Can I avoid complaints by practising defensively?
Authors: Abi Rimmer
Publication date: 05 Oct 2017
Abi Rimmer asks whether doctors should work differently to avoid complaints
“Follow the principles of good medical practice”
Marika Davies, medicolegal adviser for the Medical Protection Society, says, “The temptation to practise defensive medicine is understandable given the rising number of claims against doctors. We also find that doctors who have been involved in a complaint or adverse incident sometimes respond by saying they will practise more defensively in order to avoid a repeat occurrence.
“But defensive medicine can cause problems: unnecessary tests or investigations are not in the best interests of patients and use up limited NHS resources. It’s also unsatisfactory for doctors, who should be able to exercise their professional skills and clinical judgment without allowing their concerns about the risk of litigation to affect their decision making. In a survey of 1543 doctors by the Medical Protection Society this year, 87% reported that they were fearful of being sued, and 76% said this fear had an impact on how they deal with patients.
“The GMC says, ‘In providing clinical care you must prescribe drugs or treatment only when you . . . are satisfied that the drugs or treatment serve the patient’s needs.’ The risk of litigation will not go away, but practising defensively is not the solution, and is not in the best interests of patients or doctors. Good communication with patients, keeping comprehensive medical records, and following the principles of good medical practice are the most effective ways to avoid problems arising in the first place.”
“Make the patient your first concern”
Mary Agnew, assistant director for standards and ethics at the GMC, says, “Don’t practise defensively if it means putting fear of litigation or GMC referral above patients’ interests. You have a duty to make the care of your patient your first concern and you should work in partnership with them to make decisions about their care.
“Under- or over-treating a patient in the belief that this will be viewed more positively in any legal challenge could subject patients to unnecessary and burdensome interventions or, conversely, deny them higher risk treatments that might be appropriate.
“We understand that doctors are human and that good doctors can make a mistake. It is only in cases involving a serious or persistent breach of our guidance that we are likely to take action. Where there is a one-off failing or error and a doctor has shown insight, taken steps to remedy the failing, and apologised to patients involved, it would rarely lead to GMC action and we are piloting a new approach to resolve such matters swiftly without opening a full investigation.
“Evidence of a pattern of defensive practice causing harm to patients, on the other hand, could raise serious concerns for us. We expect doctors to use their professional judgment in applying relevant guidance to the situations they face. We recognise that the issues involved are rarely black and white. If your actions are motivated by your patients’ needs and are in line with guidance, you will support good patient care and reduce your risk of GMC action.”
“The culture that needs to change”
Tom Bourne, consultant gynaecologist at Queen Charlotte and Chelsea Hospital, Imperial College London, says, “The short answer to the question ‘should I practise defensive medicine’ is, of course, no. However, evidence suggests the majority of clinicians do change their practice—possibly because of concerns about complaints and litigation. In a survey study of almost 8000 UK doctors we found that 80% who responded practised medicine more defensively after complaints against themselves or colleagues. This involved “hedging”—performing more tests than necessary, over-referral, and overprescribing—and “avoidance”—avoiding procedures, not accepting high risk patients, or abandoning procedures early. None of these behaviours is in the interests of patients and the potential cost to the NHS is a worry.
“Why do doctors feel the need to do this? A study in The BMJ in 2015 suggested that there is an association between increased defensive practice and a reduced likelihood of being involved in litigation. One might conclude that defensive practice is a logical behaviour in the face of a culture that leads to doctors being fearful of the consequences of making an error or even of a known adverse outcome.
“No doctor sets out to practise defensively, but a system has been created where this is inevitable. The GMC acknowledges that medicine has become more defensive. Doctors often lack confidence in the fairness and competence of investigations and continue to see the GMC as threatening. It is clear it is not just doctors who need to alter their behaviour if the problem of defensive practice is to be resolved. Perhaps we should ask a different question: “What needs to change in the culture and management of healthcare in the UK that will give doctors the confidence not to practise defensively?”
- Bourne T, Wynants L, Peters M, et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open 2015;5:e006687. [Link] [Link] .
- Jena AB, Schoemaker L, Bhattacharya J, Seabury SA. Physician spending and subsequent risk of malpractice claims: observational study. BMJ 2015;351:h5516. [Link] [Link] .
- O’Dowd A. Doctors increasingly practise “defensive” medicine for fear of litigation, says regulator. BMJ 2015;350:h87. [Link] [Link] .
Abi Rimmer BMJ Careers