15 June 2023

Phoebe Crane of our Professional Discipline and Clinical Defence team recently reported on the MPTS determination in General Medical Council v Dr Nithya Santhanalakshmi Shunmugavel Pandian. She looked at whether the MPTS was justified in reaching its conclusion that Dr Pandian did not carry out an examination that she recorded in the patient’s records.

This article is a useful read for anyone dealing with medical negligence or professional discipline cases.  It is linked here:  Calls for GMC to Set the Record Straight on Consideration Given to Contemporaneous Medical Records (bto.co.uk)

Another interesting aspect of the MPTS determination is a submission made by the GMC that Dr Pandian’s apology to the patient supported its position that she had not in fact carried out the examination.  The relevant section of the determination is at paragraphs 48 – 51 which reads as follows:

Dr Pandian’s statement to the Trust

48.       Dr Pandian made a statement dated 13 December 2019 in response to the Trust investigation into Patient A’s complaint. She stated:

1 - This is my routine practice that I always introduce myself before I meet a patient and I believe I did the same when I met Patient A.

2 - This is also my routine practice to document in the notes after I have completed my examination of a patient.  After seeing Patient A’s notes, I believe that I performed the abdominal examination and documented in the medical notes. However, if Patient A feels that I documented this without examination then I sincerely apologise for all the distress that Patient A went through because of this.

49. It was suggested by the GMC that the apology would only make sense if Dr Pandian had not examined Patient A.  However, the Tribunal had regard to Dr Pandian’s witness statement dated 28 November 2022:

I wish to make it clear that when I apologised to Patient A in my response to the initial complaint that was made to the Trust, my intention was to apologise for the distress caused to Patient A. I was not accepting any wrongdoing. I would not add a note to the patient record unless I had completed the examination. However, if the patient believed that I had done so this may have caused some distress for which I apologised.

50. The Tribunal also heard oral evidence on this point from Dr Pandian. She explained that she was quite new to the Trust, that she had looked at the medical notes and she had recorded the results of her examination which she must have undertaken.

51. Dr Pandian stated that she had sought advice from a consultant colleague who had advised that the normal process in these circumstances was to apologise for the distress caused to the patient. The Tribunal accepted this explanation that Dr Pandian was following advice from a senior colleague and that the apology was not an admission.”

Dr Pandian was not accepting wrongdoing, and the MPTS was right to conclude that her apology was not an admission of the relevant allegation.

In light of Dr Pandian’s position that she did carry out the examination, the type of apology she offered – “I’m sorry you felt upset…” - is distinct from the duty of candour owed by doctors to their patients when something goes wrong, which may or may not include an admission of liability.

But the GMC’s submission in this case may cause concern to doctors about how to implement the duty of candour, particularly in cases where something went wrong but the doctor does not accept liability.  The GMC’s approach in Dr Pandian’s case perhaps serves as a reminder of the importance of carefully considering the wording of any written apology.  

The determination doesn’t change the obligation on doctors to be, “open and honest with patients if things go wrong” (Good Medical Practice, paragraph 55).  An apology remains an important step in the process of learning what went wrong and attempting to prevent it from happening again.  It can also be an important demonstration of insight.  But the GMC’s submission in this case might cause doctors to apply more scrutiny to the wording of an apology to ensure that their position is clear, and to seek advice where appropriate.

It also feeds into concern on the part of the medical profession as to whether it is possible to truly foster a culture of candour when the GMC may use an apology to bolster its case against the practitioner.

BTO’s Professional Discipline and Clinical Defence team represents medics in the regulatory process as well as claims.  If you would like further advice on this topic, please get in touch.

Cara Docherty, Associate: cdo@bto.co.uk / 0141 221 8012