Estimates from the Labour Force Survey1 show that health professionals, teachers and nurses have the highest rates of stress with rates of 2500, 2190 and 3000 cases per 100,000 people employed over the periods of 2011 to 12, 2013 to 14 and 2014 to 15 respectively. Barkhuysen and Obstfeld2 conducted an assessment of stress in optometric practice and found from their survey that the most stressful aspect of optometry was the ‘increasing potential of litigation’
This series of articles is about the legal accountability of the optometric and optical practitioner. They will be concerned with the legal and regulatory environment. They will show how the optometric/optical practitioner may be called upon to account for their actions and the possible consequences of failing to comply with the law. It is important to emphasise that the material within this series is not a substitute for formal legal advice and counsel.
Recent History
Patients are now far better informed regarding their health than ever. Almost three-quarters (73%) of adults in the UK used the internet everyday in 2013, with some 43% using it for health information.3 This is a double-edged sword for the practitioner. On the one hand, they may get very knowledgeable and very demanding patients with high expectations that have to be managed. On the other hand, they may come across misinformed patients who also need to be re-educated and managed.
There is also greater legal certainty as a result of revisions to the Opticians Act 1989 (amended 2005), Health Service Regulations and NICE Guidelines just to mention a few. Everywhere the mantra of ‘evidence-based medicine’ can be heard – and patients too hear this. Both the College of Optometrists and the General Optical Council (GOC) are more proactive than in the past, and have produced a variety of materials including Guidance for Professional Practice, Clinical Management Guidelines, a Code of Conduct (to be superseded by Standards of Practice in April 2016) and even a booklet downloadable from the GOC website on ‘How to complain about an Optician’.
Healthcare in general, and medicine in particular, has without doubt suffered significant bad press. Landmark cases and incidents prominent in this include:
- The Bristol Royal Infirmary inquiry: set up in 1998 to investigate the deaths of 29 babies undergoing heart surgery at the Bristol Royal infirmary in the late 1980s and early 1990s. Headed by Professor Sir Ian Kennedy, the inquiry effectively exposed an ‘old boy’s’ culture among doctors; patients being left in the dark about their treatment; a lax approach to clinical safety; low priority given to children’s services; secrecy about doctor’s performance, and a lack of external monitoring of NHS performance. It made some 198 recommendations.4
- Royal Liverpool Children’s Hospital (Alder Hey) inquiry: set up in 1999 to investigate the removal, retention and disposal of human organs and tissues without consent from children and babies at Alder Hey between 1988-1995. Chaired by Mr Michael Redfern QC, his recommendations led to the overhaul of the handling of human tissue, the Human Tissue Act 2005 and the formation of the Human Tissue Authority.5
- Harold Fredrick Shipman: convicted in January 2000 of the murder of 15 of his patients and of one count of forging a will, while he was a GP in Hyde, Tameside. He was sentenced to life imprisonment and a public inquiry was set up in 2001 headed by Dame Janet Smith, a High Court judge. Completed in 2005, the inquiry revealed that Shipman had actually killed an estimated 250 people during his career, and in one of its six reports also criticised the General Medical Council for doing too little to protect patients and for ‘looking after its own’. This report has had far-reaching impact on healthcare practice and procedures in the UK as a result of its recommendations and the government’s response.6
- Cure the NHS7: changes at the Mid-Staffordshire Hospital had been sought after 2007. However, it took a Health Commission investigation to expose the appalling conditions, inadequacies and high mortality rates at the hospital. After four private inquiries some changes were made but it was not until June 2010 that a public inquiry into avoidable deaths between 2005 and 2008 (headed by Sir Robert Francis QC ) was launched. The full details of the failures and recommendations were published in February 2013. The report called for a ‘fundamental change’ in culture whereby patients are put first and 290 recommendations covering a broad range of issues relating to patient care and safety in the NHS were made.8
- Downs Syndrome child death, 2011: a paediatric specialist registrar (and a staff nurse) failed to recognise the severity of the illness of a Downs Syndrome child who had attended a Children’s Assessment Unit with diarrhoea, dehydration and vomiting. The patient died after blood test results confirming the seriousness of his condition were overlooked, and the patient mistaken for another, who had a ‘do not resuscitate’ order. Both healthcare practitioners were charged and found guilty at Nottingham Crown Court of the offence of gross negligence manslaughter in 2015 9. They received a custodial sentence and were suspended for a period of two years.10
- Recently, and for the first time in the history of the optometric profession, a charge of manslaughter has been brought against an optometrist for alleged failings when conducting an eye examination on a child.9 A preliminary hearing at Ipswich Crown Court is listed for April 2016. 11
Negligence Claims
Search the internet for ‘medical negligence no-win-no-fee’ and many legal practices appear prepared to take up cases for a percentage of the damages awarded. Using a Freedom of Information enquiry, Mathew et al 12 obtained data from the National Litigation Authority showing all ophthalmic negligence claims between 1995 and 2009. Nine hundred sixty-three claims were closed over a 15-year period, of which 67% resulted in payment. The total cost of claims was £32.1 million, with a mean payment per claim of £33,300. The specialties with the highest mean payment per claim were neuro-ophthalmology and paediatric ophthalmology. Cataract subspecialty had the highest number of claims, accounting for 34% of all claims.
The GOC’s annual report of 2015 details that for the period April 1 2014 to March 31 2015 they received 287 contacts/complaints about the fitness to practise of registrants, from which 279 full investigations emerged – an increase of 48% on the previous year. Putting it into perspective however, less than 1% of GOC registrants had a complaint levelled against them.13 Table 1 shows the outcomes of these complaints for the past three years.
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Defensive Optometry
As early as 2006, the late Professor Woodward, who was well versed with litigation hearings in optometry, made a clear unequivocal comment that optometrists ‘must practice defensive optometry’ and ‘with an increasing role for the optometrist in primary health care more optometrists are liable to find themselves as co-defendants in actions for clinical negligence’.14 Never were these words more apposite than today, with the ever-increasing scope of optometric/optical practice both within the Hospital Eye Service and private practice. However, to practice defensively and avoid litigation, it is firstly necessary to better understand the legal framework that optometry has to work within in the UK.
Sources of Law
Common Law
Case law is the ‘bricks and mortar’ of common law. Individual judgements form legally binding principles which are then applied to subsequent cases if relevant to the facts. It is therefore not unusual to find old cases referred to when judgements are handed down, unless a more recent judgement is found that has over-ruled the decision of the previous case. This is known as ‘legal precedent’ and is intended to safeguard consistency of treatment of similar cases. There is a recognised order of precedence for courts (see Figure 1).
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A decision of the Supreme Court of Justice 15 is binding on all other courts (subject to relevant precedents of the European Court of Justice). Figure 1 illustrates the relationship of the Supreme Court relative to the lower courts which have to abide by decisions of the higher courts.
Statutory Law
The statutory sources of law are to be found in Acts of Parliament and Statutory Instruments. Acts of Parliament start life as a ‘Bill’ in Parliament, either in the House of Commons or the House of Lords, and have to go through the following stages;
- 1st Reading (introduction)
- 2nd Reading (debate)
- Committee stage (line by line examination)
- Report stage (opportunity to change the bill)
- 3rd Reading (tidying up) in both Houses of Parliament
- Amendment stage (both Houses will consider the others’ amendments)
When approved in the same form by both Houses, it receives Royal Ascent and becomes an Act of Parliament. These Acts are normally legislation regarding issues either not dealt with by the courts or consolidation of common law principles into a statute.
Statutory Instruments are a form of legislation which allows the provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act. They are also referred to as secondary, delegated or subordinate legislation. They often create power to delegate decision-making to a minister or other official(s)/body(ies) which means that such legislation can be actioned quickly when the need arises to change the detail but not the principle of the law. They are however subject to judicial review should there be any concerns regarding their proper use.
European Union law and the European Convention on Human Rights
As the UK is a member state of the European Union (EU), it means that EU law takes precedence over UK law. Thus like other final courts, the UK Supreme Court will, in the areas of European law in which the United Kingdom has accepted the jurisdiction of the Court of Justice of the European Union (CJEU), ask the CJEU to give preliminary rulings concerning the interpretation of any Treaties, and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union, where such a question is raised in proceedings before it, and it considers that a decision on the question is necessary to enable it to give judgment.
Before the Human Rights Act was passed by Parliament in 1998 it was not possible for individuals in the UK to challenge decisions of a public authority on the grounds that they violated rights under the European Convention of Human Rights (ECHR), within the courts of the UK. This had to done by taking the case directly to the European Court of Human Rights in Strasbourg (ECtHR).
Since the Human Rights Act came into force in October 2000, individuals can now claim a remedy for breaches of their Convention rights in the UK courts. Anyone who thinks their Convention rights have not been respected by a decision of a UK court may still bring a claim before the ECtHR, but they must first try their appeal in the UK courts.
Civil and Criminal Law
Public law covers the relationship between individual citizens and the state, and private law, covers relationships between individuals and private organisations. In practice, the best known distinction is between civil law and criminal law.
Civil law covers areas such as tort (wrong-doing or harm to another), contracts, negligence, false imprisonment, defamation, family matters, employment, probate and land law. In healthcare, most litigation against practitioners is for the tort of negligence, though claims of breach of contract are also possible.
Criminal law details the boundaries of acceptable/unacceptable conduct of citizens and is normally enforced by the police as an offence against society as a whole.
At first glance it may seem fairly easy to classify an action as a civil wrong or a criminal offence; however, it is not always straightforward. For instance, assault and battery can be either a criminal offence or a tort of trespass to the person. Furthermore, in extremely rare cases of gross negligence, where the breach of the duty of care is so grave, it can amount to a crime against society.16
Dr Nizar Hirji is an optometrist consultant with Hirji Associates based in Birmingham
References
1 Work related Stress, Anxiety and Depression Statistics in Great Britain 2015 HSE publication
2 Barhuysen, E and Obstfeld, H (2001)’Stress in optometric practice’ Optician March 30, No 5794, Vol 221, p28-32
3 Internet Access - Households and Individuals, 2013 ONS, www.ons.gov.uk/ons/dcp171778_322713.pdf
4 The Royal Liverpool Children’s Inquiry Report (2001) The Stationery Office, London
5 The report of the public inquiry into children’s heart surgery at the Bristol Royal Infirmary 1984-1995: learning from Bristol (Jan 2002) The Stationery Office, London
6 Learning from tragedy, keeping patients safe - Overview of the Government’s action programme in response to the recommendations of the Shipman Inquiry (Feb 2007) The Stationery Office, London ID5501493 02/07
7 http://www.telegraph.co.uk/news/health/news/5030012/Staffordshire-hospital-scandal-the-hidden-story.html. last accessed Jan 2016
8 http://webarchive.nationalarchives.gov.uk/20150407084003/http://www.midstaffspublicinquiry.com/report last accessed Jan 2016
9 http://cps.gov.uk/news/latest_news/leicester_royal_infirmary/ last accessed Jan 2016
10 http://www.thelawpages.com/ last accessed Jan 2016
11 http://www.opticianonline.net/optometrist-charged-manslaughter-gross-negligence/ last accessed Jan 2016
12 Mathew,RG; Ferguson,V; and Hingorani,M; (2000) Clinical Negligence in Ophthalmology: Fifteen Years of National Health Service Litigation Authority Data, Ophthalmology 2013;120:859–864
13 https://www.optical.org/en/news_publications/Publications/annual_reports_archive.cfm last accessed Jan 2016
14 Woodward, E G (2006) ‘Clinical negligence’ Ophthal. Physiol. Opt. 2006 26: No. 2, 215-216
15 The Supreme Court UK https://www.supremecourt.uk/about/significance-to-the-uk.html last accessed Jan 2016
16 All England Law Reports/1994/Volume 3 /R v Adomako - [1994] 3 All ER 79