- Context of unmanaged liabilities
- Enforceable obligations
- Obligation to not negate ME/CFS legal status
- Obligation to procure ME/CFS medical education
- Obligation to not mislead or evade diagnosis and to provide sufficient detail (FND, MUS, PPS, ‘dysregulation model’ and Long Covid examples)
- Obligation to not abuse power and authority
- Obligation to recognise ME/CFS patient housebound or carer status
- Tests of lawfulness
- Risks – compliance and operational
- Unlawful clinical judgement (examples)
- Expertise risk and reputational risk – medical and legal
- Illusion of legal authority vs medical law enforcement
- Knowledge-gap risk and audit trails (examples plus research-market inefficiencies)
- Freedom of Information Act risks – flawed clinical judgement, discrimination and education refusal
- Third party risk from preceding unlawful clinical judgement
- Liability, malpractice and indemnification
- Irrelevance of official edicts and officialised redistribution of liabilities to frontline balance sheets (vaccination and NICE guideline examples)
- Compromised indemnification, insurance cover nullification and liability for lost income
- Evaluating duties of care and unmanaged risk exposures
- Risk mitigation
- Version history
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A journalistic summary of these documents for lay audiences will soon be published.
Risk generation and unnecessary liability accumulation is commonly exacerbated by low and/or prejudicial standards of communication and/or record keeping in ME/CFS and other post-viral disease contexts. False record taking is commonly experienced in this field. Beyond the statutory contexts, the frequent frontline status quo regularly breaches a range of associated General Medical Council (GMC) and the Care Quality Commission (CQC) requirements (actual enforcement of which can also be required at Judicial Review). Addressing these below issues is in addition to the detailed and auditable records of educational activities and associated communications, which address live discrimination and freedom of information risks outlined above.
This largely stems from the expensively institutionalised practice misbelief that standards, policy and law can be suspended when involving ME/CFS or other post-viral diseases. This contrasts with generalisable obligations to detail legally sustainable reasoning, respond to patients’ material communications and not mislead, where compliance can not be assumed in the context of poor education and habitual breaches of discrimination law.
Habitually unlawful clinical judgement and propagation of misinformation is commonly exacerbated by prejudicial standards of communication and//or record keeping
Risk management is currently degraded to the point of habitually unlawful clinical judgement and propagation of misinformation. Repeated evidence of supply of materially harmful mistruths and obfuscation by medical/therapeutic professionals demonstrates a spectrum of legally unsustainable clinical audit trails. This commonly includes written responses with directly literal mistruths versus Green Book, NICE, JCVI or other official guidance. Practitioners and their administrators also habitually exacerbate risks by self-documenting statutory discrimination in clinical reasoning, including evidencing their direct or indirect ignoring of material patient communications that regard risks such as those documented here. It is known that flagrantly retributory record keeping and communication can include punishing qualified professionals who have leveraged their knowledge of policy, rules and law to enforce lawful requirements in a context of ME/CFS.
Legally unsustainable clinical audit trails commonly include literal mistruths and self-documentation of habitual statutory discrimination
These unmanaged risky behaviours versus record keeping and communications are largely driven by practical disregard for
- the requirement that clinical judgement must maintain lawfulness
- that lawfulness is not medically determined
- and empirically-corroborated low educational standards in this field
While such risks can be mitigated by fulfilling the Obligation to Procure Education organisationally, a particular emphasis on recording legally sustainable and detailed reasoning is also critical to any organisational risk mitigation response, due to the wider statutory and policy context.
Recording specific, explicit and relevant reasoning in greater detail than normally deployed is a necessary requirement. It is the proportionate compliance response to reasonable assumptions of unlawful clinical judgement versus the Human Rights and Equality Acts and the Public Sector Equality Duty in this field, which are further informed by documented risks from contra-scientific belief systems that dominate medical education. The elevated probability of breaches of statutes in this medical context also ensures the proportionality and reasonableness of third party demands for specific, explicit and relevant written reasoning.
Recording reasoning in greater detail is the necessary and proportionate response to unlawful clinical judgement risk and dominant contra-scientific belief systems, particularly as the statutory context allows third parties to demand specific, explicit and relevant written reasoning
Record and communication requirements must also account for habitually ignored patient-communication risk. Once communication of issues regarding clinical judgement or limitations is made, the sustainability of delaying or obfuscating terminal obligation/liability by directly or indirectly ignoring patient communication is negated. Best practice must also assume such risk generation as a specific incidence of discrimination due to the elevated probability of unlawful judgement in this field.
Example: Inappropriate dismissal/removal of an ME/CFS diagnosis or evasion of implications (FND, MUS, PPS, ‘dysregulation model’ and Long Covid examples)
Rebranding of this medical failure is also endemic – meaning that legally demonstrable scientific realities of diagnosis are commonly and evaded. Despite implications of ME/CFS already being commonly ignored, they are often entirely sidestepped by alternative diagnoses and paradigms.
Where a clinician believes a diagnosis of ME/CFS is not appropriate and prefers to dismiss eligible diagnostic criteria with habitual diagnoses such “FND / MUS / PPS / neurasthenia / conversion-disorder” / “dysregulation model” and/or other non-neurologically classified idiopathic or somatic fatigue, this would require demonstration in specific diagnostic terms that exclude ME/CFS. To insist upon applying such irrelevant acronyms such as FND / MUS / PPS and associated concepts introduces risk of claims for consequential harm and losses. This is due to explicit dependence on lack of knowledge leading to unlawful outcomes and violation of obligations.
Similar contexts can apply where a clinician prefers a diagnosis of Long Covid (PASC) to the express exclusion of applicable pre-existing ME/CFS diagnostic criteria. Long Covid not a new disease, as affirmed by pre-pandemic literature and BMA, NIAID and NIH narratives. That context often faces efforts that withhold progress in frontline clinical and administrative understanding of ME/CFS from Long Covid patients.
Both these contexts carry explicit risks to patients. Removal or exclusion of an ME/CFS diagnosis requires informed and shared explanation for its diagnostic inapplicability. As does evasion of implications of diagnosis. That requires specific, explicit and relevant reasoning to be deemed proportionate and reasonable in law. This is due to the elevated likelihood of unlawful clinical judgement in this field (based on empirically quantified lack of knowledge, underwritten by lack of diagnostic criteria knowledge versus differential diagnoses.
There are known examples of such cases of unlawful reclassification of patients, where the clinician merely prefers a diagnosis that does not challenge their lack of knowledge. Due to empirically high ME/CFS misdiagnosis rates, such scenarios also imply a risk of alternative serious illness being undiagnosed (see the obligation to educate versus elevated likelihood of unlawful clinical judgement).