Dr Gerard Panting advises on the accountability of appraisers, summarising paper records and correcting data inaccuracies


Q In a situation where a doctor is found to have been negligent before his last appraisal and this has not been picked up by his appraiser, could the appraiser be pursued for damages by the patient or the patient’s relatives? If so, would a medical defence organisation cover the appraiser’s defence?

A Before discussing the various questions raised here, we need to be clear about the terminology. To recover damages, the claimant must prove that there was a breach of the doctor’s duty of care and that he or she suffered harm as a result. Any finding of negligence would be made by the court on the facts of the individual case.

When negligence is found, damages are assessed on the resultant pain, suffering and loss of amenity and any financial consequences such as lost earnings or future care costs. Consequently, any claim resulting in a finding against an appraisee GP will be settled in full, and further damages will not be recoverable from the appraiser, whether or not the issue is raised at appraisal. The same holds true for out of court settlements.

However, that is not to say that appraisers cannot be held accountable. If, for example, an appraiser failed to detect clear signs of poor performance or a serious health or conduct problem, he or she could be the subject of a GMC investigation. Good Medical Practice sets out clearly a doctor’s responsibility if he or she is aware that any aspect of a colleague’s practice might threaten patient welfare: ‘You must protect patients when you believe that a doctor's or other colleague's conduct, performance or health is a threat to them’.1 All GMC investigations are covered by Medical Protection Society membership so doctors accused of failing to conduct appraisals satisfactorily can apply for assistance in the usual way.

Appraisers may also be criticised by appraisees who consider criticisms unjustified or motivated by prejudice or some other improper motive.The defence here will depend upon being able to demonstrate that the issues were raised appropriately on the basis of available information and the conclusions drawn were justifiable in the circumstances. These cases too would fall within the benefits of MPS membership.

Q I am trying to convert to paperless records. How much information do I need to transfer to the computer for each patient? I know that some practices have the paper record fully summarised by someone with medical knowledge, but it is a lengthy and costly process. Will I need to have this done before I get written consent from the PCT to go ahead with the change?

A The creation of electronic records does not render everything in a manual record immediately redundant.The manual record may contain considerable amounts of information not included in an electronic summary which might be important for future continuity of care or as evidence should any complaint, claim or disciplinary proceedings arise.

However, once an electronic record is established, it is clearly better to use this as the sole ongoing record rather than attempt to operate a dual system. It must therefore contain an adequate summary of medical history, ongoing problems and medication.

The manual record should be maintained as a retrievable archive in case any clarification is necessary.The recommended minimum retention periods are set out in HSC 1998/217 (see Box 1, below). The original documents may be destroyed only if they have been scanned – to an adequate standard – into the electronic version to form a complete record. In all cases back-up systems must be in place to ensure that electronic data can be recovered in the event of a fire or some other disaster. It would be wise to discuss the PCT’s expectations before embarking on this process so that you do not subsequently find that you need to start all over again.

Box 1: Recommended minimum retention periods for medical records 2,3
  • Maternity records
    25 years
  • Records relating to children and young people (including paediatric,
    vaccination and community child health records)

    Until the patient’s 25th birthday or 26th if an entry was made when the young person was 17; or 10 years after the patient’s death if sooner
  • Records relating to patients receiving treatment for a mental
    disorder within the meaning of the Mental Health Act 1983

    20 years after no further treatment considered necessary, or 10 years after the patient’s death if sooner
  • Records relating to those serving in HM Armed Forces
    Not to be destroyed
  • Records relating to those serving a prison sentence
    Not to be destroyed
  • All other personal health records
    10 years after conclusion of treatment, the patient’s death or after the patient has permanently left the country
  • Patients involved in clinical trials
    15 years after conclusion of treatment

Q One of my patients claims that notes written by a previous GP wrongly state that she was convicted of shoplifting some years ago. She wants me to destroy the relevant page but I am not sure that is entirely appropriate.

A Under the Data Protection Act 1998, data subjects (who include patients) have certain rights. These include having access to their data, being told how their data are being processed, preventing processing likely to cause damage or distress, requesting that inaccurate data be rectified, blocked, erased or destroyed, and obtaining compensation for damage caused by contravention of the Act’s provisions by a data controller.

In this case, the relevant data protection principles are numbers 3, 4 and 5.

The third principle states that personal data should be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

The fourth principle states that personal data should be accurate and, where necessary, kept up to date.

The fifth states that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. If a patient considers that his or her health records contain an inaccuracy, he or she can ask the data controller (in this case the doctor) to amend it. If the doctor declines, an application may be made to the court for an order requiring the data controller to rectify, block, erase or destroy the inaccurate data.

Under the third principle, the test is whether the information held is necessary or might reasonably be thought to be necessary for the purposes set out by the data controller in the notification to the Commissioner. So even if data are accurate there is a case for data subjects to ask for their removal if they are no longer necessary.

Under the fifth principle, any decision on how long medical information should be retained will depend upon the patient’s personal circumstances and the relevance of the information to his or her current and future medical care.

So in this instance, the patient can argue for removal of the offending text on two grounds, first, that it is wrong and second, that it is no longer necessary for the purposes of medical care. She is, however, asking for an entire page to be removed from the records which may contain other relevant information. All that information must be scrutinised before determining whether the entire sheet should be removed or the offending comments indelibly blocked out.

References

  1. General Medical Council. Good Medical Practice. London: GMC, May 2001.
  2. Department of Health. Health Service Circular 1998/217. Preservation, retention and destruction of GP general medical services records relating to patients. London: Department of Health, 1998.
  3. Department of Health. Health Service Circular HSC 1999/053. For the record managing records in NHS Trusts and health authorities. London: Department of Health, 1999.

Guidelines in Practice, December 2003, Volume 6(12)
© 2003 MGP Ltd
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