NEWS

GMC finds doctorsnot guilty in consentcase

Three psychiatrists were found not guilty ofserious professional misconduct by the Gen-eral Medical Council, the body that regu-lates British doctors, last week in a case thatcentred on the issue of patient consent andconfidentiality (see editorial, p 1240). Thecomplainant had been the subject of a case

report submitted by the doctors to a special-ist medical joumal, and she claimed that thereport contained so much detail that shecould be identified from it.

The report, which concerned people withbulimia nervosa who bleed themselves, wasentitled "Blood-letting in bulimia nervosa"and was published in the British Journal ofPsychiatry (1993;162:246-8). The authorswere consultant psychiatrist Dr John Eaglesand psychiatric registrar Dr Jon RichardParkin, who were both working at the timeat the Royal Cornhill Hospital in Aberdeen.The article also acknowledged thanks to DrAlistair Palin for "allowing us to report onone of his patients." Consultant psychiatristDr Palin also worked at the Royal Comhill,and he was the third doctor involved in thehearing.

The complainant, known throughout thethree day hearing as "Miss C," claimed thatDr Parkin had asked to interview her forsome research work on blood letting inbulimia. SHie said that he had also mentionedthat he might get a paper out of it, and shehad given her verbal consent to certaindetails of her condition being used for thisresearch. She told the hearing: "I was notbothered at this stage because I trusted thesepeople to portray accurately the facts and todisguise my identity."

After publication of the article-whichalso contained case reports of two otherpatients with a similar set of symptoms andbehaviour-a story appeared in the AberdeenPress and Journal newspaper. This newspa-per story was read by a friend of Miss C,who immediately recognised her from thepersonal details. Miss C then obtained a

copy of the British Journal ofPsychiatry andread the whole article written by Dr Parkinand Dr Eagles.

The case report on Miss C, as well as

describing her as "a 26 year old preregistra-tion doctor," outlined details ofher bulimianervosa and blood letting and containedinformation about a rare form of maculardegeneration that was affecting her eyesight.It also questioned the authenticity of a par-ticular claim made by Miss C to her doctors.

Miss Rosalind Foster, representing Miss

A. .,.--.m

7'esyhitrst awaithe.GMCs. vrdc

C, said that the particular constellation ofher symptoms made Miss C "well nighunique."

Miss C told the General Medical Coun-cil's professional conduct committee: "Iwould absolutely not have given the goahead to the article which appeared. I wasvery shocked, very angry, very upset. Severalthings stated in the article were untrue. Theywere really hurtful and judgmental becausethey blocked out everything I had based myhealing and therapy on because it was basedon trust."

Doctors expressed sorrowAll three doctors appearing before the

committee expressed their sorrow at MissC's distress and acknowledged that closepersonal friends and health care workerslooking after Miss C could probably haveidentified her from the case report. But theysaid that details of personality were highlypertinent to psychiatric case reports, and DrParkin said that he believed that Miss C hadgiven her verbal consent to his writing a casereport on her. He added: "Having gainedconsent to use details from the interview shehad given for the purpose stated, I assumedI would be able to also look at her notes."Much of the evidence on behalf of the

three doctors was heard in camera becauseof the intimate details of Miss C's history,which were necessary to the case.

Professor Gerald Russell, an expert on

eating disorders and especially bulimia ner-vosa, was called as an expert witness to thehearing. He said that in his view the article inthe British Journal ofPsychiatry was originaland that all the details given on Miss C wererelevant and necessary.

Although the article appeared in Febru-ary 1993, it was first submitted in June 1991,and a second revised draft was submittedand accepted during the first half of 1992.Professor Russell said: "In those days it wasunusual to seek consent from a patientbefore publication ofan article. But the ruleshave changed so much in the last five years.Now you should obtain a patient's consent.You might show them a draft of the paperand negotiate if necessary if there are sec-tions to which the patient objects."Mr Adrian Whitfield QC, representing

Dr Eagles and Dr Parkin, suggested to thecommittee that Miss C was not really com-plaining about the absence of consent butwas complaining about "the way in whichaspects of her lifestyle were discussed." Hetold committee members that the fact thatthe article in question had "such a tragic andupsetting effect on Miss C must not formpart of your deliberations." He also askedthe committee to consider whether the infor-mation "gratuitously or unreasonably per-mitted identification," suggesting that it didnot.

