Could the statutory duty of candour backfire?

24 March 2015

Could the statutory duty of candour backfire?

Could the statutory duty of candour backfire?

By Will Powell

I was very interested to read an article recently published by the British Medical Association [“BMA”] with the heading: “Statutory duty of candour could backfire”.

You can access the full article at:

http://bma.org.uk/news-views-analysis/news/2013/march/statutory-duty-of-candour-could-backfire

It never ceases to amaze me that any individual doctor let alone an organisation associated with the medical profession could claim publicly that being open and honest about medical mistakes could in any way be detrimental to patient safety. This is the very culture, in my view, that made the need for the introduction of a ‘legal’ duty of candour absolutely necessary - honesty should be the foundation for all doctor patient relationships!

Although rarely accepted and denied by the government the absence of a duty of candour was first exposed in the High Court in Cardiff in 1996. It was highlighted by the case of our son Robbie Powell who died in April 1990. Doctors responsible for Robbie’s death had been untruthful about the circumstances of Robbie’s negligent death, falsified the child’s medical records and post death caused psychological damage to my wife and me by exacerbating our grief as a consequence of their dishonesty. The UK Courts ruled that because doctors had no post death ‘legal’ duty to be honest to parents, in such circumstances, the case was struck-out.

In response to the Court of Appeal upholding the perverse 1996 High Court ruling in Powell v Boladz the following comments were made by the BMA in GP Magazine in July 1997:

“BMA ethics adviser Dr Bill O’Neill told GP: “This ruling clarifies a doctors’ legal responsibility. We accept patient confidentiality extends beyond the grave and this ruling is in line with that.”

“GMSC negotiator Dr Brian Goss said GPs could now ‘put a gloss’ on the cause of death without fear of litigation. He said: ‘In some cases, honesty can be rather hurtful – you don’t necessarily want to point out to a relative that the patient would be alive if they hadn’t smoked so much.”

You can access the full article at:

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxyb2JiaWVzbGF3dHJ1c3QwMHxneDo3Yjc5ODRiMjE2YWU3ZmFm

As a member of the public and secondary victim of medical error, following Robbie’s negligent death, the BMA’s views appear to be supporting the fact that doctors should retain their outdated and perceived legal right to bury their fatal mistakes. If doctors only accepted responsibility for their mistakes the purported ‘culture of blame’ within the NHS would be redundant. To err is human but to cover up is inexcusable. The sooner this is adopted by the medical profession the sooner the NHS will prevent repetition of fatal mistakes and return to its former glory.

The BMA also relies on doctors’ professional duty to be open and honest notwithstanding it has been demonstrated time and time again that the GMC is not fit for purpose and has failed patients and some doctors since its inception.  Take Robbie’s case!  The GMC had overwhelming evidence regarding the dishonesty of the doctors since 1995. An investigation was covertly opened in April 1996 and then closed in May 1996 with no further action – I found out about this in 2009. I was told in writing in early 2000 that the GMC would await for the conclusion of the Operation Radiance criminal investigation before considering what action it would take against the doctors.

This criminal investigation took place between 2000 and 2002 suggested 35 criminal charges some of which the CPS accepted could be prosecuted. However, no prosecutions took place. I was advised by the police and the CPS to complain to the GMC, which I did in July 2003 not knowing the GMC had covertly introduced a 5 year time limit in November 2002.  5 years after I complained the GMC rejected my complaint by introducing the 5 year time limit.

At a subsequent judicial review the GMC misled the court claiming they could not investigate a doctor without first receiving a complaint – no mention was made that the GMC had previously and covertly opened an investigation into Robbie’s case without a complaint in 1996. Following a subsequent FOI request the GMC accepted that it had in fact investigated 575 doctors between 1993 and 2009 based solely on newspaper articles alone. The obvious dishonesty of the GMC was then condoned by its regulatory body.

The BMA first became involved in Robbie’s case in 1992 when its Welsh Secretary formed part of a three man Welsh Office tribunal, which collapsed as a consequence of maladministration. The integrity of the tribunal came into question when:

1.  It was established that Robbie’s GP medical records and gone missing and had been altered; and

2.   There had been inappropriate private meeting(s)/discussions between the respondent GPs, Welsh Office Officials and some of the three tribunal members.

The BMA also unlawfully kept and shared files regarding Robbie’s case but denied this when I contacted them notwithstanding I had a letter proving that this was the case.  You can access the full content of the BMA’s letter at:

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxyb2JiaWVzbGF3dHJ1c3QwMHxneDoyZmJiM2M3OWI3ZmU0Y2Zm

The letter states:

“YSTRADYGYNLAIS PRACTICE

Thank you for your recent telephone call and subsequent notes.

As I confirmed we already have a number of thick files on this tragic case as the previous Welsh Secretary Dr W B Davies was heavily involved with it.

We have not received any contact from the practice as of yet but we will provide whatever assistance we can if requested.”

In the light of the letter the BMA had to accept that they did in fact have files relating to Robbie’s case but then claimed that they no longer existed. However, the BMA has not confirmed who gave permission for the files to be destroyed or provided proof that they have been. You will also note from the letter that the BMA was prepared to assist the dishonest doctors responsible for Robbie’s death and the post death falsifying of the medical records if they were to contact them.

The BMA appears to take the view that doctors being ‘legally’ obliged to be open and honest could backfire and could be detrimental to patient safety. However, if, as it is being claimed by the BMA and others, that doctors are already being open and honest about all medical errors and learning from them, the ‘legal’ duty of candour [Robbie’s Law] should not affect their current position.

In my view, the sooner the medical profession and the BMA recognises and accepts that there is a clear distinction between withholding information, in a patient’s best interest, and being dishonest about medical mistakes that have led to damage or death, the sooner true lessons will be learned to prevent repetition of the same mistakes.

Will Powell

NHS Adviser for Mistreatment.com