The January transfer window is approaching and it is a prudent time to review the standards of medical practice that are required of all doctors to conduct an effective and safe transfer medical. At the elite level, expert knowledge and the extensive experience of a medical team allow clubs to develop individualised and robust decision-making processes, but despite these safeguards there remains an inherent risk to the team doctors, Radiologists, Cardiologist and Orthopaedic consultants involved in the process.
This document will review the specific risks posed to a doctor requested to conduct or participate in a transfer medical assessment on behalf of a football club and what can be done to mitigate those risks.
Contract Risks
Pressure to ‘Pass’
It has been reported that doctors have been put under pressure to ‘pass’ a player who is unfit at the time of the medical, or is otherwise carrying a significant potential risk of injury. Should an identified injury risk materialise under these circumstances, which may significantly compromise the player’s ability to fulfil their contractual obligations, the Club doctor could be deemed liable and at risk of future litigation.
Difficult or Contentious Diagnoses
In cases where clinical examination and diagnostics raise the possibility of either undeclared pathology or a potential future clinical problem, an independent opinion from a credible consultant may be considered. This objective opinion may counteract future accusations of a conflict between the doctor’s duty to his patient (the player) and his employment by the football club.
Data/Confidentiality Breach
It is critical to maintain both legal and medical confidentiality, and this extends to Data Protection. For any business conducted in the EU, the new 2018 GDPR regulations mean that the limits for potential liability have been raised to 4% of annual global turnover or €20 million – whichever is greater.
Mitigating the Risks
Fortunately, there is plenty that can be done to ensure the best possible outcomes for all concerned in this process, and limit the inherent exposure to risk.
Stage 1: Transfer Confirmation and Player Medical Request
a) Ensure the nature of the business is fully understood
There are some simple enquiries you should make:
- Are they looking to loan or buy?
- How long is the contract?
- What are the performance expectations e.g. how many games?
b) Points to remember when requesting medical records from the selling club
Bear in mind that as transfers are time-dependent, and information transfer on this scale can be impractical, it is possible that a request for medical records will not be fulfilled within the window required. However, notes on any areas of clinical risk/injury concern can be requested, if necessary during the medical.
All medical teams need to ensure appropriate patient handover and continuity of care as per the overriding duties under Good Medical Practice (GMP) which states that you must ‘work with colleagues in the ways that best serve patients’ interests’, particularly Paragraph 35 and Paragraph 44.
It is also worth noting that the professional duties of both sets of medical teams to the patient (player) outweigh those owed to their employers/contractors, including protecting the commercial interests of the clubs involved.
Check that you have permission from the player to request his medical notes from the selling club and involve your club’s legal team if this access is refused.
c) Points to remember when handling a request for access to medical records from the buying club
Before disclosing a player’s medical records to the buying club:
- Ask the player for his consent to share his medical records with a potential buyer.
- If the player refuses consent, the matter will require escalation to the board. It will also need to be communicated to the Buying Club medical team that consent to disclose medical records has not been granted.
- Secure the medical records (e.g. encrypt the file and send the password separately). Ensure that you have strong, documented evidence before disclosing any history of alcohol/drug abuse, or other addictive behaviours.
d) Maintain Your Duty of Confidentiality
Maintaining your professional code of confidentiality is essential. You must always act in the best interests of your patient, and this obligation overrides your legal duties to the Club (your employer/contractor).
If any of the aforementioned information is obtained verbally, always make a contemporaneous attendance note (emailing this to yourself can be useful, provided you have the appropriate security measures in place to prevent the information being intercepted/accessed unlawfully.)
It is worth noting that if you have previously formed a doctor/patient relationship with a player you are seeing for a pre-signing medical and there are any adverse findings, the player’s permission will be required before these can be disclosed.
Circumstances do arise where a player refuses to sign a declaration/disclaimer, and this should be noted in the records. However, this can be avoided by requesting consent at the start of the medical for the disclosure of results to all parties.
Stage 2: Preparing the Medical
Based on your review of the medical records, your examination findings and information in the public domain, it may be necessary to request the services of an external specialist. In this instance, you must ensure that their responsibilities are clearly defined in writing and that they sign a confidentiality agreement.
The medical may also need to be arranged at an external facility if circumstances dictate such as the use of specialised equipment, specific time pressures or competition from another club for the signing
Stage 3: The Medical
a) Before the Medical
- Ensure you fully understand the information provided by the medical history and/or any external specialists. Similarly, external specialists should actively ensure that the club doctor has understood the information provided.
- Ensure that the player has signed the appropriate declarations in order to protect yourself and the club in the event that the player fails to disclose a latent injury or an underlying health condition.
- Ensure that the player has been informed of the bases and safeguards under which their personal data will be handled, in compliance with GDPR regulations.
b) Carrying Out the Player Medical
- Undertake the relevant medical.
- Explain the duties that the doctor has to the club and patient, and record all findings.
- If a player has refused to sign the documents mentioned previously, explain that your report may be compromised, but continue with the medical in order to comply with your duties to the club, unless instructed otherwise. The matter will also require escalation to the legal team as advised earlier.
Stage 4: Reporting Results
- Send the report to the Club’s Board of Directors and the football management team, following the guidance of Paragraph 71 of Good Medical Practice. This is not a pass/fail scenario – the decision to sign a player remain the responsibility of the management team and the Board, but you may give your opinion that the player would satisfy the footballing and commercial intentions.
- Flag any areas of concern, and make a contemporaneous attendance note of any verbal explanations/conversations with the Board/management team.
Stage 5: Making a Comprehensive File
You are personally accountable for your professional practice and must be in a position to justify your decisions and actions. The best ways to protect yourself, both reputationally and legally, should events or facts be contested are:
a) Make complete, honest and accurate medical notes
b) Take out a comprehensive medical indemnity policy that protects you against Third Party litigation. The risk of Third Party litigation is much higher in the treatment of professional sportspersons than in standard areas of medical practice. In addition:
Collate all documents in an electronic folder, enclosing:
- All attendance notes
- Emails and correspondence
- Test results
- Reports (including your medical report)
- Any other relevant documents.
Ensure that the data is secured e.g. encrypt the folder and supply a strong password separately. The folder should be stored on a secure medical records system or cloud storage platform used by the Club, and your own copy must be equally secured.
In the Event of a Dispute with the Club
In summary, the risk to football medicine doctors can be mitigated by adherence to three key principles:
- Thorough, honest and robust transfer medicals
- Accurate and secure record-keeping
- Appropriate Third Party Indemnity Insurance
However, disputes with clubs can still arise for a variety of reasons.
In the event of such a dispute or disagreement between yourself and the Club in relation to a player’s transfer medical, you will ideally have Third Party insurance protection in place that will respond to the dispute.
Notes:
SEMPRIS is the only UK indemnity to protect doctors against claims from 3rd parties such as employers or contracted relationships such as clubs, frequently associated with treating professional sportspeople. In addition, SEMPRIS covers all aspects of independent private practice, including all non-sport related practice and professional issues not covered by the NHS.
To discuss any of the issues highlighted in this article, please do not hesitate to contact us:
0208 652 9018 (24hrs)
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