Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
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Mr Robert Wheeler, director, department of clinical law
The therapeutic relationship is based on a patient’s trust and confidence; in particular that she believes her doctor (or any other clinician) knows what they are doing. It is for this reason that untruthful allegations of clinical incompetence or ineptitude are so damaging, and particularly harmful if spread rapidly through social media.
‘Defamation’ describes the broadcast of untruthful allegations either by word of mouth or in written form. If the defamation is published in this way and might cause serious harm to a clinician’s reputation, it may be possible to confront the person who made the allegation through the courts (although the question of what ‘serious’ means is unresolved).
Such a case was heard earlier this year in a recent case in the High Court concerned a claim of defamation made by a surgeon practising in Marbella. His particular expertise is in a form of buttock augmentation; the Brazilian Butt Lift. A large proportion of the 1200 patients he sees each year live in England & Wales.
The defendant alleged to have made a defamatory broadcast is a social media ‘influencer’ with around 100,000 followers; she also operates a website where patients post their reviews of plastic surgeons and dermatologists. She had undergone three operations under the care of the claimant surgeon. Subsequent to the final surgery she issued four publications, conveying the meaning that the surgeon’s treatment had fallen far below the expected standard, with the likelihood that he ‘….would severely injure or even kill his patients.’ As to his reputation; the meanings conveyed by the publications included the notion that he had ‘…exaggerated his skill set, misrepresented the results of his operations (on social media) and dishonestly purported to be a leader in the field…’
The judge found that these allegations would have a tendency to deter reasonable or prudent potential patients; and would cause other individuals ‘…in the medical profession and beyond…’ to draw adverse conclusions about the surgeon.
The court considered the impact of these publications upon the claimant surgeon. The judge was satisfied that they had a significant impact on his private and professional life. Understandably, they caused him ‘…hurt and distress’. The surgeon was awarded damages of £40,000, intended to reflect and signal the total falsity of the allegations made against him by the defendant.
The case should reassure clinicians that there is an effective legal remedy if and when a patient broadcasts false allegations. However, it should be noted that doctors and patients are not equally armed in this context.
It should be appreciated that criticism of clinicians of any profession may initially be imperfectly articulated; thus a vague suspicion of unsafe practice may lead to an investigation; which may itself cause health employers to contact the relevant healthcare regulator with what may be a concern that has yet to be crystallised into a tangible allegation. The GMC instructs doctors to protect patients. Since regulatory mechanisms such as are employed by the General Medical Council are ‘judicial tribunals’ an absolute privilege attaches to statements made before such a body when holding an inquiry into professional conduct. So even if a Medical Director has provided the GMC with a letter of concern about a doctor which unknowingly contains an untruthful statement, that statement cannot be regarded as defamatory. Naturally, the investigatory process would be expected ultimately to determine the truth. But the act of communicating that initial vague suspicion is protected by ‘privilege’ from being considered defamatory. This is not a consideration for the patient bent on defamation of his doctor.
Doctors who broadcast falsehoods or confidential truths about their patients on social media run an additional hazard, which again need not trouble the defamatory patient. That hazard is the General Medical Council, obviously.
Any clinician’s post about a patient on social media will be viewed with grave misgivings. Please avoid this.
Department of clinical law, October 2021