The committee heard how the issue ofconsent and anonymity had come to the fore

BMJ voLuME 311 1 1 NOVEMBER 1995 1245

HeadlinesSmoking is banned on charterflights: Customers on 90% ofBritain's charter flights will soon besubject to a smoking ban. TheFederation of Tour Operators haspersuaded major tour operators toimpose the ban on ffights of up to sixhours.

European agency approves firstdrug: The European MedicinesEvaluation Agency has approved itsfirst drug. A fertility treatment, fol-litropin alpha, now has a singlecommercial licence covering all 15member states of the EU.

Breast cancer campaign islaunched: Hundreds of women in11 cities united to launch the UKBreast Cancer Coalition last month.It aims to establish a national strategyto combat the disease.

GP and a chemist jailed forfraud: A general practitioner, DrTimothy Whitefield, has been jailedfor three years and a chemist, MrBryan Samson, for two years afterbeing found guilty of defrauding theNHS of thousands of pounds byusing false prescriptions.

Many black Americans see AIDSas genocide: A survey by researchersat the University ofNorth Carolina ofover 1000 black churchgoers in fiveUS cities found that about 35% per-ceived HIV as a product of researchinto germ warfare that has led togenocide against black people.

since the article was written in 1991. Therehad been several updates both of theGeneral Medical Council's guidance to doc-tors on confidentiality and of the instruc-tions to authors published in the BritishJoumnal ofPsychiatry.

In reaching its verdict the committeeagreed that "the information contained inthe paper was such that it enabled Miss C tobe identified." This had not been admittedby any of the three doctors. But the com-mittee considered that the facts of the casewere insufficient in the cases of all three doc-tors to support a finding of serious profes-sional misconduct.-CLAuDiA COURT, BMJ

WHO sets newguidelines for airpollution

No safe level exists for particulate air pollu-tion, says a draft report from the WorldHealth Organisation, and governments willbe forced to make a political judgmentbetween the level of asthma exacerbationsand deaths and the economic, social, andpolitical costs of restricting polluting activi-ties. The new guidelines also recommendhalving the current recommended limits ofnitrogen dioxide from 210 parts per billionto 1 10 parts per billion.

Particulate air pollution is the term usedto describe particles of less than 10 sm indiameter; these can reach the small airwaysand alveoli of the lung. Around half of par-ticulate matter in the air derives from soildusts created by construction and plough-ing; the rest comes from sources such as coalfire, incinerators, and vehicular road traffic.

TheWHO estimates that a direct relationexists between the level ofparticulates in theair and the health effects they cause. It esti-mates that each increase of 50 gg/m' in theconcentrations of particulates results in adoubling of the death rate and symptoms incommon respiratory disorders. In a typicalcity of one million inhabitants, for example,a rise in the background level of particulatesfrom 50 gg/m' to 200 gg/M3 over three dayswould result in 12 extra deaths and 18 extrahospital admissions for respiratory conditions.

The mean urban value in European citiesis around 20 gg/M3n, rising to 45-50 jg/m3inareas with high population density, such asthe Netherlands and Berlin. Southern Euro-pean cities, such as Pisa and Athens, haveeven higher values.

Peak values in Belfast have reached445 g/im', according to the National Societyfor Clean Air's press spokesman, Mr TimBrown, and air quality is unlikely to improveimmediately. "WHO guidelines have beenviewed in the past as aspirational; the keything is the standard that is set by the Euro-pean Union directive and those set bynational governments. The UK currentlydoesn't have limit values for common pollu-tants, and the new standard is expected to bemuch tighter."

The WHO set up the expert workinggroup last year to update its 1987 guidelines,and its findings have been released earlierthan planned so that the results can be usedwhen the new European Union's air qualitydirectives are set later this year.

"Air quality is important," said Dr RolafVan Leeuwen, a toxicologist at the WHOEuropean Centre for Environment andHealth in Bilthoven, "because although theeffects of air pollution are relatively smallcompared with, for example, the risks ofsmoking, one cannot choose not tobreathe."-DOUGLAS CARNALiL, BMy

GPs offered on screen prescrib-ing advice: A new research anddevelopment project, PRODIGY,will provide computerised advice togeneral practitioners on screen on thedifferent drugs that can be offered topatients. The system will be tested in120 practices in 60 family health ser-vices authorities for six months.

