We use cookies to collect and analyse information on site performance and usage to improve and customise your experience, where applicable. View our Cookies Policy. Click Accept and continue to use our website or Manage to review and update your preferences.

Strictly necessary cookies

Cookie name Duration Cookie purpose
ASP.NET_SessionId Session This cookie holds the current session id (OPPassessment only)
.ASPXANONYMOUS 2 Months Authentication to the site
LSI 1 Year To remember cookie preference for Law Society websites (www.lawsociety.ie, www.legalvacancies.ie, www.gazette.ie)
FTGServer 1 Hour Website content ( /CSS , /JS, /img )
_ga 2 Years Google Analytics
_gat Session Google Analytics
_git 1 Day Google Analytics
AptifyCSRFCookie Session Aptify CSRF Cookie
CSRFDefenseInDepthToken Session Aptify defence cookie
EB5Cookie Session Aptify eb5 login cookie

Functional cookies

Cookie name Duration Cookie purpose
Zendesk Local Storage Online Support
platform.twitter.com Local Storage Integrated Twitter feed

Marketing cookies

Cookie name Duration Cookie purpose
fr 3 Months Facebook Advertising - Used for Facebook Marketing
_fbp 3 months Used for facebook Marketing
Written notes essential for medics, even in digital era – Peart

10 Dec 2021 / regulation Print

Written notes essential for medics, even in digital era

Mr Justice Michael Peart has told a UCD School of Medicine webinar that the duty of medics to keep clear and accurate records of advice given could not be over-stated.

Speaking at ‘When scrubs and wigs collide: the medico-legal interface’, (8 December) the former High Court judge said that doctors should keep a written contemporaneous note, and should never later alter these notes.

Vital safeguard

Mr Justice Peart urged the greatest of care in note-taking, since such records were a vital safeguard for both medical practitioners and patients alike in any situation where an investigation became necessary. 

The permanence of a clinical record that was thorough and unambiguous could be crucial in determining the truth of an encounter, he added.

“The more information that a set of notes contains, the less room there is for uncertainty,” he said.

“Notes made in haste are often found to be illegible to all but the author, and even he or she may not be able to properly decipher them with certainty, several years after they are made,” he added.

Notes should be pertinent, short and legible, the webinar heard.

Where mistakes were made, professionals should face up to them quickly, and in an honest manner, the judge advised.

Conversations with patients were central to the consent processes, rather than the signed form itself, he said – particularly for those patients disadvantaged in education, or those for whom English was not their first language.

While the consent process might be time-consuming, it could not be done in a formulaic way, the judge warned.

The fact that a clinician was working under excessive pressure could not be laid at the door of the patient, he added.

Factual basis

“It is the prior discussion that provides the factual basis for any later decision that must be made to determine whether or not the patient has given a fully informed consent,” the former Court of Appeal judge said.

However, informed consent did not have to be given in writing, he added, but on a precautionary basis should be signed, since this removed some element of doubt.

The doctor-patient relationship led to a fundamental obligation, or the duty of care, he stressed, which included sub-duties such as confidentiality, imparting advice clearly, and keeping accurate records.

The law only permitted surgery to go ahead without consent on an emergency basis, Mr Justice Peart said.

But only limited warning may be necessary for life-saving treatment, he added.

The obligations with elective surgery, such as vasectomy, may be more stringent and onerous.

Consent is not valid if the patient has not been given enough information to make an informed decision.

Material risks

The ’reasonable patient’ test is that a patient has the right to be told about all material risks associated with proposed treatment, but that person will not have impossible expectations or impose impossible standards.

Mr Justice Peart said that the relationship between patient and clinician was founded on three essential components: confidentiality, consent, and competent care, with confidentiality as the defining feature.

Without confidentiality, the doctor-patient, or solicitor-client, relationship was fatally undermined, and both professions could be brought into disrepute, he added.

However, a doctor or lawyer cannot give full and proper advice if they do not have all the facts, so the professional must make reasonable efforts to seek out all the relevant information.

A duty to keep follow-up appointments also lies with the patient, as well as that of giving information on known allergies.

If patients failed to fulfil their own duties and obligations, they could undermine their chances of complete success in damages claims against a clinician, Mr Justice Peart stated.

The idea of a patient-doctor ‘partnership’ is a good one, he said, because it embedded the increasing recognition of the principle of patient autonomy, and the responsibility this created.

However, unlike a business partnership, this was still not a partnership of equals, he pointed out, in that the clinician was dominant, and had more onerous responsibilities.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland