Abstract
The first half of 2009 has seen some encouraging signs of movement towards an ‘open and fair’ culture in our health service. However, Action against Medical Accidents (AvMA) argues that a legal ‘Duty of Candour’ is needed to help deliver the change in culture. That is why we have launched our campaign for ‘Robbie's Law’.
The NHS Litigation Authority (NHSLA) finally replaced their circular on ‘Apologies and Explanations’ with more enlightened guidance in May. AvMA had objected strongly to the wording of the original guidance to NHS bodies which did quite the opposite of what it was supposed to do, and caused great offence and hurt to patients or their families who were at the receiving end of its implementation. It defined apologies merely as expressions of ‘sympathy’ or ‘regret’ at an outcome. Worse still, it warned NHS bodies to be careful in the provision of explanations ‘so as to avoid future litigation risks’ (sic). In Wales, where the same wording had been in use, there was an immediate and enthusiastic agreement to re-word it in line with AvMA's suggestions. It took longer to get the NHSLA on board, but it is now hoped that the revised guidance can be accompanied with training and the re-launch of the National Patient Safety Agency's ‘Being Open’, to help make the new approach real.
The new NHS Complaints procedure for England came into being on 1 April 2009. AvMA were pleased that the new regulations no longer prohibit a clinical negligence claim being conducted and a complaint being investigated at the same time. AvMA have long argued that it was wrong that someone exercising their legitimate right to seek compensation be denied the right to a response to their complaint enjoyed by any other patient. We are however seeking guidance to make it clear that NHS bodies should not use the excuse that a complaints investigation would ‘prejudice’ the litigation to avoid responding to complaints. It is hard to see how an open and honest response to a complaint could ‘prejudice’ a clinical negligence case other than by bringing to light evidence which a Claimant might find useful!
While these changes are positive, it does not detract from the powerful arguments for introducing a legal ‘Duty of Candour’. Sir Liam Donaldson formally recommended such a legal duty in 2003, and the Government have never explained why they rejected it. Other countries have such a legal duty either through care law or by direct legislation. However in Powell v the UK (the case of Robbie Powell), the European Court of Human Rights confirmed that no such duty exists in the UK. Not only that, but the General Medical Council have cast doubt on the so-called professional duty by refusing even to investigate allegations of ‘cover-up’ including forgery of medical records, by the doctors involved in the care of Robbie Powell before his death, aged 10 years. AvMA are currently challenging this astonishing decision by way of judicial review.
Fitting then, that the Legal Duty of Candour should be known as ‘Robbie's Law’. See AvMA's website