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How new prescribers can limit liability

The Department of Health working definition of independent prescribing (see Panel right, below) was published in April. This definition is important because of the weight that is likely to attach to it when courts have to decide whether independent prescribers are meeting standards, Alison Gulliver, a solicitor at Capsticks, said at a conference on non-medical prescribing held at the Royal Society of Medicine in May. In line with the working definition, “exposure areas” for independent prescribers are likely to be:

· Failing to make an adequate assessment of the patient

· Failing to make the right diagnosis

· Failing to prescribe appropriate medicine

· Failing to monitor adequately (eg, pick up an adverse drug reaction or deterioration of a condition)

· Prescribing outside their authority

According to Ms Gulliver, non-medical prescribing may decrease the potential for giving the wrong dose or using the wrong route of administration through the misinterpretation of a prescription (the traditional area for clinical negligence).

“With added clinical responsibility comes an increased risk of liability. The question is whose standards are independent prescribers going to be judged by when carrying out extended responsibilities? My instinct is that the standards will be the same as those of doctors who have been fulfilling the same role,” Ms Gulliver said. Another issue for independent prescribers is the expectations of them if confronted by signs and symptoms that are obvious but that do not fall within their area of expertise.

Check your employment contract When things go wrong and a patient makes a claim for damages, employers are usually the defendant (through vicarious liability). But there are rare cases of personal liability and this could be possible when a person is acting in the course of his or her employment. It would be sensible for non-medical prescribers to check that their contract of employment stipulates prescribing, Ms Gulliver said. In addition, some employment arrangements can be complex. For example, some health care professionals working for several GP practices may not be working for any of them formally and may be employed by a primary care trust. It is, therefore, sensible to ascertain in advance who will be responsible if a claim is made, she added.

Employers can reduce risks by ensuring that clinical governance is robust. Similarly, non-medical prescribers will want to ensure that there are audits and risk management plans in place and that they are up to date with continuing professional development.

Use guidance Non-medical prescribers should follow guidance and use an electronic prescribing system, if these are available. That way, no one can say that had a system or guidance been used there would not have been a problem. “If you do not follow guidance there is a greater chance you will be found liable,” Ms Gulliver said.

Communicate “Ensure that your patients are aware that you are a non-medical prescriber and of the limits of your prescribing,” Ms Gulliver advised, because if something does go wrong and the patient finds out later they are much more likely to complain if they did not know. “It is worthwhile noting that you have informed them,” she added.

Keep records “It is imperative that you keep thorough and good notes about every consultation with patients,” Ms Gulliver advised. If something goes wrong, these will be analysed. Notes should include diagnoses that have been excluded and it is also a good idea to document consent. “It sounds a bore but you will be thankful for [the extra time you took] should you face a legal claim,” she explained. However, she acknowledged that it is not necessary to expect the patient to sign every time they accept the same treatment or each time you prescribe their medicines.