Staying Within The Law – 5 Things Healthcare Professionals Should Be Most Aware Of

Healthcare professionals understandably focus on maintaining their skills and knowledge to ensure they provide the best treatment and care, but occasionally they may face complaints from patients or colleagues challenging their fitness to practise.

As part of series of articles on the legal issues that can affect healthcare professionals, we provide a list of five key things all healthcare professionals should be aware of: consent; adequate notes; respect, privacy and dignity; chaperones; and, rejecting improper advances. Keeping these things in mind may help healthcare professionals carry out their duties and execute their expertise within the law, while also mitigating against the chance of career-threatening fitness to practise or court proceedings.

For our other articles in this series, please see:-

• Healthcare Professionals – Fitness to Practise Representation (HCPC, GMC, GCC)
• Risk Management for Clinicians
• Fitness to Practise & Professional Conduct

1) Consent

• Only accept implied consent for the most basic of procedures.

Healthcare professionals need to be careful when interpreting and accepting a patient or service user’s consent. While it may be given expressly, such as verbally or in writing, things can be more difficult if consent is implied.

A common example of implied consent is when a patient rolls up their sleeves when they see the blood pressure monitor. In such circumstances, you can accept that they are willing to have their blood pressure taken. However, such common behaviour cannot cover every aspect of what is happening in the course of an examination or treatment – just because a patient has, for example, agreed to the examination of an intimate area, they presumably have not agreed to that intimate area being touched in a manner which could lead to a complaint.

It is therefore vital to be absolutely certain that the patient has granted their consent, but it is also necessary to ensure that they know what they are consenting to…

• When obtaining consent, make sure that the patient understands exactly what you intend to do with regards to the treatment.

For consent to be valid, the healthcare professional must give the patient enough information to enable them to make an informed decision as to whether they want a certain course of treatment to take place.

The amount of information needed will vary according to the nature and complexity of the condition requiring treatment or investigation, but may well include the following:

• details of diagnosis and prognosis;
• options for treatment;
• the purpose of the procedures and possible consequences;
• benefits of treatment or no treatment; and
• possible side effects.

The more intrusive the treatment or the greater the risk, the more detailed the explanation must be.

Be certain that you have adequately explained your treatment plan to the patient and that the patient has given consent for you to provide the treatment, but also keep in mind that…

• Consent is a process, not an event.

It can be withdrawn at any time – just because somebody consents in one instance does not mean that they will maintain their consent by the time they come back for future appointments or treatment.

Find out more about consent and risk management here.

2) Ensure your notes are adequate

• Take comprehensive, contemporaneously written notes explaining the issues discussed with a patient.

Diagnosis, assessing suitable treatments, and ensuring a patient has granted consent to examination and treatment, are all daily instances of when a healthcare professional has to use their professional judgement. In some cases, an exercise of judgement might be later called into question, requiring it to be explained and justified to a regulator or a Court.

Notes are often your only defence in cases where an allegation is made some time after an incident. It is therefore vital to make sure they are well written and accurate – the more detailed and comprehensive your notes are, the better chance you will have of defending against an allegation challenging your professional status.

Good quality notes include:

–    patient details;

–    presenting complaint;

–    history of complaints or others;

–    past medical history;

–    past treatments from elsewhere;

–    examination and findings;

–    treatment plan;

–    patient consent;

–    progress of treatment with dates marked against each treatment;

–    changes of treatment;

–    patient consent thereto;

–    referral to specialist or other colleague; and

–    notes of exercise to do away from the clinic.

Make sure the notes tell you everything you would want to know about a patient if you were reading them for the first time, and also provide justifications for the treatment you suggest or administer. Ask yourself whether another healthcare professional reading your notes would be able to treat the patient, know what action you have taken and why. If your answer to that question is no, then it will be difficult to rely on them in the future.

Also be careful when using abbreviations. For example, a PID could be a prolapsed inter-vertebral disc, but could also be a pelvic inflammatory disease. Therefore, rather than PID for the former, it could be pro-iv-d, and for the latter pel-inf-dis. It may take a tenth of a second longer to write out the different note, but such clarity of expression is invaluable should you have to justify your actions in the future.

• Keep your notes safe and secure.

Healthcare professionals have a number of legal obligations when handling personal information about their patients, such as the duty to maintain patient confidentiality and comply with data protection rules. As such, you must store you notes, and all other personal information about a patient, securely and for a minimum period. For adults, you must keep notes for at least three years. If a patient is under 18, the records should be kept until the patient reaches the age of 18, plus three more years.

Find out more about the duty of confidentiality and data protection as it applies to healthcare professionals here.

3) Respect, privacy and dignity

• Towels, Gowns and Screens

The intimate nature of healthcare related issues requires a sensitive approach, particularly when they concern an intimate area of the body. It is therefore vital that healthcare professionals do their best to maintain their patients’ dignity by giving them adequate privacy and treating them with respect.

