Robbie’s Law: Lack of candour – The impact on patients and their families

The start of Robbie’s Law

It was Robbie’s case that highlighted the absence of a Duty of Candour back in 1996 at the High Court in Cardiff. The case then unsuccessfully went to the Court of Appeal, House of Lords and finally the European Court of Human Rights.

In May 2000, the European Court of Human Rights set out the current position about a doctor’s legal obligation regarding honesty following a medical error. It stated:

Whilst it is arguable that doctors had a duty not to falsify medical records under the common law (Sir Donaldson MR's “duty of candour”), before Powell v Boladz there was no binding decision of the courts as to the existence of such a duty. As the law stands now, however, doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records. ¹

It is perverse and contrary to natural justice that the medical profession, for their own purposes, can actually be dishonest about the negligent circumstances of a patient’s death and legally put a gloss on the cause of death to avoid accountability.

In my view, this demonstrates a staggering disregard for the value of human life and legally permits doctors to bury their mistakes.

Some people may argue that Robbie’s Law would not make a significant difference, but many others and I would disagree.

Robbie’s Law would substantially reduce the ever-increasing cost to the public fund regarding the current self-serving NHS complaint procedures and also the massive legal costs incurred in medical negligence litigation. Especially, when cases are protracted because of the lack of candour – i.e. dishonesty – these costs are currently escalating out of control and have been for many years.

I personally raised this issue back in 1996 with Parliament and various authorities but to no avail.

Pursuing the truth in Robbie’s case has probably cost the State, the Medical Defence Union and the Medical Protection Society, well in excess of a million pounds and I believe that I am no closer to the full truth today than I was on the night Robbie tragically and unnecessarily died.

Furthermore, lack of candour following an adverse clinical incident exacerbates the already overwhelming grief of the bereaved parents or the next of kin and causes additional psychological harm to the patient and the relatives.

Public exposure of lack of openness or dishonesty may also damage the health of the healthcare providers, becoming a major distraction and adversely affecting their ability to continue to provide appropriate medical care for their patients. This cannot assist the healthcare provider, the damaged patient or the bereaved relatives.

If the government is not going to immediately draft and introduce workable legislation to make it a legal obligation for all healthcare providers to be truthful after a medical error, then we have a duty to our loved ones to do it for them. I am currently working on this with Dr Michael Powers QC, Andrew Lindsay and others at Robbie’s Law Trust.

Robbie’s case has been hanging over my family and the doctors involved for more than 23 years – I believe that the mistakes that led to Robbie’s death could have been honestly and openly investigated and addressed in 1990 and, if that had happened, we would have all got on with our lives as best we could. I could have found it in my heart to have empathy for the doctors involved in Robbie’s death if they had been open and shown remorse.

Brief summary of Robbie’s case

Our personal nightmare began four months before Robbie’s death, in December 1989, when the child was admitted to Morriston Hospital, by ambulance, as an emergency.

Robbie was vomiting and had become critically dehydrated – he had lost approximately a third of his body weight within a few days. The abnormal electrolytes in conjunction with Robbie’s other symptoms were absolutely characteristic of Addison’s disease. The child immediately received intravenous fluids, which saved his life. A test to confirm the diagnosis of Addison’s disease was ordered by the consultant paediatrician but not performed and Robbie was discharged back to the care of the GPs.

Addison’s disease invariably results in death without treatment but is treatable with a daily intake of a couple of tablets. An untreated sufferer of this potentially fatal condition can look well one day but become critically ill the next, thus highlighting the urgency of receiving medical treatment when becoming unwell.

The paediatrician did not inform my wife or me of the suspicion of Addison’s disease or the need for the ACTH (adrenocorticotropic hormone) test, but did communicate this crucial information to the GPs with clear instructions to re-refer Robbie immediately back to the hospital if he developed further symptoms and a recurrence of vomiting and/or abdominal pain.

Between 2 and 17 April 1990, Robbie was seen by several different GPs on many separate occasions and was not re-admitted to hospital until it was too late to save his life. Robbie had developed vomiting a week before his death and again became critically dehydrated. In the days preceding death the child was too weak to even walk. This time, in the absence of timely intravenous fluids, the child had two heart attacks, as a consequence of dangerously low blood pressure, the second being fatal.

