19.11.2013

Expert Lawyers Say ‘Legal Duty of Candour’ Must Remain As Lasting Legacy From Public Inquiry

Lawyers representing victims of horrific standards of care within Mid-Staffordshire NHS Foundation Trust say a legal ‘duty of candour’ called for in the Public Inquiry remains absolutely vital in ensuring the same systemic negligence cannot be repeated within the NHS.

Medical law experts at Irwin Mitchell say openness and transparency through all levels of the NHS, from managers to healthcare assistants, must be the ‘lasting legacy’ of the Inquiry, led by Robert Francis QC and restricting that duty to organisations rather than individuals does not go far enough.

The Government has today (19 November) published its full response to Francis’ 290 recommendations arising from the Public Inquiry. The Department of Health accepted 281 of these (including 57 in principle and 20 in part).

Alongside plans for wilful neglect charges for cases of negligence, the government has also outlined plans for the NHS to publish regularly staffing levels at all hospitals. But it has only accepted a legal Duty of Candour for organisations, rather than for individual members of staff and only on cases which have resulted in death or the most serious cases of harm.

Partner and Head of medical negligence at Irwin Mitchell:

Expert Opinion

The majority of the work carried out by the NHS is of an excellent standard and saves lives on a daily basis. However there are occasions where negligent treatment has a massive impact on people’s lives and these are the incidents that we need to try to eliminate.

“We welcome the fact that the Government has taken the recommendations made by this Public Inquiry seriously and is setting out plans to try to improve patient safety. It is important that the response leads to a new culture of patient safety within the NHS

“For Irwin Mitchell and the patients we represent both from Mid-Staffs and other NHS Trusts across the country, openness and transparency throughout all levels of the NHS, from managers to healthcare assistants, must be the ‘lasting legacy’ of the Robert Francis Inquiry. This is exactly why a legal Duty of Candour is so important and why we urge the Department of Health to rethink limiting this to organisations rather than individuals and the levels of harm it covers.

“In its initial report the Inquiry clearly stated that had this legal duty been in place previously, lives would have been saved at Mid Staffs. As the legal practice that acts for more claimants in medical cases than any other in this country, we see numerous examples of substandard care which is tolerated unnecessarily and where a duty to be candid would have revealed those poor standards of care far earlier .

“We see this in other cases in which Irwin Mitchell is acting in particular those where there are numbers of patients with complaints against the same clinician , notably Ian Paterson, Rod Irvine, Sudip Sarker and Manjit Bhamra which raise questions about why substandard surgery was not stopped sooner and why hospital managers responded so slowly to concerns about substandard practice.

“This is why we believe the duty of candour is so important that it is extended to cover all NHS workers, not just those at the top level.”

“The fact also remains that hard-working staff throughout the NHS need support and resource to ensure they can deliver the Government’s culture of zero harm. We believe the requirement of hospital Trusts to publish staffing levels will go some way towards helping this and we welcome the move. It will also give faith to patients and their families that sufficient resource is in place to safely care for them.

“However, there are several key questions arising from the latest announcements: Will people be encouraged to speak out about mistakes and neglect alongside wilful neglect charges or will it create a dangerous culture of fear that speaking out will result in jail sentences for their colleagues? The Government must clarify this for NHS workers as soon as possible.

“It is also presumed that wilful neglect will only apply in a handful of the most serious cases – it is important that lessons are learned from all mistakes in treatment and care no matter how small. We see on a daily basis cases in the NHS and private sector where even the smallest of errors has had a massive impact on patients’ lives.”
Lisa Jordan - Partner

Read more about Irwin Mitchell's expertise relating to medical negligence claims.