A horror film called “Let The Right One In” was released a few years ago. It was about a vampire who looked like a sweet little girl so the unsuspecting victims let a vampire in to their homes with terrifying consequences.
At the risk of sounding melodramatic, the shock of finding yourself at the mercy of a blood-sucking monster hell-bent on the destruction of all you hold dear can sometimes be analogous to the problems that clinicians face when they take on new private patients. This is because, in our experience, some of the most difficult claims come from patients that the clinician could have avoided taking on in the first place.
Most clinicians in private practice have or have had an NHS practice. In NHS practice it is relatively rare for a clinician to turn away a patient unless the patient requires treatment outside of that clinician’s specialism, or there is some conflict of interest. Even if the patient has a history of being ‘difficult’ in some way, or of bringing complaints or claims against the NHS, by and large the clinician has to roll up his or her sleeves and get on with providing NHS care regardless.
The problem can come when clinicians carry that NHS mindset into their private practice, and get into the habit of assuming that they have to treat any patient who comes to them. As long as the clinician is not rejecting patients for discriminatory reasons (which would be a professional conduct breach), in private practice there is plenty of scope to reject prospective patients.
There are times when rejecting a prospective patient is the most robust and effective risk management action a clinician can take. In this guidance note we highlight some problems to be alert to, and suggest ways to improve your patient selection processes to help prevent complaints and claims arising in the first place.
A small minority of patients intend to make a complaint or claim about their procedures before it has even taken place. The worst example of such behaviour we have ever seen was in a case where we were defending a cosmetic surgeon (fortunately not a Paragon insured!).
The surgeon had performed a rhinoplasty on a patient, with an excellent result. To his amazement, a few months after the surgery the patient alleged that he had sexually assaulted her in the pre-surgery consultation, in the minute or so that the chaperone nurse was out of the room fetching a marker pen. The patient brought the matter to a GMC fitness to practice tribunal. We (DWF LLP) were instructed as his solicitors to defend him. In the course of our investigations we found that the patient had a history of bringing complaints after apparently successful cosmetic procedures. One example was complaining that her young daughter had not been allowed to sleep in the recovery room with her when the patient was coming around from general anaesthetic! Despite the odd nature of her complaints, she had succeeded in getting full or partial refunds from other clinics and hospitals. We suspected that the patient was a ‘serial complainer’ who would bring spurious complaints to avoid having to pay full price for her cosmetic procedures. But by making career-jeopardising allegations against our client she had taken things to a whole new level.
Even though we knew that the surgeon had done absolutely nothing wrong, the final hearing was tense because the tribunal was being forced to decide which party was lying. Fortunately we managed to convince the tribunal that allegations were utterly groundless, and the surgeon was completely exonerated. Even though he was delighted and relieved at the outcome, he was still out of pocket overall. Even though his insurance had paid for his legal defence costs, there was no way for him to be compensated for the stress of defending such serious allegations, or the lost income from having to spend time away from his practice notifying his insurers, working with us to prepare his defence and ultimately preparing for and attending the hearing.
Is there anything that clinicians can do to avoid taking on malicious patients? In some ways avoiding this small minority of patients is a matter of luck. A truly devious patient might give you no cause for concern at all before you provide the treatment. However, there are some things you can build into your procedures to help give yourself the best chance of spotting any bad apples that walk through your door.
There is probably little benefit in asking a patient outright whether they have ever brought a complaint or claim against another clinician. For patients who have never brought a claim, this could come across as off-puttingly defensive, and could in turn harm your professional reputation. For patients who have brought claims in the past, whether legitimate or otherwise, those complaints or claims may have been resolved with a confidential settlement. That would prevent the patient telling you about the claim, so even if you asked the question outright there might be legal reasons why the patient simply cannot answer. However, there are other questions that you can ask that might tell you enough to make a more informed judgment about whether to accept the patient.
When taking the patient’s medical history, you will usually need ask about what other procedures they have had previously because they may be relevant from a clinical perspective. But consider asking a little more about each of those procedures, particularly those which were done privately. You could ask the patient whether they were happy with the care they received for those treatments, and whether they were satisfied with the outcome. Listen carefully to the answers, as they could be revealing. Even the patient’s demeanour and tone of voice when talking about previous procedures could help you to understand the patient’s mindset.
For example, if the patient was unhappy with a procedure because a known side effect manifested, consider whether that might be because the patient didn’t take on board the pre-procedure advice and warnings. You might need to take extra care to explain any side effects or risks of your procedure, and to document your advice, or otherwise reject the patient entirely. This is especially so in light of the 2015 case, Montgomery, on informed consent (see the separate guidance note on this topic). If the patient was unhappy with his or her care for reasons that you consider trivial or odd, then you need to consider whether this patient has unrealistic expectations, and whether you want to take the risk of treating them.
