However hard one tries to simplify the issues, safeguarding in sport is a complex area. There are simple issues. All participants, especially minors, need to be safeguarded. Health and safety regulations must be respected and applied. The issues become more blurred (necessitating legal intervention) in the context of professional sport, where doctors may be employed on a full- or part-time basis. This blurring is exemplified in the case of the young Spurs footballer Radwan Hamed (Hamed v Mills and Tottenham Hotspur [2015] EWHC 298 (QB)).
A doctor, even though employed, owes their primary duty of care to the patient. So Eva Carneiro, the team doctor at Chelsea FC, was acting correctly by attending a player on the pitch, even though the coach may subsequently vent his disapproval. The club later conceded that she had been “fulfilling her responsibility to the players as a doctor, putting their safety first”. But the scope for conflicting duties is clear in the context of professional sport, which is intrinsically results-based. The employed doctor will there be seeking to strike a balance, wherever possible, between their primary duty – to the welfare of the patient – and their duty to their employer. The doctor who might put their obligation to their employer first (e.g. by enabling an injured player to perform following administration of a cortisone injection) is entering a minefield.
In the case of Dr Richard Freeman, who was working for the Sky cycling team, these conflicts of interest can be seen in stark profile. Dr Freeman was required to look after the Team Sky cohort of cyclists and, in particular, could apply for a Therapeutic Use Exemption (TUE) for any cyclist in need. This use of TUEs to care for their riders has reinforced an image of Team Sky as stretching the rules in order to achieve their sporting advantage. In his recently published book The Line: Where medicine and sport collide Dr Freeman conceded that, given the opportunity again, he would prefer not to have given the powerful corticosteroid to Bradley Wiggins in 2011.
Dr Freeman also ignored the need to back up his medical records and then lost his laptop holding the sole copy of those records. In all the circumstances, this was most unfortunate. He has admitted his record-keeping “could have done a lot better” and he apologised for having no back up system.
The requirement for proper medical record-keeping was highlighted in the case of footballer Radwan Hamed. On 4 August 2006, he suffered a cardiac arrest when playing for a Tottenham Hotspur youth team against Cercle Brugge in Belgium. He was suffering from hypertrophic cardiomyopathy (HCM), the same condition as Bolton footballer Fabrice Muamba. Although he was rushed to an intensive care unit, his brain was damaged as a result of anoxia (oxygen starvation) and he now requires permanent care.
The risk of genetic heart disease leading to sudden cardiac arrest in young athletes has been recognised for some time. Consequently, the FA protocol at that time(Football Academies – Medical screening programme – Cardiological screening – Policy on entry April 2000) required all football academy recruits to be referred to a cardiologist to help identify anyone prone to a potentially fatal heart condition. An ECG scan undertaken a year prior to Hamed’s collapse had, according to the evidence of the expert cardiologists, shown his heart to be “unequivocally abnormal” and “indicative of Hamed suffering from an underlying heart muscle disease”. Dr Peter Mills, the FA’s regional cardiologist for the South East, noted the abnormality in his report to the FA which was copied to the club medical team, with whom Dr Mills later corresponded.
However, although there was a follow up MRI scan, no adequate further checks were carried out. Dr Mills concluded that Hamed did not have HCM. Although he was worried about the ECG result, which indicated a very small risk of an adverse event, he considered it reasonable for Hamed to continue training and playing. In September 2005 he confirmed this in writing to the club. The club’s medical team reached the same conclusion. There was no clinical review involving Dr Mills and neither the player nor his parents were made aware of the extent of the problem by the club. Hamed was not advised to stop playing and signed a professional contract less than a year later. In the judge’s words, the medical records maintained by the club were “quite evidently not adequate for their purpose”.
In February 2015, following a contested trial of the issues of causation and liability, the court apportioned liability between the club (70%) and Dr Mills (30%). Although the club would ordinarily be vicariously liable for the actions of their medical staff, in this case the two specialist sports physicians then employed by the club (Dr Cowie and Dr Curtin) and their insurers had previously accepted that they had been “remiss” and had agreed to indemnify the club for what proved to be its 70% contribution. Payment of damages in the region £5/7m was later settled out of court.
The unfortunate Hamed case is a perfect illustration of the need for any sports organisation employing a medical or clinical team to have in place policies which clearly allocate responsibilities. These must be robust and address all risks. They should be audited regularly in order to ensure that they remain fit for purpose and operate effectively. The requirement to maintain adequate medical records should be even more clear cut.
Adrian Barr-Smith
Dentons UK & Middle East LLP