It came to light that only one GP had actually read the medical records, six days before Robbie died – this GP informed my wife and I that he would immediately re-refer the child to hospital but then failed to do so. He gave no details whatsoever of the paediatrician’s earlier concerns or the potential risk of death.

At this consultation the GP was made aware that Robbie was vomiting, had been ill for 11 days, was weak, was losing weight and had already been examined in the preceding days by two of his partners: all these symptoms were absolutely characteristic of Addison’s disease and the child should have been admitted to hospital immediately – had he been his life would have been saved.

Post death developments

For me, lack of candour and effective investigation characterised the events following Robbie’s death. The coroner refused an inquest on the grounds that the pathologist reported Addison’s disease (as shown on the pathologist’s post mortem report) as the cause of death and this is a natural cause of death. Despite my requests, this reason was given for refusing an inquest for 10 years. The 20-day inquest eventually took place, 14 years after Robbie’s death, with a jury verdict of natural causes aggravated by neglect. In my view the verdict should have been unlawful killing.

After Robbie’s death I read the correspondence in the child’s thin GP medical records that had been received by the practice following Robbie’s hospital discharge in December 1989. It clearly informed the GPs of the suspicion of Addison’s disease, the need for the ACTH test and that the child should be re-admitted immediately if he had a repeat of his symptoms. It also erroneously stated that the parents had been informed of the need for the ACTH test.

The letter was subsequently witnessed and noted by a reverend. However, this incriminating document subsequently disappeared from both the GP and hospital medical records, before both sets of records were disclosed to me some six months after Robbie’s death.

Although it is not denied that Addison’s disease was suspected and that an ACTH test was requested – there is no mention whatsoever of Addison’s disease in Robbie’s current medical records.

I complained about Robbie’s death to the local health board within two weeks of his passing and my complaints are actually still ongoing 23 years on. I have had three fairly recent investigations by Ombudsman^3–5 all of which were upheld, the most recent being in October 2009.

Over the years I have been let down by, amongst others:

The medical profession.

However, an independent police investigation by an English police force between 2000 and 2002 (10 years after Robbie’s death) identified 35 suggested criminal charges against the GPs and their medical secretary. These included charges of manslaughter, forgery, perverting the course of justice and conspiracy to pervert the course of justice. ⁸

The Crown Prosecution Service accepted that there was sufficient evidence to bring charges but decided not to prosecute because of the earlier investigative failures of the local police and the passage of time. ⁹

After waiting more than a decade for a promised public inquiry, the First Minister of the National Assembly for Wales set up a non-statutory inquiry. Although I was interviewed and interrogated on five occasions, the person appointed did not interview any of the GPs or any official/person involved in the post death chain of events. Following the publication of the report in July 2012, ¹⁰ the General Medical Council confirmed that there was nothing in the report that was not known a decade earlier as a consequence of the independent police investigation.

It was revealed in the Wales This Week documentary, shown on ITV on 14 January 2013 that the First Minister had made 18 redactions to the report. These included the Coroner’s Jury verdict that Robbie’s death was due to ‘natural causes and neglect contributed to the cause of death’. ¹¹

Dr Michael Powers QC commented in the programme that the fact that these redactions were made was ‘absolutely astonishing’. ¹¹

Closing comment

I hope that I have been able to demonstrate that, from the outset, it was obvious that a catalogue of errors had caused Robbie’s death and that events in the past 23 years have been characterised by a systemic lack of candour.

Rather than identify these mistakes – and learn from them – the medical profession, supported by others, appeared to attempt to suppress and cover up these failures. I do not believe that Robbie’s case is an isolated one from the evidence of so much correspondence I have received in the years since his death.

I am sure everyone would agree that this type of response to error and mishap is unacceptable in a purported democratic country and should be challengeable in law. At present, there is no effective deterrent to ensure that this type of behaviour does not continue and that this is exactly why it is paramount that we introduce Robbie’s Law – a legal requirement for honesty – without further delay.