MEDICUS MARCH 2016

F E A T U R E

The changing landscape of medico-legal risk

Chad Edwards-Smith Head of Medical Defence Services – WA Avant

T he environment of healthcare has transformed dramatically over the past decade, driven largely by the rapid advancement of new technologies. Healthcare professionals have had to transform the way they practise to adapt to this new environment. For some doctors, this has meant reluctantly abandoning paper records in favour of an integrated electronic document system; for others, it has meant managing more challenging trainees, or changing patient expectations courtesy of Dr Google; while the entire medical profession is coming to terms with greater regulation and scrutiny. This changed environment has also given rise to novel medico- legal risks. In our experience, doctors are generally cognisant of the changes that they need to adopt in order to provide optimal patient care, but are less likely to consider risk management measures to help them anticipate and respond to new areas of exposure. EMERGING TRENDS Greater external regulation and accountability Tort law reforms in 2000 and the implementation of national registration and regulation of health professionals, with the introduction of the Australian Health Practitioner Regulation Agency (AHPRA) in 2010, have marked the changing regulatory landscape for the healthcare profession. In addition to greater regulatory scrutiny, doctors increasingly face heightened scrutiny from their patients and the community generally. Patients have never had so much access to information about their healthcare, be it via searching the internet, through freedom of information/privacy legislation or through open disclosure processes. While civil claims against doctors have reduced, more extensive nationalised regulatory bodies and a more informed patient population has meant that there has been a significant increase in the likelihood that a doctor will face a disciplinary complaint during the course of their career. Being aware of risks, thinking ahead and seeking early advice can help you to avoid or minimise the impact of risks. Increased corporatisation of medicine Many doctors, GPs in particular, have experienced significant changes in the structure of the practices in which they work.

The growth of corporatised practices has meant doctors more often find themselves subject to the pressures of commercial considerations, which has the potential to negatively impact good patient care. Doctors increasingly have more complicated employment relationships, resulting in a range of contractual rights and responsibilities both as employers or employees. As a consequence, we have seen a rise in the number of employment disputes involving doctors. We have also seen a more intense focus on eliminating any culture of bullying or harassment within the medical profession. In 2015, professional conduct claims represented the most common reason doctors sought our legal support, with employment matters also increasing from the previous year. Technology The single biggest change in the way healthcare is delivered would have to be the rapid advancement of technology; which has not only changed the practice of medicine, but has fundamentally changed how we function as a society. Doctors are now surrounded by technology in their working life, governing how they treat patients, how they manage their medical records and practices and how they interact with patients, colleagues and society generally. Individual technological advancements each have associated medico-legal risks, and it is important to consider these before adopting any new technology. How will you respond to friend requests from patients on Facebook? Are passwords secure on practice management systems? Have you sought permission to take clinical images on your smartphone? Before you give out your email address, does your patient understand that it is not monitored 24 hours and they can’t reach you by email if they have a crisis at 2.00am? Conclusion Anticipating medico-legal risk can seem daunting, when doctors are already busy keeping up with changes required to simply treat their patients. However, often the risks we see doctors confronting are still the fundamental risks lying at the heart of medical practice: ensuring that you are practising sound medicine, managing patients’ expectations, and communicating effectively with patients, their families and your colleagues.

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