Doctors are puzzled by fatal dis-ease in Nicaragua: Doctors inNicaragua are trying to identify a dis-ease in which victims seem to inhaletheir own blood and die within days ifuntreated. According to the WHO 18people have died and there are over1000 suspected cases.

Germany to ban types of pill:Germany's Federal Drug Institute isto ban the use of oral contraceptivescontaining desogestrel or gestodeneby women under 30 who are takingthe pill for the first time, echoing awarning issued in Britain. The drugfirm Schering plans to appeal.

UKgovernment mayface tougher standards over pollutants

BMJ VOLUME 311 1 1 NOVEMBER 19951246

Black and Asiannurses in the NHSreport harassment

Many black and Asian nurses in the NHSsuffer racial harassment from patients andcolleagues and many feel that they are dis-criminated against, according to a reportfrom the independent Policy StudiesInstitute. Eight per cent of NHS nursingand midwifery staff are from ethnic minoritygroups, and although the report, Nursing ina Multi-ethnic NHS, found that most NHSemployers had formal equal opportunities inplace, they were not fully implemented.

The book is based on case studies of sixNHS employers and 150 interviews and anationally representative postal survey ofover 14000 staff. Nurses said that they didnot think that managers were doing enoughto deal with harassment and discrimination.When interviewed many of the nurses spokeof occasions when they had been ignored,talked about, or racially abused.

The study found that most incidents ofracial abuse were not reported because therewas a perception among ethnic minority vic-tims that the complaint would not be sup-ported. The authors of the report say thatwritten policies and procedures need to beaccompanied by widespread communica-tion, formally through team briefings andinformally through general comments andconversations. They point out that "racialharassment will not disappear simplybecause nursing staff and managementrefuse to recognise it for fear that it willsomehow detract from their 'professional-ism.'

Black nurses are less likely than whitenurses of similar age, experience, and quali-fications to be in the higher grades of F andG. The study found that they can expect toreach these grades as many as five years aftertheir white peers. Because of the lack ofwritten criteria and a systematic identifica-tion of training needs, many ethnic minorityas well as white nurses reported a generalfeeling of unfairness in the allocation ofopportunities for training and promotion.According to the report, only one employerhad completed an audit monitoring the eth-nic composition of its workforce. None hadmonitored opportunities for promotion or

training even when there was a commitmentto do so in their policy documents. "Equalopportunities policies will be ineffectivewithout a training programme that seeks tocommunicate the policy, raise awareness ofequal opportunities issues in the workplaceand help staff to work in anti-racist ways."

The Policy Studies Institute recommendsthree actions for all NHS employers: theyshould ensure that their equal opportunitiespolicy is implemented and produce informa-tion to show how effective it has been; theyshould undertake a case by case review ofthe development and promotion prospectsof individual nurses, especially black nurses

near the boundary between grades E and F;and they should initiate a campaign to makeevery employee feel responsible for support-

Many nurses see harassment "as part of thejob"

ing ethnic minority groups and preventingracial harassment.

The junior health minister, BaronessCumberlege, said that it was unacceptablethat some nurses thought that they wereunfairly treated. She emphasised that theNHS was committed to equal opportunitiesand reported that the service would be run-ning a series of workshops to disseminategood employment practice, with the empha-sis on ethnic minority issues.Ms Christine Hancock, general secretary

of the Royal College of Nursing, said,"Black nurses should not have to put upwith racist abuse as part of the job. Wardsisters and managers must make it clear topatients that illness is not an excuse for badbehaviour."-LINDA BEECHAM, BMJ

Nursing in a Multi-ethnic NHS by Sharon Beishon,Satnam Virdee, and Ann Hagell is available fromBEBC Distribution, PO Box 1496, Poole, DorsetBH12 3YD, price C24.95.

French protest athealth budget cuts

A wave of protests has greeted the Frenchgovernment's decision to increase "hotel"charges for hospital patients and to impose aceiling on hospital expenditure. The firstmeasure is said to penalise the poorestpatients and the second to strike indiscrimi-nately at the country's 2000 or so hospitals.The announcement came as a surprise onlya few days after officials had started a seriesof meetings in French provinces in the hope

of reaching agreement on ways to reduce thegrowing deficit of the social security's healthinsurance branch.

The government announced that thedaily payment to be paid by hospital patientswould increase from Fr55 (C7) to Fr7O(£C9), providing an additional Frl4bn(L160m) next year. Hospital expenditurewould not be allowed to increase by morethan 2-1% in the next financial year.

