Ms Emily Borhan, OTSIS Medicolegal Advisor

As medical professionals, you are aware of the importance of taking notes during consultations with patients. However, it can often be a challenge to ensure that this is carried out appropriately, and with the mixture of time constraints, delegation of typing to secretaries and the often-detailed nature of the topics discussed, sometimes the taking and retaining of detailed notes can take a back seat.

But why is it so important to keep detailed notes of consultations and discussions with patients? Put simply, your notes are the only documented history of discussions and treatment that you have carried out on the patient. Should a complaint or claim arise following the treatment, it will often be your notes that will form the key evidential base for responding to and, if necessary, defending the complaint.

This is clearly demonstrated in the recent case of Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164. While this case focussed on the issue of consent, the comments of Mr Justice Dingemans, the judge in the case, emphasise the importance of consultants’ notes in determining whether the consent process had been carried out appropriately.  

Mrs Hassell, the claimant, suffered ongoing neck and upper arm pain and underwent C5/6 decompression and disc replacement surgery. During the procedure, Mrs Hassell suffered a spinal cord injury that rendered her paralysed and permanently disabled. The issue of breach of duty and causation remained in dispute, with Mrs Hassell arguing that she was not warned of the risk of paralysis. She stated that if she had been warned of the risk, she would not have gone ahead with the surgery. The Court found in favour of Mrs Hassell. 

How the Court came to this decision is interesting. With comments such as “….whatever Mr Ridgeway’s strengths as a surgeon when carrying out the operation, Mr Ridgeway was not a good communicator about the risks of operations” and “…the letter dated 1 July 2011 contained an omission about the risks of paralysis even though he said he had mentioned these when talking to Mrs Hassell…”, it clearly demonstrates how record keeping is an essential part of clinical practice. A verbal account of what was discussed during the consultation is not sufficient, and simply asserting that it is your usual practice to discuss such issues will not suffice. Having clear, detailed notes allows for every party to refer back to the information given and discussions held.

Another example I have seen in practice involved an orthopaedic consultant who called for some advice after receiving a complaint from a patient on whom recent knee surgery had been carried out. The patient was complaining of persistent knee pain post-surgery and was threatening to pursue a claim. The consultant knew that the procedure had been carried out correctly and that all risks and potential outcomes had been discussed. However, on reviewing his notes to compile an informative response, he noticed that some details in the clinic letters were missing and some of his handwritten notes were totally illegible. In this scenario, we were able to offer the patient further surgery, which, along with a letter providing a full explanation of the treatment, was enough to resolve the complaint. However, it became apparent to the consultant that had this escalated further to a claim, the chances of successfully defending it were significantly reduced, given the lack of documented notes held on the file to evidence the discussion of risks and outcomes that had been communicated to the patient.

What can you do to protect your position whilst treating patients? 

  • During the consultation, make sure that you are taking good handwritten notes that you, or somebody else, are able to read and understand.
  • After a consultation, make sure that a detailed clinic letter is typed out to the patient, and to all other medical professionals involved. Make sure that you mention information that the patient provided you, and information that you have provided them.
  • Remember that the letter should be objectively clear and should not rely on context only apparent to you and the patient.
  • Provide the patient with information leaflets/websites that they can refer to at their leisure and note that you have done this. Do make sure that you talk through the information in the consultation too.
  • Make sure that any information sheets provide all the necessary and relevant information for that patient.
  • Do not take shortcuts, make sure all the information is given, and then follow up with the patient to make sure they have understood.
  • Do not leave it until the consent form on the day of surgery to give the patient important information; they do not have enough time to think about it properly.

In summary, it is essential that patients are provided with a full account of the treatment they are having, including risks and possible outcomes. As a medical professional, it is important that you not only provide this information, but ensure that it is understood by the patient and that it is correctly documented for future reference. Your responsibilities are outlined in the Good Medical Practice, which states “Documents you make…must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards”.

How can OTSIS help you?

The OTSIS medico-legal advisory line is exclusively available to OTSIS members for every aspect of your work (complaints or processes).