Some patients are not deliberately malicious, but may be suffering from a personality or mental health disorder that predisposes them to being dissatisfied with the outcome of any procedure, and/or of progressing a complaint or claim in an inappropriate way.
Once again, avoiding such patients in your private practice can be a matter of luck, because these disorders by their nature can be difficult to spot. But there are things you can do to give yourself the best chance of recognising such patients and making an informed decision as to whether to treat them.
When you take the medical history, you should include questions to screen for personality or mental health disorder. Assuming that you are not a specialist in psychiatry or psychology, consider getting some guidance from a suitably qualified friend or colleague as to what sort of ‘screening’ questions work best. After all, lack of insight is a feature of many such disorders, and it is all too easy for a prospective patient to simply say ‘no’ to a stark question such as ‘have you ever been diagnosed with a mental health problem or personality disorder.
If the answers to your screening questions suggest that a patient has a personality or mental health disorder this may not be a reason to reject them in itself. After all, if a patient has been suffering with a painful or debilitating condition it would be perfectly understandable if that had caused some depression or low mood. However, the results of the screening questions can be an indication that you need to know more about that aspect of the patient’s medical history before you can make an informed decision over whether you should accept them. In a serious case the patient’s ability to properly consent to a procedure might even be impaired (again, see our separate guidance on Montgomery).
Even if you do accept the patient, your knowledge of their mental state might affect what clinical advice you give, perhaps particularly regarding pain management, or how you give your advice. In short, effective screening for personality or mental health disorder can give you the opportunity to avoid inadvertently treating patients with severe problems, and to help you give appropriate care to those patients that you do accept.
Many professions, particularly solicitors, are required by their regulators to carry out fairly stringent ‘know your client’ checks before taking on a new client. These measures have been made necessary to help prevent money laundering and other types of fraud, and include having to obtain proof of a client’s identify (Passport, driving licence) before any work can be carried out.
At the moment clinicians are (arguably) not subject to the same level of regulation in this regard, and in many cases there is (arguably) no requirement to check the identity of a patient before proceeding with treatment. Although, perhaps ironically, doctors themselves are now subject to more stringent identity checks to combat the problem of unqualified individuals posing as doctors or committing identity theft.
However, for patients with private medical insurance, it is possible that a small minority are imposters who are using someone else’s insurance to obtain private treatment. By its very nature, it is impossible to know how prevalent such insurance fraud may be, but since every other type of insurance receives at least some fraudulent claims, it would be naïve to assume that private medical insurance is immune.
If you carry out procedures paid for by private medical insurers, it would be worthwhile checking your agreements with those insurers, or any other requirements they impose on you. It may be that the insurers already require you to do a basic identity check of your patients. If so you should put a suitable procedure in place to avoid a claim by the insurer itself.
Even if the insurers have not imposed any such requirement, consider whether to introduce a basic identity check as part of your process of accepting a client. Even something as simple as requiring your receptionist to ask for a credit or debit card and checking the name and signature against the forms filled out by the patient might be enough to weed out fraudulent patients.
Some clinicians may wonder why they should take on the burden of adding identity checks to an already complex process of accepting and then treating patients. In the event that the insurer discovers or suspects that the patient was an imposter such that the claim on the private medical insurance was fraudulent, the insurer might in turn suspect that you somehow facilitated that fraud. If the insurer made allegations to that effect, an investigation by the GMC would almost certainly follow. Even assuming that you were completely exonerated after that investigation, you would have spent at least weeks and more likely months dealing with extremely serious – and potentially career-threatening – allegations with all the stress and inconvenience that would entail. While we would hope that the chances of your becoming the secondary victim of such a fraud would be slim, the consequences could be so severe that it could be worth the extra administration involved in making ID checks part of your patient acceptance process.
Through the medico-legal helpline, we have come across a number of examples where the clinician tells us that he or she had declined to treat the patient, only for the patient to pile emotional pressure on until the clinician relented. Several of these examples have involved the patient flattering the clinician by saying that they only want to be treated by the best, or plaintively saying that they couldn’t possibly trust any other doctor. It is difficult to say whether those patients were being deliberately manipulative, or whether they genuinely believed that they had nowhere else to turn. In any case, the things they said before the treatment certainly didn’t stop them from making complaints or claims afterwards. Our members have told us that it is particularly irritating to have to spend time dealing with those claim, when they took on the patient against their better judgment in the first place
Based on those experiences, our risk management advice is to trust your gut and stand your ground. If you decide that you cannot or should not treat any particular patient, don’t allow yourself to be persuaded by emotional appeals.
