Cover ups and Clinical Negligence – the new duty of candour

April 1st 2013 was a seminal date for so many legal professionals, for so many reasons.

For the average man in the Street, the most important change was that from that date onwards he was liable to have any compensation obtained following a successful accident or clinical negligence claim reduced in order to contribute to his legal fees. Excellent news, and a windfall, for insurance companies and Defendant organizations but not so good for victims.

Not so well known however was that on the same date the duty of candour was introduced to the NHS as a regulatory requirement, subject to review by the Care Quality Commission (CQC).

This followed a number of well publicized cover ups in the NHS and an outcry and demand for a legal requirement for clinical practice and staff to be open and honest with patients or their next of kin when harm had been caused.

The Francis enquiry and report was instituted largely as a result of the Mid Staffs NHS Trust scandal, and which recorded the concerns of various medical staff who had wanted but felt unable, or otherwise did not feel it necessary, to report wrong doing to senior executives, managers, patients or their families.

Many lobbyists had wanted the duty of candour to be made a statutory requirement but it was not felt necessary to go that far.

What is that duty?

Indeed the so-called duty is in fact a rather watered down version of what many solicitors, including Lloyd Green, solicitors, as well as many medical professionals had themselves called to be implemented.

Instead, the duty of candour applies only to contracts for NHS and non-NHS providers of services to NHS patients and its terms are limited to those who sign the agreement. It does not apply to services commissioned under primary care contracts, or to many private sector health care providers, which is a great pity and seems to this firm to be a wasted opportunity.

It is certainly not obvious to Lloyd Green, Solicitors, why a clear and simple duty was not imposed upon all healthcare providers, regardless of where they practice, to report adverse clinical incidents.

Further, and perhaps even more surprisingly, the duty of candour only applies ‘moderate, severe injury or death’.

What are the consequences of the duty of candour?

From a legal practitioner’s perspective, we are unable to understand or support the premise that a victim of an apparently less serious incident is in some way less entitled or justified to be told the truth.

We also find it hard to understand in the context of this constrained times when the Government has been finding more and more imaginative ways of saving money.

Most clients who instruct us to bring a claim for compensation due to clinical negligence are likely to fall outside the definition stated above.

It is perfectly possible, indeed likely, that many of these clients will have been satisfied with a full, candid explanation and apology from the relevant clinician for the mistake made.

However, since the clinician will not be under a duty to make that admission, he is unlikely to do so. He did not do so prior to the duty of candour being implemented and we doubt that he will do so now.

Why instruct Lloyd Green solicitors?

We have handled numerous occasions where we have struggled to obtain records from Trusts and the like on behalf of clients and their families, only to find when reading them that an obvious error or omission had been made and then to struggle to understand why the Trust has failed to acknowledge that mistake and apologise for it.

We hope that the new duty of candour will make this sort of experience less common however are guarded about the future.

In any event, if any client is suspicious about a cover up having taken place or otherwise is concerned about a clinical error or omission, please contact our expert clinical negligence solicitors for sensitive, independent, and impartial advice. We will  handle any subsequent claim that you may instruct us to make on a “no win, no fee” basis, should our discussion and investigation support and justify the making of that claim.

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