Major employees' unions have protestedthat the increase in payments means areduction in benefits that will penalise thepoorest members of the population, whomay not have Fr7O a day to spend on food.Act-Up, an association supporting patientswith AIDS, said that they would be the firstvictims, as many require several days in hos-pital each month.

The Syndicat National des CadresHospitaliers, the hospital staff union, saidthat a 2- 1% ceiling on increases in hospitalexpenditures contradicted the decisionannounced earlier this year to proceed selec-tively to eliminate several thousand hospitalbeds considered to be unnecessary. Theunion added that such a small increaseamounted to freezing expenditure andmight lead to unemployment among the800 000 hospital employees. The unionrebuked President Chirac for ignoringpromises made during the presidential cam-paign, when he said, "Negotiations aboutcontracts, objectives, and means to achievethem must be carried out within each estab-lishment and with the health care teams."

Not surprisingly, the Socialist oppositionexpressed the strongest objections, callingthe decision "arbitrary" and aimed at themost vulnerable beneficiaries of the socialinsurance system.

BMJ vOLUME 311 1 1 NOVEMBER 1995 1247

Faced with such reactions, JacquesBarrot, minister of labour, social dialogue,and participation, said during a meeting ofthe national assembly that the new measureswould not affect people receiving minimalunemployment pay or those entitled to freemedical care. The decision, he said, wouldbe considered along with other measuresthat would be brought forward after aparliamentary debate on social protectionat the end of November.-ALEXANDERDOROZYNSKI, medical journalist, Paris

Doctor winsclaim over patentownership

A hospital doctor in Britain has successfullyfought off his employers' claim to the patentfor a device he invented while studying forhis fellowship examinations. A High Courtjudge has ruled that Dr Donald Mont-gomery, not Greater Glasgow Health Board,owns the patent for an ophthalmoscopicinstrument he devised to keep the eye sta-tionary during examination.Mr Michael Fysh, Dr Montgomery's QC,

said that the case was an important test ofthe rights of hospital doctors, particularlythose working in university hospitals, toclaim ownership of their own inventions.The health board's counsel, Mr GeorgeHamer, told the judge, Mr Justice Jacob: "Itis a matter ofgreat importance....It is impor-tant to my clients and to health authoritieseverywhere." The board is considering anappeal.Dr Montgomery, now a consultant oph-

thalmologist at Glasgow Royal Infirmary,was a junior registrar ofthree years' standingat the Western Infirmary in 1988 when hedreamt up the gadget. Then aged 27, he waspreparing for the fellowship examination ofthe Royal College of Surgeons. The proto-type consisted of a lens and a ring cut from adisposable plastic cup supported on a baseby three cocktail sticks. The device providesa transparent screen bearing a fixation target,giving the patient something on which tofocus the eye while the retina is being exam-ined.

After unsuccessful negotiations over whoowned the invention Dr Montgomery andthe board filed a patent application together.The Patent Office found that the boardowned the patent, but Dr Montgomery, sup-ported by the BMA, appealed to the HighCourt. The case turned on the interpretationof a section of the Patents Act 1977, whichprovides that an employee's inventionbelongs to the employer if it was made in thecourse of the employee's normal duties incircumstances in which an invention mightreasonably be expected to result.Dr Montgomery described his work at

the time as "treating, caring for, and correct-ing the eyes of the people of Glasgow." Hewas working just over 80 hours a week treat-ing patients in the Western Infinnary and theGlasgow Eye Infirmary, the judge said. His

head of department at the time, ProfessorWallace Foulds, told the court in an affi-davit: "Inventing things was not part of hisduties as a registrar, and he would not havebeen in any way failing in his duties had henot sought to invent anything. I would nothave expected any invention to have resultedfrom his normal duties."

The health board had argued that it waspart ofDr Montgomery's duties to apply hismind to the problems of patients and todevise, if he could, new devices for diagno-sis. But Mr Justice Jacob said: "I have cometo the very, very clear conclusion that whenhe made that invention he was not acting inthe course of his normal duties as a regis-trar....He was at home. He was doing hisexams." Any other conclusion would cause"considerable complications and difficul-ties," the judge added. "Doctors frequentlydevise new and better treatments. Some ofthose will involve patentable inventions.Most doctors are employed. If, just becausethey are employed and because the inventioncould be used for the purpose of theiremployment, the invention belongs to theemployer, then many doctors would beplaced in a very difficult position. Can theypublish what they have devised? Do theyhave to get their employer's permission topublish? At present they do not. I do not seewhy they should in the future."

