DUTY OF CANDOUR

We are pleased to see that the duty of candour is back in the news.

S J Edney Solicitors acted for the family of Mayra Cabrera, a nurse at the Great Western Hospital in Swindon who was killed an hour after the birth of her first child because of mistakes made by staff at the Great Western Hospital.

This ground-breaking case delivered the first ever ‘unlawful killing’ verdict against an NHS Hospital Trust.  For those not familiar with Mayra’s case, more details can be found here.  and the news reports can be found here.

Not only are the circumstances that led to Mayra’s death shocking, but the cover-up by the Hospital was truly unforgivable.  Mr Cabrera had been told by the Hospital that his wife had died of natural causes.  This was not true.  Fortunately, we were able to uncover the truth after Mr Cabrera approached us to help him understand why his wife died.

There are numerous cases similar to Mayra’s and just a few examples of those have been highlighted by the patient safety charity, Action Against Medical Accidents (‘AvMA’), who have been instrumental in pushing for the duty of candour to be introduced.  Some of AvMA’s work in this area can be found here.

The Inquiry into care failings at Mid Staffs, carried out by Robert Francis QC, has helped significantly and the duty of candour is now well on its way to becoming a statutory duty later this year.  This will mean that Hospitals and other regulated healthcare organisations would be legally obliged to be open and honest with patients when mistakes occur.  We are keen to see how this will operate in practice.  So far, despite significant press attention following the publication of the Francis Report, we have seen little evidence of a move towards candour in the cases we are dealing with.

Perhaps the changes made to the Public Interest Disclosure Act (‘PIDA’) will also have an impact.  This law is meant to protect whistleblowers from being badly treated (or even losing their jobs) after blowing the whistle on unsafe practices (such as those that led to the Mid Staffs Enquiry or Mayra’s death).  Recent changes to PIDA should help to ensure that staff are more willing to report errors and mistakes, without fear of reprisal.  The need for further changes in this area are being promoted through the work of organisations such as Patients First, a group founded by NHS whistleblower Dr Kim Holt, a Consultant Paediatrician who whistleblew about care failings in Haringey, where ‘Baby P’ was treated.  Relying on staff being candid when things go wrong is vital in helping patients and their families understand what went wrong.

In Mayra Cabrera’s case, if only one of the staff members involved had felt able to come forward, Mr Cabrera could have been saved the agony of not knowing what had happened to his wife for so long and the anguish of going through a lengthy Inquest and legal proceedings to find those answers.  We will never know why no one chose to tell Mr Cabrera what had happened, but we can be certain that this would have made a significant difference to both him and his baby son.

We are often told by clients that all they want is recognition of the mistakes made and an apology; legal proceedings are often seen as a last resort when this does not happen.  Research has consistently shown that the number of legal claims brought against healthcare providers would reduce if there was more willingness to admit mistakes at an early stage.  Surely, this is in the best interests of all concerned?

Mary Smith
S J Edney Solicitors

2017-02-17T07:56:50+00:00