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

19 January 2015

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

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

The absence of a legal Duty of Candour was first exposed in the civil case of Robbie Powell in June 1996. A High Court judge, behind closed doors, ruled that doctors had no post death duty of care to tell bereaved parents the truth about the negligent circumstances of a child’s death. Although untruthful statements and falsified medical records had allegedly been submitted to the court, by the GPs, to create a defence and defeat the Powells’ claim of negligence, the court refused to hear the facts and the case was struck out with no course of action. The Powells were given leave to appeal to the Court of Appeal but then forced, under the restrictions of public funding, to accept £80,000 compensation and an admission of liability by the former West Glamorgan Health Authority on behalf of Morriston Hospital. This settlement had nothing whatsoever to do with the GPs’ negligence. The full £80,000 was held by the court pending the outcome of the appeal.

Please note that prior to the admission of liability the Morriston Hospital consultant was found to be medically grossly negligent in a medical expert report commissioned by Dyfed Powys Police in April 1996. This is the criteria for a criminal charge of gross negligence manslaughter. However, the Director of Public Prosecutions [“DPP”] ruled that the consultant’s gross negligence had not caused Robbie’s death as a consequence of the 5 GPs’ intervention in the 15 days leading to the child’s death. The question therefore is why did West Glamorgan Health Authority use public money to admit liability when, according to the DPP, their consultant had not caused the death?

In July 1997 three judges at the Court of Appeal upheld the High Court ruling and again struck the case out against the GPs’ dishonesty. It was ruled that doctors did not have a free standing duty of candour to tell the truth following the negligent death of a patient. The Powells’ £80,000 compensation was totally absorbed in legal costs and there was an Order for costs against them for the deficit. However, contrary to the High Court ruling, the Court of Appeal was in public. Thankfully, this sparked an outbreak of adverse publicity for the medical profession. The heading in the Sunday Telegraph was “A Doctor’s Right to Lie”.  The ruling was also highlighted in GP Magazine on the 11th July 1997 in which a BMA official made this outrages comment:

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

Because of the adverse publicity the General Medical Council [“GMC”] was forced to publicly announce that doctors had a professional and ethical duty to tell the truth if not a legal duty, which resulted in a change in the GMC’s guidelines in 1998. Please note that the GMC refused subsequently to even investigate the GPs’ dishonesty and the falsifying of Robbie’s medical records.

As a direct consequence of the Powells’ Bereaved Parents Action Group writing to every MP [approximately 650 letters] regarding the perverse Court of Appeal ruling the Health Select Committee [“HSC”] set up an inquiry in 1998-99 into “Procedures Related to Adverse Clinical Incidents and Outcomes in Medical Care”. Will Powell submitted written evidence and gave oral evidence. Robbie’s Court of Appeal ruling was given as the reason for setting up of the inquiry by the HSC’s then Chairman, David Hinchcliffe MP.

Below is the final paragraph of Will Powell’s submissions to the HSC:

“The NHS Authorities, the Welsh Office and the Government have refused to fully address the above complaints, in the light of irrefutable evidence of dishonesty, abuse of power and cover-ups. I sincerely hope that the Health Committee will address these serious issues and make recommendations for legislation, which would prevent repetition of the blatant miscarriages of justice within the NHS, which are regularly taking place throughout Britain, without any mechanism for redress.”

The HSC recommended, amongst other recommendations, the following:

“We expect that a professional duty to provide information to relatives of the circumstances surrounding a patient’s death should [suffice], but in case it does not we consider that there should be a statutory duty to provide information (paragraph 28).”

The Government in its wisdom rejected the HSC’s 1999 recommendation and chose to ignore the copious and cogent evidence that exposed the cover up culture within the NHS, which continues currently [December 2014] and, still to this day, there is no mechanism to address historic NHS cover ups.

