‘professional conduct’ procedures.

His claim for unfair dismissal was rejected by the Employment Tribunal. The decision was upheld by the Employment Appeal Tribunal but overturned by the Court of Appeal, and confirmed by the House of Lords.

The key distinction between personal conduct and professional conduct was held to be whether the conduct at issue was the exercise of professional skills. It was “self-evident” that the Trust had used the wrong procedure.

The case was remitted to the Employment Tribunal for re-consideration of whether Skidmore had been unfairly dismissed.

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