Dr Montgomery said that he was"delighted" by the outcome of the case andwould now consider how to develop hisinvention. Previous attempts had come tonothing, partly because of uncertainty overthe litigation, he said.-CIARE DYER, legalcorrespondent, BMJ; CHRIS HUGHES, head,BA legal department

Foreign doctorsstrike over newFrench law

Doctors who practise in France with a for-eign diploma held two one day strikesrecently in protest against their status of"assistant practitioner," imposed by recentlegislation. They claim that the new law alsorestricts their work to poorly paid and pre-

carious jobs in public hospitals.These so called "foreign" doctors are also

protesting against a recent ruling thatrequires them to take aptitude tests similar tothose required of full time hospital doctors.Only those doctors who have practised for atleast three years will be admitted for testing,and even if they pass the test they will not beintegrated on a full time basis in the hospitalsystem.

"We accept a system of control of our

knowledge, but only if it leads to a real sta-tus," said Dr Mohamed Ettahiri, presidentof a committee of doctors with foreign diplo-mas (meaning degrees earned outside theEuropean Union).

Dr Ettahiri pointed out that the aptitudetests are of the same level as those in thecompetitive examination given to doctorswho want to become hospital practitioners.But he said that foreign doctors can be only"assistant practitioners," which he said wasa "discriminatory subcategory ofunderpaiddoctors listed separately with the Ordre desMedecins [the national medical associationto which all practising doctors mustbelong]."

'oIgn' doctors inFrance wan. to be-n.t. t.eh......e..s..y.st'Foreign' doctors in France want to be integrated into thie health system

BMJ VOLUME 311 11 NOVEMBER 19951248

The committee of doctors with foreigndiplomas is also concerned that the test canbe taken only by those doctors who havepractised for at least three years: "An apti-tude test is a selection in itself and there is noneed to preselect. Each doctor should havethe possibility of proving he is competent,"said Dr Ettahiri.

About 7500 doctors in France hold diplo-mas obtained outside the European Union,but about 5000 of them are in fact Frenchcitizens, either by birth or by naturalisation.Most have had specialty training in France,and they make up a quarter of hospital doc-tors. The law stipulates that, as of next Jan-uary, hospitals will no longer be authorisedto employ foreign doctors.

The committee of foreign doctors hadinvited Elizabeth Hubert, minister of publichealth, to discuss their problems, but she didnot attend the meeting. The committee thendecided on two days of symbolic strikes andhas also asked the Conseil d'Etat, whichadvises the government on legislative mat-ters, to rule that the law constitutes an exces-sive use ofpower.

In July the Paris public hospital systemwarned that less than 30% of the 1750 for-eign doctors it employs would qualify to takethe aptitude tests and that if the others werenot allowed to continue working in hospitals"problems would unavoidably arise in cer-tain specialties."

Professor Bernard Glorion, president ofthe French medical association, criticised thelaw as being too constraining and said thatthe aptitude tests were too selective. "Wemust remember that these foreign doctorshave rendered many services," he said.-ALEXANDER DOROZYNSKI, medical jour-nalist, Paris

Minister defendsimmunisationcampaign

Junior health minister Mr Tom Sackville hasresponded to criticism of the British govern-ment's campaign last autumn to vaccinateeight million schoolchildren against measles.He described the results of the campaign as"excellent."Mr Sackville said that it would have been

"indefensible not to implement this cam-paign" and added: "Since the campaign, theonly two cases ofmeasles that have occurredin the age groups covered have been in chil-dren who were not immunised in the cam-paign. A predicted epidemic has beenaverted."

The campaign was carried out in schoolslast November and resulted in seven millionchildren between the ages of 5 and 16 beingvaccinated in England. Critics have ques-tioned whether the predicted epidemic wasin fact ever likely.