The Health Select Committee also recommended in its report on Patient Safety (July 2009) that the introduction of a statutory Duty of Candour be reconsidered and did so again following its 2011 inquiry into NHS Complaints and Litigation. Although I made written submissions to the 2011 inquiry my formal request to give oral evidence was refused.

The former Chief Medical Officer for England, Sir Liam Donaldson, formally recommended the introduction of a statutory duty of candour in 2003 in his report Making Amends.

At the 1997 Court of Appeal ruling we were refused leave to appeal to the House of Lords. Our application for leave to appeal was subsequently refused by the House of Lords in 1998 notwithstanding a decade later the Court of appeal ruling, in Robbie’s case was, in part, overruled by the House of Lords, as would have been the case, in my view, had we been permitted to appeal at the time. Below is the relevant paragraph from that judgement:

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.”

Robbie’s case was then submitted to the European Court of Human Rights.

William and Anita POWELL v. the United Kingdom - Application no. 45305/99 - 4th May 2000

The following paragraph has been taken from page 15 of the ECtHR’s inadmissible judgement and sets out the perverse position in law:

"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."

In the light of the above ruling the Powells’ Bereaved Parents Action  Group wrote again to every MP in June 2000 [approximately 650 letters] bringing this perverse ruling to the attention of Parliament and quoting the above. However Gisela Stuart MP of the Department of Health responded by claiming that the ruling did not mean that doctors didn’t have a legal duty to tell the truth. The Department of Health’s letter stated, inter alia,

“The letter refers to a judgement made in the case of Robbie Powell and claims that the judgement meant that doctors did not have a legal duty to tell the truth. This is, in fact, not what the judgement said. Rather, it dealt solely with the question of whether or not doctors owe a legal duty of care, compensatable in damages, to the relatives of patients, and found that there was no such duty.”

As the NHS in Wales is devolved to the National Assembly for Wales, Will Powell sent a similar letter to every Assembly Member, sixty in total. To our astonishment the Health Minister in Wales, Jane Hutt, responded in letters with the very same misleading and untruthful wording as had the Department of Health.  

In a letter dated 11th August 2011 to Mr John Woodock MP the following was stated by the Minister for Health, Simon Burns, in response to an enquiry regarding a duty of candour in Healthcare:

“A legal duty of Openness already exists in the codes of practice of professionals’ regulatory bodies; members of the medical, nursing and midwifery professions already have such a duty, required by their respective regulatory bodies, the General Medical Council and the Nursing and Midwifery Council.”

When I challenged the significant distinction between a legal and a professional duty of openness/honesty the Department of Health responded with the following misleading comment:

“The professional codes of practice for doctors and nurses are enforceable by the General Medical Council through its powers in the Medical Act 1986, and by the Nursing and Midwifery Council through its powers in the Nursing and Midwifery Order 2001 respectively.”

The following was stated by Lord Harris of Harrington when the vote for a duty of candour was defeated in the Lords on the 13th February 2012. There were 234 Lords against [137 Tories, 61 Lib Democrats & 36 cross-benchers] and 198 Lords in favour of a legal duty - a loss of 36 votes.

“As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour.”

Present situation

Our long fight for Robbie’s Law/duty of candour has been worth the effort and sacrifices, as since April 2013, a contractual duty of candour has been in operation, which requires healthcare providers under the NHS standard contract to disclose cases of harm and to be honest about the events leading to such harm. Sadly, it’s not a free standing duty of candour for individual healthcare providers that would fully satisfy Robbie’s Law but certainly better than the absence of candour as demonstrated by Robbie’s case over the past quarter of a century.

Also, since 27th November 2014 the statutory duty of candour and new ‘fit and proper persons requirement’ for directors has now been introduced. A breach of the duty of candour will now constitute a criminal offence unlike the decisions so far made by the courts, police and CPS in Robbie’s case.  The only reservations I have regarding the identifying of a ‘fit and proper person’ is that so many individuals within the NHS and regulatory bodies lack the integrity to judge such a quality.