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Clinical Negligence Solicitor James Bell on the Francis Report and criminal sanctions for breaching the duty of candour

By Principal Lawyer, Clinical Negligence

Individual doctors are of course required under the GMC’s Good Medical Practice Guidance to advise that, “If a patient under your care has suffered harm or distress you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and properly to the patient what has happened, and the likely short term and long term effects”.

With regards to nurses, the NMC (Nursing and Midwifery Council) Code of Conduct states that, “You must act immediately to put matters right if someone in your care suffered harm for any reason. You must explain fully and promptly to the person affected what has happened and the likely effects”.  
There is already an obligation to report untoward injuries, abuse or alleged abuse to the National Patient Safety Agency (NPSA), although in my experience I have rarely seen a case in which such a disclosure has been made.

As regards non clinicians, the NHS Code of Conduct for Managers states that, “I will respect and treat with dignity and fairness the public, patients, relatives, carers, NHS staff and partners in other agencies. I will also seek to ensure that… patients are involved and informed about their own care, their experience is valued and they are involved in decisions”.

It should be noted that Code of Conduct does not require an NHS manager to specifically tell a patient that they have been injured by negligent medical treatment.

In my experience, the vast majority of complaint letters are answered by NHS managers and when a complaint is lodged by a patient it is rarely responded to by a doctor and never by a nurse. I have seen one case in the last 15 years where a complaint response has been dealt with by a doctor who made a full admission as to the injury that had been caused to my client.

In all cases where a complaint has been made, the response has been delivered by a letter signed by an NHS manager. Needless to say, the failure of the NHS Code of Conduct to have any sanctions in relation to management or case handlers has led to highly misleading and ambiguous responses being put forward by the NHS.

The imposition of a “statutory duty” upon corporate bodies, private bodies or NHS Trusts to be open and transparent and to abide to a duty of candour appears to take the matter no further forward so far as patients’ rights are concerned.

Breach of the statutory duty has to be backed up with a criminal offence or else it is a meaningless exercise and at page 1492 of the Francis Report he makes it clear that it should be made a criminal offence for any registered medical practitioner, nurse or director of an authorised or registered healthcare organisation to:

1. Knowingly to obstruct another in the performance of these statutory duties.

2. To provide information to a patient or nearest relative intending to mislead them about such an incident.

3. Dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that it is likely to rely on the statement in the performance of its duties.

Without video recording of meetings between patients at the patients’ bedsides, I can see severe difficulties in gathering evidence to pursue these types of criminal cases with regards to unminuted meetings.

However, the imposition of a criminal offence for lying to a patient or a patient’s representative would stop the obfuscating written responses to NHS complaints and speed up the claims process for victims of Medical Negligence.

In response to the Francis report Jeremy Hunt has already said that ministers were “concerned that creating criminal penalties for individual doctors or nurses might contribute to a culture of fear rather than one of openness”.

However in a fashion typical of government consultation processes of late, he went on to say that no decision has yet been reached pending recommendations due in July from a specially commissioned panel.

In the traditional British fudge approach, the government has however asked the General Medical Council and the Nursing and Midwifery Council to “tighten their procedures for breach of professional standards”. It does not take any clairvoyant to predict that the classic British fudge is on the cards and I would not be at all surprised that the Francis Report recommendations regarding criminal sanctions for breach of a duty of candour will be watered down on the basis that the GMC and the NMC will make loud noises and purport to “tighten up their procedures”.

Looking at Jeremy Hunt’s quote regarding “culture of fear”, one would have to say that there is already a culture of fear for patients who attempt to bring Medical Negligence Claims against the NHS. There is a fear for them that they will not be believed and that the doctors and nurses will close ranks and create factually inaccurate witness statements deliberately designed to thwart their claim. There is already a culture of fear that the response to their complaint letter could contain distorted facts whilst the usual cry from Her Majesty’s government when introducing criminal offences that “if you have done nothing wrong you have nothing to fear” that traditional argument appears to have disappeared in this situation and the culture of fear which is of such concern to Jeremy Hunt appears to be a fear that there may be over reporting of harm to patients rather than under reporting of incidences of harm to patients.

Surely it would be better if doctors and nurses were afraid of possible criminal sanctions in not giving patients full information. Surely it would be better if NHS managers were also living in constant fear that failure to tell the truth in their complaint response letter was also likely to lead to a criminal prosecution? Surely this would create the culture of openness which everyone agrees is needed in the NHS.

We have had multiple inquiries and court judgments on recent years which appear to have taken us nowhere. It appears that criminal sanctions are the only option now and this is an opportunity to impose tough regulations which the NHS clearly needs and the only persons who need be afraid of criminal prosecution are those that lie to patients in an attempt to deny them compensation.

I have acted in countless cases where blatant untruths have been said to my clients in a deliberate attempt to thwart their legal claims in the early stages. Years of evidence gathering and correspondence usually followed by the issuing of court proceedings has then led to admissions and offers of compensation being put forward.

The NHS and the medical insurance companies could cut their legal costs at a stroke if criminal sanctions were introduced for breach of a duty of candour. Regrettably I simply cannot see this happening and the opportunity created by the Mid Staffordshire scandal is going to go to waste.

By Clinical Negligence Solicitor James Bell.