A Duty of Candour for Healthcare Professionals: By Will Powell

1 December 2014

A Duty of Candour for Healthcare Professionals: By Will PowellA Duty of Candour for Healthcare Professionals: By Will Powell

By Will Powell

Until the case of Robbie Powell the existence, or otherwise, of a Duty of Candour for doctors had not been tested in the UK civil courts.

Brief summary of Robbie’s case

Robbie was the son of William and Diane Powell and the brother of Justin and Ian. He was born on the 29th December 1979 and tragically died on the 17th April 1990, aged ten. Robbie was a well child who had suffered only minor ailments in his short life. That was until December 1989 when he was admitted to Morriston Hospital critically dehydrated and on the edge of death. Robbie had been vomiting and had abdominal pain for only a couple days. He had lost approximately 25% of his body weight.

Hospital tests confirmed, amongst other things, low blood sugar, high potassium and low sodium. The Consultant Paediatrician in charge of Robbie’s care suspected Addison’s disease. Please note that the above test results are “absolutely characteristic” of Addison’s disease as confirmed by subsequent medical experts. According to the medical records, as they exist today, Robbie was not given hydrocortisone to replace the deficiency of cortisol, which is the normal treatment when this potentially fatal condition is suspected. The child was hydrated with intravenous saline and dextrose and given a suppository to stop the persistent vomiting. The ACTH test to confirm the diagnosis was ordered by the consultant. However, when Robbie was discharged, after four days, the parents were not told of the suspicion or the need for the test notwithstanding Addison’s disease invariably results in death without treatment but is treatable with a daily intake of tablets. The parents were informed that Robbie had gastroenteritis when such a diagnosis was untenable in the absence of diarrhoea and did not explain Robbie’s hormonal imbalance and other symptoms.

The hospital communicated to Robbie’s GPs the suspicion of Addison’s and the need for the ACTH test and put them on notice of the seriousness of the condition. The GPs did not contact the parents to discuss this crucial information with them.

Five weeks after discharge Robbie had an outpatient appointment with the consultant who had suspected Addison’s disease.  A conscious decision was made by him not to perform the ACTH test and again it was erroneously reiterated that Robbie’s illness had been gastroenteritis. The consultant communicated with the GPs reminding them of the suspicion of Addison’s disease and requesting immediate re-referral back to hospital if Robbie’s symptoms returned.

Between the 2nd and 17th April 1990 Robbie was seen by five GPs on seven separate occasions with classical symptoms of Addison’s disease i.e. weakness, weight loss, vomiting, unable to stand up unaided, critical dehydration, unconsciousness, dilated pupils and central cyanosis. However, the child was not readmitted back to hospital, as requested by the consultant, until it was too late to save his life. On the day of death Robbie was examined twice by a GP at the request of the parents. The GP refused hospital admission on both her visits but relented after a heated argument with Robbie’s father on the second visit. However, she then refused the parents’ request for an ambulance. Robbie’s father drove the child to hospital in his car. On arrival Robbie took his last conscious breath, in the presence of his father, and was declared dead shortly afterwards.

The parents were devastated to learn after death that Addison’s disease had been suspected and the test ordered. As well as alleging that Robbie died as a consequence of a catalogue of medical errors the Parents alleged the post-death falsifying of Robbie’s medical records and an NHS conspiracy to cover up. The Powells exhausted the NHS complaint procedures for the next three years and paid £34,000 in legal fees being represented at a Welsh Office appeal. The parents remortgaged their home and endowment policy to pay the costs. The 1992 appeal collapsed as a consequence of an alleged conspiracy between the respondent GPs, Welsh Office officials and the appointed so called independent panel members. To date, November 2014, these serious allegations have not been investigated.

Robbie’s Civil Proceedings and the identification of the absence of a Duty of Candour

Powell v Boladz & others

With the support of public funding writs for negligence were served in April 1993 against West Glamorgan Health Authority, with regards to Morriston Hospital’s alleged negligence and personally against the five GPs. Allegations of post-death dishonesty, conspiracy and the falsification of medical records against all parties were set out in the particulars of claim.

The statutory payment for Robbie’s death was £3,500 if the parents could establish negligence and causation and approximately £1,500 for funeral costs. However, the claim was estimated in excess of £300,000 because of the alleged psychiatric damage caused to the parents by the events leading to Robbie’s negligent death, witnessing the death and the post-death cover up. This included current and future loss of earnings with regards to Robbie’s father who hadn’t worked since the child died which, at the time, was six years.

The civil trial was listed for six weeks in June 1996. In May 1996 West Glamorgan Health Authority admitted negligence and causation for Robbie’s death and paid £80,000 into court. It was claimed in the admission letter that no individual doctor was to blame, which added insult to injury. The GPs also approached the parents’ solicitor offering to settle the case out of court with a gagging order. The parents refused to settle as they wanted the events of Robbie’s negligent death and the alleged post death cover up exposed in open court to prevent any other family having to suffer, as they had, as a consequence of medical dishonesty.

The defendants made an unsuccessful application to the Legal Aid Board in an attempt to have the Powells’ public funding withdrawn because of the admission of liability.

In desperation to suppress the alleged magnitude of the NHS cover up the GPs then made an application to the court to have the case against them struck-out claiming they had no post death duty of care to tell the Powells the truth about the negligent circumstances of Robbie’s death and even if they had caused psychological damage because of alleged post death dishonesty it wasn’t actionable in civil law.

