All things being equal, it should avoid regulatory problems if you do follow it but not every departure will lead to a finding of impairment.
Dr K was an “impressive” oncologist who it was alleged had improperly treated a patient. Dr K was treating breast cancer in one of the patient’s breasts and there were some alleged failings in diagnosing cancer in the other breast. There were more than thirty allegations in the case, only three were proven: Inappropriately dismissing the patient’s concerns about symptoms in her other breast, failing to examine the other breast despite these concerns and delaying referring the patient for particular treatment. There were three consultations that occurred during the relevant time.
In the first consultations the patient was adamant that she had told Dr K about pain she was feeling in her other breast and Dr K failed to make any enquires about the pain and simply reassured her. Evidence included that pain is not symptomatic of cancer and it was likely to be somatic rather than visceral. By the time of a third consultation and the issue being raised by the patient there was something more than pain as a symptom in the patient’s other breast. Cancer was later diagnosed in the other breast, but, the evidence was there was a less than 50 % chance of it being diagnosed at the time of consultation and there was still a less than 3 in 1000 chance of a patient being diagnosed with contralateral breast cancer. Dr K admitted he had not sent a letter to the patient’s GP, the Tribunal noted that there were other procedures for the sending of letters and in fact one was sent following the MDT meeting.
The Tribunal decided that it was not misconduct for Dr K to not send a letter to the patient’s GP. Best practice is to send one, however there were other systems in place and other evidence was that there was no adverse effect on the patient’s outcomes.
The Tribunal decided that there was misconduct by the fact that Dr K had failed to record Patient A’s concerns in her notes. The Tribunal however did not consider this to be serious misconduct, it accepted on the particular facts that some doctors would not record clinically insignificant facts. It asked the question whether other doctors find the conduct deplorable and it decided they would not. Best practice would have been for further questions to be asked by Dr K and he should have considered the patient’s needs more holistically.
Similarly, in failing to examine the other breast the Tribunal found that while it would have been good practice to carry out an examination it was not misconduct that was serious. The evidence on the facts was that some doctors might have carried out the exam but Dr K was not reckless in not doing so. He relied on his own experience, the recent test results and the fact he had already provided reassurance to her. Applying again the test of whether other practitioners would view the conduct as deplorable, it decided they would not.
Dr K was therefore fortunate to not have a finding of impairment made against him. He had nonetheless carefully reflected on the case, he apologised to the patient and had varied his clinical practice as a result.
Best practice is there to provide consistency in treatment, reduce legal risks, reduce ethical risks and maintain public trust and public safety. It is essential to follow it for these reasons. It is worth noting that the facts of this case were that the clinical failings had no consequence on the treatment or symptoms. Had best practise not been followed without justification, and if there were adverse treatment effects, it is far more likely Dr K would have faced a finding of impairment and sanction.
Please note that the comments in this case review are generic and the case facts have been reduced by many multiples. If you have any queries about your own work or personal matters please contact us directly. We will provide you with advice tailored to you and our first consultation is free.