One critic in parliament, LabourMP MrLlew Smith, tabled a string of questions toMr Sackville last week on the subject of thecampaign. He highlighted the aspect of

Averting an epidemic?

adverse reactions and accused the govern-ment of "lulling parents into a false sense ofsecurity by giving them inadequate informa-tion."Mr Sackville said that on three separate

occasions before the campaign the chiefmedical officer had alerted doctors to theneed to report adverse reactions on yellowcards. He said that among the eight millionchildren immunised a total of2735 reactionshad been reported in 1202 children. Ofthese, 530 were serious reactions, threequarters being late onset reactions. He saidthat there had been full recovery in all thesechildren. Referring to reports that some chil-dren had not yet recovered, Mr Sackvillesaid: "For children in whom recovery hasbeen incomplete there was no substantiveevidence to support an association with thevaccine."Mr Smith also criticised the government's

claim that a measles epidemic was imnminentand said that it had been without basis:"Having spoken to many people-includingmany authorities on the subject-and readmany research papers, I believe that therewas no evidence to support the claim of anepidemic and its tragic consequences."Mr Sackville replied that a group of sci-

entists based at the Public Health Labora-tory Service and at the University of Oxfordhad informed the Department of Health'sindependent expert advisers in 1993 that ameasles epidemic was likely. Mr Sackvillesaid that "the only way to prove a predictionofan epidemic correct would be to let it hap-pen. To do that would have been a grossdereliction of our responsibility for publichealth and would have been indefensible."-CLAUDIA COURT, BMJ

Health network willwork to reducepoverty

A group of health professionals has decidedto set up a worldwide network to try to influ-ence political leaders and policy makers toact to reduce poverty. Citing the linkbetween poverty and ill health in the devel-oping and industrialised world, representa-tives of Action in International Medicine(AIM) and the World Health Organisation(WHO) have called on doctors and nurses tobecome more politically involved.

"We truly believe we're facing a globalhealth crisis," DrJohn Martin, deputy direc-tor of the WHO's division of intensifiedcooperation with countries and peoples ingreatest need, told delegates from 20 coun-tries at a conference on health and poverty inLondon last week. "Poverty is bad for yourhealth no matter where you live," he said.

Neither AIM nor theWHO has commit-ted funds to the new lobbying network butwill rely on member organisations workingin their own countries and with each other toget their message across. So there is nodefinitive way to measure what actions are

taken and what effects they will have.The WHO's first annual world health

report, published earlier this year, singledout poverty as the world's leading cause ofdeath. The report contained many grim sta-tistics-more than one fifth of the world's5*6 billion people live in extreme poverty;almost one third of the world's children are

undernourished; 99% of deaths from com-

BMJ vOLUME 311 1 1 NOVEMBER 1995 1249

municable diseases occur in the developingworld; and life expectancies in some devel-oping countries are actually dropping.

Some delegates at the conference admit-ted that it can be difficult for health careworkers to move from being advocates fortheir own individual patients to advocatingfor society as a whole. But "lobbying is nolonger a dirty word," said Dr K AEnyimayew, regional director of health ser-vices in Ghana. "Improving the health ofthepoor is not only an ethical or moral obliga-tion but makes economic sense."

Dr Rodrigo Guerrero, a former mayor ofCali, Colombia, and now adviser to the PanAmerican Health Organisation, told the con-ference that he went into politics to improveconditions in Colombia. A foundation wasset up to enable community workers to teachunemployed people to build their ownhouses.

The conference decided that its goalsshould include convening local conferenceson reducing and eliminating poverty, mobil-ising health and development workers tolobby their political leaders, exchanginginformation, and influencing public opinionthrough the media.-ELisABETH KALBFuSS,freelance journalist, London

Action in International Medicine can be contacted at0171 405 3090.

Australian winsright to fighttobacco company

A judge in Sydney's supreme court hasrejected an application by an Australiantobacco company,WD and H 0 Wills, thata former smoker cannot seek damages in theconsumer claims tribunal. Justice Irelandruled last month that Dr Sarah Hodsoncould proceed with her claim to the tribunalfor compensation of SA1000 (C500), whichshe estimates represents the costs she hasborne in seeking help to stop smoking.

Dr Hodson had approached the tri-bunal-typically the venue for small claimson matters such as disputes between neigh-bours over the cost of shared fences-askingthat she should be reimbursed her outlay oncourses to quit smoking and for time lostfrom work. She had smoked the Benson andHedges brand, sold by the Wills company,which is a subsidiary of BAT, and soughtrecompense from Wills. Wills appealed tothe supreme court, questioning the jurisdic-tion of the tribunal to hear such a case,which it pleaded was frivolous.

