Can there be confusion about a doctor’s obligation to be honest?

26 January 2015

Can there be confusion about a doctor’s obligation to be honest?

I was very interested in a recent article by Caroline White regarding potential confusion about doctors’ different duty of candour obligations. The article was published by ‘ONMEDICA’. What immediately came to mind was how can there possibly be confusion about a doctor’s obligation to be honest? You can access the full article at:

http://www.onmedica.com/NewsArticle.aspx?id=e08b157c-6205-4732-bdad-4e52bf890e57

Dr Michael Devlin, the Medical Defence Union’s [“MDU”] head of professional standards and liaison stated, inter alia, the following:

“Being open and honest will be second nature to most doctors who are ethically required to apologise and provide an explanation to patients when an incident occurs,”

If Dr Devlin’s comment is genuine then there is no distinction between a professional, ethical or legal duty of candour, unless doctors want in some way to compromise honesty when something goes wrong and/or provide half truths. In 1997 the following comment was made in ‘GP Magazine’ by Dr Brian Goss of the British Medical Association as a consequence of the Court of Appeal’s judgement in Robbie’s case. It was ruled that doctors had no free standing post death duty of candour, in civil law, to tell parents the truth about the negligent circumstances of their child’s death or to refrain from falsifying medical records after the child’s death. Dr Goss stated:

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

For decades the MDU and others have claimed publicly that they advise their members to be open honest and apologise for mistakes. However, that was not the position in the Robbie Powell case. In 1990 Robbie died as a consequence of gross medical negligence. Rather than be truthful and accept responsibility for Robbie’s death, 5 GPs and others conspired to cover up by, inter alia, being untruthful about the circumstances of the death and falsifying the child’s medical records. It was the MDU and Medical Protection Society [“MPS”] that funded the GPs legal costs to have Robbie’s case struck out of the civil courts because of the absence of a duty of candour.

Although there was two local police investigation between 1994 and 2000 it was erroneously claimed that there was no evidence of criminal offences against the GPs who they employed as police surgeons. However, following serious complaints against the local police, the case was eventually investigated by a DCI from West Midlands Police. He suggested 35 criminal charges, which included gross negligence manslaughter, forgery, perverting the course of justice and conspiracy to pervert the course of justice. In 2003 the CPS accepted that there was sufficient evidence to prosecute some of the offences but decided, erroneously in my view, that to do so, would be an abuse of process. This decision is currently under review by the Director of Public Prosecutions.

During the criminal investigation the GPs and some members of their staff were interviewed under caution. The senior partner confirmed that the GPs’ legal cost in 2001 had already reached £600,000. This did not include the 20 days of legal representation at Robbie’s 2004 inquest or the successful libel action that I initiated against the GPs.

As I understand the position neither the MDU nor the MPS have attempted to recover these substantial costs from the GPs, which have been incurred, as a consequence of the GPs’ dishonesty. If I was a member of the MDU or the MPS I would be asking why my funds had been used to cover up the needless death of a child.

I can only hope that one day all doctors will accept that when mistakes, fatal or otherwise, are made, the best policy is to be open and honest from the outset.

Will Powell

NHS Adviser of Mistreatment.com