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Medico-legal reform should be priority  

By Dr Denis McCauley - 30th Mar 2024

Medico-legal reform

Incoming IMO President Dr Denis McCauley outlines why Ireland’s medical negligence processes need to change

It is worth posing the question: Is the medical negligence framework having a negative effect on how doctors practise medicine in Ireland and indeed on how effectively our health system works?

I contend that it does. 

Let us examine in turn three different areas to see the effect that the current medical negligence framework is having upon the effective running of these systems.

Screening

In 2018 there was a scoping inquiry into the cervical screening programme, CervicalCheck, due to specific concerns in relation to its governance.


Dr Denis McCauley

The inquiry conducted by Dr Gabriel Scally issued 58 recommendations which, in the long-term, will have a positive impact on the running of the service.  

That said, during this time commentary by legal advocates showed a blatant lack of understanding as to what a screening process was. In their commentary they showed that they did not realise screening is not a diagnostic test and will not prevent all cases of cervical cancer. They failed to appreciate that, even with best practice in cervical screening, it is not possible to achieve zero error screening in standard practice. 

Their commentary at the time implied that the professionals responsible for the cervical screening service were either morally blameworthy or potentially legally culpable for all false negative tests in the screening process. 

Not only did the commentary of some legal advocates, which was unfortunately facilitated by a non-questioning media and politicians, do untold damage to the reputation of the screening service in the eyes of the general public, it also caused a significant exodus of healthcare professionals involved in the running of CervicalCheck, which can only have had a further long-term damaging effect on an essential service that had been proven to be very effective.

General practice

A properly functioning general practice sector is an essential component in a normally functioning health service. General practitioners act as the essential gatekeepers given it is GPs who decide the patients that need to be referred to secondary care.  

There are in excess of 20 million consultations per year in general practice. Only a small fraction (2-to-3 per cent) of these are referred for further assessment to secondary care.

Any increase in this percentage would paralyse the secondary healthcare system as it presently exists.

Patients in primary care normally present with very early undifferentiated symptoms. A GP must be fully aware of the diagnostic possibilities and, at all times, ‘safety-net’ to rule out serious conditions.


This can lead to unnecessary referrals as defensive medicine is practised for fear of litigation

Quite commonly in general practice, at the end of the consultation, the patient can be told: “I am not exactly sure what is wrong with you, but I am confident it is not serious.” Or: “I am not exactly sure what the cause of your chest pain is, but I am very confident it is not cardiac in nature.”

A GP manages this risk through a number of techniques. They include good training, good communication skills, continuity of care, and the ability to manage risk. They also involve the thorough use of safety-netting, with review, if symptoms do not resolve, and the judicious use of time.

This system really works and it delivers a very effective, patient-friendly, cost-efficient, and safe health system. Unfortunately, medico-legal practice is unable to accept that there can be doubt associated with a consultation outcome and that time can be used as an investigative filter or treatment.

Therefore, we can have accusations of failure to immediately diagnose and failure to immediately refer. In one case that I am aware of, the GP was the subject of a legal case for not referring a chronic condition promptly. The time-period involved was two weeks.

This can lead to unnecessary referrals as defensive medicine is practised for fear of litigation. It ultimately clogs up the hospital system and does not allow it to operate as efficiently as possible leading to poorer outcomes for patients who are rightly within that system.

Hospital-based services

Another significant factor which undermines medical practice and subsequent patient outcomes is that healthcare in Irish hospitals is taking place in conditions which are not ideal due to infrastructure or capacity issues. The current diagnostic and management protocols were not designed for this eventuality.

Diagnoses are being delayed due to patients languishing on investigative waiting lists. In addition, patients who are diagnosed with cancer, to take but one example, are experiencing delays in their treatment due to infrastructural and staff deficits. 

The management of an acutely ill person involves a coordinated response of medical and nursing staff in an appropriate setting requiring proper communication and observation of the acutely ill patient. It is increasingly difficult to reach this standard when patients are receiving ongoing care in an overcrowded emergency department or on a hospital corridor.

In many cases, the difficulty in such situations lies with substandard infrastructure and systems and yet the individual medical practitioner is sued as well as the hospital.

Clearly, there is a need to examine and reform how we deal with medical negligence in this country. This should be done in a way that is fair to patients and doctors and ensures that our healthcare systems operate in a timely manner. It should allow doctors to operate to the best of their ability and patients to receive the best care possible, accepting that no system ultimately will be free of error.

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