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GPs warned commissioning emails can be seized by courts

GPs internal practice emails regarding commissioning could be seized by courts and used as evidence in legal challenges to treatment decisions, lawyers have warned.

Patients mounting legal challenges to treatment decisions will be able to obtain court orders asking for disclosure of specific categories of documents right down to internal practice level.

Ben Troke, a partner at Browne Jacobson specialising in health and social care law, said in a recent case where a local authority was judged to have unlawfully detained a man with autism, internal emails were placed in front of the court and then published in the judgment and in the extensive media coverage.

He warned that GPs could expect similar scrutiny when patients challenge treatment decisions: ‘This is part of the shock to the system GPs can expect when they start to face up to the same challenges as PCTs. CCGs can expect legal challenges to the appropriateness and integrity of their decisions which ration healthcare, particularly if there could be a toxic perception of financial self-interest because of the quality premium.

‘It´s all about justifying the decision-making process. GPs could have to hand over policy documents about the care pathway, policy documents on decisions about what treatments to fund, and even policy agreements between practices and the CCG or between individual GPs and practices.’

He suggested that if GPs are used to more quick and informal communication, and see PCTs as slow and bureaucratic in contrast, this could have to change when CCGs took over budgets.

‘Though it is a ‘counsel of perfection’, we would strongly advise that any internal communications about policy issues – and especially funding decisions – are written as if they were going to be read in Parliament or on the front page of the Sunday newspapers,’ he said.

Rex Forrester, a solicitor for the MDU said: ‘Should a particular decision or policy become the subject of a Freedom of Information Act request or judicial challenge, then all the documents and correspondence relevant to the formulation of it may become subject to scrutiny or be discoverable in the proceedings.

‘Doctors should bear in mind that this obligation of disclosure is not necessarily limited to formal letters on headed notepaper or to the minutes of official meetings and that it may well extend to exchanges of emails and indeed even texts ‘blogs’ and ‘tweets’, involving the parties to the process.

‘All are regarded as “documents” by the law and are therefore potentially disclosable if they are considered to be relevant to the making of the relevant decision, or showing any improper bias or motivation on the part of the decision maker.

‘It is easy to assume that the relative informality of email and the apparently ephemeral nature of social media places their content into a fundamentally different category to the documents purposefully and officially created on paper.

‘This is not necessarily the case.’

Dr Johnny Marshall, chair of the NAPC said: ‘CCGs will have to have a really good system in place – a mechanism for transparent decision making that engages with the public.

‘It makes sense to make this one of the functions CCGs can share – not necessarily in a geographical sense. The main thing is trying to work together to develop a gold-standard approach to these decisions.’