Protecting your NHS Trust against litigation. Professor Diana Kloss barrister

Transcription

1 Protecting your NHS Trust against litigation Professor Diana Kloss barrister

2 Do your job! Occupational health professionals have a duty to take reasonable care and to act as competent professionals This duty is owed both to employers and employees The standard is of a reasonable, responsible and respectable member of the profession

3 Criminal liability Criminal law of health and safety at work is nearly all statutory, and places the primary obligation on the employing organisation Health and Safety at Work Act 1974 Regulations on dangerous substances, manual handling, first aid, noise, vibration etc etc.

4 However, since the Trust, which is a legal person, can only act through human beings, it is important that all its employees, both senior and junior, are aware of health and safety responsibilities and take reasonable precautions for themselves and for colleagues, patients and member of the public OH is concerned in particular with health surveillance, and advising management about health issues and fitness for work

5 Prosecution against Mid-Staffs NHS Trust Prosecution in the case of death of Gillian Astbury. She died of diabetic ketoacidosis when she was an in-patient at the hospital. The cause of death was failure to administer insulin. The Trust was prosecuted under section 3 HSWA for failure to devise, implement or properly manage structured and effective systems of communication for sharing patient information, including in relation to shift handovers and record-keeping. The Trust pleaded guilty.

6 How might OH be involved? OH may become aware of failures of care if employees are referred with stress because they are working with unsafe practices and complaints to senior managers are not taken seriously. Should OH report such failures to management? There is no legal duty of candour on individuals but is there an ethical duty? In the long run making the Trust aware of problems is likely to keep them out of the courts!

7 Civil liability The Trust has a duty of care to patients, employees, and members of the public and is vicariously liable for the negligence of employees in the course of their employment Employees working in the NHS are covered by NHS indemnity, ie the NHS Litigation Authority will pay legal costs and damages, and will not pursue the employee for a contribution

8 Duty of care All health professionals owe a duty of care to those within the foreseeable area of risk Stokes v GKN (1968)

9 Employment law Employers are under a legal duty not unlawfully to discriminate against employees and job applicants because of a protected characteristic, ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation Equality Act 2010

10 Disability OH is often asked to advise employers about whether job applicants or employees are fit for work from the point of view of their health and functional capability Managers need information in order to be able to manage! Gallop v Newport Council (2013) BS v Dundee Council (2013)

11 Should OH recommend adjustments? It is not essential to mention the Equality Act, but if the employer knows or ought to know of a disability and fails to make reasonable adjustments the employer is liable Some employers ask OH not to recommend adjustments My view is that OH should flag up the possibility of a disability, and suggest adjustments, though it is the manager s decision whether these are implemented. A failure to recommend suitable adjustments could be regarded as unethical??

12 General principles 1. Obtain written informed consent to obtaining information from clinicians (AMRA 1988) and to sending a report to the manager (GMC Guidance 2009) Offer to give the employee a written report before sending it if he/she wishes. Informed consent is a dialogue, not a lecture! Do not reveal confidential information without consent, unless in the public interest, even if bullied by a manager to disclose because you work for us and they are our records. Explain politely to HR/management/ solicitor that this is a legal and ethical requirement. Don t discuss employees with their managers without their consent 2. Keep accurate records This is especially important if the consultation is over the phone Record how long the discussion lasted NEVER alter records after the event

13 General principles 3. Good communication The determining factor of whether a patient sues is often whether the patient feels that the health professional cared about him/her. Explain who you are, why you are seeing them, and what is the purpose of the referral. Often employees do not understand the function of OH 4. Genuine apology for mistakes. If a patient has been kept waiting, or her appointment has not been recorded, or if there has been a mistake in sending the report, the fault should be acknowledged and there should be an apology. This does not mean that the doctor/nurse should alter their professional opinion if challenged!

14 General principles 5. Do not criticise clinicians. If you disagree with the GP explain why you feel that, as you understand the workplace, you are better able to assess fitness for work. Offer to contact the GP with consent to explain your opinion. Try to avoid a situation where the employer has to choose between two conflicting medical opinions

15 General principles 6. If in doubt about the legal position consult a lawyer. If you belong to a professional organisation or trade union, eg RCN, legal advice may be available as a perk of membership Be careful about in-house Trust lawyers who may not understand fully the ethical rules of your profession