When the civil trial commenced in June 1996 the judge had discretion as to whether he should hear the GPs late application to strike-out the claim. In his wisdom he decided to do so in private for four days. The judge agreed with the GPs and case was struck-out against them but gave the Powells leave to appeal to the Court of Appeal. What has always concerned me about this ruling is that the court appears to accept, contrary to above Duty of Candour, that doctors can provide false statements and documents, in civil proceedings, to defeat a claim for negligence and do so with immunity. In my view, the court should have, at the very least, determined whether the GPs had in fact been dishonest irrespective of any post death duty of candour owed to bereaved parents.

As a consequence of the case being struck-out and the conditions of public funding the Powells were forced to accept the admission of liability by West Glamorgan Health Authority and Mrs Powell was forced to accept the £80,000 compensation. However, if the Powells persisted that the case should be considered by the Court of Appeal the £80,000 compensation would be secured by the court pending the outcome of the appeal. The Powells agreed to this even though they were barely coping financially on benefits and may lose their home as it had already been remortgaged to pay legal costs at the 1992 Welsh Office appeal.

In July 1997, with public funding, the case was heard by the Court of Appeal. However, the 1996 High Court ruling was upheld. The three judges ruled that doctors do not owe bereaved parents a free standing Duty of Candour regarding the negligent circumstances of a child’s death even if the parents are also the patients of the doctor. Mrs Powell’s £80,000 compensation was completely absorbed in legal costs and there was an order for costs against Mr Powell for the deficit. The Court of Appeal refused the Powells’ request for permission to appeal to the House of Lords.  Lords Justice-Stuart Smith stated with the knowledge that the compensation would be completely absorbed in legal costs:

“I readily understand that the knowledge that the death would have been avoidable if proper care had been taken by the Health Authority and those from whom they are vicariously liable is likely to add keenly to their grief. But this fault has been acknowledged and not ungenerous compensation paid, although no amount of compensation can ever seem adequate for so great a loss. Dr. Flower has also been criticised by the M.S.C., albeit Mr. Powell does not consider the penalty adequate. I can only express the hope that Mr. and Mrs. Powell will now take the view that there is little to be gained in seeking to take the matter further and that with appropriate help and advice they may be able to come to terms with their loss and grief.”

In response to this astonishing judgment Dr Brian Goss of the BMA’s General Medical Services Committee stated the following in GP Magazine on 11th July 1997:

"GPs could now put a gloss on the cause of death without fear of litigation."

Ignoring the comments and advice of Lord Justice Stuart-Smith who, also in 1997, condoned the falsifying of police statements in the Hillsborough cover up, the Powells made an application to the House of Lords requesting permission to appeal the Court of Appeal ruling.

In 1998 the House of Lords refused the Powell’s request to appeal.

It should be noted that, eleven years later, in 2008, the House of Lords overruled significant parts of the Court of Appeal ruling in Robbie’s case [please see below].

So in effect, as Mr Powell sees it, the High Court, Court of Appeal and the House of Lords condoned the fact, without challenge, that doctors responsible for a child’s negligent death had allegedly provided false statements and falsified medical records, to the court, in order to provide a defence they wouldn’t otherwise have had.

Also in 1998, as a consequence of Robbie’s earlier Court of Appeal ruling, the General Council changed its guidelines to make it clear to all doctors that they had a professional and ethical duty to tell bereaved parents the truth if not a legal one.

Following the 1998 refusal by House of Lords to consider the important and high profile public interest concerns that doctors can, in effect, be dishonest following the negligent death of a patient, we took Robbie’s case to the European Court of Human Rights [“ECtHR”]. However, in May 2000 the case was found inadmissible. Although the inadmissibility ruling in itself was very disappointing, the positive side of going to the ECtHR was that it clearly and unambiguously set out the law with regards to UK doctors’ obligations regarding candour with their patients and bereaved relatives. The ECtHR 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.”

Will Powell is of the view that the ECtHR’s inadmissible ruling in Robbie’s case was erroneous and in particular the court’s decision regarding Robbie’s right, under Article 2 [The Right to Life], to an effective, independent and official inquiry by the State. I believe that the ECtHR not only got the facts of, inter alia, the civil proceedings wrong it also failed to comply with its own case law. Unfortunately, I have no right to appeal the ECtHR’s ruling under current law.

As mentioned above, in 2008, the House of Lords overruled a significant part of the judgment in Powel v Boladz. However, as I understand it, such a ruling is not retrospective notwithstanding the erroneous ruling of the Court of Appeal denied Robbie justice and also cost the Powells £80,000 in legal costs. The House of Lords stated the following in Total Network SL v Her Majesty's Customs:

 “45. I would hold that the decision of the Court of Appeal in Powell v Boladz [1998] Lloyd’s Rep Med 116 was erroneous and that it should be overruled. I would also hold, in agreement with all your Lordships’ that criminal conduct at common law or by statute can constitute unlawful means in unlawful means conspiracy. Had it been open to the Commissioners to maintain a civil claim of damages the tort of unlawful means would have been available to them, even though the unlawful means relied upon were not in themselves actionable.”

The above section in red of the ECtHR’s ruling clearly highlights that it was specifically Robbie’s case that first exposed the absence of a Duty of Candour in UK healthcare. However, had my wife and I not refused the offer of compensation, in excess of £300,000, in 1996, when we were almost financially ruined, and persistently challenged this perverse situation in law, through every court in the UK and the ECtHR, it is highly unlikely, in my view, that any other case would have been capable, for a variety of reasons, to have achieved this and expose what is now seen by some as the medical professions’ dirty little secret.

RIP Robbie x

Will Powell – NHS adviser for Mistreatment.com. November 2014