New duty of candour rules instruct medics to admit mistakes: Opinion

21 July 2015

New duty of candour rules instruct medics to admit mistakes: Opinion

New duty of candour rules instruct medics to admit mistakes: Opinion

In response to the BBC article of yesterday’s date, which headed, “New 'duty of candour' rules instruct medics to admit mistakes”, I would like to make the following comments. You can access the full article at:

http://www.bbc.co.uk/news/health-33286601

Following the 1997 Court of Appeal ruling in Robbie's case there were newspaper headlines such as "A Doctor's Right to Lie" [Sunday Telegraph - 7 July 1997] and "Historic ruling on GPs' legal duties after death" [GP Magazine - 11 July 1997]. Dr Brian Goss of the British Medical Association [BMA] stated in GP Magazine that: "GPs could now put a gloss on the cause of death without fear of litigation".


The Medical Defence Union [MDU] and the Medical Protection Society [MPS] funded the GPs' legal costs to argue in the civil courts that doctors did not have a post death duty of care to tell my wife and I the truth about the negligent circumstances of Robbie's death i.e. there was no legal Duty of Candour. However, at the same time the MDU and MPS were purporting publicly that they advised doctors to be open and honest after mistakes.


As a consequence of Robbie's Court ruling the GMC changed its guidelines in 1998 making it clear to doctors that they had a professional duty, if not a legal one, to tell bereaved parents and relatives the truth about the negligent deaths of their loved ones. Although the GMC was fully aware of the allegations of negligence/gross negligence, falsified medical records and dishonesty, from at least 1994 onwards, they did not initiate an investigation into the GPs. Instead, the GMC later secretly introduced a 5 year time limit which would result in the GMC subsequently refusing to investigate the GPs following my formal complaint. You can access the GMC’s 1998 press statement at:

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxyb2JiaWVzbGF3dHJ1c3QwMHxneDpiMzIwYzkxYTgxYzhlMTA

During the judicial review challenging the GMC's decision not to investigate the GPs, the GMC falsely claimed to the Court that they could not investigate a doctor without first receiving a complaint when they had already investigated 593 doctors on newspaper articles alone. This dishonesty was then condoned by the CEO of the GMC's regulatory body, which was then called the Council for Healthcare Regulatory Excellence [CHRE] but now named the Professional Standards Authority.

You can access my email of the 16th August 2012 to Mr Harry Cayton at:

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxyb2JiaWVzbGF3dHJ1c3QwMHxneDo1YjVkYTU2YzgzMmYwZTc0

Please note that Mr Cayton, three years on, is yet to answer my thirteen questions.

It should also be noted that the MDU, MPS, GMC, BMA, NMC and others initially resisted the introduction of a legal Duty of Candour for years claiming the professional duty effectively addressed medical dishonesty. However, what the above BBC article establishes is that the previous professional duty for healthcare professionals was obviously ineffective and flawed and I have no confidence that the new guidelines will be any different. There is clearly a culture of lie and deny within the NHS in particular.

The President of the MPS also attempted to justify the GPs' position during a 1998 Channel 4 News item regarding the absence of a legal Duty of Candour. The President of the MDU claimed during his interview that the GPs were disappointed that they had not had the opportunity to clear their good names when they have refused to participate in every inquiry offered since the aborted 1992 Welsh Office appeal. I withdrew from this appeal because there was alleged collusion between the GPs, Welsh Office Officials and the so called independent tribunal members to alter Robbie’s medical records. Although this was denied by all, at the time, it has since been proven in my favour, during the course of Operation Radiance, which also suggested 35 criminal charges against the GPs and their secretary.

The charges set out were, gross negligence manslaughter, forgery, attempting to pervert justice and conspiracy to pervert justice. The CPS accepted in March 2003 that there was sufficient evidence to prosecute some charges but refused to do so because of the passage of time, which had been caused by the GPs’ dishonesty and the gross failures of, amongst others, Dyfed Powys Police and the CPS. The decisions made by the CPS in 2003 are currently under review by the director of Public Prosecutions who has appointed a Leading Criminal QC to conduct a legal review.

You can access the April 1998 Channel 4 News Item at:

https://www.youtube.com/watch?v=gVISXMJUocA

In the light of the above how can anyone fail to recognise that it was Robbie’s case that first exposed the absence of a legal Duty of Candour? Furthermore, my wife and I also sacrificed in excess of £300,000 compensation and I lost 24 years of earnings to have this important issue challenged through the UK Courts and the European Court of Human Rights, which ruled:

"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."

I strongly believe that honesty within the healthcare profession will be critically compromised until such time that we have a free standing legal Duty of Candour for all healthcare professionals and serious consequences for anyone who covers up a medical error.

As is normal practise I was not invited the joint GMC’s and NMC’s launch of their so called “New Duty of Candour”. To give me any credit for exposing the absence of a legal Duty of Candour would be highlighting the establishment cover up, which is still ongoing 25 years after Robbie’s needless death.

RIP Robbie xx

Will Powell

NHS Adviser for Mistreatment.com