According to Mind, the mental health charity, approximately 1 in 4 people in the UK will experience a mental health problem each year. The nature of the patient’s condition and any medication prescribed can mean there is significant potential for an adverse outcome, including the risk that the patient will come to harm.
The MDU supports around 500 psychiatrist members each year with issues ranging from regulatory investigations, service complaints, performance concerns, inquests and tricky medico-legal or ethical scenarios. We also support members working in private practice who find themselves facing a clinical negligence claim and this factsheet focuses on those cases.
Looking at claims settled on behalf of the MDU's members working in psychiatry over a recent ten-year period, the MDU successfully defended more than 90% of cases, paying compensation in just 7% of cases.
The largest single claim paid in the review period cost over £1.5 million (including legal costs) to settle and related to the treatment of a patient with a benzodiazepine addiction.
The levels of compensation paid in clinical negligence claims bear little or no relation to the seriousness of the allegations but reflect the cost of restoring the claimant to the position they would have been in had the negligence not occurred.
It can be very distressing to find out a patient is bringing a claim against you. If you face a claim you can be assured that the MDU's expert claims handlers and medico-legal advisers understand how stressful this is and the importance of mounting a robust defence of your position. The MDU will defend claims whenever possible and we involve members in the conduct of their cases and will always seek your consent to settle a case.
While claims numbers have remained steady in recent years, the cost of claims has spiralled. This is not due to clinical standards but to a deteriorating legal environment which the MDU is campaigning to reform. You can see more at themdu.com/faircomp
Outcome of cases
Claims that were not settled were either won, not pursued, discontinued by the claimant or statute barred. A claim is statute barred if the claimant fails to bring a claim within three years from the date of the incident or the date of their knowledge of the alleged harm.
This restriction does not apply to children with capacity, for whom the limitation period begins at 18 (16 in Scotland). There is no time limit for patients who lack capacity to conduct their own affairs. Some claims were initially investigated by the MDU but successfully argued to not involve an MDU member.
Figure 1 shows the outcome of claims in the analysis
Reasons for claims
Risk of self-harm or suicide. A number of claims focused on allegations there was a failure to recognise a patient was at risk of suicide or self-harm or that the patient was inadequately managed, often following multiple consultations. There may be a great number of factors which lead a patient to take their own life, so it can be difficult for the claimant to prove causation (ie for a claim to be successful, the claimant would have to demonstrate that but for the alleged negligent act by the doctor, the patient would not have committed suicide).
Deprivation of liberty. In a number of cases, it was alleged the patient had been inappropriately detained in hospital for treatment. Only one such case was settled in the review period but it highlights the importance of ensuring all appropriate alternatives are considered. However, when there is no reasonable alternative to detention, it’s important to ensure there is appropriate input from all involved parties and that the reasons and discussions are thoroughly documented. This is a complex area of the law and it is always worth getting MDU advice if there is any doubt about detaining a patient.
Addiction. A handful of cases involved patients with an alcohol or drug addiction. These claims tend to have long histories with many doctors involved and, therefore, establishing where accountability lies can be very difficult. It is always important to make sure all clinicians involved in a patient’s care communicate thoroughly with each other and agree who takes responsibility for each aspect of care.
Other reasons for claims included:
- the treatment of bipolar disorder
- medication errors
- an incorrect psychiatric diagnosis being made
- inappropriate management of gender reassignment surgery. (One case was settled for over £20,000 in compensation and a similar amount in claimant’s legal costs).
- breach of confidentiality.
Manage the risk
Claims involving psychiatrists are very diverse however, there are some common risk factors, which if managed appropriately, can help to reduce risks.
- Make sure that where there is a significant risk of suicide or self-harm, both the patient and the medication prescribed are appropriately reviewed. Be aware of and follow appropriate guidelines.
- If a patient's care is being managed by a number of professionals, there should be clear agreement on the responsibility for the monitoring and treatment of that patient. Explain this to the patient and, where appropriate and with consent, share with families and carers.
- Be prepared to refer patients for specialist treatment when necessary. This is in line with GMC requirements to 'recognise and work within the limits of your competence' (paragraph 14, Good medical practice). You should ensure that you have the appropriate qualifications, skills and experience for the care you are providing.
- Be aware of the current available guidance on the prescription of antidepressants, including the BNF and NICE.
- Have a system in place to review patients on long-term medication.
- Get expert advice from the MDU if there is any doubt about whether a patient's detention is appropriate and lawful.
- Clearly document your discussions with patients and family members.
- If things go wrong, be open and honest with the patient by providing an explanation of what has happened and the likely short and long term effects of this. Say sorry and get advice from the MDU if you believe the incident triggers the organisation's duty of candour requirements.
Case study: treating a patient with benzodiazepine addiction
The following anonymised case example illustrates the type of scenario that can evolve into a clinical negligence claim.
A young patient in her 30s was referred to a psychiatrist at a private hospital for treatment of a benzodiazepine addiction. She has been initially prescribed treatment for muscular problems by her GP but unfortunately found it difficult to wean herself off the medication. The patient was suffering from increasing anxiety and difficulty coping at work.
With her agreement, the patient was admitted and multiple strategies were attempted to help wean her off the medication including cognitive behavioural therapy and alternative drug treatments. Unfortunately this did not work and several attempts were made to initiate programs that would allow the patient to function without any medication.
After a number of weeks the patient discharged herself as she felt she was able to cope with the use of longer acting benzodiazepines and at a follow up appointment she reported returning to work. Unfortunately the patient relapsed and began to purchase increasing doses of shorter acting benzodiazepines online. This resulted in the patient eventually losing her job and a claim was brought against the MDU member.
The MDU investigated the allegations by instructing an independent psychiatry expert. The expert was supportive of some of the strategies used to wean the patient off benzodiazepines, but other elements, such as the different medications tried, were not supported with guidelines and the documentation was inadequate. However, it was also argued that the patient had contributed to the situation by purchasing benzodiazepines online and not disclosing this when asked during a follow-up appointment.
With the member's consent, the MDU settled the claim for a small sum.
This guidance was correct at publication 29/10/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.