A basic, but necessary, way of doing this is leaving the room if a patient needs to undress. Make sure you knock before re-entering, or get the patient to knock on the door and tell you to come in when they are ready. If you need to stay in the room, a screen is often the easiest option.

If there are circumstances that justify you needing to watch the patient undress, tell them why this is the case, make a full note as to what you have said and why you have done it, and note the patient’s consent and maybe get it in writing.

If you need someone to undress but can manage to deal with an initial visual evaluation and/or palpation with only part of the body uncovered, then offer them either a hospital type gown or a towel to wrap around them. Do not help patients to remove clothing unless they ask you to do so, or you have checked with them first so that they will allow you to help them. Make a note of the fact that you have done it.

When an examination requires a patient to lie on your treatment table, allow them to cover their extremities that do not need examination with a towel. If they are required to turn over, lift the towel so that they can turn over while you look away, and then cover the extremities that you do not need to treat on their behalf.

If clothing is to be removed, particularly in relation to more personal parts of the body, or a healthcare professional wants to look at a patient’s features or palpate when there patent is dressed only in their underwear, then a chaperone ought to be considered or recommended.

Unfortunately, the intimate nature of physical examinations makes healthcare professionals particularly susceptible to allegations of sexual misconduct. To avoid the risk of such a complaint being made, you may want to consider using a chaperone.

4) Availability of a chaperone

During many assessments and treatments, patients may be required to remove clothing and/or submit themselves to intimate examinations. In any event, there may be a physical closeness of practitioner and patient. This may lead to the possibility of what takes place being misconstrued by the patient. Chaperones are a useful means of diffusing such potential misunderstandings.

If a healthcare professional wishes a chaperone to be present for their own reassurance, then the patient must consent. If the patient consents, ensure that you have a chaperone available and if you cannot provide one, then let the patient bring a chaperone of their own. Although it is always better to have someone who is as independent as possible to be the chaperone, where there isn’t anybody available, a friend or relative of the patient is an acceptable person.

Ensure that you mark your notes to the effect that the chaperone was present and identify who they were and, if possible, the relationship to your patient, for example, “Mary Smith, mother of patient”. You should also record any discussions with and/or about chaperones.

If the patient refuses, the healthcare professional should carefully consider whether they should continue with the treatment in an un-chaperoned environment, or whether to cease treating the patient.

5) Do not have personal or intimate relationships with patients

Patients often come to look upon their healthcare professional as a friend and indeed, the relationship is often reciprocated. There is nothing unprofessional in such a relationship and there is no reason why healthcare professionals cannot continue to treat a patient who is regarded as a friend and someone they meet socially. There are, however, inherent potential dangers. It is sometimes difficult to ensure that the relationship is purely social and would have no bearing or influence on a professional opinion. The role of patient and friend must therefore be clearly separated.

Sometimes, a healthcare professional will become aware of improper advances being made by the patient. In such circumstances, the healthcare professional should take definitive action and comment accordingly. It should be made clear that repetition of such behaviour will result in the relationship being terminated immediately. In some cases, it may be best to give the patient a warning or advise them to go elsewhere for treatment.

However you decide to deal with such a situation, a comprehensive note should be placed on the patient records describing the nature of inappropriate behaviour, the warning given and the ultimatum about future misbehaviour. You should also keep a note of all further interaction, if any, with the patient.

If you feel there is any risk that the professional relationship may, at some stage in the future, become more personal, you should terminate the professional relationship immediately and make it clear that you have done so. Although you really ought not to terminate a professional relationship in order to commence a personal one – greater problems can arise when the healthcare professional and the patient form an emotional or sexual relationship.

Personal relationships with former patients or clients may also be inappropriate depending upon such factors as:

–    the length of time since the professional relationship ended;

–    the nature of the professional relationship;

–    whether the patent was particularly vulnerable at the time of the professional relationship and whether they are still vulnerable; or

–    whether you will be caring for other members of the patient’s family or acting for members of their family in the future.

It is not possible to specify a length of time after which it will be acceptable to begin a relationship with a former patient or client however, the more recently the professional relationship has ended, the less likely it is that beginning a personal relationship with that person would be appropriate.

Every practitioner must surely appreciate the problems that entering into a personal relationship with a patient could cause, especially if the the relationship comes to an end and the ‘whistle is blown’. Regulatory guidance is clear and emphasises that it is a professional duty of the healthcare professional to absolutely avoid placing themselves in such a position and to avoid any behaviour that might be construed as in any way inappropriate – and should a practitioner find themselves becoming emotionally or sexually involved with a patient, then the professional relationship must end immediately.

Legal Advice and Representation for Healthcare Professionals

While we hope this brief guide will be of general assistance to healthcare professionals, it cannot substitute professional legal advice. Please contact our specialist lawyers at anytime for immediate and expert assistance. Whether seeking to minimise the risk of a complaint being made against you or looking for representation before a regulatory body, we can help. Please e-mail suttons@tuckerssolicitors.com, call Stuart Sutton on 0808 164 6795 or 0808 169 5980, or contact one of our UK offices.