Dr Hodson has appeared on several tele-vision programmes explaining that she is

pursuing her action not just to recover herown costs but to argue a test case that mightset a precedent for tens of thousands ofAus-tralians who stop smoking each year to claimback money spent on such things as coursesto stop smoking and nicotine replacementtreatments.

Her argument is expected to be that thefailure ofWills to warn in pack warnings thatsmoking was addictive renders the companyliable to compensate her for her expenses inquitting. Wills, which, like all tobacco com-panies, has never admitted that its productsare addictive, seems destined to have topaint itself into a confessional corner byarguing that Dr Hodson should have beenaware that cigarettes are addictive.

Lawyers are not involved in tribunals, sothe legal footwork that has so far saved thetobacco industry in higher courts will not beavailable. Action on Smoking and Health,which is monitoring the case, has said that itwill establish a register of recent ex-smokersto mount a class action seeking similar com-pensation should Dr Hodson succeed. Phar-maceutical companies, which marketnicotine patches and gums, are expected tostampede Action on Smoking and Healthwith offers of help if this occurs as they fore-see thousands of "rebatable" customers.-SIMON CHAPMAN, department of health,University of Sydney

Focus: Westminster

Litgation Authority to focus on malpractice

For a sign of thetimes there's notmuch to beat thestarkly named Litiga-

! ~ XIYSU ! tion Authority. Thiswas grafted on to the

aiiiiia NHS last week to0''' 10< monitor medical mal-

practice and otherNHS liabilities for "loss, damage, or injury"(p 1306). In practice the Litigation Author-ity will be the statutory arm of the ClinicalNegligence Scheme for Trusts (CNST),which is already up and running. Thescheme is, in effect, a medical defencearrangement for NHS employers, allowingthem to pool funds against liabilities forclinical negligence. Indeed, the scheme'sday to day operation has been subcon-tracted to an established defence organisa-tion, the Medical Protection Society.

In the five years since the NHS firstindemnified hospital doctors and stoppedreimbursing their individual defence organ-isation subscriptions negligence settlementshave risen from £80m a year to over 150mand are rising by 25% a year. Plainly some-thing had to be done. Already 350 trustshave joined the clinical negligence schemeat subscriptions ranging from £2000 a yearfor an ambulance trust to £60 000 for a

large acute hospital. These charges willincrease dramatically once there is an accu-rate estimate of future liabilities. To stemthe inexorable upward trend the clinicalnegligence scheme puts its faith in promot-ing better risk management. It is offeringdiscounted premiums to trusts that canmeet minimum risk management standards,and that process should work through toclinical practice as the scheme builds a data-base from its claims record. DrJohn Hickey,commercial director of the Medical Protec-tion Society, acknowledges the increasingpressures on doctors, with the fear of beingsued much higher than it was 10 years ago:"That can lead to defensive medicine andwrong attitudes. Clinical risk managementcan help tremendously."

If the new scheme helps doctors, it is alsowelcome to patients. Linda Lamont of thePatients' Association says: "We do every-thing in our power to discourage peoplefrom going the legal route. By improvingcomplaints procedures we believe there willbe less litigation."

Another common view is that the med-ical profession must do more to make sure itis less negligent. Arnold Simanowitz, whoheads Action for Victims of Medical Acci-dents, points out that payments are onlymade where there has been negligence so

attention should focus on reducing avoid-able accidents. He hopes the scheme willpinpoint where malpractice is happening:"What we don't want is more skilful lawyerstrying to deny patients who have beeninjured negligently getting what they areentitled to."

For their part doctors fear that the NHSis too ready to admit liability. With 97% ofsettlements agreed out of court that mightappear so, but the true picture is that ofevery 100 claims, 50 are dropped bypatients, 47 are settled, and only three go totrial. Dr Hickey states: "In claims which aredefensible it is important to ensure that youdo defend. Half of them go away becausethere has been no negligence." The BMA'sview is that the cost of litigation is so mas-sive that a no fault system of compensationis a better way of spending money.

Meanwhile, opposing forces are at workwhich could ease or worsen the situation.Conditional fees by lawyers and changes inthe way judges award special damages (forloss of earnings and the cost of care) willtend to raise the total bill. On the other side,Lord Woolf's review of civil procedure maydivert more cases away from the courtstowards the ombudsman and other com-plaints procedures.-JOHN WARDEN, parlia-mentary correspondent, BMy

BMJ VOLUME 311 11 NOVEMBER 19951250