Why it is legal and medical illiteracy to sue your GP over a dementia diagnosis

A recent article in Pulse magazine, entitled “GPs should be sued for ‘late’ dementia diagnoses, says professor”, claimed, “A leading academic has called for patients to sue GPs for failing to diagnose dementia, arguing that ‘the sooner someone sues a GP… the better’. Professor June Andrews, director of the Dementia Services Development Centre at the University of Stirling, made the comments in the Letters section of the London Review of Books, in which she said the ‘sooner someone sues a GP for failure to diagnose as early as possible, the better’.”

The full letter reads as follows:


If a doctor behaves in such a way so as to undermine clearly the medical profession, he could be suspended or struck off at worst by the General Medical Council on the grounds of not “working collaboratively with colleagues” under the code of conduct, “Good medical practice” (domain 3).

The particular subsection is rule 35, “You must work collaboratively with colleagues, respecting their skills and contributions.” June Andrews’ suggestion is offensive as it pits people against professionals in primary care, who are doing their best to practise medicine given the resources available to them.

I strongly commend to you the reply by Dr Margaret McCartney. There are about a hundred different types of dementia, not all presenting with memory problems (though Alzheimer’s disease, typified by problems in short-term learning and memory, in the beginning, is the most common type of dementia globally). Therefore, somebody may present with symptoms which are not easily recognised as a dementia. In the younger age group, the behavioural changes in frontotemporal dementia may be misdiagnosed, with no malintent, as depression or anxiety simply.

The issue that McCartney raises is a very important one. And yet it is reported that Andrews has had difficulty in discussing issues with professional colleagues in a sensible manner. Prof Sube Banerjee emphasised in a recent meeting of the King’s Fund, “Leading change in dementia diagnosis and support”, that dementia diagnoses in primary care had to be of correct quality, and professionals in primary care needed support in making these diagnoses. Banerjee further emphasised the considerable damage which might be done in given an incorrect diagnosis of dementia, to someone who did not have dementia. This has always been a risk with incentivising financially making the diagnosis of dementia as others have correctly pointed out, such as Dr Martin Brunet.

It might be that the symptoms do not progress and do not warrant a diagnosis of dementia in severity. The majority of such people with the diagnosis of “minimal cognitive impairment” do not progress to a full blown dementia, and such patients need to be monitored carefully with time.

Recent evidence on this is noteworthy (source above):

“The most compelling papers that concluded most MCI patients will never develop dementia include what are called “meta-analyses”, that is, they combined and reanalyzed the results from a number of different studies that the researchers considered to meet criteria for being well-designed and -executed.

For example, Mitchell and Shiri-Feshki (2009) analyzed 41 high-quality studies, some done on community populations and some in clinical trials.  They concluded that the annual conversion rate from MCI to a dementia is ~5-10%; and that even after 10 years, more than 60% of MCI patients will not progress to Alzheimer’s or any other dementia.  In fact, a substantial percentage actually revert to normal.  Other meta-analyses of long-term (5-10 years) studies reported even lower annual conversion rates, of 3.3 – 4.2%, and cumulative conversion rates of ~31% over 10 years.”

I have previously blogged myself on how the Wilson and Jungner WHO screening criteria may include case-finding, but the National Screening Committee, as McCartney points out, has consistently advised against screening in dementia for a number of years now (and last upheld in January 2015). The actual issues concerning when patients of the NHS decide to seek help over symptoms of dementia are complicated, and have often been investigated methodically. Such issues indicate the national ‘diagnosis gap’ for dementia is not simply due to General Practitioners ‘under-performing’.

All this raises the question of what the legal claim Andrews has in mind. As such, there is no direct contract between patient and doctor in primary care, for which the contractual term is that the doctor must make an accurate diagnosis of dementia immediately; such a claim would therefore be ‘breach of contract’. The claim, in the alternative, could be in the law of tort for breach of duty of care; this is ‘clinical negligence’. Such claims would have to satisfy the “Bolam” and “Bolitho” tests. They mostly would not, one might reasonably anticipate. In an unlikely case that a claim might be upheld, the civil procedure rules for litigation state clearly that the claimant must pursue other dispute resolution means first. This is according to the “pre action protocols” clearly stated under English law.

And how is the patient meant to fund such a claim? It has been widely reported that there has been no legal aid for medical negligence claims since April 2013. This is pursuant to the Government’s legislation the “Legal aid and sentencing and punishment of offenders Act“. In summary, Prof Andrews’ remark is neither held out by the standards of the legal or medical professions, and arguably should not have been made in a position of power.

All political ideologies, ranging from Edmund Burke or E.P. Thompson, do not condone abuse of power. Burke famously said, “The greater the power, the more dangerous the abuse.” It would thus be helpful if Andrews could withdraw her offensive remark, assuming the LRB have printed her letter correctly.