Exclusive A medical defence organisation has warned that GPs could be held liable for advice given to them by hospital colleagues about their patients via ‘advice and guidance’ services.
Previously, GPs had warned about the implications of managing more complex patients via A&G, where GPs access specialist advice by telephone or IT platforms rather than referring patients for a hospital investigation.
But now Pulse has learned of confusion about who holds ultimate liability for the actual advice given to GPs through the scheme.
Medical Defence Union (MDU) medico-legal adviser Dr John Dale-Skinner told Pulse that responsibility for patients ‘remains with the healthcare professional using the A&G service’ unless they decide to refer.
He said: ‘To help manage the unprecedented demands on NHS hospital services, there is pressure on GPs to avoid unnecessary outpatient activity, unless a referral is necessary. Advice and guidance (A&G) services can be useful in helping GPs to make sure patients are seen and treated appropriately in a timely manner.
‘However, it’s important to be aware that responsibility for the patient remains with the healthcare professional using the A&G service unless a decision to refer is made.’
GPs should ensure that patients understand the process and ‘who to come to with any questions in the meantime’, he added.
But other MDOs have said that GPs are ‘unlikely’ to be held solely liable and the medico-legal position remains ambiguous.
Medical director at Medical Protection Society (MPS) Dr Rob Hendry told Pulse that practitioners are ‘responsible for the advice and care they provide’.
He said: ‘It is unlikely that a GP would hold all of the clinical risk. If a claim is brought in clinical negligence, it is likely that the specialist would be one of the named defendants, possibly along with the GP.’
However, he added that liability ‘will depend on the particular circumstances of any claim, including whether the history given to the specialist was accurate and therefore whether the advice was appropriate’.
GPs should ‘ensure they have documented the discussion with the specialist, including the background provided, specific questions asked and the specialist’s response, along with the time and date of the discussion’, he said.
Chief medical officer at MDDUS Dr John Holden added that GPs should ensure any advice taken for the management of a patient is ‘from an appropriate specialist who had been provided with all relevant information, in accordance with GMC guidance’.
What is the GMC guidance about clinical risk during A&G?
GMC guidance on ‘delegation and referral’ said that doctors are ‘not accountable to the GMC for the actions (or omissions) of those to whom [they] delegate care or make referrals’.
It added: ‘You will be accountable for your decisions to transfer care and the steps you have taken to make sure that patient safety is not compromised. You must be prepared to explain and justify your decisions and actions.
‘Only serious or persistent failure to follow our guidance that poses a risk to patient safety or public trust in doctors will put your registration at risk.’
However, it remains unclear whether the GP is considered to be delegating care to the specialist or vice versa during A&G.
When asked for clarification by Pulse, a GMC spokesperson said the regulator is unable to comment on specific services such as A&G and their underlying medico-legal footing.
GMC guidance on the ‘duties of a doctor’ reiterated that clinicians are ‘personally accountable for [their] professional practice and must always be prepared to justify [their] decisions and actions’.
Meanwhile, an NHS Resolution spokesperson told Pulse that it would depend on the individual case as to whether liability was established and how any liability might be apportioned between individuals.
They said: ‘Each claim would be considered on its merits and individual circumstances, and no two claims would necessarily arise on the same facts.’
Earlier this month, Pulse revealed that an LMC has secured GP funding for extra workload caused by A&G requests in one area, although practices are not eligible for the fee if the patient is referred to hospital.
In November, Pulse revealed that Tower Hamlets LMC had called for GP practices to be paid £12.50 per A&G episode to resource the extra workload.
It came after the local trust – Barts Health NHS Trust – launched a major trial requiring GPs to use A&G services before referring patients, with the potential for this to become a permanent measure.
And NHS England last month claimed that GP A&G requests avoided one million ‘unnecessary’ hospital attendances in 2020/21 after ‘almost doubling’ throughout the year.
GPs are already facing national targets around A&G from this month and PCNs are due to be incentivised for using A&G through ‘Investment and Impact Fund’ (IIF) points worth £9.9m in 2022/23.