A Legal Duty of Candour and how it has been resisted for almost two decades

15 January 2015

A Legal Duty of Candour and how it has been resisted for almost two decades

Responding to critics of the Duty of Candour and alleged detriment to the NHS

by Will Powell

NB: This is Part I of a two part opinion piece

It is interesting to look back at a Guardian article published on the 8th April 2014 with the headline “Why the new duty of candour could be detrimental to the NHS”.

http://www.theguardian.com/healthcare-network/2014/apr/08/duty-of-candour-nhs

The article was written by Dr Michael Devlin who is head of professional standards and liaison at the Medical Defence Union [“MDU”]. Dr Devlin States, inter alia:

“Since 1955 the MDU has advised members that patients should be given an explanation if something goes wrong. In 1986 we advised doctors that "the patient is entitled to a prompt, sympathetic and above all truthful account of what has occurred ... It is very important that a sincere and honest apology is made." And in 1998, doctors' ethical duty was clarified by the General Medical Council (GMC) when it introduced an obligation to be open and honest when things go wrong.”

Please note that it was the Medical Defence Union and the Medical Protection Society that funded the GPs’ legal costs to have Robbie’s case struck out of the civil courts on the basis that the GPs had no legal obligation to tell us the truth about the negligent circumstances of our child’s death or refrain from falsifying his medical records.  If, as it is being claimed, that a doctor’s professional duty of candour addresses all areas of medical dishonesty, then having a legal duty of candour should make no difference whatsoever.

 One of the GPs who was arrested and interviewed under caution in 2001 claimed that their legal costs, at that stage, were £600,000. I have no idea how much their total legal costs were after the subsequent 20-day inquest and my successful libel action but they must have been substantial.  If an admission of liability had been made, at the outset, the statutory payment for Robbie’s negligent death was £3,500 and £1,500 for funeral costs.

Only a doctor could take the view that causing the death of another human should give them the right to lie. There is also a clear distinction between accepting responsibility for your actions and/or inactions and the ‘blame culture’ regularly used in a negligent doctor’s defence.

NB: No one has the right to compromise honesty after an unavoidable medical death or harm - you are either honest or you are not!

Will Powell

NHS Adviser for Mistreatment.com

January 2015