Of course it can be difficult to know how to explain to a patient that you don’t want to accept them as a patient without offending them and risking damage to your professional reputation. After all, it would be inviting trouble to say that you don’t want to treat someone because you think they are untrustworthy! It might be helpful to think about the situations in which you might need to reject a client, and how you would go about explaining your decision in an honest but sensitive way. For example, there might be situations where you could explain politely but firmly that you don’t consider that it would be in their best interests for you to treat them. Alternatively you could say that you are concerned that your other commitments mean that you will not have enough time in your schedule to give them the care and attention they will need. Other strategies could be to strongly recommend that they have a consultation with another doctor before deciding whether to go ahead with a treatment and with whom.
Of course it would be fine in any of these situations to assist the patient by recommending some suitable alternative specialist for them to see, or by referring them back to the NHS for treatment.
You may get the general impression, perhaps following an initial consultation, that a prospective patient may prove to be difficult to consult with or treat. For example, you might get the sense that the patient is likely to be ‘non-compliant’, particularly if you suspect that they don’t fully understand what you are offering them in terms of advice and treatments, or that they will not comply with your after-care instructions properly.
If you get that sort of impression, then you should take extra care to make full clinical notes and notes of any advice or warnings you have given. If you think you will go ahead with treating that patient, it might be worth considering asking the patient to bring a trusted partner, relative or friend with them to your final consultation before therapy is commenced. If the patient is willing to waive his or her doctor/patient privilege to that extent, that person could help defuse any misunderstandings or difficulties you have experienced with the patient and help avoid any future misunderstandings before the treatment starts. In particular, that person could help you ensure that the patient is in fact giving informed consent to treatment. However, bear in mind the risk that the person could end up acting as a witness for your patient in the event that your patient does bring a claim.
It bears repeating however that you are always entitled to rely on your professional assessment of a patient. If you do not want to perform a procedure or provide a certain treatment based on your medical and ethical evaluation, you can and should make that clear to any difficult patient and recommend that they seek another opinion elsewhere.
Some patients may be perfectly reasonable people with no mental health difficulties and sensible expectations about the procedure they are seeking, yet still be a higher risk patient because of their profession or net worth.
If something goes wrong in a procedure and the patient is injured in such a way as to prevent or significantly delay his or her return to work, part of the patient’s clinical negligence claim will be for compensation for past and future loss of earnings. Even for patients who were on a fairly average salary, the loss of earnings claim can add up to a huge amount if the patient’s ability to work is impaired permanently or for a number of years. Therefore in a worst case scenario where a patient who previously had extremely high earnings is prevented from returning for work at all, there could even be a risk that the loss of earnings claim could exceed the ‘limit of indemnity’ on your insurance policy.
Similar risks can arise when treating professional sportspeople or even high profile musicians, where even a relatively minor adverse outcome could be enough to prevent them returning to their previous lucrative work.
We are not suggesting that you should avoid treating all high net worth or high profile patients. After all, such patients might form the core of your practice. However, we do recommend that you give some thought to what your ‘risk appetite’ is for high profile or high net worth patients in your private practice, particularly by reference to your insurance limit of indemnity from year to year.
For example, you might be willing to accept patients who are high net worth individuals, and you might be willing to accept patients who need very risky procedures performed. But you might decide that you are not be willing to accept patients who are both high net worth and in need of a risky procedure, to help protect yourself so far as possible from extremely large claims.>
Most of the members we assist through the helpline are very busy indeed, often juggling the demands of an NHS practice and a private one. Their time management and self-discipline is truly impressive. However, we would sound a note of caution.
It is important to be realistic about your workloads, and to take a mental step back from time to time to check whether anything is getting out of balance. In our experience, some clinicians do find themselves with insufficient time to discharge their duty of care to every patient, or to make adequate records, and errors and claims tend to result.
In general it is likely to be more difficult to control the amount of NHS work you are required to do, so if your overall workload is getting out of control then the only realistic option may be to scale back your private work, at least temporarily. We appreciate that this may be easier said than done, and that cutting your private work may be an unattractive prospect with mortgages/school fees to pay. However, being realistic about how many patients you can safely take on could prevent the problem being compounded by having to spend additional time dealing with complaints and claims.
Therefore as part of your private patient acceptance procedures, consider how much time and attention each prospective patient is likely to need, and whether you realistically have that time to devote to them. If you are not sure, it might be better for both of you if the patient is treated elsewhere.
As we all know, it is a competitive market out there even for specialist clinicians in private practice, not helped by the backdrop of a rather uncertain financial climate. There will always be a strong temptation to take on every patient who comes to you, regardless of any ‘red flags’ you may notice. But remember that a safe and profitable private practice depends on having good patients. Bad patients cost you money in every sense. They take up time that could have been spent on other patients, they may refuse to pay your fees or try to negotiate them down, and they raise more complaints and claims which can lead to having to pay refunds or compensation out of your policy excess. All of this highlights the importance of being discerning when accepting new patients. Let the right ones in!
Dr Michael Kyriagis, Joanne Staphnill