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Has the Duty of Candour fallen at the first hurdle?

View profile for Carla Duprey
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The Government has previously promised (in response to the recommendations made by the Francis Report) that a new statutory Duty of Candour will be introduced for the NHS. This would mean that hospitals would be legally obliged to admit to any medical mistakes.

However, the charity Actions against Medical Accidents (AvMA) has recently had to take action by writing to Jeremy Hunt to threaten legal proceedings unless NHS guidance is changed. This guidance currently allows hospitals to refuse to consider a complaint if a patient or relative is considering future legal action.

AvMA’s Chief Executive, Peter Walsh, said: “It is outrageous that after all we have heard about the need for a more open and honest NHS, the Department of Health continues to leave the door open for NHS bodies to use potential claims for clinical negligence as an excuse not to provide a truthful investigation and response to a complaint. We have turned to the law reluctantly to seek a remedy for this.”

AvMA has also stated that the Government’s promise for a Duty of Candour was meaningless if hospitals are able to refuse to respond to complaints and answer questions regarding medical treatment, just because a case might end up in Court.

In my experience, patients (and their relatives) are usually more concerned about obtaining details of what has happened to them in hospital than pursuing litigation, but often they are left with little choice.

At Stephensons our preference is to assist clients to make a complaint as a first step, prior to starting to investigate a potential clinical negligence claim, as many clients just want more information and answers.

Sometimes, full, open and honest responses to complaints will resolve or allay any concerns that our clients have and actually prevent claims being brought. This can prevent the patient and their relatives from having to endure unnecessarily long and stressful legal proceedings.

Jeremy Hunt has stated that a review is currently being carried out, in response to AvMA’s concerns, to examine how patient’s complaints are handled.

By Carla Twist, clinical negligence solicitor